JUDGMENT

B.P. JEEVAN REDDY, J.- Leave granted. Heard counsel for both the parties.

2. The appeal is directed against the judgment of a Division Bench of the Allahabad High Court (Lucknow Bench) allowing the writ petition filed by the respondent.

3. While the respondent was working as an Executive Engineer at Etawah he was suspended pending enquiry on 13-10-1983 into certain charges. He challenged the said order by way of writ petition in the Allahabad High Court which was dismissed. Though the enquiry commenced, it was not concluded by the year 1988 when the respondent filed another writ petition (No. 4116 of 1988) challenging the continuation of the order of suspension pending enquiry. The High Court suspended the order of suspension pending enquiry on 8-8-1988.

4. While the said enquiry was pending, the respondent was retired compulsorily under Fundamental Rule 56(j) by an order of the Government dated 28-12-1989. The respondent then filed Writ Petition No. 1518 of 1990 questioning the same. While this writ petition was pending before the High Court, final orders were passed in the aforementioned disciplinary proceedings on 18-7-1990, imposing the punishment of reduction in rank, to be given effect to in case the order of compulsory retirement is set aside. Thereupon the respondent amended his writ petition (No. 1518 of 1990) to question the order of punishment as well. The main ground urged in support of the attack against the order of punishment was the failure of the disciplinary authority to furnish a copy of the enquiry report to him before imposing the punishment.

5. The High Court allowed the writ petition and quashed the order of compulsory retirement made under Fundamental Rule 56(j) on the ground that the order having been passed during the pendency of disciplinary proceedings must be deemed to be penal in nature. This was so held following an earlier decision of the said Court in J.N. Bajpai v. State of U.P. {(1990) 8 Lucknow Civil Decisions 149} So far as the order of punishment is concerned it was quashed on the ground of non-supply of enquiry report, purporting to follow the decision of this Court in Union of India v. Mohd. Ramzan Khan {(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : AIR 1991 SC 471}. The High Court observed that it shall be open to the disciplinary authority to furnish a copy of the enquiry report to the respondent and proceed with the enquiry from that stage onwards. The decision of the Tribunal (sic High Court) on both the grounds is questioned in this appeal.

6. We shall first take up the quashing of the order of punishment made in the disciplinary enquiry. The decision in Mohd. Ramzan Khan {(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : AIR 1991 SC 471} has been explained by a Constitution Bench of this Court in Managing Director, ECIL v. B. Karunakar {(1994) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : JT (1993) 6 SC 1}. It has been held that where the order of punishment is made earlier to the date of the decision in Ramzan Khan {(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : AIR 1991 SC 471}, non-supply of enquiry report does not vitiate the enquiry. Following the said decision, the order of the High Court quashing the punishment on the said ground is set aside.

7. So far as the order of compulsory retirement under Fundamental Rule 56(j) is concerned, we are of the opinion that the principle enunciated by the High Court in J.N. Bajpai {(1990) 8 Lucknow Civil Decisions 149} and followed in the judgment under appeal is unsustainable in law. It cannot be said as a matter of law nor can it be stated as an invariable rule, that any and every order of compulsory retirement made under Fundamental Rule 56(j) (or other provision corresponding thereto) during the pendency of disciplinary proceedings is necessarily penal. It may be or it may not be. It is a matter to be decided on a verification of the relevant record or the material on which the order is based.

8. In the State of U.P. v. Madan Mohan Nagar {(1967) 2