judgement:
Civil Appeal Nos. 12 and 13 of 1977.
From the Judgement and order dated 17 11 1976 of the Andhra Pradesh High Court in Writ Appeal Nos.
591 592/76.
U. R. Lalit R. N. Sachthey and Girish Chandra for the Appellant in C. A. 12/77.
M. Abdul Khadar and G. Narayana Rao for the Appellant in C.A. 13/177.
T. section Krishna Murthy Iyer and A. Subba Rao for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
These two appeals (one by the State of Andhra Pradesh and the other by the Union of India) by certificate are directed against a Division Bench Judgment of the Andhra Pradesh High Court dated 17 11 1977 confirming the decision of a Single Judge by which an order passed by the Central Government compulsorily retiring M. E. Reddy, respondent No. I (hereinafter referred to 740 as Reddy) from service in public interest was quashed in a writ petition filed before the High Court.
The facts of the case lie within a very narrow compass particularly in view of the fact that we have decided not to go into the question of malafide alleged against respondent No. 3, Mr. K. Brahmanand Reddy before the High Court because Reddy in a previous Writ filed in the High Court against the order of suspension had expressly withdrawn all the allegations against Mr. K. Brahmanand Reddy respondent No. 3 in the High Court.
We shall, however, touch the fringes of this question so far as it directly affects the order impugned passed by the Government of India.
Reddy started his career in the Police Service as Deputy Superintendent of Police in the year 1948.
In the year 1958 Reddy was appointed to the Indian Police Service and 1952 was the year of his allotment.
On 31 7 1958 Reddy was promoted as Superintendent of Police in the State of Andhra Pradesh and held charge of a number of Districts from time to time.
Reddy was also awarded the President Police Medal near about the 14th August, 1967, but the award of the President Police Medal was withheld as Reddy was placed under suspension by the Government on 11 8 1967 pending departmental enquiry into a number of allegations made against him.
It is not necessary for us to detail those allegations which are not germane for the purpose of deciding these appeals.
In 1969 Reddy filed a writ petition in the Andhra Pradesh High Court praying that the order of suspension passed against him dated 11 8 1967 may be quashed as it was passed on false allegations and at the instance of Mr. K. Brahmanand Reddy who was the Chief Minister of Andhra Pradesh at that time.
A large number of Limitations in support of the plea of malice were made by Reddy.
The writ petition was admitted by the High Court which passed an order dated 17 7 1969 staying all further proceedings including the written statement by Reddy to the six charges framed against him by the department.
When the writ came up for hearing before the single Judge, the State Government represented to the High Court that it had decided to withdraw the order of suspension and reinstate the respondent No. 1, Reddy.
The State Government accordingly withdrew the order of suspension and directed that the period of suspension may be treated as on duty.
Thereafter Reddy filed an application before the High Court seeking permission to withdraw the petition as also the allegations made in the petition against the Chief Minister respondent No. 3 in the High Court.
The High Court accepted the 741 prayer of Reddy and allowed the petition to be withdrawn and passed A the following order: "It seems that orders reinstating the petitioner and virtually cancelling the suspension order are being issued.
The learned Advocate for the petitioner therefore desires to withdraw the writ petition.
The writ petition is therefore dismissed as withdrawn".
As a result of these developments the departmental proceedings against Reddy were dropped and he was given Selection Grade which appears to have been withheld because of the order of suspension passed against Reddy.
On 27 4 1971 Reddy was given the Selection Grade with retrospective effect from 6 6 1969.
Thereafter by an order dated 28 4 1971 Reddy was promoted to the Rank of Deputy Inspector General of Police by the State Government.
It appears that during the course of the departmental enquiry the following entry appears to have been made in the Annual Confidential Report of Reddy: "He is under suspension.
Allegation against him is that he concocted a case against Venugopala Reddy (attempt to rape) to please the Inspector General of Police K. K. Nanmbiar.
There is also a strong suspicion about his integrity.
The Anti corruption Branch are enquiring into the allegations.
In this enquiry allegations are proved".
After the proceedings were dropped and Reddy was promoted as Deputy Inspector General of Police he made a representation to the Government that the adverse entry contained in the Annual Confidential Report may be expunged.
The Government of Andhra Pradesh after considering the representation of Reddy passed the following order dated 20 4 1974: "The Government, after careful consideration, have decided that as the statements are factual it would be sufficient if a suitable entry is made in the said confidential report to the effect that the suspension was subsequently lifted and the period was treated duty and that further action was stayed as there were no good grounds to hold him guilty of any of the charges levelled against him.
(3) A suitable entry has accordingly been made in the confidential report for the year ending 31 3 1968".
We have expressly referred to this order of the Government to show that it completely demolishes the case of malafide pleaded by 11 625SCI/79 742 Reddy against Mr. K. Brahmanand Reddy, respondent No. 3 in the High Court because if Mr. K. Brahmanand Reddy had any animus against the officer he would not have accepted his representation and denuded the effect of the adverse entry made at the time when Reddy was suspended.
According to the allegations made by the State of Andhra Pradesh on the 7th August, 1975 a Review Committee consisting of the Chief Secretary, Home Secretary and the Inspector General of Police considered various cases of police officers including the case of Reddy and made their recommendations.
On 11th September, 1975 the Government of India after considering the report of the Review Committee ordered compulsory retirement of Reddy in public interest on the expiry of three months ' notice from the date of service of order on him.
This order was passed by the Central Government in consultation with the State Government hereinafter referred to as the impugned order) as may be extracted thus: "In exercise of the powers conferred by Sub rule 3 of Rule 16 of the All India Service (Death cum Retirement) Rules, 1958, the President, in consultation with the Government of Andhra Pradesh, is pleased to order the retirement of Sri M. E. Reddy a member of the Indian Police Service borne on the cadre of Andhra Pradesh, in the public interest, on the expiry of three months from the date of service of this order on him".
This order purports to have been passed under sub rule (3) of Rule 16 of the All India Service (Death cum Retirement) Rules, 1958 which reads as follows: "16(3) The Central Government, in consultation with the State Government, may require a member of the Service who has completed 30 years of qualifying service or who has attained the age of 55 years to retire in the public interest provided that at least three months ' previous notice in writing will be given to the member concerned".
