High Court of Punjab and HaryanaRSA/1270/1995allowed

State Of Haryana v. Sh.Vidya Nand

2024-01-01Mr. Justice Anil Kshetarpal9 pages

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99577+ & @Whereas the Governor of Haryana is of the opinion that it is in the public interest to retire Shri Vidya Nand Kadhayala, HCS from service after attaining the age of fifty years, by giving him three months' notice.

Now, therefore, in pursuance of the provisions contained in rule 3.26 (d) of the Punjab Civil Services Rules, Volume*I, Part*I, and rule 5.32 A (c ) of the Punjab Civil Services Rules, Volume*II, as applicable to the State of Haryana, the Governor of Haryana in the public interest orders that Shri Vidya Nand Kadhayala, HCS shall stand retired from service under the State Government of Haryana, on the expiry of three months from the date of receipt of the order by him.

Dated, Chandigarh, Sd/* the 5th May, 1988 (L.C.Gupta) Chief Secretary to Government, Haryana"

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7. The sole argument with regard to invalidity of the impugned order at the time the petitioner was under suspension and departmental proceedings against him with regard to allegations supported from the charge*sheet were pending against him is that if the services of the Government servant are terminated during such suspension without any enquiry

being held against him, such termination would amount to punishment attracting thereto the provision of Article 311 of the Constitution of India. Obviously, it is the element of punishment which if attracted would suffer from the vice of Article 311 of the Constitution of India. The facts of the present case, however, would demonstrate that the impugned order does not take notice of either the suspension or the allegations, subject*matter of the charge*sheet, and so is the stand of the respondents in the written statement.

It is true that it is well within the jurisdiction of the court to lift the veil and see as to whether actually the impugned order has been passed on account of suspension or allegations, the subject*matter of departmental proceedings, but as an abstract proposition of law that the moment an order of compulsory retirement is passed during pendency of departmental proceedings, it would straightaway attract the provisions of Article 311 of the Constitution is, in our opinion, neither sound nor supported by any binding precedent. In the case of suspension, all that the Government does is that it temporarily stops the Government servant from performing the duties of his office, which duties the Government servant was performing on account of terms of the contract of his service.

The mere fact that the order of suspension was passed or departmental proceedings were going on, in our view, is not decisive for the question that needs to be determined. As referred to above, what is decisive is whether the order is by way of punishment. This element of punishment can be determined where two tests as were laid down by the Supreme Court in Sham Lal v. State of U.P. [AIR 1954 S.C. 369.] are satisfied. The two tests are as to whether a charge or imputation against the public servant is made the condition of exercise of power of retirement and as to whether by compulsory retirement the officer is losing the benefit that he has already earned as he does by dismissal or removal.

The impugned order in the present case, as fully discussed above, was passed not on the basis of allegations, subject*matter of charge*sheet against the petitioner. We do not see how merely because the petitioner was under suspension and an enquiry was pending against him at the time the impugned order was passed, the same would amount to an order of punishment. A single judge of this Court while dealing with an identical issue in J.M. Sharma v.

554.] held that "it is patent that to be in public employment is a right to hold it according to the rules. This right to hold is defeasible in accordance with the rules. If the rules give jurisdiction to the competent authority to compulsorily retire a public servant and the said authority passes order of such compulsory retirement in exercise of that jurisdiction, then unless it is shown that the order is by way of punishment, no fault can be found with the said order of retirement. Merely that a public servant has been placed under suspension before the order of his compulsory retirement is passed does not, to my mind, lead to the only inference that it has been passed by way of punishment. Suspension as such, as has been observed by their Lordships of the Supreme Court in H.L. Mehra v. Union of India [1974 (2) SLR 107.]

, does not in any manner affect the relationship of master and servant. What the Government as master does in such a case is merely to suspend the Government servant from performing the duties of his office. It is only that the Government issues a direction forbidding the Government servant from doing the work which he was required to do under the terms of the contract of service at the same time keeping in force the relationship of master and servant. Thus, the factum of pendency of an enquiry or the continuance of the employee under suspension when the order of his retirement is passed, is not decisive of the question that needs to be determined. What is decisive is whether the order is by way of punishment? For determining this question, the Supreme Court laid down two tests as far back as in the year 1951 in Shyamlal v.

State of Uttar Pradesh [AIR 1954 S.C. 369.] and reiterated the same in a number of subsequent judgments. These two tests are: (i) whether a charge or imputation against the officer is made the condition of the exercise of power of retirement and (ii) whether by compulsory retirement the officer is losing the benefit that he had already earned as he does by dismissal or removal. Applying these two tests to the impugned notice Annexure P*6, I do not find the same to suffer from either of these. It is wholly innocuous so far as the question of imputation of any charge or misconduct is concerned. It does not in any manner affect the benefits which the petitioner has already earned and which have necessarily to flow, such as pension etc. from his retirement.

the petitioner, that merely because the petitioner was under suspension without anything more at the time when the impugned notice Annexure P*6 for his compulsory retirement was served on him, the same would amount to an order of punishment. It is the admitted case that but for the serving of the charge* sheet on him, no other step had been taken in the enquiry initiated against him."

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