Civil Appeal No 1605 of 1971
I From the Judgment and Order dated 28 111970 of the Judicial Commissioner s Court of Tripura in Writ Petition No 22 1964
DN Mukherjee for the Appellant
MM Abdul Khader and RN Poddar for the Respondents
The Judgment of the Court was delivered by DESAI  J
Murari Mohan Deb  a Forester in the employment of Tripura Government was compulsorily retired from service by the order dated October 12  1962 of the 4th respondent Chief Forest Officer
Since then he is knocking at the doors of the courts in search of illusory justice and chased mirage till he reached the age of superannuation
Alas  the ways of justice like the ways of Providence are inscrutable
And who is to blame  if not the system 642 The appellant questioned the correctness and validity of the order of compulsory retirement n Writ Petition No 22 of 1964 which came to be disposed of after a lapse of six years on November 28  1970
In his writ petition the appellant had impleaded 1 The Secretary to the Government of India  Ministry of Home Affairs  2 The Chief Commissioner  Tripura  3 The Secretary to the Government of Tripura  Forest Department and 4 The Chief Forest Officer  Government of Tripura  last one being the one who had passed the impugned order of compulsory retirement
The grievance in the writ petition was that penalty of compulsory retirement was imposed upon the appellant without affording the appellant an adequate opportunity to defend himself and to explain the charges leveled against him
In short it was alleged that the enquiry was held in violation of the principles of natural justice
The respondents resisted the writ petition inter alia contending that as the punishment of compulsory retirement does not tantamount to dismissal or removal from service as contemplated by article 3111 and therefore  no formal enquiry was necessary to be held before imposing the penalty
It was contended that adequate opportunity was afforded to the appellant to controvert the charges and defend himself
Surprisingly  when the matter was taken up for hearing  the learned judicial Commissioner suo moto raised the objection that i n the absence of Union of India being made a party  the petition was not properly constituted
After an elaborate discussion  the learned Judicial Commissioner recorded a finding that Government of India was a necessary party and in its absence the petition is incompetent and must be rejected
After having reached this firm conclusion  the learned Judicial Commissioner proceeded to investigate the contention of the appellant that the enquiry against him was held in violation of the principles of natural justice  and that the Chief Forest Officer being not the appointing authority could not impose the penalty of compulsory retirement on the appellant
In respect of the second contention  the learned judicial Commissioner held that as it has been unquestionably established that the appellant was appointed by the Chief Commissioner  the Chief Forest Officer  a subordinate of the Chief Commissioner was not competent to impose the penalty of compulsory retirement and therefore on merit the order was bad
643 However  consistent with his view that the writ petition in the absence of Union of India was competent  he rejected the writ petition
Hence this appeal by special leave
This appeal reached hearing on July 26  1984 and after hearing Mr DN Mukherjee  learned counsel for the appellant and Mr Abdul Khader  learned counsel for Tripura Administration  we told them that the appeal is being allowed and the impugned order is being set aside
However  at this stage  Mr Abdul Khader  learned counsel for the State of Tripura pointed out that as the appellant even on his showing has reached the age of superannuation  even if the impugned order is illegal and invalid  the relief of reinstatement cannot be granted to him
As the facts were not clear  a direction was given that the matter be listed on August 7  1984 for clarification about the date of superannuation of the appellant
At the resumed hearing it was conceded that had the appellant not been compulsorily retired from service  he would have retired on superannuation on December 6 1978
In this fact situation the relief of physical reinstatement could not be granted
On that day a direction was given that the second respondent should compute and calculate the backwages payable to the appellant on the footing that the order of compulsory retirement is illegal and invalid and the appellant continued to be in service till December 9  1978
The matter thereafter was listed on October 17  1984 when Mr Abdul Khader  learned counsel for the second respondent produced before us the rough computation made by the competent authority pursuant to our direction showing that approximately Rs 93000 would be payable to the appellant as and by way of backwages and he would be entitled to gratuity and pension thereafter
The plight of the appellant lent urgency to the matter in as much as the appellant was without succour for a long period a direction was given that the second respondent ie Tripura Administration should pay Rs 93000 by a demand draft drawn in favor of the appellant within four weeks from the date of the order
A further direction was given that year to year calculation of computation of backwages must be submitted to the Court
