Holding

The order of compulsory retirement was illegal as it was imposed by an unauthorised authority and, being a penalty for misconduct, attracted Art. 311(2), rendering the order void and entitling the appellant to back wages, pension and gratuity but not reinstatement.

Summary

Murari Mohan Deb, a Class IV forester of the Tripura Government, was compulsorily retired in 1962 by the Chief Forest Officer. He challenged the order, alleging denial of a fair hearing and violation of natural‑justice principles. The respondents contended that compulsory retirement is not a dismissal under Art. 311(2) of the Constitution and therefore no enquiry was required. The Judicial Commissioner held the order illegal because the Chief Forest Officer lacked competence, but dismissed the writ on the ground that the Union of India was not impleaded. The Supreme Court held that the petition was competently framed, that compulsory retirement imposed as a penalty for misconduct attracts Art. 311(2) and requires a lawful enquiry, and that the order was void as it was passed by an unauthorized authority. Consequently, the order was set aside; reinstatement was denied as the appellant had reached superannuation, but he was awarded back wages, pension, gratuity and costs.

Issues considered

Whether the writ petition was incompetent for not impleading the Union of India as a party.
Whether the Chief Forest Officer had authority to impose compulsory retirement.
Whether compulsory retirement constitutes dismissal or removal within Art. 311(2) of the Constitution.
Whether a compulsory retirement imposed as a penalty requires a prior enquiry in accordance with natural‑justice principles.
What relief is appropriate when the order is set aside after the employee has attained the age of superannuation.

Legislation cited

Subjects

compulsory retirementdismissalArticle 311natural justiceservice rulesback wagespensionUnion of India partyjurisdiction

Judgment

639

A

MURARI MOHAN DEB

v.
B
THE SECRETARY TO THE
GOVT. OF ·INDIA & ORS.

April 10, f985

(D.A. DESAI, V. BALAKRISHNA ERADI AND V. KHALID, JJ .] c
Constitution of India, Art. 31 !(2)-Compu/1ory retirement and dismissal/
removal from service-Distinction between-Whether compulsory retirement
amounts to dismissal or removal-Circumstances when it amounts to dismissal or
removal exPlalned.

Civil Service-Compulsory retirement-No pro11islon in the Rules finding D
the age of compulsory retirement-Compulsory retirement not in p11blic interest-
Whether amounts to dismissal under Art. 311(2),

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 Commis·
sioner implcadiag, (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 Tripu~a 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 or the principles of natural justice. F
On the other hand, the respondent contended (i) that the punishment or com-
pulsory retirement doos not tantamount to dismissal or removal from service
as contemplated by Art. 311 (1) and therefore, no formal enquiry was Dece!sary
to be held before imposing the penalty ; and (ii) that adequate opportunity was
afforded to 'he appellant during the enquiry to controvert the charges and
defend himself. The Judicial Commissioner held that the appellant wa1 appointed
by the Chief Commissioner, and therefore, the Chief Forest Officer, a subordi-
G
nate of the Chief Commissoner was not competent to impose the pcna1ty of
compulsory retirement and t bus the order was bad on merits. But, he dismissed
the petition holding that it was not properly constituted,
R
Allowing the appea1 by the appeUant,

HELD ; (I) The Judicial Commissioner should not have taken upon
640 '1 •'
SUPREMll COURT REPORTS [1985] 3 S.C,R,

A himself to raise the objection that in the abseace or Union of India being made
a party, th~ petition was not properly constituted_ when the respondents did not
raise such a coniention. · Respondent No. l is shown to be the Seci:-etary to the
Go,;ernment of India, Ministry of Home AffairS. If there was technical er or
in the draftsmanship of the petition by a lawyi:r, a Forester a class IV Jaw
grade servant should not have beeO made to suffer. An oral request to correct
the descriPtion of 1 the first respondent would have ·satisfied tbe procedural
requirement. The Court could have conveniently read the cause title as •
Government of India which means Union of Iadia through the Secretary.
Ministry of Hom~ Affairs instead of tb'e d.!scriptionset
out in th.e writ petition
and this very petition would be competefit by any standard. Moreover, the -
appointing authority of the appellant, the Chief Commissioner of the Govern..
ment of Tripura as well the Chief Forest Officer who p1ssed the impugned •
order were impleaded and they represented the administration of Tripura
Government as wen as the concerned. officers. Therefore, not on1y the petition
as drawn up was competent but no bone of contention could be taken about
its ineompetcnce. [644G·H; 645A·Dl ..
';'··

