G.C. Mathur, J.-

Respondent Purshottam Swarup Johari is a 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.

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. A.I.R. 1954 S.C., 369, has been particularly relied upon and it is necessary to examine it in some detail. Shyara Lal 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 compulsory 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 retirement does not, in every case, amount to dis­missal or removal. It does not support the contention of the State.

In State of Bombay v. Saubhagchand M. Doshi A.I.R. 1957 S.C. 892, also the argument was that an order retiring an officer before the age of superannuation was, in substance, one of dismissal or removal. The Supreme Court observed that the real criterion for deciding whether an order terminating the services of a servant is one of dismissal or removal is to ascertain whether it involves any loss of benefits pre­viously earned and that, on this test, an order of compulsory retire­ment cannot be held to be one of dismissal or removal. One of the arguments raised was that the power to compulsorily retire the Gov­ernment servant under the relevant rule was not to be exercised, except in the cases of misconduct or inefficiency and, therefore, com­pulsory retirement amounted to removal or dismissal. Repelling this argument, the Supreme Court said:

"Indeed, in Shyamlal's case (A) the Government did give to the officer concerned notice of charges of misconduct and ineffi­ciency and called for his explanation, though a formal enquiry was not held. In providing that no action would be taken except in case of misconduct or inefficiency, Rule 165-A only made expli­cit what was implicit in Note 1 to Article 465-A. The fact to be noted is that while misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or re­moval or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held-and there is no duty to hold an enquiry-is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy the rules of natural justice and the requirements of Article 311(2)."

These observations do indicate that it is permissible to retire a Gov­ernment servant compulsorily from service on the basis of misconduct and the order would not necessarily amount to one of removal or dis­missal but this case does not lay down that where the Government starts disciplinary proceedings for punishing the Government servant for the misconduct and thereafter an order of compulsory retirement is passed, it will not amount to an order of removal or dismissal.

In Dalip Singh v. State Of Punjab . A.I.R. 1960 S.C. 1305., the appellant, who was an Inspector General of Police, was compulsorily retired from service for administrative reasons. He challenged the order by way of civil suit, contending that the order amounted to one of removal from ser­vice within the meaning of Article 311 (2) of the Constitution. Re­ferring to the cases of Shyamlal and Saubhagchand M. Doshi, the Supreme Court observed that two tests had to be applied for ascer­taining whether a termination of service by compulsory retirement amounted to removal or dismissal so as to attract the provisions of Article, 311 of the Constitution, namely, (i) whether the action is by way of punishment and to find that out it is necessary that a charge or imputation against the officer is made the condition of the exer­cise of the power; and (ii) whether by compulsory retirement the officer is losing the benefit he has already earned as he does by dis­missal or removal. Referring to Shyamlal's case, the Supreme Court i -observed:

"In that case, in fact, a charge-sheet was drawn up against the officer and an enquiry held but ultimately the order of compul­sory retirement was not based on the result of the enquiry. The Court pointed out that the enquiry was merely to help, the Gov­ernment to make up its mind as to whether it was in the public interest to dispense with his services so that the imputation made in the charge-sheet was not being made the condition of the ex­ercise of the power."

It will be noticed that, in this case, Shyamlal's case was explained on the ground that the inquiry was not for the purpose of inflicting any punishment on the Officer but only for the purpose of enabling the Government to make up its mind whether Shyamlal should be retained in service or not. The Supreme Court accepted that, if the action was by way of punishment, the order of compulsory retire­ment would amount to one of removal or dismissal. This case also does not support the contention of the State.

The next case that is relied upon is that of Moti Ram Deka and others v. General Manager, North East Frontier Railway and another A.I.R. 1964 S.C. 600. In this case, the validity of Rules 148(3) and 149(3) of the Railway Establishment Code, Volume I, which provided for the termination of the services of permanent employees at any time during service on three months' notice, was challenged on the ground that such termination was in violation of the provisions of Article 311 (2) of the Constitution. The Supreme Court upheld this contention, ob­serving that termination of services at any time during service must necessarily amount to removal or dismissal. Dealing with the deci­sion in Saubhagchand M. Doshi's case, which was cited before it. the Supreme Court observed:

"It is of interest to note that in dealing with a question as to whether compulsory retirement amounted to removal or not, the tests, which were applied, were in regard to the loss of benefits already accrued and the stigma attached to the civil servant."

