Case: State Of U.P Vs. Shyam Lal Sharma

3. The High Court came to the conclusion that the order of compulsory retirement dated 28 March, 1962 and the letter dated 16 March, 1962 referred to in the order of compulsory retirement and the memorandum dated 14 February, 1962 referred to in the letter dated 16 March 1962 when read together established that the order of compulsory retirement was to punish the plaintiff-respondent.4.4. The order dated 28 March 1962 was asper orders contained in the P. H. Q, letter No. IV.780-60 dated 16-3-62 the compulsory retirement of H. C./22 C. P. Shyam Lal is sanctioned. He is retired compulsorily w.e.f. 1-4-62......The letter dated 16 March 1962 was asP. POLICE HEAD QUARTERS, ALLAHABAD-1No. IV-780-60,dated 16 March, 1962ToThe Supdt. of Police,Mathura.Subject: Compulsory retirement of Head Constable Sri Shyam Lal Sharma of the Mathura District Police.Reference: Your No. P-99 dated Feb, 14, 1962. Your proposal for the compulsory retirement of Head Constable Sri Shyam Lal Sharma is approved. He should be retired compulsorily forthwith and granted four months leave preparatory to compulsory retirement, if he so applied for.Sd/- M. L. Capoor,Deputy Supdt. of Police,HDQRS,for Inspector General of Police, U. P.The letter P. 99 dated 14 February, 1962 was asDy. Inspector General of Police, Agra RangeU. P. Camp, Agra.Subject: Compulsory retirement of Head Constable Shyam Lal Sharma No. 22 C. P, of the Mathura District.Reference: P. H. Q. endorsement No. IV-569-59 dated 17-1-61.2. The above named Head Constable has not in 26 years of service and has lost his utility to the Department. He is considered to be a bad lot incorrigible and no longer useful. I recommend his compulsory retirement on proportionate pension w.e.f. 1-4-1962.3. The proposal for the compulsory retirement of this Head Constable on Police Form No. 61 in duplicate together with his Ch. Roll and the following documents is herewith sent.P. H. Q. (IV) For n. a. May be sanctioned four months leave preparatory to compulsory retirement.1. A note containing the charge preferred against the Head Constable.2. Memo of leave (in duplicate)3. History of service (in duplicate)4. It is therefore requested that necessary remarks may kindly be recorded on the proposal and his case be forwarded. to P. H. Q. for issuing orders for his compulsory retirement w. e. f. 1-4-1962.The High Court held that reading the three documents together "there cannot be any escape from holding that the order of compulsory retirement was to punish the plaintiff and nothing else." The High,Court read the proposal dated 14 February, 1962 in this language "recommended for compulsory retirement on proportionate pension w. e. f., 1-4-1962 due to bad record of service as he is considered to be a bad lot incorrigible and no longer useful".8. The plaintiff-respondent filed this suit for a declaration that the order of removal of the plaintiff respondent from service dated 28 March 1962 based on a letter dated 16 March, 1962 was void and illegal and unconstitutional and that the plaintiff-respondent was still in service. The defence of the State was that the plaintiff-respondent was not retired on the ground of misconduct, inefficiency or incapacity and, therefore, the procedure under Article 311 and Rule 55 of the Civil Service Regulations was not required to be followed.9. The Court of the Munsiff trying the suit dealt with issue No. 3, namely, whether the "retirement of plaintiff-respondent was due to malice and by way of punishment" and answered the issue in the negative. The Court of the Munsif also held that the order was not illegal and dismissed the suit.10. The Civil and Sessions Judge in hearing the appeal held that though the order dated 28 March, 1962 was to the effect that the plaintiff-respondent was to be retired compulsorily with effect from 1-4-1962 it did not expressly mention any stigma against the plaintiff-respondent. The order of compulsory retirement according to the Civil and Sessions Judge was based on the letter of the Police Headquarters dated 16 March, 1962 which was an approval of the proposal made by the Superintendent of Police by letter dated 14 February, 1962 and the proposal of the Superintendent of Police clearly gave out that the sole basis for compulsory retirement of the plaintiff-respondent was his being incorrigible and having outlived his utility to the Department.11. The Court of Civil and Sessions Judge on that ground came to the conclusion that the order at compulsory retirement was based on the proposal of the Superintendent at Police accepted in toto by the Police Head Quarters and therefore the proposal formed necessary adjunct to the order leading to compulsory retirement. The Court of Civil and Sessions Judge passed a decree in favour of the plaintiff-respondent.12. An appeal was preferred to the High Court by the State against the judgment of the Court of Civil and Sessions Judge. The High Court agreed with the reasoning and conclusion of the Court of Civil and Sessions Judge and dismissed the appeal.

Reasoning:
14. The following propositions can be extracted from these decisions. First, in ascertaining whether the order of compulsory retirement is one of punishment it has to be ascertained whether in the order of compulsory retirement there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer concerned. Secondly, the order for compulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned. Thirdly, an order for compulsory retirement on the completion of 25 years of service or an order of compulsory retirement made in the public interest to dispense with further service will not amount to an order for dismissal or removal as there is no element of punishment. Fourthly, an order of compulsory retirement will not be held to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of future prospects, namely, that the officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowed to remain a few years in service and being compulsorily retired.15. Judged by the principles enunciated by this Court it is apparent that the order of compulsory retirement in the present case does not on the face of it contain any stigma or imputation or penalty. It is not the case of the plaintiff-respondent that the order of compulsory retirement involved any loss of benefits already earned or that there was any penalty in the nature of loss of emoluments or pension. It was contended on behalf of the plaintiff-respondent that the reasoning adopted by the Court of Civil and Sessions Judge and upheld by the High Court was correct that the letters dated 16 March, 1962 and 14 February, 1962 established in the present case that there was stigma in these letters and the order of compulsory retirement was based on these letters and therefore the orderwas one of punishment.The letter dated 16 March, 1962 stated that "proposal for compulsory retirement............... is approved". This letter cannot be said to have any stigma or imputation. It was submitted that inasmuch as the proposal for retirement was approved, therefore, there was approval of the letter dated 14 February, 1962 and that letter was the basis of the order of compulsory retirement.16. The letter dated 14 February, 1962 was in four paragraphs. The concluding paragraph contained a proposal for compulsory retirement of the plaintiff-respondent. The concluding paragraph did not contain any stigma or imputation against the plaintiff-respondent. In the preceding paragraph 2 the author of the letter wrote that "He is considered to be a bad lot incorrigible and no longer useful." It was said on behalf of the plaintiff-respondent that there was stigma in the words incorrigible and no longer useful and the order of compulsory retirement was based on that stigma. Only the proposal for compulsory retirement was sent for approval. The order of compulsory retirement cannot be stated to sustain the plea of punishment by extracting opinions expressed by the authorities in regard to the officer in the past.Unless it is established from the order of compulsory retirement itself that a charge or imputation against the officer is made the condition of the exercise of that power or that by the order the officer is losing benefits already earned, the order of retirement cannot be said to be one for dismissal or removal in the nature of penalty or punishment. In the present case, the order of compulsory retirement does not suffer from any such vice.21. The High Court fell into the error of holding that the order of compulsory retirement in the present case contained stigma by going behind the order of retirement and also by misreading the letter dated 14 February, 1962 in the manner not warranted by the letter itself containing a mere proposal for compulsory retirement.