Kamal Baran Dev son of the appellant filed an affidavit dated November 7 1984 in which he pointed out that had the appellant continued in service  if the illegal order of compulsory retirement had not been made he would have earned two promotions  namely 644 as Forest Ranger and Senior Forest Ranger  all posts in Class III and IV grade
According to the appellant s computation  his pension be fixed at Rs 550 pm
According to him  he would be entitled to recover Rs 325000 from the respondents for the period upto and inclusive of July  1984
Shri RM Dutta  Deputy Conservator of Forests Government of Tripura filed a counter affidavit in which it is pointed out that looking to the age and qualifications of the appellant  he would not have earned a single promotion
It was pointed out that the post of Forest Ranger and that of Senior Forest Ranger are governed by the recruitment rules which came into force in 1965 which did not envisage automatic promotion purely according to seniority
It was also pointed out that seniority is only one of the criteria that the Departmental Promotion Committee has to take into consideration while recommending the promotion of a Forester to the post of Forest Ranger
It was further pointed out that the revised pay scale for the post of a Forester was Rs 260 495 effective from March  1974 and that the appellant would have retired in that scale
To this affidavit was annexed calculations monthwise and it was pointed out that at best the appellant would be entitled to Rs 93  44408 p inclusive of pension from 61278 to September 30  1984  encasement of leave and gratuity
Mr DN Mukherjee  learned counsel for the appellant urged that we should not accept the computation as made by the competent authority as set out in the annexure to the affidavit of Shri RM Dutta
To a query of the court as to how the appeal ant was worked out his arrears of backwages at Rs 325000 there was hardly any convincing answer though some rough and ready calculation was attempted to be offered to us which we find very difficult to implicitly rely upon
Mr Abdul Khader fairly stated that it is difficult to support l the judgment of the learned Judicial Commissioner that in the absence of Union of India being impleaded as a party  the petition as constituted was incompetent
We have not been able to appreciate why the learned Judicial Commissioner should have taken upon himself to raise this untenable contention even though the respondents did not raise such a contention
respondent No 1 is shown to be the Secretary 10 the Government of 645 India  Ministry of Home Affairs
If there was technical error in the draftsmanship of the petition by a lawyer a Forester a class IV low grade servant should not have been made to suffer
An oral request to correct the description of the first respondent would have satisfied the procedural requirement
By raising and accepting such a contention after a laps of six years  the law is brought into ridicule
The court could have conveniently read the cause title as Government of India which means Union of India through the Secretary  Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be competent by any standard
The contention is all the more objectionable for the additional reason that the appointing authority of the appellant  the Chief Commissioner of the Government of Tripura as well the Chief Forest Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the concerned officers
Therefore not only the petition as drawn up was competent but no bone of contention could be taken about its incompetence
Mr Abdul Khader  learned counsel for the Government of Tripura rightly did not press this point
The learned Judicial Commissioner rightly held that the impugned order of compulsory retirement was imposed by an authority not competent to impose the same and therefore it is ab initio illegal and invalid
Further  it appears crystal clear from the record that in this case when the appellant was only 42 years of age  compulsory retirement was imposed as a penalty for misconduct
We are not unaware of the legal position that where relevant service rules provide for an age of superannuation and permits compulsory retirement in public interest on reaching a certain age lower than the age of superannuation  an order of compulsory retirement according to relevant service rules cannot be styled as imposing a penalty and obviously article 3112 will not be attracted
As held by this Court in Sham Lal vs The State of Uttar Pradesh 1 an order of compulsory retirement differs both from an order of dismissal and an order of removal from service  in that it is not a form of punishment prescribed by the rules
and involves no penal consequences  inasmuch as the person who retires is entitled to pension proportionate to the period of service standing to his credit See The State of Bombay 1
1955 1 SCR26 646 vs Saubhagchand M Doshi1
It thus appears that where the relevant service rules fixed both an age of superannuation and an age of compulsory retirement and the services of a Government servant governed by the rules are terminated between these two point of time  the order of compulsory retirement could not be said to cast a stigma and would not attract article 311
But where there is no rule fixing the age of compulsory retirement or if there is one and the servant is retired before the age prescribed therein  then that can be regarded only as dismissal or removal within article 3112
See Saubhagchand M Doshi s case at 519
In this case it is admitted that the relevant service rules prescribed an age of superannuation
