# STATE OF U.P v. SHYAM LAL SHARMA

- **Citation:** [1972] 1 S.C.R. 184
- **Court:** Supreme Court of India
- **Decided:** 1972
- **Bench:** S. M. S!Kri, A. N. Ray, D.G. Palekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-shyam-lal-sharma-5343
- **Pages:** 9

## Headnote

Civil service-Compulsory RetirementOrder when can be said to be by way of Punishment
The Order compulsorily retiring the respondent, a head constable,
made reference to a letter dated March 16, 1962 of the Police Head
Quarters approving a proposal by the Superintendent of Police, dated
February 14, 1962, for the compulsory retirement of the respondent.
The proposal had mentioned that the respondent was "considered to
be a bad lot incorrigible and no longer useful"'.
The respondent filed a
suit for a declaration that the Order was illegal since the procedure
under Art. 311 of the Constitution and r. 55 of the Civil Service Regulations was not followed.
The trial court dismissed the suit.
In appeal
the Civil and Sessions Judge came to the conclusion that the proposal
dated February 14, 1962,
formed the necessary adjunct to the order
leading to compulsory retirement and passed a decree in favour of the
respondent.
The High Court confirmed the decree.
Allowing the appeal,
HELD: In ascertaining whether an order of compulsory retirement
is one of punishment it has to be seen whether in the order there is any
element of charge or stigma or imputation or any implication of misbehaviour or incapacity
against the officer concerned.
Where the
authorities can make an order of compulsory retirement for any reason
and no reason is mentioned in the order it cannot be predicated that the
order of compulsory retirement has an inherent stigma in it. Unless it
is established from the order itself that a charge or imputation against
the officer is made the condition of the exercise of the power or that
by the order the officer is losing benefits already earned, the order
cannot be said to be one for dismissal or removal or in the nature of
penalty or punishment. [189 B; 192 D, E]
In the present case the order of compulsory retirement does not
suffer from any such -.lice nor can it be, on the facts found, said to have
been passed on account of malice. The High Court fell into the error of
holding that the order contained stigma by going behind the order of
retirement and also by misreading the proposal dated February 14,
1962 in the manner not warranted by the letter itself containing a mere
proposal for compulsory retirement. Only the proposal was sent for
approval. The order cannot be stated to sustain the plea of punishment by extracting opinions expressed by the authorities in regard to
the officer in the past. [192 F; 190 C-D]
I. N. Saksena v. State of Madhya Pradesh, [1967] 2 S.C.R. 496,
followed.
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U.P. STATE V. S. L. SHARMA (Ray, J.)
185
Shyam Lal v. State of U.P .. [1966] I 'S.C.R. 26, State of Bombay v.
Saubhagchand M. Doshi, [1958] S.C.R. 571, De.lip Singh v. State of
Punjab, [1961] I S.C.R. 88 and State of Uttar Pradesh v. Medan Moha11
Nagar, [1967] 2 S.C.R. 333, referred to.
CIVIL APPELLATE ~URISDICTJON : Civil Appeal No. 1203
ll of 1969
c
Appeal by spedal leave from the judgmem and order
dated September 20, 1968 of the Allahabad High Court m
Second Appeal No 1791 of 1967
L. M.Singhvi and 0. P. Rana, for the appellant.
R. N. Sharma, N. N. Sharma and C. P. Lal for
t'~c
respondent