An analysis of this Rule clearly shows that the following essential ingredients or the Rule must be satisfied before an order compulsorily retiring a Government servant is passed: 1.
That the member of the Service must have completed 30 years of qualifying service or the age of SO years (as modified by notification dated 16 7 1969), 2.
That the Government has an absolute right to retire the Government servant concerned because the word require" clearly confers an unqualified right on the Central Government; 743 3.
That the order must be passed in public interest; 4.
That three months ' previous notice in writing shall be given to the Government servant concerned before the order is passed.
It may be noted here that the provision gives an absolute right to the Government and not merely a discretion, and, therefore, impliedly it excludes the rules of natural justice.
It is also not disputed in the present case that all the conditions mentioned in Rule referred to above have been complied with.
It is a different matter that the argument of Reddy is based on the ground that the order is arbitrary and mala fide with which we shall deal later.
On a perusal of the impugned order passed by the Government of India it would appear that the order fully conforms to all the conditions mentioned in Rule 16 (3).
It is now well settled by a long catena of authorities of this Court that compulsory retirement after the employee has put in a sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma so as to attract the provisions of article 311 (2) of the Constitution.
In fact, after an employee has served for 25 to 30 years and is retired on full pensionary benefits, it cannot be said that he suffers any real prejudice.
The object of the Rule is to weed out the dead wood in order to maintain a high standard of efficiency and initiative in the State Services.
It is not necessary that a good officer may continue to be efficient for all times to come.
It may be that there may be some officers who may possess a better initiative and higher standard of efficiency and if given chance the work of the Government might show marked improvement.
In such a case compulsory retirement of an officer who fulfils the conditions of Rule 16 (3) is undoubtedly in public interest and is not passed by way of punishment.
Similarly, there may be cases of officers who are corrupt or of doubtful integrity and who may be considered fit for being compulsorily retired in public interest, since they have almost reached the fag end of their career and their retirement would not cast any aspersion nor does it entail any civil consequences.
Of course, it may be said that if such officers were allowed to continue they would have drawn their salary until the usual date of retirement.
But this is not all absolute right which can be claimed by an officer who has put in 30 years of service or has attained the age of 50 years.
Thus, the general impression which is carried by most of the employees that compulsory H retirement under these conditions involves some sort of stigma must he completely removed because rule 16 (3) does nothing of the sort.
744 Apart from the aforesaid considerations we would like to illustrate the jurisprudential philosophy of rule 16 (3) and other similarly worded provisions like Rule 56 (j) and other rule relating to the Government servants.
It cannot be doubted that rule 16 (3) as it stands is but one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution and is controlled only by those contingencies which are expressly mentioned in Article 311.
If the order of retirement under rule 16 (3) does not attract Article 311 (2) it is manifest that no stigma of punishment is involved.
The order is passed by the highest authority, namely, the Central Government in the name of the President and expressly excludes the application of rules of natural justice as indicated above.
The safety valve of public interest is the most powerful and the strongest safeguard against any abuse or colourable exercise of power under this Rule.
Moreover, when the Court is satisfied that the exercise of power under the rule amounts to a colourable exercise of jurisdiction or is arbitrary or made it can always be struck down.
While examining this aspect of the matter the Court would have to act only on the affidavits, documents, annexures, notifications and other papers produced before it by the parties.
It cannot delve deep into the confidential or secret records of the Government to fish out materials to prove that the order is arbitrary or mala fide.
The Court has, however, the undoubted power subject to any privilege or claim that may be made by the State, to send for the relevant confidential personal file of the Government servant and peruse it for its own satisfaction without using it as evidence.
It seems to us that the main object of this Rule is to instil a spirit of dedication and dynamism in the working of the State Services so as to ensure purity and cleanliness in the administration which is the paramount need of the hour as the Services are one of the pillars of our great democracy.
Any element or constituent of the Service which is found to be lax or corrupt, inefficient or not up to the mark or has outlived his utility has to be weeded out.
Rule 16 (3) provides the methodology for achieving this object.
We must, however, hasten to add that before the Central Government invokes the power under Rule 16 (3), it must take particular care that the rule is not used as a ruse for victimisation by getting rid of honest and unobliging officers in order to make way for incompetent favourites of the Government which is bound to lead to serious demoralisation in the Service and defeat the laudable object which the rule seeks to subserve.
If any such case comes to the notice of the Government the officer responsible for advising the Government must be strictly dealt 745 with.
Compulsory retirement contemplated by the aforesaid rule is designed to infuse the administration with initiative and activism so that it is made poignant and piquant, specious and subtle so as to.
meet the expanding needs of the nation which require exploration of "fields and pastures now".
Such a retirement involves no stain or stigma nor does it entail any penalty or civil consequences.
In fact, the rule merely seeks to strike a just balance between the termination of the completed career of a tired employee and maintenance of top efficiency in the diverse activities of the administrating.
An order of compulsory retirement on one hand causes no prejudice to the Government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other gives a new animation and equanimity to the Services.
The employees should.
try to understand the true spirit behind the rule which is not to penalise them but amounts just to a fruitful incident of the Service made in the larger interest of the country.
Even if the employee feels that he has suffered, he should derive sufficient solace and consolation from the fact that this is his small contribution to his country for every good cause claims its martyr.
These principles are clearly enunciated by a series of decisions of this Court starting from Shyam Lals(1) case to Nigams (2) case which will be referred to hereafter.
In the case of Shyam Lal vs The State cf Uttar Pradesh & Anr.(1) This Court clearly held that compulsory retirement does not amount to removal or termination nor does it involve any stigma.
In this connection, a Bench of 5 Hon 'ble Judges of this Court observed as follows: "There is no such element of charge or imputation in the case of compulsory retirement.
The two require ments for compulsory retirement are that the officer has completed twentyfive years ' service and that it is in the public interest to dispense with his further services.
It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note l to article 465 A 746 make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power.
In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity".
"The more important thing is to see whether by compulsory retirement the officer loses the benefit he has earned as he does by dismissal or removal.
The answer is clearly in the negative.
The second element or determining whether a termination of service amounts to dismissal or removal is, therefore, also absent in the case of termination of service brought about by compulsory retirement.
The foregoing discussion necessarily leads us to the conclusion that a compulsory retirement does not amount to dismissal or removal and, therefore, does not attract the provisions of Article 311 of the Constitution or of rule 55".