It was not pointed out that the relevant rules fixed some other age beyond which and before reaching the age of superannuation  a Government servant can be compulsory retired in public interest
Nor is it claimed that the order of compulsory retirement in this case was made under the relevant service rules in public interest
It would have been atrocious to contend to that effect in respect of a Forester  a low grade class IV servant who would be required to be compulsorily retired in public interest
But if there was such a rule  we would have positively examined the same
At any rate  it is crystal clear that the appellant was aged only 42 when the order of compulsory retirement was made
It was not sought to be supported on the ground that the appellant having put in service for a certain number of years  he could have been compulsorily retired
On the contrary  it is admitted that the order of compulsory retirement was by way of penalty imposed upon him for misconduct after an enquiry
Obviously therefore  article 3112 will be attracted and an enquiry in accordance with the rules of natural justice would be a pre requisite before imposing any penalty
It would be presently pointed out that the enquiry was sham and held in violation of principles of natural justice
The enquiry officer issued a notice that the enquiry against the appellant would be held at Rangamura but at short notice subsequently  the venue was suddenly shifted to Radhanagar where the appellant could not keep his witnesses present
He did not have an opportunity of examining the records used against him
Therefore  for more than one reason  the enquiry appears to have been held in l  647 violation of principles of natural justice and is vitiated
If the enquiry was illegal  any punishment imposed as a result of the enquiry must tail
Therefore  the order of compulsory retirement is bad for more than one reason and liable to be set aside and is hereby set aside
Once the order of compulsory retirement is set aside the appellant continues to be in service
He has reached the age of Superannuation as on December 6  1978 as pointed out in the affidavit and not controverted
Therefore  it is not permissible to direct his reinstatement in service
He would be entitled to backwages from the date of compulsory retirement on October 16  1962 till the date of his superannuation on December 6  1978
C Before we determine the amount payable as backwages we must make it distinctly clear that while computing the amount we have kept in view the meagre monthly salary which the appellant would have received for the years 1962 to 1974 when the pay scale of his post was revised
In any year if he had received full salary  he was not liable to pay income tax at the rates then in force
Even the revised salary with the exemption limit of income tax going up would have not been assessable to income tax
And this lowest grade class IV servant  we were informed had no other source of income
Now that the amount is payable in one lump sum  presumably the Government may resort to Sec
192 of the Income Tax Act
But let it be made distinctly clear that the appellant is entitled to the benefit of Sec 89 and Rule 21A of the Income Tax Rules and he is entitled to relief under Sec 89
Therefore  while computing the total amount  we have kept the spread over in view and in no year any income tax is deductible from the meagre salary of this low paid class IV employee
If therefore  any deduction is made towards income tax while making the payment  it is incombent upon the Tripura administration to take all necessary steps to obtain the relief for the appellant under Sec 89 of the Income Tax Act read with Rule 21A of the Income Tax Rules
As pointed out earlier  rival contentions and calculations have been examined by us and keeping them in view and having regard to the circumstances of the case  we direct that over and above the amount of Rs 93000 already paid to the appellant  he should be paid Rs 7000 more towards backwages and pension upto and inclusive of 648 December 31  1984
The respondent shall pay pension at the rate of Rs 400 from January 1  1984
The appellant shall also be paid dearness allowance if admissible to pensioners getting pension at Rs 400 pm
The appellant shall also be paid gratuity at the admissible rate treating him in service upto and inclusive of December 6  1978
The payment herein directed shall be made with in a period of eight weeks from today
The respondent shall also pay costs to the appellant quantified at Rs 2000
Appeal is allowed to the extent herein indicated
MLA Appeal allowed


Summary:
The appellant a Forester was compulsorily retired from service by an Order dated October 12  1962 passed by the Chief Forest Officer  Government of Tripura
He filed a writ petition before the Judicial Commissioner impleading  I The Secretary to the Government of India  Ministry of Home Affairs 2 The Chief Commissioner  Tripura 3 The Secretary to the Government of Tripura  Forest Department and 4 The Chief Forest Officer  Government of Tripura as respondents
His main grievance was i that the penalty of compulsory retirement was imposed upon him without affording him an adequate opportunity of being heard and ii that the enquiry held against him was in violation of the principles of natural justice
On the other hand  the respondent contended i that the punishment of compulsory retirement does not tantamount to dismissal or removal from service as contemplated by article 311 1 and therefore  no formal enquiry was necessary to be held before imposing the penalty and ii that adequate opportunity was afforded to the appellant during the enquiry to controvert the charges and defend himself