(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 inilio illegal and invalid. [645F]
D
(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 3.ge of superannuation, and order of com,Julsory retirement
according to relevant service rule~ cann Jt b! styled as imposing a pena1ity and
obviously Art. 311 (2) will not be attracte1; A'l order of compulsory retire·
\ ·ment differs both from an order of di-.m'.~~al anj an order of removal _from~
service, in that it is not a form of pu 1i'ihrn';!nt prescribed by ,the rules; and
E involyed no; penal consequences iaac;inuch as the person who retires is entitled
to pension proportionate to the period or service standing to his credit. But, ;
where there. is no· rule fixing the age of compulsory retirement or iF there is (
one and the sen·ant is retired before that age prescribed therein, then that can
·-. be regarded only as dismissal or removal within Art. 311 (2). [6450-H; 6645A·B) ·
-~
··;J ,, ';.., t
v.
---«> Sham Loi The State of Uttar Pradesh, [I •55] I S.C.R. 26 ·and State of"
F Bo~bay V: S~ubhagchand_ ~· D,oshl, [1958] S.~:R. 511, referred to. . "
· i ,, 3. (ii) In· the instaD.t case. it is admitted that the relevant service rules·'

prescribed an age' of super3.nnUation .. It was nOt poin.ted out that. the relevant
_ rlltes fixed some other-· age , beYOnd which and before· reaching the a&e of
superannuation, a Government Servant can be compulsory retired in public :
interest. Nor is it claimed that ' the ordef of compul'iory rCtirement in this .,
case was inad~ under ·the relevant service -rules -in public interCst. 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 appelJant having put in service for a certain riumber of years,
he could have been compulsorily retired.· On the contrary~ it is admitted that
H the order of compulsory retirement-was by way ofpenaltf imposed Upori him
' kM. llED v. GOVT. OF INDIA (Desai, J)

_. for misconduct after an enquiry: Obviously thererore Art~ 311(2) Witt be
A
attracted and an enquiry in accordance with the rules of natural justice woUtd
1. 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 enciuiry ,waS illegal, &nY
_ounishment 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 } B
' 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 reinstatemCnt in service, since he has reached the age of superannuation as
on December 6, 1978. ·The.r.:fore. · he would be eiltitled to backwages alid
perlsion which come1 to R~. 1,00,000 from the date of compulsory retirement
oo October 16,.1962 upto and inclusive of DecembCr 31, 1984. ThC reSpondeD·t·'
shall pay· pension at the rate of Rs. 400 from January I, 1984·. Now ·that thci · c
amount is ·payable in one Jump sum, presumably the Government may resort -
to sec. 192 of the Income Tax'Act. But let it be made distinctly cleaC that the
appellant is entitled to the benefit of Sec. 89 and Rule 21A of the Income Tax
Rrles and he is entitled to relief under sec: 89. Therefore," while computing
the iotal amount the Court bas 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· ·white D
making the payment, it is incombent upon the Tripura Administration to take ·
all necessary steps _to obtain the relief for the appeUant under Sec. 89 of., the
Income Tax Act read with Rule 21A of the Income Ta< Rules. [647B-G) . .

CIVIL APPELLATE JURISDICTION ; Civil· Appeal No. 1605 of
1971. •.

From the Judgment and Order date'd 28 11.1970 of 'the
Judicial Commissioner's Court of Tripura in Writ Petitioi:i No. 22/
. 1964.
D_N. Mukherjee for the Appe\lant. •.,'
F
M.M. Abdul Khader and R.N. Poddar for the Resp<?ndents.·,
': !

