STATE OF U P Vs. PURSHOTTAM SWARUP JOHARI

JUDGEMENT

(1.) (for self and for K. C. Agrawal, J.) :-Respondent Purshottam Swaroop Johari is Sub-Inspector of Police. A departmental inquiry under Section 7 of the Police Act was started in December, 1968, against him on charges of misconduct. The inquiry officer found the charges established and recommended Johari's dismissal from service. The Deputy Inspector General of Police found that an adequate opportunity had not been given to Johari to defend himself and remanded the matter back to the inquiry officer. While this inquiry was pending, another charge-sheet levelling 17 charges of misconduct was served on Johari. The inquiry dragged on for some time and, when it was at the defence stage, an order dated August 29, 1974, was passed, retiring Johari compulsorily from service under Note (1) to Article 465 of the Civil Service Regulations. Against the order of compulsory retirement, Johari filed a writ petition in this Court which has been allowed by a learned Single Judge. The learned Single Judge has held that, in view of the fact that a full-fledged departmental inquiry was proceeding against the respondent at the time when the order of compulsory retirement was passed, the order must be held to have been passed by way of punishment and to amount to one of removal from service. He further held that, since the provisions of Article 311 (2) of the Constitution were not complied with, the order was illegal. He accordingly quashed the order of compulsory retirement and declared that Johari was entitled to continue in service. Against the judgment of the learned Single Judge, the State Government has filed this appeal.

(2.) THE contention of the learned Chief Standing Counsel is that it is not permissible for the courts to go behind an order of compulsory retirement and to see whether it was, in fact, passed by way of punishment or not. According to him, courts can interfere with an order of compulsory retirement only in two circumstances, namely, (i) where the order, on the face of it, casts a stigma on the Government servant concerned ; and (ii) where the order deprives the Government servant of an accrued benefit. In support of his contention, he has relied upon certain decisions of the Supreme Court.

(3.) IN Dalip Singh v. State of Punjab, AIR 1960 SC 1305, the appellant, who was an INspector Genenal of Police, was compulsorily retired from service for administrative reasons. He challenged the order by way of a civil suit, contending that the order amounted to one of removal from service within the meaning of Article 311(2) of the Constitution. Referring to the cases of Shyamlal and Saubhagchand M. Doshi, the Supreme Court observed that two tests had to be applied for ascertaining whether a termination of service by compulsory retirement amounted to removal or dismissal so as to attract the provisions of Article 311 of the Constitution, namely, (i) whether the action is by way of punishment and to find that out it is necessary that a charge or imputation against the officer is made the condition of the exercise of the power; and (ii) whether the compulsory retirement the officer is losing the benefit he has already earned as he docs by dismissal or removal. Referring to Shyamlal's case, the Supreme Court observed :