The same principle was reiterated by another Bench of S Hon 'ble Judges of this Court in the case of T. G. Shivacharan Singh & Ors.
vs The State of Mysore.(1) In this case, the Court was considering the scope of rule 285 which was almost in the same terms as rule 16 (3) and provided that a Government servant could be retired, after completing qualifying service of 30 years or on attaining the age of 50 years if such retirement was considered in public interest.
In this connection, the Court observed as follows: "It would thus be clear that though the normal age of retirement under R. 95 (a) is 55 years, under R. 285 it is competent to the Government to retire compulsorily a government servant prematurely if it is thought that such premature retirement is necessary in the public interest . . .
Mr. Venkataranga Iyengar contends that this Rule is invalid, because it contravenes article 14 as well as article 16 (1) of the Constitution.
In our opinion this contention can no longer be entertained.
because it is concluded by a long series of decisions of this Court".
Even the constitutionality of the provisions concerned was upheld by this Court.
The leading case on the subject which has been decided some years before and has been consistently followed by latter decisions 747 of this Court is the case of Union of India vs Col. J. N. Sinha & Anr.(1).
This Court was considering the scope and ambit of rule 56 (j) which is also worded in the same terms as rule 16 (3).
Rule 56 (3) runs thus: "Notwithstanding anything contained in this Rule the appropriate authority shall, if it is of the opinion that it is in the public interest so to do have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months ' pay and allowances in lieu of such notice.
(i) if he is in Class I or Class II Service or post the age for the purpose of direct recruitment to which is below 35 years, after he has attained the age of 50 years.
(ii) In any other case after he has attained the age of 55 years.
D Provided that nothing in this clause shall apply to a Government servant referred to in clause (e) who entered Government service on or before 23rd July 1966 and to a Government servant referred to in clause (f)".
After considering the various shades, aspects, purpose and object E of such provision this Court observed as follows: "But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice".
"The right conferred on the appropriate authority Is an absolute one.
That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so.
If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts.
It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is 748 an arbitrary decision Compulsory retirement involves no civil consequences.
The aforementioned rule 56 (j) is not intended for taking any penal action against the government servant.
That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution.
Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule.
In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding.
It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer.
It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there.
There is no denying the fact that in all organisations and more so in government organisations, there is good deal of dead wood.
It is in public interest to chop off the same.
Fundamental Rule 56 (j) holds the balance between the rights of the individual government servant and the interests of the public.
While a minimum service is guaranteed to the government servant, the government is given.
power to energies its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest".
The observations made above clearly reveal the object of this rule and lay down that where an officer concerned is of doubtful integrity he can be compulsorily retired under this rule.
Mr. Krishnamurthy Iyer appearing for Reddy submitted that the order impugned is passed on materials which are non existent in as much as there are no adverse remarks against Reddy who had a spotless career throughout and if such remarks would have been made in his confidential reports they should have been communicated to him under the rules.
This argument, in our opinion, appears to be based on a serious misconception.
In the first place, under the various rules on the subject it is not every adverse entry or remark that has to be communicated to the officer concerned.
The superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact.
Some of these remarks may be purely innocuous, or may be connected with general reputation of honesty or integrity that a particular officer enjoys.
It will indeed be difficult if not impossible to prove by positive evidence 749 that a particular officer is dishonest but those who has had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character not only of his performance but also of the reputation that he enjoys.
The High Court has also laid great stress on the fact that as adverse entries had not been communicated to Reddy, therefore, the order impugned is illegal.
We find ourselves unable to agree with the view taken by the High Court or the argument put forward by learned counsel for Reddy.
Moreover, the appellant had denied in their counter affidavit at page 59 Vol.
II that there was no adverse entry against the officer concerned prior to 1968.
This averment is contained in para 6 of the counter affidavit filed by Under Secretary to the Government of India in the High Court.
This aspect as considered by this Court in the case of R. L. Butail vs Union of India ors.(l) and the matter is concluded by the very apt observations made by Hidayatullah, C.J. who spoke for the Court and observed as follows: "These rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as data of comparative merit when questions of promotion, confirmation etc.
arise.
They also show that such reports are not ordinarily to contain specific incidents upon which assessments are made except in cases Where as a result of any specific incident a censure or a warning is issued and when such warning is by an order to be kept in the personal file of the Government servant.
In such a case the officer making the order has to give a reasonable opportunity to the Government servant to present his case.
The contention, therefore, that the adverse remarks did not contain specific instances and were, therefore, contrary to the rules, cannot be sustained.
Equally unsustainable is the corollary that because of that omission the appellant could not make an adequate representation and that there fore the confidential reports are vitiated".
G "It may well be that in spite of the work of the appellant being satisfactory, as he claimed it was, there may have been other relevant factors, such as the history of the appellant 's entire service and confidential reports through out the period of his service, upon which the appropriate authority may still decide to order appellant 's retirement under F.R. 56 ( j ) ".
750 In this case the Court followed and endorsed the decision of this Court in the case of J. N. Sinha (supra).
Here we might mention that the appellants were fair and candid enough to place the entire confidential personal file of Reddy before us starting from the date he joined the Police Service and after perusing the same we are unable to agree with Mr. Krishnamurthy Iyer that the officer had a spotless career.
The assessment made by his superior officers from the very beginning of his service until the impugned order was passed show that at best Reddy was merely an average officer and that the reports show that he was found to be sometimes tactless, impolite, impersonated and suffered from other infirmities though not all of them were of a very serious nature so as to amount to an adverse entry which may be communicated to him.
We might also mention that before passing an order under rule 16(3) it is not an entry here or an entry there which has to be taken into consideration by the Government but the overall picture of the officer during the long years of his service that he puts in has to be considered from the point of view of achieving higher standard of efficiency and dedication so as to be retained even after the officer has put in the requisite number of years of service.
Even in the last entry which was sought to be expanded through a representation made by Reddy and other entries made before it appears that the integrity of Reddy was not above board.
Even in the case of State of Uttar Pradesh vs Chandra Mohan Niganm & Ors.(1) on which great reliance has been placed by Mr. Krishnamurthy Iyer, it was observed thus: "We should hasten to add that when integrity of an officer is in question that will be an exceptional circumstance for which orders may be passed in respect of such a person under rule 16(3), at any time, if other conditions of that rule are fulfilled, apart from the choice of disciplinary action which will also be open to Government.