This case was not a case of compulsory retirement. The observations quoted above do not indicate that Doshi's case confined a challenge to an order of compulsory retirement to the two grounds of loss of ac­crued benefits and of casting stigma on the Government servant. In Dalip Singh's case, the two tests for finding out whether an order of compulsory retirement amounted to one of removal or dismissal were stated to be whether the action was by way of punishment and whether the officer was deprived of accrued benefits.

In State of U. P. v. ShyamLal Sharma A.I.R. 1971 S.C. 2151. Sharma, who was a Head Constable, was compulsorily retired by an order which was in unexceptionable terms. He challenged the order before this Court in a writ petition. This Court looked into the notings in the Government files where it was said that Sharma had lost his utility to the department and that he was considered to be a bad lot, incorrigible and no longer useful and held that the order was passed by way of punishment. The Supreme Court held that when the order of compulsory retirement itself did not contain any stigma, resort could not be had to Government files to discover any remark against the officer amounting to stigma. Reliance was placed on paragraph 20 of the judgment which reads thus: -

"Unless it is established from the order of compulsory retire­ment itself that a charge of 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."

It is true that these remarks indicate that an attack on an order of compulsory retirement is permissible when the order itself shows that a charge or imputation has been made against the officer or when an order deprives the officer of benefits already earned. It is to be noticed that this was not a case were an order of compulsory retirement was passed after formal departmental proceedings has been started for punishing the officer. The remarks of the Supreme Court should be read in the light of the facts of the case.

The last case relied upon is that of Terra Singh v. State of Rajasthan and others A.I.R. 1975 S.C. 1487. This case does not carry the matter any fur­ther. It merely decides that an order of compulsory retirement is normally passed when the efficiency of the Government servant is impaired and it is desirable not to bring any charge of inefficiency or in competency against him. Such an order by itself does not cast any stigma on the Government servant. The learned counsel for Johri has on the other hand contended that the decision of the Sup­reme Court in State of U. P. v. Madan Mohan Nagar A.I.R 1971 S.C 2151, concludes the matter in his favour. The Supreme Court has, in this case, ap­plied the principles applicable to a temporary Government servant laid down in Jagdish Mitter v. Union of India A.I.R. 1964 S.C. 449, to the case of com­pulsory retirement. This case merely holds that an order compul­sory retirement will be held to be one by way of punishment, if it casts a stigma on the Government servant.

It is true that in the cases relating to compulsory retirement the Supreme Court has not said that if an order of compulsory retire­ment is based or founded on misconduct or inefficiency, it will amount to one of dismissal or removal from service. But the Supreme Court has also not said anything to the contrary. There appears no reason why the principles laid down by the Supreme Court in respect of orders of termination of services of temporary employees should not apply to the cases of compulsory retirement. In State of Punjab v. Sukh Raj Bahadur A.I.R. 1968 S.C. 1089. the Supreme Court has laid down the follow­ing proposition of law: -

(i) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termina­tion- without anything more would not attract the operation of Article oil of the Constitution.

(ii) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the mo­tive behind it being immaterial.

(iii) if the order visits the public servant with any evil conse­quences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no mat­ter whether he was a mere probationer or a temporary servant.

(iv) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Consti­tution.

(v) If there be a full-scale departmental enquiry envisaged by Article 311, i.e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of said article.

Broadly speaking termination of service of a Government servant is of three types, viz.: -

(i) dismissal or removal from service of a permanent or tem­porary Government servant;

(ii) termination of the services of a temporary Government servant and

(iii) compulsory retirement.

In all these cases the services of a Government servant are brought to a premature end. Dismissal and removal from service are always by way of punishment. Termination of the services of a temporary Government servant and compulsory retirement of a Government servant, under the terms of the contract of service or under the rele­vant rules, do not normally amount to punishment. But if an order of such termination of compulsory retirements made by way of pun­ishment, it will amount to dismissal or removal from service and will attract the provisions of Article 311(2). In Dalip Singh's case the Supreme Court observed that its earlier decisions had laid down two tests for ascertaining whether a termination of service by compulsory retirement amounted to removal or dismissal and one of such tests was whether the order was made by way of punishment. When can such an order be held to have been made by way of punishment? In the case of termination of the services of a temporary Government servant the Supreme Court has laid down that the order will be held to be by way of punishment in the following cases: -

(i) Where the order by itself casts stigma on the Government servant;

(ii) where the order deprives the Government servant of an accrued benefit;

(iii) where the order is founded or based upon the misconduct or inefficiency of the Government servant and the misconduct or inefficiency is not merely the background motive; and

(iv) where the order is passed after the disciplinary proceed­ings on charges of misconduct or inefficiency have been com­menced and have reached a particular stage.

