Case: State Of Rajasthan And Anr Vs. Sripal Jain

must also be of the nature of a penalty. Taking all the three clauses of item (vii) as a whole, it appears that item (vii) provides for a complete scheme with reference to three kinds of penalties, namely, dismissal, removal and compulsory retirement and makes it incumbent that cases of this kind must be referred to the Governor. We cannot therefore agree with the High Court that compulsory retirement provided in item (vii)(a) includes all the three kinds of compulsory retirement. It must therefore be held that the contention of the appellants that compulsory retirement provided in item (vii)(a) is compulsory retirement as a penalty and not compulsory retirement of the other two kinds, namely, (1) compulsory retirement on attaining the age of superannuation and (2) compulsory retirement under r. 244(2), neither of which is a punishment is correct. In particular Note 2 of r. 244(2) makes it perfectly clear that action thereunder is not a penalty. This is further made clear by Explanation (vi) to r. 14 of the Classification Rules, which provides that compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement is not a penalty. Rule 56 of the Service Rules is a rule relating to superannuation and r. 244(2) of the Service Rules is a rule relating to retirement and both of them do not amount to penalties in view of this Explanation. We are therefore of opinion that r. 31(vii)(a) when it speaks of compulsory retiring of an officer speaks of compulsory retirement as a penalty and not compulsory retirement on reaching the age of superannuation or under r. 244(2). It is therefore not necessary to submit the papers with respect to compulsory retirement of the respondent under r. 244(2) to the Governor. This was the only ground on which High Court allowed the writ petition and therefore the appeal must succeed.It is however urged on behalf of the respondent that r. 244(2) of the Service Rules contemplates an order of compulsory retirement by Government and the order in the present case was not passed by the Government but by the Inspector General of Police. It is further urged that if it is an order of the Government it should be in the form required by Art. 166 of the Constitution, and as it is not in that form there is in law no order of the Government ordering the compulsory retirement of the respondent. The order is in these terms :- The following Inspectors of Police are compulsorily retired from the Government service under Rule 244(2) of P.S.R. :- (2) Shri Sripal Jain s/o Shri Sohanlal, C. I. Sanganer, Distt. Jaipur.: 5. There is no doubt that this order is not in the form required under Art. 166 of the Constitution. But it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed by it. It has been stated on behalf of the appellants that the order in question was communicated by the Inspector General of Police on the direction of the Government. It will be noticed that the order is in the passive voice. It does not say in the active voice that the Inspector General of Police ordered the retirement of the officers mentioned therein, though the impression that a person will get from it certainly is that the order of retirement was being passed by the Inspector General of Police. Therefore, the burden was thrown because of this defect in the form of the order on the appellants to show that in fact the order was passed by the Government. That has in our opinion been shown by the production of papers from the relevant file by the appellants. That shows that the recommendation of the high-powered Committee was approved by the Home Minister and the Chief Minister and the order of compulsory retirement was thus passed by the Government of Rajasthan. In this connection we may refer to r. 21 of the Business Rules. It says that cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge except as otherwise provided by any other rule. The only exception is r. 31(vii)(a) and that we have held does not apply to a case of compulsory retirement under r. 244(2). In these circumstances the order was of Government, though it was communicated by the Inspector General of Police and its form was defective. In the circumstances the order of retirement having been passed by a proper authority cannot be said to be invalid in law.It is further urged that under the Rajasthan General Clauses Act, No. VIII of 1955, Government or the Government includes both the Central Government and any State Government under s. 32(33) and the State Government means under s. 32(75) as from November 1, 1956, the Governor, and therefore when r. 244(2) requires an order by the Government, there should be an order of the Governor. Definitions under s. 32 are however to be read subject to anything repugnant in the subject or context or to any contrary intention, and that makes us back to the Business Rules framed under Art. 166 of the Constitution, where the power to deal with a case of this kind is given to the Minister-in-charge under r. 21. The definitions therefore of Government and the State Government in the Rajasthan General Clauses Act are of no help to the respondent once it is held that r. 31(vii)(a) of the Business Rules when it speaks of compulsory retiring of any officer refers only to compulsory retirement as a penalty under r. 14 of the Classification Rules and not to the two other kinds of retirement (namely, superannuation under r. 56 or retirement under r. 244(2) of the Service Rules). 