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Judgment
Nainar Sundaram, J.—The petitioner, while he was working as Inspector of Police in the Prohibition Enforcement Wing, Madurai South
district, was served with an order, dated 13th October, 1977 compulsorily retiring him from service under R.3 (2) of the Madras Liberalised
Pension Rules. 1960�The order runs as follows�
Thiru P. Karuppiah, whose date of birth is 1st July, 1924 and who was enlisted as a police constable in this department on 30th September, 1944,
was promoted to officiate as Inspector of Police with effect from 1st August, 1975, A.N. He is now working as Inspector of Police in the
Prohibition Enforcement wing, Madurai South district. He has completed 50 years of age and put 25 years of qualifying service on date. He has
accumulated a number of punishments and his general record of service has been unsatisfactory. He has ceased to be an efficient and useful
member of the police force and is therefore fit to be retired compulsorily under R.3 1960 (2) M.L.P.R.,
I, Thiru K. V. Subramanian, I.P.C. Deputy Inspector General of Police, Prohibition Enforcement Wing, Madras, who is the competent authority
to retire him from service, do hereby order that he be compulsorily retired with effect from 31st October, 1977, A.N. in the above circumstances.
He is informed that three months salary due to him will be drawn and paid by the Superintendent of Police, Madurai South district, which he can
receive on 31st October, 1977, A.N.
He will please acknowledge receipt of this proceeding.
The said order was passed by the second respondent. There was an appeal by the petitioner to the first respondent as against this order and the
first respondent, by order, dated 4th July, 1978 rejected the appeal of the petitioner. The petitioner challenges the orders of the respondents in the
present writ petition.
The main ground of challenge that has been projected by Mr. K. T. Paulpandian, learned counsel for the petitioner and which ground, in my view,
has got to be sustained is that though the order passed by the second respondent on 12th October, 1977 apparently reads as an order of
compulsory retirement in accordance with the rules, yet, it would amount to dismissal or removal from service on charges of misconduct and
negligence and hence Art. 311 of the Constitution of India is attracted and in as much as the requirements of the said Article have not been
complied with, the order is liable to be quashed.
Compulsory retirement of a Government servant on proportionate pension before the age of superannuation but on completion of service for the
prescribed number of years according to the rules in this regard or on attainment of the prescribed age as per the said rules, would not amount to
dismissal or removal from service within the meaning of Art. 311, although such compulsory retirement necessarily means termination of service of,
the Government servant. But, where the order, though described as an order of compulsory retirement, is apparently based on charges of
misconduct or inefficiency and the like, it would amount to a punishment and hence removal from service.
In Parshotam Lal Dhingra Vs. Union of India (UOI), , the Supreme Court observed as follows�
The position may therefore, be summed up as follows : Any and every termination of service is not a dismissal, removal or reduction in rank. A
termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in
Satishchander v. Union of India, AIR 1953 S.C. 260. Likewise, the termination of service by compulsory retirement in terms of a specific rule
regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art. 311(2), as has also been held by this
Court in Shaymlal v. State of Uttar Pradesh A.I.R 1934 S.C. 369. In either of the two abovementioned cases the termination of the service did not
carry with it the penal consequences of loss of pay, or allowances under R.52 of the Fundamental rules. It is true that the misconduct, negligence,
inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the
contract of employment or the specific service rule; nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive
operating on the mind of the Government is as Chagla, C.J. has said in Shrinivas Ganesh Vs. Union of India, wholly irrelevant. In short, if the
termination of service is founded on the right flowing from contract of the service rules, then prima facie, the termination is not a punishment and
carries with it no evil consequences and so Art. 311 is not attracted. But, even if the Government has by contract or under the rules the right to
terminate the employment without going though the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank,
the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct,
negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with.
Two tests have been recognized by judicial precedents to find out as to whether an order of compulsory retirement would tantamount to
punishment. The first is whether the action is by way of punishment and to find that out, it is necessary that a charge of imputation against the officer
is made the condition of the exercise of the power; the second is whether by compulsory retirement the officer is losing the benefit he has already
earned by the dismissal or removal. In this connection, reference may be made to the decision of the Supreme Court in the State of Uttar Pradesh
v. Madan Mohan Nagar (sic) and the decision of Division Bench of this Court, consisting of Venkataraman and Krishnaswamy Reddy, JJ. in P.
Shankar Rao Vs. The Government of India and Another,
In the State of Uttar Pradesh v. Madan Mohan Nagar AIR 1976 S.C. 2581 the order of retirement stated that the officer had outlived his utility.
It was contended before the Supreme Court that the reason that the officer had outlived his utility did not show that the order of compulsory
retirement amounted to an order of dismissal or removal, because in every case of compulsory retirement it was implied that the person had
outlived his usefulness. The Supreme Court held that in that case the order in question did cast a stigma on the officer.
It is now settled that where there are no express words in the order of compulsory retirement itself which would throw a stigma on the
Government servant, the court would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such research.
This proposition has been recognised by the Supreme Court in I.N. Saksena Vs. State of Madhya Pradesh, as well as in The State of U.P. Vs.
Ram Chandra Trivedi, . Pronouncements to the same effect have also been made by Mohan, J. one in Lakshminarayana v. Secretary to the
Government of Tamil Nadu 1978 2 M.L.J. 198 and another in R. Srinivasan v. Government of Tamil Nadu 1978 2 M.L.J. 161. The learned
Judge, in the earlier case, laid down that stigma must stem from the order itself and not be drawn out by a speculative process by reading into the
order any innuendo from other circumstances or possibilities or suspicions.
In the present case, there is no necessity to delve into the Secretariat files to discover whether some kind of stigma could be inferred on such
research. The words used in the impugned order are explicit and leave no room for ambiguity. It is categorically stated that the petitioner has
accumulated a number of punishments and his general record of service has been unsatisfactory and he has ceased to be an efficient and useful
member of the police force. These expressions definitely cast a stigma on the petitioner and the order in question would amount to a punishment
and his removal from service so as to attract Art. 311 of the Constitution of India. In this view, as stated above, the submission of the learned
counsel for the petitioner has to be sustained. In as much as the requirements of Art. 311 of the Constitution of India have not been complied with,
I am obliged to interfere in writ proceedings.
Mr. A. Sivaji, learned counsel representing the respondents, would draw my attention to the decision of the Supreme Court in N.R. Singh v.
Chief Commissioner, Manipur, AIR 1975 S.C. 2581. But, that is of no avail to the respondents, because the order dealt with in that decision is
one of compulsory retirement without casting any stigma as in the instant case. The learned counsel would also draw my attention to another
judgment of the Supreme Court in Tara Singh and Others Vs. State of Rajasthan and Others, . There again, the order in question did not contain
any stigma against the petitioner therein so as to attract the applicability of Art. 311 of the Constitution of India. In the said circumstances, the writ
petition has got to be allowed and the same is allowed and the orders of the respondents are quashed. But, there will be no order as to costs in the
writ petition.