The learned Chief Standing Counsel accepts, and that is borne out by the decisions of the Supreme Court also that an order of compulsory retirement which falls in the first two classes enumerated above, will be by way of punishment and will amount to one of dismissal of re­moval from service. But he contends that it is not open to the courts to examine whether the order falls in any of the other two classes. There appears to be no justification for this contention, as there is no rational distinction between the two types of terminations, namely, the termination of the services of a temporary Government servant and the termination of the services of a Government servant by com­pulsory retirement.

When passed in the normal exercise of the power under the terms of the contract of service or under the relevant rules, neither an order of termination of the services of a temporary Government servant nor an order or compulsory retirement is by way of punish­ment in the sense in which an order of dismissal or removal from service is. Both types of orders can be made on the ground of mis­conduct or inefficiency of the Government servant concerned. In both types of cases where Government examines the misconduct or ineffi­ciency of the servant only to decide whether he should be further re­tained in service or not, the orders will not be by way of punishment. In such cases misconduct or inefficiency will only be the background motive for the action and will not be the basis or foundation thereof. But where the Government examines the charge of misconduct or inefficiency with a view to punish the Government servant and the order is founded or based upon the misconduct or inefficiency, there is no reason why, if the order purports to be one terminating the ser­vices of a temporary Government servant, the Courts can go behind it and hold that it is by way of punishment, but if it purports to be one of compulsory retirement, the Courts cannot go behind it and hold that it has been passed by way of punishment. If the conten­tion of the learned Chief Standing Counsel is accepted, it would mean that the protection afforded to a permanent Government servant, whose services are terminated by way of compulsory retirement on the basis of misconduct or inefficiency, is less that that afforded to a temporary Government servant, whose services are also terminated on the basis of misconduct or inefficiency. The temporary Govern­ment servant will have the protection of Article 311 (2) as the order of termination in his case will be held to amount to one of dismissal or removal from service, but the permanent Government servant will not have this protection, as the court will be unable to hold that the order of his compulsory retirement is by way of punishment. There being no rational distinction between these two types of cases, both types of orders, if founded or based on misconduct or inefficiency of the Government servant, will be held to be by way of punishment and to amount to orders of dismissal or removal from service.

If an order of compulsory retirement which has been passed by way of punishment amounts to one of dismissal or removal from ser­vice, if it is permissible to hold that an order of compulsory retire­ment has been passed by way of punishment and if it is permissible for Courts to draw the inference that an order of compulsory retire­ment has been passed by way of punishment from the fact that it casts stigma on the Government servant or from the fact that it de­prives him of an accrued benefit, then surely it must be permissible - for the Courts to see whether the order of compulsory retirement is founded or based on misconduct or inefficiency and has in fact been passed by way of punishment. Every circumstance, which can lead to the conclusion that the order has been passed by way of punish­ment, can be examined by the Court. The Court can, therefore, see whether the order is founded or based on misconduct. This it can only do by going behind the order.

When Government initiates disciplinary proceedings against a Government servant on the basis of charges of misconduct or ineffi­ciency, it is obvious that Government does so with the intention of punishing him. If in such proceedings an Enquiry Officer has been appointed, a charge-sheet has been submitted, explanation has been called for and considered and thereafter an order of compulsory re­tirement is passed, it can legitimately be inferred that the misconduct or inefficiency is the foundation or basis of the order and that the order has been passed by way of punishment. In these circumstances, the order of compulsory retirement will amount to an order of dis­missal or removal from service and will attract the provisions of Ar­ticle 311(2). In the present case, the disciplinary proceedings, ad­mittedly, had proceeded beyond the stage referred to above and were actually at the stage where Johri was giving his defence, when the order of compulsory retirement was passed. In these circumstances, it is legitimate to hold that the order was passed by way of punish­ment and amounted to dismissal or removal from service. Since the requirements of Article 311 (2) were not fully complied with, the order was illegal and was rightly quashed by the learned Single Judge.

The appeal is without merits and is hereby his missed with costs.

Appeal dismissed.