An order of compulsory retirement can amount to dismissal or removal from service if it is passed by way of punishment, casts a stigma on the government servant, deprives them of accrued benefits, or is founded on misconduct or inefficiency.

G. C. Mathur, J.

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.

The case of Shyamlal v. State of U. P., AIR 1954 SC 369 has been particulary relied upon and it is necessary to examine it in some detail. Shyamlal was a member of the Indian Service of Engineers. By a letter dated January 4, 1950, certain charges against him were communicated to him and he was asked to submit whatever explanation he might desire to give. The letter made it clear that the inquiry was being made to afford Shyamlal an opportunity of showing cause why he should not be compulsorily retired and not for taking disciplinary proceedings. Ultimately, the matter went up to the Union Public Service Commission which found the charges proved. Thereafter the president passed an order compulsorily retiring Shyamlal from service under Note (1) to Article 465-A of the Civil Service Regulations. Shyamlal challenged the order in a writ petition filed in this court. The High Court dismissed the writ petition and an appeal was taken to the Supreme Court. The argument raised on behalf of Shyamlal before the Supreme Court was that an order of complusory retirement was nothing but an order of removal from service and that Article 311 applied to the case of every order of compulsory retirement. It was not urged before the Supreme Court that the order of compulsory retirement amounted to one of removal on account of the inquiry which had been conducted against him and the findings which had been recorded therein. In these circumstances, the Supreme Court held that an order of compulsory retirement does not amount to one of dismissal or removal. The Supreme Court did not say that, in no circumstance, will an order of compulsory retirement amount to one of removal or dismissal. This case merely establishes that compulsory reti