## Text

184
STATE OF U.P.
v.
SHYAM LAL SHARMA
August, 12, 1971
(S. M. S!KRI, C.J., A. N. RAY AND D.G. PALEKAR, JJ.]
Civil service-Compulsory RetirementOrder when can be said to be by way of Punishment
The Order compulsorily retiring the respondent, a head constable,
made reference to a letter dated March 16, 1962 of the Police Head
Quarters approving a proposal by the Superintendent of Police, dated
February 14, 1962, for the compulsory retirement of the respondent.
The proposal had mentioned that the respondent was "considered to
be a bad lot incorrigible and no longer useful"'.
The respondent filed a
suit for a declaration that the Order was illegal since the procedure
under Art. 311 of the Constitution and r. 55 of the Civil Service Regulations was not followed.
The trial court dismissed the suit.
In appeal
the Civil and Sessions Judge came to the conclusion that the proposal
dated February 14, 1962,
formed the necessary adjunct to the order
leading to compulsory retirement and passed a decree in favour of the
respondent.
The High Court confirmed the decree.
Allowing the appeal,
HELD: In ascertaining whether an order of compulsory retirement
is one of punishment it has to be seen whether in the order there is any
element of charge or stigma or imputation or any implication of misbehaviour or incapacity
against the officer concerned.
Where the
authorities can make an order of compulsory retirement for any reason
and no reason is mentioned in the order it cannot be predicated that the
order of compulsory retirement has an inherent stigma in it. Unless it
is established from the order itself that a charge or imputation against
the officer is made the condition of the exercise of the power or that
by the order the officer is losing benefits already earned, the order
cannot be said to be one for dismissal or removal or in the nature of
penalty or punishment. [189 B; 192 D, E]
In the present case the order of compulsory retirement does not
suffer from any such -.lice nor can it be, on the facts found, said to have
been passed on account of malice. The High Court fell into the error of
holding that the order contained stigma by going behind the order of
retirement and also by misreading the proposal dated February 14,
1962 in the manner not warranted by the letter itself containing a mere
proposal for compulsory retirement. Only the proposal was sent for
approval. The order cannot be stated to sustain the plea of punishment by extracting opinions expressed by the authorities in regard to
the officer in the past. [192 F; 190 C-D]
I. N. Saksena v. State of Madhya Pradesh, [1967] 2 S.C.R. 496,
followed.
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U.P. STATE V. S. L. SHARMA (Ray, J.)
185
Shyam Lal v. State of U.P .. [1966] I 'S.C.R. 26, State of Bombay v.
Saubhagchand M. Doshi, [1958] S.C.R. 571, De.lip Singh v. State of
Punjab, [1961] I S.C.R. 88 and State of Uttar Pradesh v. Medan Moha11
Nagar, [1967] 2 S.C.R. 333, referred to.
CIVIL APPELLATE ~URISDICTJON : Civil Appeal No. 1203
ll of 1969
c
Appeal by spedal leave from the judgmem and order
dated September 20, 1968 of the Allahabad High Court m
Second Appeal No 1791 of 1967
L. M.Singhvi and 0. P. Rana, for the appellant.
R. N. Sharma, N. N. Sharma and C. P. Lal for
t'~c
respondent
The Judgment of the Court was delivered by
RAY, J.-This appeal is by special leave against the
0
judgment dated 20 September, 1968 of the High Court
of Judicature at Allahabad dismissing the appeal preferred
by the State of Uttar Pradesh against the decree passed
by the Court of Civil and Sessions Judge in favour of
the plaintiff-respondent declaring that the order of removal.
of the plaintiff-respondent from service is void and is illegal
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~nd th~ plaintiff-respondent should be deemed to be still
m service.
The only question for consideration in this
appeal
is whether the order of compulsory retirement of the plaintiff-respondent was one of punishment.
F
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
G compulsory retirement was to punish the
plaintiff-res~
pondent.
,
The ordi;r i;l&;teg i& J.1&:rll.h, IQ()i_ \YliS ~s follows:-
~~'"'~'A~ pefoWft~ffflta'fii'tfd±~~~.ff.Q;,'l~tter
'·¥;:,;;;
No. IV-780-60 dated 16-3-62 the compulsory
H
retirement of H.C./22 C.P. Shyam Lal is
s4nction~d. He is retired ·compulsorily w.e.f.
1-4-62 ......... "
186
SUPREME COURT REPORTS
(1972] I S.C.R.
The letter dated 16 March, 1962 was as follows:-
"U.P. POLICE HEAD QUARTERS, ALLAHABAD-I No. lV-780-60, dated 16 March, 1962.
To
The 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.
The letter P. 99 dated 14 February,1962 was
as follows:-
"To
The Dy. Inspector Genl. of Police;
Agra Range, U.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-56959 dated 17-1-61.
2. The above named Head Constable has put
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.
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U.P. STATE V. S. L. SHARMA (Ray, J.)
!87
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.
I. 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
en the
proposal and his case be forwarded to P.H .Q.
for issuing orders for his compulso1y 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
E plaintiff and nothing else". The High Court read the
proposal dated 14 February, 1962 in this language "recommended for c.ompulsory retirement on proportionate
pension w.e.f. 1-4-1962 due to the bad record of service
as he is considered to be a bad lot incorrigible and no longer
useful".
F
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
G 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.
H
The court of the Munsif trying the suit dealt with
issue No. 3, namely, whether the "retirement of plaintiffrespondent was due to malice and by way of punishment"
188
SUPREME COURT REPORTS
[1972] l S.C.11..
A
and answered the issue in the negative. The court of
the Munsif also held that the order was not illegal and
dismissed the suit.
The Civil and Sessions Judge in hearing the appeal
held that though the order dated 28 March, 1962 was to
B
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
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of tqe 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 plaintiffrespondent was 'his being incorrigible and having outlived his utility to the Department'.
o
The Court of Civil and Sessions Judge on that ground
came to the conclusion that the order of compulsory retirement was based on the
proposal
of the
Superintendent of Police accepted 'in toto' by the Police Head
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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.
An appeal was preferred to the High Court by the
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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.1
The implication and effect of orders of compulsory
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retirement came up for consideration before this Court