Thus, even according to the decision rendered by this Court in the aforesaid case the fact that an officer is of doubtful integrity stands on a separate footing and if he is compulsorily retired that neither involves any stigma nor any error in the order.
We might also refer to an observation made by the Single Judge of the High Court whose judgment was confirmed by the Division Bench, who appears to have misconstrued a judgment of this Court and by the process of such misconception seems to have ignored the later decisions of this Court given by small Benches on the exact question at 751 issue.
The learned Judge relied on the decision in the case of Madan Mohan Prasad vs State of Bihar & Ors.(1) in support of the view that the order of retirement even if it is in public interest violates Article 311 (2) of the Constitution even though no punishment was intended.
The learned Judge observed as follows: "In Madan Mohan vs State of Bihar (supra) the Supreme Court considered the validity of retirement order of a Judicial officer who for the reason that he worked for seventeen years asserted was permanent member of the service when his retirement was ordered under Bihar pension Rules of 1950 questioned the order under article 32 of the Constitution of India that it was a punishment within the meaning of article 311 (2) of the Constitution of India".
and then relies on certain observations of this Court in order to hold that the termination of service of the officer casts a stigma on his character and attracts Article 311(2) of the Constitution.
The learned Judge further relied on a decision of this Court in support of the proposition that a judgment rendered by S Judges of the Supreme Court would prevail over a judgment of a smaller Bench.
So far this part of the observation is concerned, there can be no doubt.
But the learned Judge appears to have completely misconstrued the decision in Madan Mohan 's case (supra) which was not a case of compulsory retirement at all, nor was it a case where the officer concerned was retired under a rule like rule 56(j) or 16(3) as we have indicated in this case.
On the other hand, in that case what happened was that the officer was appointed as a temporary Munsif and under the terms of the notification by which he was appointed it was provided that the appointment of temporary Munsif could be terminated by giving one month 's notice.
The High Court it appears, was not satisfied with the work of Munsif and accordingly decided to terminate his services.
But the Chief Minister in one of his speeches on the floor of the House had made certain observations implying that the services of the Munsif were being terminated on account of inefficiency and misconduct.
In these peculiar circumstances, therefore, this Court held that the termination of the Munsif even though he was a temporary servant cast a stigma and, therefore, attracted Article 311 of the Constitution.
In this connection, the Court observed as follows: "It seems to us that on the facts of this case, the order dated January 15, 1972 violates Article 311(2) of the Constitution.
The petitioner had first been holding a temporary post and then a permanent post for nearly seventeen 752 years.
The Chief Minister s statement in the Assembly that his services were not satisfactory and the Government was considering serving show cause notice and the fact that his services were terminated without any enquiry being held would inevitably lead the public to believe that his services had been terminated on account of inefficiency or misconduct.
This did cast a stigma on his character".
It is, therefore, manifest that the facts of this case and the points involved were absolutely different from the facts of the present case.
The aforesaid case relied upon by the High Court would have absolutely no application to the present case where Reddy was neither a temporary servant nor was his service terminated.
The Single Judge of the High Court was, therefore, absolutely wrong in equating the principles of compulsory retirement under rule 16(3) with termination of the services of a temporary employee under the rules.
Similarly, the case of J. N. Sinha (supra) was followed and relied on by later decisions of this Court in the case of N. V. Puttabhatta vs The State Mysore & Anr.(1) as also in the case of State of Assam and Anr.
vs Basanta Kumar Das etc.
etc.(2) Again, in the case of Tara Singh etc.
vs State of Rajasthan & Ors(8) it was pointed out that compulsory retirement under the provisions similar to rule 16(3) cannot amount to a stigma, and the incidents of compulsory retirement were adroitly summed up by Ray, C.J. who observed as follows: "The right to be in public employment is a right to hold it according to rules.
The right to hold is defeasible according to rules.
The rules speak of compulsory retirement.
There is guidance in the rules as to when such compulsory retirement is made.
When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to bring any charge of Inefficiency or incompetency, the Government passes order of such compulsory retirement.
The Government servant in such a case does not lose the benefits which a Government servant has already earned.
These orders of compulsory retirement are made in public interest.
This is the safety valve of making such orders so that no arbitrariness or bad faith creeps in".
753 "There is no stigma in any of the impeached orders of compulsory retirement".
The learned Chief Justice pointed out that having regard to the safeguards contained in the rules particularly the fact that the retirement was in public interest the safety valve of safeguarding malafide or arbitrariness in the order was clearly contained in the provision itself.
J. N. Sinha 's case (supra) was endorsed and followed in this case also.
In a recent decision of this Court in the case of Mayenghoan Rahamohan Singh vs The Chief Commissioner (Admn.) Manipur & Ors.
the Court observed as follows: "Compulsory retirement is not a punishment.
There is no stigma in compulsory retirement".
"The affidavit evidence is that the order of compulsory retirement was made in public interest.
The absence of recital in the order of compulsory retirement that it is made in public interest is not fatal as long as power to make compulsory retirement in public interest is there and the power in fact is shown in the facts and circumstances of the case to have been exercised in public interest".
In this case, the Court was considering the scope of rule 56(j) which, as already indicated, is couched in the same terms as rule 16(3).
Learned counsel for Reddy heavily relied on the decision of this Court in the case of State of Uttar Pradesh vs Chandra Mohan Nigam & Ors.
(supra) and contended that as the Government of India while passing the impugned order had not considered the report of the Review Committee the order is vitiated by an error of law.
We have gone through this decision and we are unable to agree with the contentions put forward by learned counsel for Reddy.
The decision referred to above is not an authority for holding that the decision of the Review Committee is binding on the Government of India.
All that is necessary is that the Government of India should, before passing an order under rule 16(3) consider the report of the Review Committee which is based on full and completed analysis of the history of the service of the employee concerned.
In the instant case, it is clearly pleaded by the appellants in the High Court that the report of the Review Committee was in fact considered by the Government of India before passing the impugned order.
