Laloo Prasad vs Union of India and Others

Ajoy Nath Ray, J.—This is a writ petition on the part of a compulsorily retired employee. Two orders have been challenged. The first order is dated 17th January, 1989 whereby the writ petitioner''s annual increment for one year was withheld with cumulative effect. The second order which has been challenged is the order of compulsory retirement dated 14th April, 1991. The background of the case is that the writ petitioner sought to have been gone through a second marriage ceremony in August, 1986 even though his first wife was then living. The writ petitioner'' filed a suit for divorce on 29th January, 1988 but the first wife obligingly expired in the month of May in the same year.

In this writ application, I am not concerned with any of the facts as to whether the second marriage was gone through because of the dictates of the Dhobi Samaj as the writ petitioner alleges or whether the wife of the writ petitioner was an unchaste woman. The decision in this writ proceeding must proceed on points of jurisdiction or excess of constitutional limits.

I am not much impressed by or persuaded as to the challenge thrown by the writ petitioner to the invalidity of the first order dated 17th January. 1989. Indeed, the order was acted upon and the writ petition was not filed until the year 1991 i.e. until the passing of the second order date 14th April, 1991. It is not unlikely that if the order for compulsory retirement had not been passed there would have been no writ proceeding initiated at all.

The order of 14th April, 1991 compulsorily retiring the writ petitioner is at page 30 of the annexures to the writ petition. The order says on its face that the writ petitioner is being compulsorily retired from service "due to contracting with plural marriage without divorcing his first wife."

It is now settled law that an order for compulsory retirement is generally not an order that entails any civil consequence. Union of India (UOI) Vs. Col. J.N. Sinha and Another, is an authority for this proposition., It is also settled law according to the Five Judge decision in the case of Dalip Singh Vs. The State of Punjab, that if certain service delinquencies form the mere background for passing of an order for compulsory retirement, even then such an order is not to be treated as an order by way of punishment.

The order for compulsory retirement is not treated as a punishment because of two reasons. The first reason is that past service benefits are not taken away and the second reason is that an order for compulsory retirement merely in the public interest is not considered perse as an order with stigma. In the instant case, however, the order for compulsory retirement contains, on the face of it the reason for such retirement and it is spelt out to be the plural marriage of the writ petitioner.

The case of Shyamlal Sharma reported in Vol. III of Supreme Court Services Law Judgment at page 295 is an authority for the proposition that an order for compulsory retirement contains no inherent stigma, but that such stigma may be present in case express words or remarks are found therein. This, I read, with respect, to be the effect of paragraph 19 of the said judgment Also in the case of Tara Singh, reported in 1975 Labour and Industrial Cases page 1046 and Tara Singh and Others Vs. State of Rajasthan and Others, it has been again reiterated that an order for compulsory retirement may be passed not by way of a punishment, but by way of an ending the service when it is not desirable to bring a charge for inflicting service punishment. Again, it is clear from this case that the order for compulsory retirement may be passed without giving a hearing provided the same does not contain a stigma.

In the instant case, a stigma is apparent on the face of the order. The stigma is not only a service stigma by way of which the writ petitioner can be said to have led a corrupt life or can be said not to have maintained absolute integrity but the charge is such as can, under certain circumstances, found the basis of a criminal prosecution. Under these circumstances, the giving of a hearing was a must.

It is said that for this very same ground i.e. ground of contracting a second attempted marriage, the writ petitioner has already been punished. Why should he be heard again for the very same allegation? This raises a point of fundamental importance regarding the law of natural justice. The law of natural justice is that when an adverse order is to be passed against an individual he must be first heard in defence. It is not a part of the law of natural justice that if challenge is thrown to the order passed without hearing him, he will have to satisfy the court that he had something to say in support of his case. The law of natural justice is a procedural law. It does not care about the substance of the case or the strength of the defence. Even if a very good case on facts is rejected after giving an adequate hearing, the law of natural justice cannot be invoked for having the order quashed even though it might be a very bad decision on facts. A hearing is, therefore, a must, before an order for compulsory retirement with a stigma is passed because such a stigma takes the order for compulsory retirement to the category of those orders which inflict punishment.

Several other decisions were cited on the part of the respondents regarding the formation of opinion on the basis of confidential or other service records. These cases are reported respectively in Union of India (UOI) Vs. M.E. Reddy and Another, , Jayanti Kumar Sinha (J.K. Sinha) Vs. Union of India (UOI) and Others, and C.D. Ailawadi Vs. Union of India and others, Though these might be helpful generally regarding the law of compulsory retirement, yet I do not think they are of much relevance in the instant case because the formation of opinion as a pre-requisite for compulsory retirement for public information is not the direct point for attack in the instant writ.

I do not think that the case of Brij Mohan Singh Chopra Vs. State of Punjab, is either relevant even though in the said case, it is laid down rather helpfully the circumstances under which the rule for compulsory retirement can be invoked. The other case cited on behalf of the respondents reported in 1989 SG 1431 is a case of termination without communication in respect of an ad-hoc employee and is not very apposite to the matter in hand.

On the above basis, the order of 14th April, 1991 must be quashed as being in violation of the rules of natural justice and yet containing a stigma. The effect is that the writ petitioner who has not yet reached the age of superannuation must be treated not to have been retired at all and shall forthwith be permitted to join in his service. The writ petitioner must also be given all the consequential service benefits.

The writ application is thus disposed of by granting a writ absolute in the nature of certiorari quashing the order of compulsory retirement dated 14th April, 1991 ''and by granting a writ in the nature of Mandamus directing the respondent authorities and each of them to permit the writ petitioner to join service within four weeks hereof and further to release to the writ petitioner all service benefits due to him on the deemed basis that the writ petitioner has continuously worked and has been in office, notwithstanding the quashed order of 14th April, 1991.

There will be no order as to costs.

A stay of operation of this order is prayed for but I am not minded to grant such a stay because the compulsory retirement of the writ petitioner did not come as a result of any direct service lapse and no reason is disclosed as to how the permission to the writ petitioner to join service now can affect any person or persons adversely. Let a xerox copy of this judgment and order be given to the learned Advocate appearing on behalf of the writ petitioner on usual undertaking.