from time to time and reference may be made to five of
these decisions.
These are Shyam !al v. State of U.P. &
Anr. [1955] I S.C.R. 26, State of Bombay v. Saubhagchand
M. Doshi, [1958] S.C.R. 571, Dalip Singh v. The State of
Punjab, [1961] 1S.C.R.88, The State of Ul/ar Pradesh
H
v. Madan Mohan Nagar, [1967] 2 S.C.R. 333, and /. N.
Saksena v. State of Madha Pradesh, [1967] 2 S.C.R. 496.
U.P. STATE V. S. L. SHARMA (Ray, J.)
189
A
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
B imputation or any implication of misbehaviour or incapacity against the officer concerned. Secondly, the order
for compulsory retirement will hi: 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
C 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 possiD bility 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 srrvic~ ''.ld 1-ieinir
compulsorily retired.
E
Judged by the principles enunciatea 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
plantiff-respondent that the order of compulsory retireF ment 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 plaintiffrespondent 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
G 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 order was one of punishment.
The letter dated
16 March, 1962
stated that "proposal for compulsory retirement ...... is approved".
This letter cann?t
H 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
190
SUPREME COURT REPORTS
[1972] 1 s.c.R.
14 February, 1962 and that letter was the basis of the
order of compulsory retirement.
A
The letter dated 14 February, 1962 was in four paragraphs. The concluding paragraph contained a proposal
fQr compulsory retirement of the plaintiff-respondent. The
B
concluding paragraph did not contain any stigma or imputation against the plaintiff-respondent. In the preceding
paragraph 2 the author of the Jetter wrote that "He is
considered to be a bad lot incorrigible and no longer useful". It was said on behalf of the plantiff-respondent that
there was stigma in the words "incorrigible and no longer c
useful" and the order of compulsory retirement was based
o~ 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.
D
This Court in Saksena's case (supra) said "where an
order requiring a Government servant to retire compulsorily contains express words from which a stigma can be
inferred, that order will amount to removal within the
meaning of Art. 311. But where there are no express words
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in. the order we cannot delve into Secretariat files to discover whether some kind of stigma can be inferred on
such research".
In Saksena' s case (supra) the order
was as follows :-
"In pursuance of the orders contained in General
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Administration Department
memorandum
No.
433-258-1 (iii)/63
dated the 28th February 1963,
the State Government have decided to retire you
with effect from the afternoon of the 31st December, -1963".
The relevant rule in Saksena's case (supra) conferred
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power on the Government to retire an officer after he
attains the age of 55 years on three months' notice without assigning any reason. The rule stated that the power
would normally be exercised to weed out
unsuitable
employees after they have attained the age of 55 years.
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It was contended on behalf of Saksena that the order
of retirement cast a stigma. This Court in Saksena's
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.U.P. STATE v. S. L. SHARMA (Ray, J.)
191
cajie referred to two earlier decisions of this Court to illustrate as to whether the order of retirement itself cast a
stigma. One was Jagdish Mitter v. Union of India, A.LR.
1964 S .. C. 449 where the order was in these terms :-
f'Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby
served with a month's notice of discharge with
effect from November I, 1949".
The other was the decision in State of Uttar Pradesh v.
M. M. Nagar (supra) where the order of retirement
was as follows :-
"I am directed to say that the
Governor has
been pleased to order in the public interest under
Article 465A and Note
(i) thereof of the Civil
Service Regulations, the compulsory retirement with
effect from September I, 1960 of Sri Madan Mohan
Nagar, Director. State Museum,
Lucknow who
completed 52 years of age on July 1, 1960 and 28
years and 3 months of qualifying service on 31-5-1960
as he has outlived his utility".
In Nagar's case (supra) this Court held that the words
"respondent had outlived his utility" occurring in the
order attached stigma to the officer. In Saksena' s case
(supra) the order was that the Government decided to
retire the officer with effect from 31 December 1963 and
as the order did not contain any words from which stigma
could be inferred it could not be said that the order of
compulsory retirement amounted to an order of removal .
in Saksena's case (supra). This Court in Shyam Lal's
case (supra) held that the mere fact that the Government servant was compulsorily retired before he reached
the age of superannuation could not in itself be a stigma.
The . ruling in Saksena's case (supra) is also that
where there are no words in the order of compulsory
retirement which thww any stigma there should not be
any inquiry into Government files to discover whether
any remark amounting to stigma could be found in the
files.
The reason is that it is the order of compulsory
retirement which alone is for examination. If the order
\92
SUPREME COURT REPORTS
[1972fl S;C.R.
itself does not contain any imputation or charge ·against
the officer the fact that "considerations · of misconduct or
misbehaviour weighed with the Government in coming
to its conclusion whether any action could be taken under
rule 278 does not amount to any imputation or charge
against the officer". This was the view expressed by this
Cburt in Dalip Singh's case (supra). In that case the
relevant rule was as follows :-
"The State reserves to itself the right to retire
any of its employees on pension on political or on
other reasons."
Where the authorities can make an order of compulsory
retirement for any reason and no reason is mentioned
in the order it cannot be predicated that the order of compulsory retirement has an inherent stigma in the order.
In the present case, the fact found is that the order of
·compulsory retirement could not be said to be on account
of malice.
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.
The High Court fell into the error of holding that the
order of compulsory retirement in the present case contaiiled 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 mne proposal for compulsory retirement.
For these reasons, the appeal is allowed. There will
be no order as to costs. The parties will pay and bear
their own costs.
K.B.N.
Appeal allowed.
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