The confidential file placed before us also clearly shows that on the note sheet the notes by the 754 Secretary on the recommendations of the Review Committee the Home Minister, Mr K. Brahmananda Reddy has appended his signatures and has passed the order that Reddy should be compulsorily retired.
Furthermore, in Nigam 's case (supra) referred to above what had weighed with the Court was that after the Review Committee had submitted its report to the Government, the Government ordered a second Review Committee just in order to enable the Review Committee to give an adverse report against the officer concerned.
Such a course of action was condemned and deprecated by this Court.
In the instant case, however, there is no allegation by Reddy that any second Committee was ever appointed.
Even so in Nigam 's case (supra) this Court did not depart from the ratio laid down in Sinha 's case (supra) and followed by later cases but observed as follows: "As stated earlier, even in the case of compulsory retirement under rule 16(3), an order may be challenged in a court if it is arbitrary or mala fide.
If, however, the Government reaches a decision to prematurely retire a Government servant, bona fide the order, per se, cast any stigma on the employee nor does the employee forfeit any benefit which he has already earned by his service, nor does it result in any civil consequences".
The Court at page 531 of the Report clearly pointed out that the instructions issued by the Government for constituting the Review Committee were not mandatory.
We have already indicated above that this Court made it absolutely clear that where a person was retired under Rule 16(3) on the ground that his integrity was in question, the observations made by this Court would have no application.
in the instant case, it has been clearly averred by the appellants that the integrity of Reddy was not beyond suspicion and the remarks were rot expressly expunged by the Chief Minister.
Reliance was also placed by learned counsel for Reddy on a recent decision of this Court in the case of Smt.
S.R. Venkataraman vs Union of India & Anr.
The facts of this case, however, are, clearly distinguishable from the facts of the present case.
In that case there was a finding of fact by this Court that the order of retirement was mala fide and amounted to victimisation and the allegation made by the appellant before this Court were not only not disputed but counsel for the Union of India went to the extent of saying that he was not in a position to support the impugned order which was 755 unfair.
It was in the background of these circumstances that the Court held that the order was malafide and observed as follows: "The appellant has pointed out in this connection that her service record was examined in March, 1976 by the Departmental Promotion Committee, with which the Union Public Service Commission was associated, and the Committee considered her fit for promotion to the selection grade subject to clearance in the departmental proceedings which were pending against her, and that she was retired because of bias and animosity.
Our attention has also been invited to the favourable entry which was made in her confidential report by the Secretary of the Ministry.
Mr. Lekhi, learned counsel for the Union of India, produced the relevant record of the appellant for our perusal.
While doing so he frankly conceded that there was nothing on the record which could justify the order of the appellant 's premature retirement.
He went to the extent of saying that the Government was not in a position to support that unfair order" "The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence.
It will therefore he a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of government servants only in the 'public interest ', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result.
An administrative order which is based on reasons of fact which do not exist must therefore be held to be infected with an abuse of power".
These observations, however, do not apply to the facts of the present case.
Lastly, Mr. Krishnamurthy Iyer, learned counsel for Reddy heavily relied on a decision of the Calcutta High Court in the case of Chief Security Officer, Eastern Railway & Anr.
vs Ajay Chandra Bagchi on a perusal of this decision we are of the opinion that this case was not correctly decided as it is directly opposed to the ratio decidendi of J. N. Sinha 's case (supra) where this Court held that the rule in question expressly excludes the principles of natural justice and, therefore, it is manifest that the Calcutta High Court was in error in basing 756 its decision on rules of natural justice.
The Calcutta High Court in this case had observed as follows: "Thus even if the Railway authorities had absolute right to retire the Respondent petitioner subject to the requirements as mentioned hereinbefore and in terms of paragraph 3 of Chapter XVII of the Regulations read with item 6 of the instructions in the Form in Appendix XVlI in the admitted position of the case, viz., certain adverse entries were taken into consideration in having him compulsorily retired, the action as taken is thus certainly against all principles of natural justice and norms of fair play and as such the action so taken cannot be supported.
The said right under paragraph 3 of Chapter XVII read with item 6 of the instructions in the Form in Appendix XVIII can be used and those principles can be applied or resorted to subject to the principles of natural justice, which incidentally is the restraint put on the pretended misuse of power".
The High Court seemed to rely on certain adverse entries which were taken into consideration when the order of retirement was passed.
We have already pointed out relying on the dictum of this Court laid down by Hidayatullah, C.J. that the confidential reports can certainly be considered by the appointing authority in passing the order of retirement even if they are not communicated to the officer concerned.
Thus, the two grounds on which the Calcutta decision was based are not supportable in law.
For these reasons, therefore, we hold that the decision of the Calcutta High Court referred to above was wrongly decided and is hereby overruled.
On a consideration of the authorities mentioned above we are satisfied that there is no legal error in the impugned order passed by the Government of India retiring Reddy.
It was, however, contended by counsel for Reddy that reading the order as a whole it contains an odour of victimisation, so as to make the order arbitrary.
We are, however, unable to find any material on the record to show that the order was in any way arbitrary.
The Government of India acted on the orders passed by the Home Minister concerned who had considered the report of the Review Committee in its various aspects.
There is nothing to show that Reddy was victimised in any way.
On the other hand, the history of his service shows that he was always given his due.
He was taken in the I.P.S. and allotted the year 1952.
He was promoted to the selection grade also at the proper time.
The order of suspension was withdrawn and the departmental enquiry was dropped 757 and the officer was reinstated and later promoted as D.I.G. These facts completely militate against the concept of victimisation.
It appears that on an overall consideration of the entire history of the service of Reddy and the various stages through which he had passed it was considered in the interest of administration and to ensure better initiative and efficiency to retire him in public interest.
We are also unable to find any element of arbitrariness in the impugned order.
For these reasons, therefore, the first contention raised by learned counsel for Reddy must be rejected.
It was then contended that the order was mala fide and passed because Respondent No. 3, the Chief Minister of Andhra Pradesh bore serious animus against Reddy and wanted him to do certain things which he refused to do, hence he was compulsorily retired.
Apart from the fact that all the allegations regarding mala fide stood withdrawn as indicated in the earlier part of the judgment it is alleged in the counter affidavit and this averment has not been disputed before us that on 5 1 1970 the following Memo was filed on behalf of Reddy before the High Court: "The petitioner withdraws the writ petition including the allegations against the Hon 'ble Chief Minister of Andhra Pradesh.
