Compulsory Retirement Is Not A Punishment
Compulsory Retirement/ Premature retirement
“compulsory retirement” in service law has been generally used in relation to cases where an employee has been directed that his services are no longer required before he/she reaches the normal age of retirement prescribed by the rules. In other words, in substance, there is a premature end of the relationship of master and servant before the servant reaches the prescribed age of retirement or Superannuation. Premature retirement is, therefore, a more apt expression to convey with this concept is concerned. Therefore, in dealing with this topic, the expression used will be premature retirement and not compulsory retirement.
Object of premature retirement –
The law relating to compulsory retirement in Public interest is no longer res Integra and the provision had been made principally for weeding out dead wood. An order of compulsory retirement being not penal in nature can be subject to judicial review inter alia:
(i) When it is based on no material;
(ii) When it is arbitrary:
(iii) When it is without application of mind; and
(iv) When there is no evidence in support of the case.
In Biswanath Prasad Singh case ,’ the Supreme Court emphasised and explained the twin meanings of the expression ‘compulsory retirement’ in service jurisprudence The Court pointed out that compulsory retirement was one of the punishments provided for in the service rules and was imposed only after a disciplinary proceeding and therefore amounted to disciplinary action consequent upon proof of misconduct The other concept of ‘compulsory retirement’ is better expressed as ‘premature retirement’ which was not imposed as a punishment for misconduct but in exercise power conferred by the service rules [e.g. FR 56(j)] to retire a person in public interest on the formation of bona fide opinion that the services of the concerned employee was of no further worth to the administration and as such did not cast any stigma.
The exercise of power of compulsory retirement must not hunt on the public servant but must act as a check and reasonable measure to ensure efficiency of service
Premature retirement is not a Punishment –
In service law ‘punishment’ has a special meaning. In short, it is penal action taken against an employee (by way of dismissal, removal, reduction in rank, with holding of promotion etc.) for misconduct after holding an enquiry. Punishment normally entails forfeiture of some accrued benefits and invariably casts a stigma on the employee concerned. Hence blindness will be a legitimate ground for compulsory/premature retirement.
In 1954, the Supreme Court in Shyamlal v. State of U.P. explained why premature retirement is not punishment. The Court gave the following reasons:
(a) Every termination of service was not punishment-but only those which were brought about by “removal” or “dismissal” for misconduct after enquiry.
(b) There is no “element of charge or imputation in the case or compulsory retirement”
(c) “Compulsory” retirement has no stigma or implication of misbehavior or incapacity.
(d) Service rules [in Shyamlal it was r. 49 of the Civil Services (Classification. Control and Appeal) Rules] indicate that dismissal or removal is a punishment as it involves loss of benefit already earned and deprives the employee of pension which he has earned-whereas in compulsory retirement there is no such deprivation or loss.
But this is not an absolute proposition. In a given case, having regard to the facts and circumstances, if the Court is persuaded to hold that in substance, the order compulsory retirement was made by way of punishment, then it would be void as such a case it would amount to dismissal or removal made in violation of Art. 51 the Constitution (in the case of Government servants) and of the disciplinary rules cases of other public employment).
Distinction between premature retirement and punishment –
A Punishment in service law refers to the major and minor punishments which are imposed on public servants after holding disciplinary proceedings. Amongst the major punishments, the two which are relevant in the present context are “dismissal” and “removal” from service.” By reason of the provisions of Art. 311 (in the case of Government servants) and statutory regulations (governing the servants of statutory bodies) and the general principles of fairness and natural justice, it is obvious that punishment of dismissal or removal cannot be imposed without informing the employee about the charges against him and without giving him a reasonable opportunity of hearing in to clear himself of the charges.
But from 1954 the Supreme Court has consistently held that an order of pre mature retirement is not a punishment since unlike in the cases of dismissal or removal, it does not have any penal consequence like forfeiture of any accrued benefits including pension-even though the order “is bound to have some adverse effect on the Government servant who has been compulsorily retired…”.” In fact rules and regulations often provide for two types of compulsory or premature retirements. The first is the one like FR 56(j) and the other is found in the Conduct Rules or Classification, Control and Appeal Rules under the chapter or heading ‘Punishment’. Such conduct or classification Rules expressly provide that before imposing the punishment of compulsory retirement like any other major punishment, the employee must be given a full opportunity of hearing.
It has been held that merely because the provisions for compulsory retirement are contained in the chapter under the heading “Disciplinary Proceedings”, it cannot, by itself be considered to be a penal provision.” It will not assume a punitive character merely because it is made during the pendency of a departmental proceeding.
When order of premature retirement amounts to punishment –
An order of premature retirement is sometimes assailed on the ground that although the authority has purported to exercise its power under the relevant rule conferring such power [like FR 56(j)], in fact and in substance, it has made the order by way of punishment with the necessary corollary that it amounts to misuse of power and, in any event, since it was made without complying with the principles of natural justice, it is void. “It is now well settled by decisions of this Court that where an order of compulsory retirement is imposed by way penality. It amounts to removal from service and the provisions of Art. 311 are attracted”
The Supreme Court laid down that two tests would have to be applied for finding out whether a termination of service by premature retirement amounted to removal or dismissal so as to attract the provisions of Art. 311 of the Constitution. The Court identified the two tests in these words:
“The first is whether the action is by way of punishment and to find that out the Court said that it was necessary that a charge or imputation against the officer is made the condition of the exercise of the power; the second is whether by compulsory retirement the officer is losing the benefit he has already earned as he does by dismissal or removal.”