The Judgment of the Court was delivered by ,, . . ,·;

DESAI, J. Murari Mohan Deb, aForester in the employme~t
of Tripura Government was compulsorily retired from service by
the order dated October 12, 1962 ·c,r 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 \Vay~ ci
Providence are inscrutable. APd . who is to blame, if · not, th~
system
..
H
SUPREME COURT REPORTS tJ9S5j 3 S.C.R'
The appellant questioned the correctness and validity of the
A
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
B 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 retire-
ment was imposed upon the appellant without affording the appel-
lant an adequate opportunity to defend himself and to explain the
c charges levelled 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 conten-
ding that as the punishment of compulsory retirement does not tan-
tamount to dismissal or removal from service a's contemplated by
D Art. 311(1) and therefore, no formal enquiry was necessary t-o be
held before imposing the penalty. Ii 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
·E learned Judicial Commissioner suo mo to raised the objection that in
the ab~ence of Union of India being made a party, the petition was
not properly constituted.

After an elaborate discussion, the learned Judicial Commis-
sioner recorded a finding that Government of India was a necessary
F party and in its absence the petition is incompetent and must bo
rejected,' After having reached this firm conclusion, the learned
Judicial Coru~issioner 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
G
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,
•

M.M. DBB v. GOVT. OF INDIA (Desai, J.) 643
A
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 hear·
ing Mr. D.N. Mukherjee, learned counsel for the appellant and Mr.
Abdul Khader, learned couns.el for Triputa 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 tbe State of Tripura pointed out that as the appellant
even on his showing has.reached the age of sup~rannuatio'n, even if
the Impugned order is illegal and invalid, the relief of reinstatement
c
'
cannot he granted to him. As the facts were not clear, a direction
was given that th1 matter be listed on August 7, 1984 for clarifica·
tion about the date of superannu~tion 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 super·
annuation on December 6, 1978. In this fact situation the relief of
physical reinstatement could not be granted. On that day a direc-
tion was given that the second respondent should compute and cal-
culate the backwages ·payable t0 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
..
E

, Khader, learned counsel for the second respondent produce'd before
us the rough computation made by the competent authority pur·
suant to our direction showing that approximately Rs. 93,000 would
be payable to the appellant as and by way of backwages and he
would be entitied to gratuity and pension thereafter. The plight of F
the appellant lent urgency to tbe matter in as much as the appellant
was without succour for a long period, a direction was given that
the second respondent i.e. Tripura Administration should pay Rs.
93,000 by a demand draft drawn in favour of the appellant within
four weeks from the date cif 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, H
644 SUPREME COUR1' REPORTS [198sJ 3 s. c.lt
A as Forest Ranger and Senior Forest Ranger;all posts in Class III
and IV grade. According io the appellant's computation, his pen-
sion he fixed at Rs. 550 p.m. According to him, he would be entit-
led to recover Rs. 3,25,000 from the respondents for the period upto
and inclusive of July, 1984. 1

B Shri R.M. Dutta, Deputy Conservator of Forests, Government
of Tripura filed a cou!lter-affidavit in which it is pointed ou! that ·
looking to the age and qualificatiops 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
c 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
fscale for the post of a Forester was Rs. 260-495 , effective . from
n
March I, 1974 and that the appellant would have retired in that
scale. To this affidavit was annexed calculations monthwise and it
waspointed ·out thatat best the appellant would be entitled to Rs.
93,444.08 p. inclusive of pension from 6.12.78 to September 30; 1984,
encashment of leave and gratuity. .
E
· Mr. D.N. Mukherjee, learned counsel for the appellant urged
that we should not accept the computation as made by the compe-
tent authority as set out in the annexure to the affidavit of Shri R.M
Dutta. To a querry of the court as to how the appellant was wor-
ked out his arrears of backwages at Rs. 3,25,000, there was hardly
F any convincing answer though some rough and ready calculation
was attempted to be offered to us which we find very difficult to im-
plicitly rely upon,