The writ petition may kindly be dismissed as with drawn".
Furthermore, the counter affidavit at p. 73 Vol.
IV contains a letter submitted by the Second Go Pleader on 5 1 1970 the relevant part of which runs thus: "I have discussed the matter with the Advocate for the petitioner.
He agrees to withdraw the writ petition as also the allegations made thereunder against the Hon 'ble Chief Minister and is prepared to file a Memo.
Copy of which is enclosed herewith" Once Reddy had withdrawn the allegations of malafide against respondent No. 3 in the High Court, it is not open to him to revive those allegations in these proceeding when the impugned order is passed.
The impugned order as held by us is a bona fide order and does not suffer from any legal infirmity, and, therefore, we cannot permit Reddy to play a game of hide and seek with the Court by withdrawing the allegations of mala fide against respondent No. 3 in the High Court and then reviving them when after some time an adverse order against him was passed.
Moreover, if respondent No. 3 was really inimically disposed towards Reddy he would not have either dropped the departmental enquiry or reinstated him, or have promoted him to the rank 758 of D.I.G. Furthermore, the Chief Minister Mr. K. Brahmananda Reddy has himself filed a personal affidavit before the High Court which is contained at page 235 Vol.
III wherein he has categorically denied all the allegations made against him by Reddy.
The assertions made in the affidavit are fully supported by circumstantial evidence and the conduct of Reddy himself.
For these reasons, therefore, the second contention regarding the impugned order being mala fide is also rejected.
The result is that all the contentions raised by counsel for Reddy fail.
We are clearly of the opinion that the High Court committed a clear error of law in quashing the impugned order which was fully justified by rule 16(3), and did not suffer from any legal infirmity and was also in consonance with the law laid down by this Court starting from Shyamlal 's case upto Sinha 's and Nigam 's case (supra) discussed above.
We, therefore, allow the appeals, set aside the order of the High Court and restore the impugned order retiring Reddy.
In the peculiar circumstances of the case there will be no order as to costs.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The respondent in the two appeals was compulsorily retired by an order dated 20 4 74 under Rule 16(3) of the All India Services (Death cum Retirement) Rules, 1958.
The respondent challenged the said order by filing a Writ Petition before the Andhra Pradesh High Court.
A single Judge of that Court allowed the petition.
The said decision was affirmed by the Division Bench in appeal.
Allowing the appeals by certificate the Court, ^ HELD: 1.
An analysis of Rule 16(3) of the All India Services (Death cum Retirement) Rules, 1958 clearly shows that the following essential ingredients of the Rule must be satisfied before an order of compulsory retiring a Government servant is passed: (i) that the member or the service must have completed 30 years of qualifying service or the age of SO years (as modified by notification dated 16 7 1969); (ii) that the Government has an absolute right to retire the Government servant concerned because the word "require" confers an unqualified right on the Central Government servant; (iii) that the order must be passed in public interest; and (iv) that three months ' previous notice in writing shall be given to the Government servant concerned before the order is passed.
[742 G H. 713 A B] .
The provision gives an absolute right to the Government and not merely a discretion, and, therefore implied it excludes the rules of natural justice.
[743 B] 2.
Compulsory retirement after the employee has put in a sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma so as to attract the provisions of Article 311(2) of the Constitution.
In fact, after an employee has served for 25 or 30 years and is retired on full pensionary benefits, it cannot be said that he suffered any real prejudice.
[743 C D] 3.
The object of Rule 16(3) is to weed out the dead wood in order to maintain a high standard of efficiency and initiative in the State service.
It is not necessary that a good officer may continue to be efficient for all times to come.
It may be that there may be some officers who may possess a better initiative and higher standard of efficiency and if given chance the work of the Government might show marked improvement.
In such a case compulsory retirement of an officer who fulfils the conditions of Rule 16(3) is undoubtedly in public interest and is not passed by way of punishment.
Similarly, there may be cases of officers who are corrupt or of doubtful integrity and who may be considered fit for being compulsorily retired in public interest.
Since 737 they have almost reached the fag end of their career and their retirement would A not cast any aspersion, nor does it entail any civil consequences.
Of course, it may be said that if such officers were allowed to continue they would have drawn their salary until the usual date of retirement.
But, this is not an absolute right which can be claimed by an officer who has put in 30 years of service or attained the age of 50 years.
Rule 16(3) does nothing of the sort of attaching stigma.
[743 D H] 4.
The jurisprudential philosophy of Rule 16(3) and other similarly worded provisions like F.R. 56(j) and other rules relating to Government servants is noteworthy.
Rule 16(3) as it stands is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution and is controlled only by those contingencies which are expressly mentioned in Article 311.
If the order of retirement under Rule 16(3) does not attract Article 311(2), it is manifest that no stigma of punishment is involved.
The order is passed by the highest authority, namely, the Central Government in the name of the President and expressly excludes the application of rules of natural justice.
[744A C] The safety valve of public interest is the most powerful and the strongest safeguard against any abuse or colourable exercise of power under this Rule.
Moreover, when the Court is satisfied that the exercise of power under the rule amounts to a colourable exercise of jurisdiction or is arbitrary or malafide, it can always be struck down.
While examining this aspect of the matter the Court would have to act only on the affidavits, documents annexures, notifications and other papers produced before it by the parties.
It cannot delve deep into the confidential or secret records of the Government to fish out materials to prove that the order is arbitrary or malafide.
The court, has, however, the undoubted power subject to any privilege or claim that may be made by the State.
to send for the relevant.
confidential personal file of the Government servant and peruse it for its own satisfaction without using it as evidence.
[744 C E] The main object of Rule 16(3) is to instil a spirit of dedication and dynamism in the working of the State Services so as to ensure purity and cleanliness in the administration which is the paramount need of the hour as the services are one of the pillars of our great democracy.
Any element or constituent of the service which is found to be lax or corrupt, inefficient or not up to the work or has outlived his utility has to be weeded out.
Rule 16(3) provides the methodology for achieving the object.
[744 E G; Before the Central Government invokes the power under Rule 16(3), it must take particular care that the rule is not used as a ruse for victimisation by getting rid of honest and unobliging officers in order to make way for incompetent favourites of the Government which is bound to lead to serious demoralisation in the service and defeat the laudable object which the rule seeks to sub serve.