The Judicial Commissioner held that the appellant was appointed by the Chief Commissioner  and therefore  the Chief Forecast Officer  a subordinate of the Chief Commissioner was not competent to impose the penalty of compulsory retirement and thus the order was bad on merits
But  he dismissed the petition holding that it was not properly constituted
Allowing the appeal by the appellant   HELD t The Judicial Commissioner should not have taken upon 640 himself to raise the objection that in the absence of Union of India being made a party  the petition was not properly constituted when the respondents did not raise such a contention
Respondent No i is shown to be the Secretary to the Government of India  Ministry of Home Affairs
If there was technical err or in the draftsmanship of the petition by a lawyer  a Forester a class IV low grade servant should not have been made to surfer
An oral request to correct the description of the first respondent would have satisfied the procedural requirement
The Court could have conveniently read the cause title as Government of India which means Union of India through the Secretary
Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be competent by any standard
Moreover  the appointing authority of the appellant  the Chief Commissioner of the Government of Tripura as well the Chief Forecast Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the concerned officers
Therefore  not only the petition as drawn up was competent but no bone of contention could be taken about its incompetence
644G H 645A D 2 The Judicial Commissioner rightly held that the impugned order of compulsory retirement was imposed by an authority not competent to impose the same and therefore it is ab initio illegal and invalid
645F 3 i Where relevant service rules provide for an age of superannuation and permit compulsory retirement in public interest on reaching a certain age lower than the age of superannuation  and order of compulsory retirement according to relevant service rules cannot be styled as imposing a penalty and obviously article 311 2 will not be attract 
An order of compulsory retirement differ both from an Order Of dismissal and an order of removal from service  in that it is not a form of punishment prescribed by the rules  and involved no penal consequences in as much as the person who retires is entitled to pension proportionate to the period of service standing to his credit
But  where there is no rule fixing the are of compulsory retirement or if there is one and the servant is retired before that age prescribed therein  then that can he regarded only as dismissal or removal within article 311 2
645G H6645A B Sham Lal vs The State of Uttar Pradesh  1955 SCR 26 and State of Bombay vs Saubhagchand M Doshi    referred to
ii In the instant case  it is admitted that the relevant service rules prescribed an age of superannuation
It was not pointed out that the relevant rules fixed some other age beyond which and before reaching the age of superannuation  a Government servant can be compulsory retired in public interest
Nor is it claimed that the order of compulsory retirement in this case was made under the relevant service rules in public interest
At any rate  it is crystal clear that the appellant was aged only 42 when the order of compulsory retirement was made
It was not sought to be supported on the ground that the appellant having put in service for a certain number of years  he could have been compulsorily retired
On the contrary  it is admitted that the order of compulsory retirement was by way of penalty imposed upon him 641 for misconduct after an enquiry
Obviously therefore article 3112 will be attracted and an enquiry in accordance with the rules of natural justice would be a pre requisite before imposing any penalty
647C F 3
iii It is clear from the facts that the enquiry was held in violation of principles of natural justice and is vitiated
If the enquiry was illegal  any punishment imposed as a result of the enquiry must fail
Therefore the order of compulsory retirement is bad for more than one reason and liable to be set aside and is hereby set aside
Once the order of compulsory retirement is set aside  the appellant continues in service
But  it is not possible to direct his reinstatement in service  since he has reached the age of superannuation as on December 6  1978
Therefore
he would be entitled to backwages and pension which is comes to Rs 100000 from the date of compulsory retirement on October 16  1962 upto and inclusive of December 31  1984
The respondent shall pay pension at the rate of Rs 400 from January 1  1984 
Now that the amount is payable in one lump sum  presumably the Government may resort to sec
192 of the Income Tax Act
But let it be made distinctly clear that the appellant is entitled to the benefit of Sec 89 and Rule 21A of the Income Tax Rules and he is entitled to relief  under Sec 89
Therefore  while computing the total amount the Court has kept the spread over in view and in no year any income tax is deductible from the meagre salary of this low paid class IV employee
If therefore  any deduction is made towards income tax while making the payment  it is incombent upon the Tripura Administration to take all necessary steps to obtain the relief for the appellant under Sec 89 of the Income Tax Act read with Rule 21A of the Income Tax Rules
647B G