U.P. Vs. Abhai Kishore Masta  INSC
626 (1 December 1994)
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Sen, S.C. (J)
1995 SCC (1) 336 JT 1994 (7) 748 1994 SCALE (5)57
Judgment of the Court was delivered by B.P JEEVAN REDDY, J.- Leave granted.
Heard counsel for both the parties.
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.
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.
High Court suspended the order of suspension pending enquiry on 8-8-1988.
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.
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.
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.R 1 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 Khan2. 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 1 (1990) 8 Lucknow Civil Decisions 149 2 (199 1) 1
SCC 588 :1991 SCC (L&S) 612: AIR 1991 SC 471 338 stage onwards. The
decision of the Tribunal (sic High Court) on both the grounds is questioned in
shall first take up the quashing of the order of punishment made in the
disciplinary enquiry. The decision in Mohd. Ramzan Khan2 has been explained by
a Constitution Bench of-this Court in Managing Director ECIL v. B. Karunakar3.
It has been held that where the order of punishment is made earlier to the date
of the decision in Ramzan Khan2, 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.
far as the order of compulsory retirement under Fundamental Rule 56(i) is
concerned, we are of the opinion that the principle enunciated by the High
Court in J.N. Bajpai1 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.
the State of U.P v. Madan Mohan Nagar4 it has been held by a Constitution Bench
that the test to be applied in such matters is "does the order of
compulsory retirement cast an aspersion or attach a stigma to the officer when
it purports to retire him compulsorily ?" It was observed that if the
charge or imputation against the officer is made the condition of the exercise
of the power it must be held to be by way of punishment otherwise not. In other
words 'If it is found that the authority has adopted an easier course of
retiring the employee under Rule 56(j) instead of proceeding with and
concluding the enquiry or where it is found that the main reason for
compulsorily retiring the employee is the pendency of the disciplinary
proceeding or the levelling of the charges, as the case may be, it would be a
case for holding it to be penal. But there may also be a case where the order
of compulsory retirement is not really or mainly based upon the charges or the pendency
of disciplinary enquiry. As a matter of fact, in many cases, it may happen that
the authority competent to retire compulsorily under Rule 56(j) and authority
competent to impose the punishment in the disciplinary enquiry are different.
It may also be that the charges communicated or the pendency of the
disciplinary enquiry is only one of the several circumstances taken into
consideration. In such cases it cannot be said that merely because the order of
compulsory retirement is made after the charges are communicated or during the pendency
of disciplinary enquiry, it Is penal in nature.
is true that merely because the order of compulsory retirement is couched in
innocuous language without making imputations against the 3 (1994) 4 SCC 727:
1993 SCC (L&S) 1184 :(1993) 25 ATC 704: JT (1993) 6 SC 1 4 (1967) 2 SCR 333
: AIR 1967 SC 1260 339 government servant, the court need not conclude that it
is not penal in nature. In appropriate cases the court can lift the veil to
find out whether, in truth, the order is penal in nature vide Rain Ekbal Sharina
v. State of Bihar5.
may mention that even in the case of termination of a temporary employee this
Court has adopted the very same tests as are indicated hereinabove.
may also mention that the ,rounds on which an order of compulsory retirement
can be interfered with has been set out by this Court in Baikuntha Nath Das v.
Chief District Medical Officer6 affirming the principles enunciated in Union of
India v. J.N. Sinha7.
are, therefore, of the opinion that the High Court was in error in holding that
merely because the order of compulsory retirement was passed during the pendency
of a disciplinary enquiry, it must be necessarily deemed to be penal in nature,
is unsustainable in law. The judgment of the High Court is accordingly set
aside and the matter is remitted to the High Court to determine, in the right
of the observations made herein, whether the order of compulsory retirement is,
in truth, penal in nature? There shall be no order as to costs.