If any such case comes to the notice of the Government the officer responsible for advising the Government must be strictly dealt with.
[744 G H] Compulsory retirement contemplated by Rule 16(3) is designed to infuse the administration with initiative and activism so that it is made poignant and piquant, specious and subtle so as to meet the expanding needs of the nation which require explanation of "fields and pastures now".
Such a retirement 738 involves no stain or stigma nor does it entail any penalty or civil consequences.
In fact the rule merely seeks to strike a just balance between the termination of the completed career of a tired employee and maintenance of top efficiency in the diverse activities of the administration.
[745 A B] An order of compulsory retirement on one had causes no prejudice to the Government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other gives a new animation and equanimity to the services The employees should try to understand the true spirit behind the rule which is not to penalise them but amounts just to a fruitful incident of the service made in the larger interest of the country.
Even, if the employee feels that he has suffered, he should derive sufficient solace and consolation from the fact that this is his small contribution to the country for every good cause claims its martyr.
[745 B D] Shyam Lal vs State of U.P., ; ; T. G. Shivcharan Singh and Ors.
vs The State of Haryana A.I.R. ; Union of India vs Col. J. N. Sinha and Anr., [1971] 1 SCR 791; M. V. Puttabhatta vs The State of Mysore and Anr., ; ; State of Assam & Anr. etc.
vs Prasanta Kumar Das etc.
[19731 3 S.C.R. 158 & 167; Tara Singh etc.
vs State of Rajasthan and Ors. ; ; Mayenghaon Rahamohan Singh vs The Commissioner (Admn.) Manipur and Ors., ; ; applied.
Before passing an order under Rule 16(3), it is not an entry here or an entry there which has to be taken into consideration by the Government but the overall picture of the officer during the long years of his service that he put in has to be considered from the point cf view of achieving higher standards of efficiency and dedication so as to be retained even after the officer has put in the requisite number of years of service.
[750 C D] Under the various rules on the subject, it is not every adverse entry or remark that has to be communicated to the officer concerned.
The superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact.
Some of these remarks may be purely innocuous or may be connected with general reputation of honesty or integrity that a particular officer enjoys.
It will indeed be difficult if not possible to prove by positive evidence that a particular officer is dishonest but those who have had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character, not only of his performance but also of the reputation he enjoys.
Therefore on the ground of non communication of adverse remarks, the impugned orders cannot be set aside.
[748? G H, 749 A] R. L. Butail vs Union of India and ors., and union of India vs Col. J. N. Sinha and Anr., [1971] 1 SCR 791; applied.
State of Uttar Pradesh vs Chandra Mohan Nigam & Ors., ; referred to.
Madan Mohan Prasad vs State of Bihar and Ors., ; distinguished.
All that is necessary is that the Government of India, before passing an order under Rule 16(3) should consider the report of the Review Committee 739 which is based on full and complete analysis of the history of the service of A the employee concerned.
[753 F G] In the instant case, it was clearly pleaded by the appellants ill the High Court that the report of the Review Committee was in fact considered by the Government of India before passing the impugned order.
An examination of the confidential file also confirms this.
[753 G H 754 A] State of U.P. vs Chandra Mohan Nigam and Ors. and section R. Venkataraman vs Union of India and Anr., [19,9] 2 SCR 202; distinguished.
Chief Security officer, Eastern Railway & Anr.
vs Ajay Chandra Bagchi ; overruled.
In the instant case (a) there is no legal error in the impugned order passed by the Government of India, retiring Mr. Reddy.
The order is not arbitrary as could be seen from the material of the record.
The Government of India acted on the orders passed by the Home Minister concerned who had considered the report of the Review Committee in its various aspects.
There is nothing to show that Reddy was victimised in any way.
On the other hand, the history Of his service shows that he was always given his due.
He was taken by the I.P.S. and allotted the year 1952.
He was promoted to the selection grade also at the proper time.
The order of suspension was withdrawn and the department enquiry was dropped and the officer was reinstated and later promoted as D.I.G. These facts completely militate against the concept of victimisation.
[756 F H, 757 A] (b) The impugned order is a bonafide order and does not suffer from any legal infirmity.
[757 G]


judgement:
: Criminal Appeal No. 17 of 1979.
Appeal by Special Leave from the judgement and order dated 16 3 1978 of the Kerala High Court in Crl.
M.P. No. 124/77.
T. C. Raghavan and N. Sudhakaran for the Appellant.
Nemo for the Respondent.
675 The Judgment of the Court was delivered by A DESAI, J.
Nemo tenetu prodere no man is bound to 'accuse himself which finds constitutional recognition in Article 20(3) of he Constitution, conferring immunity from compelling an accused person to be a witness against himself by giving self incriminating evidence, has been put into forefront to support a prayer for quashing he search warrant issued by the Sub Divisional Magistrate, Always, on 4th January ]977 directing The Deputy Superintendent of Police, Always, to search the premises styled as the office of H.M.D.P. Sabha ( 'Sabha ' for short), Moothakunam, and to seize the books, documents and papers as set out in the application for issuance of search warmly.
The Magistrate had before him a complaint filed by the first respondent Ramakrishnan against the petitioner and S others for having committed offences under sections 403, 409, 420 and 477A read with section 34, Indian Penal Code.
Original accused 1, and accused 2 the present petitioner, were respectively President and Secretary of the Sabha and original accused 3 to 6 were described as Managers of the Institution.
The complainant made an application on 4th January 1977 requesting the learned Magistrate to issue a search warrant to search the office premises of the Sabha and seize the books, documents, etc.
described in the application, if found therein.
On the very day the Magistrate issued a search warrant and in fact it was executed and certain books, vouchers and papers were produced before the Court.
The present petitioner (original accused 2) requested the learned Magistrate to recall the warrant and to return the books and documents seized under the authority of the search warrant.
The learned Magistrate was of the opinion that in view of the decision of this Court in Shyamlal Mohanlal vs State of Gujarat(l), and an earlier decision of V. Khalid, J. Of Kerala High Court, no search warrant could be issued under section 91 of the Code of Criminal Procedure, 1973 ( 'new Code ' for short), and accordingly directed that anything recovered pursuant to the search warrant Issued by him be returned to the person from whom the same were recovered.