6.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is obvious that when cl. (b) speaks of a review petition, it must be referring to the review under Part VII of the Classification Rules. Clause (b) therefore which is confined to cases under cl. (a) which speaks of dismissal, removal or compulsory retirement, shows that all these are penalties as provided in r. 14 of the Classification Rules. Further cl. (c) provides that where, on review the Governor decides to enhance the penalty already imposed and the enhanced penalty is one of dismissal, removal or compulsory retirement of an officer the matter must be referred to the Governor. This clause makes it perfectly clear that the compulsory retirement referred to therein is a case of penalty and there can in our opinion be no doubt when we read this clause with cl. (a) that compulsory retirement mentioned therein must also be of the nature of a penalty. Taking all the three clauses of item (vii) as a whole, it appears that item (vii) provides for a complete scheme with reference to three kinds of penalties, namely, dismissal, removal and compulsory retirement and makes it incumbent that cases of this kind must be referred to the Governor. We cannot therefore agree with the High Court that compulsory retirement provided in item (vii)(a) includes all the three kinds of compulsory retirement. It must therefore be held that the contention of the appellants that compulsory retirement provided in item (vii)(a) is compulsory retirement as a penalty and not compulsory retirement of the other two kinds, namely, (1) compulsory retirement on attaining the age of superannuation and (2) compulsory retirement under r. 244(2), neither of which is a punishment is correct. In particular Note 2 of r. 244(2) makes it perfectly clear that action thereunder is not a penalty. This is further made clear by Explanation (vi) to r. 14 of the Classification Rules, which provides that compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement is not a penalty. Rule 56 of the Service Rules is a rule relating to superannuation and r. 244(2) of the Service Rules is a rule relating to retirement and both of them do not amount to penalties in view of this Explanation. We are therefore of opinion that r. 31(vii)(a) when it speaks of compulsory retiring of an officer speaks of compulsory retirement as a penalty and not compulsory retirement on reaching the age of superannuation or under r. 244(2). It is therefore not necessary to submit the papers with respect to compulsory retirement of the respondent under r. 244(2) to the Governor. This was the only ground on which High Court allowed the writ petition and therefore the appeal must succeedThere is no doubt that this order is not in the form required under Art. 166 of the Constitution. But it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed by itThere is no doubt that this order is not in the form required under Art. 166 of the Constitution. But it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed byhas been stated on behalf of the appellants that the order in question was communicated by the Inspector General of Police on the direction of the Government.It will be noticed that the order is in the passive voice. It does not say in the active voice that the Inspector General of Police ordered the retirement of the officers mentioned therein, though the impression that a person will get from it certainly is that the order of retirement was being passed by the Inspector General of Police. Therefore, the burden was thrown because of this defect in the form of the order on the appellants to show that in fact the order was passed by the Government. That has in our opinion been shown by the production of papers from the relevant file by the appellants. That shows that the recommendation of the high-powered Committee was approved by the Home Minister and the Chief Minister and the order of compulsory retirement was thus passed by the Government of RajasthanDefinitions under s. 32 are however to be read subject to anything repugnant in the subject or context or to any contrary intention, and that makes us back to the Business Rules framed under Art. 166 of the Constitution, where the power to deal with a case of this kind is given to the Minister-in-charge under r. 21. The definitions therefore of Government and the State Government in the Rajasthan General Clauses Act are of no help to the respondent once it is held that r. 31(vii)(a) of the Business Rules when it speaks of compulsory retiring of any officer refers only to compulsory retirement as a penalty under r. 14 of the Classification Rules and not to the two other kinds of retirement (namely, superannuation under r. 56 or retirement under r. 244(2) of the Service Rules).