Mr. Abdul Khader fairly stated that it is difficult to support
Cthejudgment of the 'learned Judicial Commissioner that in the
G absence of Union of India being impleaded as a party, the petition
as constituted was incompetent. We have not been able to appre-
ciate 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. res-
pondent No. 1 is shown to be the Secretary to the Government of
H
. 1.1.M. biia v. aovr. "or i!'io1A (Desai, i.) 64S
; India, Ministry of Home Affairs. If there was technical error in the
. draftmanship of the petition by a lawyer, aFore.ster a class IV low
grade servant should not have been made to suffec. An oral request
. to correct the description of the first respondent would haye satis-
,fied 'tiie' procedural. requirement. By raising and accepting such' a
'contention, after a \aps~ of six years, the law is brought into ridi-
"f cule.
•
The court 'could have convenientiy 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
o"ut in the ·writ petition and this very petition would be competent by
any standard. The conteniion is all the more objectionable for _the
· additional reason that the appointing authority of the appellant, ihe
'Chief Commissioner of the Government of Tripura as well the Chief
Forest'Officer >aho passed th'e impugned order were impleaded and
.they represented the administration ofTripura Government as well
as the concerned officers. Therefore, not oniy the petition as drawn
up was competent but no bone of contention could be taken about
its incompetence. Mr. Abdul Khadet, learned counsel for the lD
'Government of Tripura rightly did not press this point. '
..
The learned Judicial Commissioner rightly held that the impug-
ned 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 E
in this case when the appella~t 'was only 42 years of age,' compulsory
retirement was imposed as a penalty for misconduct. We are not
~naware of the legal position that where relevant service rules p~o-
vide for an age of superannuation and ·permits compulsory retire-
ment in public interest on reaching a certain age 1ow er than the age
F
of superannuation; an order of compulsory retirement according to
relevant service rules cannot be ·styled' as imposing a penalty and
obviously Art. 311(2) wili not be attracted. As held by this Conrt
in Sham Lal v. The State of Uttar Pradesh(') 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 .pres- G
cribed by the rules. and involves no penal consequences, inasmuch "
as the person who retires is entitled to penson proportionate to the
period of service standing to his credit. . '(See The State of Bombay

!. (1955) I SCR26.
646 SUPREMB COURT REPORTS [!985] :l s.c.ti..
A v. Saubhagchand M. Doshi(!). 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 Art. 311.
B 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 Art. 311(2). (See Saubhagchand M. Doshi's case at 519). In this
case it is admitted that the relevant service rules prescribed an age
c of superannnation. It was noi pointed out that the relevant rules
fixed some other age b~yond which and before reaching the age of
superannuation, a Government 1crvant 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 4 2 when the order of compulsory retirement was made. It was
not sought to be supported on the ground that the appellant having
E 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, Art.
311(2) will be attracted and an enquiry in accordance with the rules
of natural justice would be a pre-requisite before imposing any
F 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 subse-
quently, the venue was suddenly shifted to Radhanagar where the
G appellant could not keep bis 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

J. [1958] SCR 571.
H
f'
. j 't.t.l.!. bEB v. GOVT. OF INDIA (Desai,).)
'
641
violation of principles of natural justice and is vitiated. If the / A
,e'nquiry' was. illegal, . any puni;hment 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
hei,eby set_ asid~.. • . t . , ·'
. . ~. L .~
·Once the order· of compulsory retirement is set aside, the '.' B
appellani ~ontinues to be in service. He has reached the age of
superannuation. as on December 6, 1978 as pointed out in the affi-
davit and not controverted. Therefore, it is .not permissible io direct
his reinstatement in service. He would be entitled to backwages
from the date of compulsory retirement on October 16, 1962 !ill
the date of his superannuation on December 6, 1978. .c
I I

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, D
he was not liable to pay income-tax at the rates then in force. Even
the revised salary with the exemptiqn 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 E
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 F
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 Iacorne Tax Rules.
G
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. 93,000 already paid to the appellant, he should be paid
Rs. 7,000 more towards backwages and pension upto and inclusive of H
h985i ~ s.c.it.
A De~ember .31, 1984. The respondent shall pay pension at the rate
of Rs. 400 from January 1, 1984. The appellant shatl also be paid
·dearness allowance if admissible to pensoners getting pension at
Rs. 400 p.m. The appellant shatl also be paid gratuity at the admis·
sible rate treating him in service upto and inclusive of Decemb'e'r 6,
1978. The payment herein directed shall be made within a period
of eight weeks from'today. The respondent shall also pay costs to
the' appellant quantified at Rs. 2,000. Appeal is allowed to the
elltent herein indicated. "
I

c
M.L.~. Appeal allowed.

..
I

_.

'
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• J

,-1 '.
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