The order was, however, to take effect after the decision on the requisition which was by then received from the Income Tax officer under section 132A of the Income Tax Act.
First respondent (original complainant) preferred a revision application to the High Court of Kerala questioning the correctness of the decision of the learned Magistrate and the claim to constitutional immunity of the accused from search and seizure of books, documents, etc.
directed with a view to collecting evidence against him, being violative of article 20(3) of the Cons 676 titution was canvassed before the Court.
The High Court after an exhaustive review of the decisions of this Court as well as those bearing on the Fifth Amendment to the American constitution held that the provisions relating to search contained in section 93(1) of the Criminal Procedure Code, 1973, are not hit by Article 20(3) of the Constitution.
Section 91 confers power on the Court or an officer in charge of a J police station to issue a summons or written order as the case may be, to any person in whose possession or power a document, the production of which the Court or the officer considers necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under the Code.
Section 93 confers power on the Court to issue search warrant under three different situations.
Sections 91 and 93, so far as they are relevant, read as under: "91.
(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person m whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stat ed in the summons or order." "93.
(l)(a) Where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub section ( 1 ) of section 92 has been, or might, be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such document or thing is not known to the Court to be in the possession of any person, or (c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained".
In exercise of the power conferred by section 91 a summons can be issued by the Court to a person in whose possession or power any 677 document or other thing considered necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the Code calling upon him to produce the document or thing at the time and place to be mentioned in the summons.
On the advent of the Constitution, and especially in view of the provision contained in article 20(3), Courts were faced with a problem whether the person referred to in section 91(1) of the Code (s 94 of old Code) would include an accused.
In other words, the question was whether a summons can be addressed to the accused calling upon him to produce any document which may be in his possession or power and which is necessary or desirable for the purpose of an investigation, inquiry, trial, etc.
in which such person was an accused person.
The wider question that was raised soon after the enforcement of the Constitution was whether search of the premises occupied or in possession of a person accused of an offence or seizure of anything therefrom would violate the immunity from self incrimination enacted in Article 20(3).
In M. P. Sharma & others vs Satish Chandra, District Magistrate, Delhi & ors.
,(ll) the contention put forth was that a search to obtain document for investigation into an offence is a compulsory procuring of incriminatory evidence from the accused himself and is, therefore, hit by article 20(3) as unconstitutional and illegal.
A specific reference was made to sections 94 and 96 of the Criminal Procedure Code, 1898 ( 'old Code ' for short), both of which are re enacted in almost identical language as sections 91 and 93 in the new Code, in support of the submission that a seizure of documents on search is in the contemplation or law a compelled production of documents.
A Constitution Bench of 8 judges of this Court unanimously negatived this contention observing: "A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law.
When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.
Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches".
678 It was concluded that a search under the enabling provisions of the Criminal Procedure Code cannot be challenged as illegal on the ground of violation of Article 20(3).
It must be made clear that the question whether there is any element of compulsion in issuing a summons to a person accused of an offence under section 94 (old) section 91 (new) to produce a document or thing in his possession or power considered n necessary or desirable for any inquiry, investigation or, trial under the Code of Criminal Procedure was kept open.
In other words, the question whether the expression 'person ' in section 94 (old) section 91 (new) would comprehend a person accused of an offence was left open.
Following the decision in M. P. Sharma 's case, a Division Bench of the Madras High Court in Swarnalingam Chettiar vs Assistant Labour Inspector, Karaikudi(l) held that a summons could not be issued under section 94 of the old Code to the accused for production of certain documents in his possession irrespective of the fact whether those documents contained some statement of the accused made of his personal knowledge and accordingly the summons issued to the accused to produce certain documents was quashed.
After the matter went back to the trial court, on an application of the Sub Inspector investigating the case, for a search warrant to be issued to obtain documents mentioned in the list attached to the petition and likely to be found upon a search of the premises of Karaikudi Railway out Agency, the Magistrate issued a notice to the accused to show cause E, why a general search warrant as asked for should not be issued.
Again the accused moved the High Court in revision and in Swarnalingam Chettiar vs Assistant Inspector of Labour Karaikudi(2) the High Court quashed the notice holding that such notice practically amounts to stating that either he produces the document or else the premises will be searched and this will amount to testimonial compulsion held impermissible by the decision of the Supreme Court in M. P. Sharma 's case (supra).
This view of the Madras High Court is no more good law in view of the later decisions of this Court.
In The Slate of Bombay vs Kathi Kalu Oghad & Ors.
,(3) a question arose whether obtaining specimen hand writing or thumb impression of the accused would contravene the constitutional guarantee in article 20(3).
In this case there was some controversy about certain observations in M. P. Sharma 's case (supra) and, therefore, the matter was heard by a Bench of 11 Judges.
Two opinions were handed down, one by Chief Justice Sinha for himself and 7 brother judges, and another by Das Gupta, J. for himself and 2 other colleagues.
In Sinha, CJ 's opinion, the observation in M. P. 679 Sharma 's case (supra) that section 139 of the Evidence Act has no bearing on the connotation of the word 'witness ' is not entirely well founded in law.
Immunity from self incrimination as re enacted in article 20(3) was held to mean conveying information based upon the personal knowledge of the person giving the information and could not include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge.
It was concluded that to be a witness is not equivalent to furnishing evidence in its widest significance; that is to say, as including not merely making of oral or written statement but also production of document or giving materials which may be relevant at trial to determine the innocence or guilt of the ' accused.
What was kept open in Sharma 's case (supra) whether a person accused of an offence could be served with a summons to produce documents was decided when it was observed that immunity from self incrimination would not comprehend the mechanical process of producing documents in court which may throw a light on any of the points in controversy but which do not contain a statement of the accused based on his personal knowledge.
The matter again came up before a Constitution Bench of this Court in Shyamlal Mohanlal vs State of Gujarat(l).
In that case appellant Shyamlal Mohanlal was a licensed money lender and according to the provisions of the relevant Money Lending Act and Rules he was under an obligation to maintain books.
He was prosecuted for failing to maintain books in accordance with the provisions of the Act and the Rules.
The police prosecutor incharge of the case on behalf of the prosecution presented an application requesting the Court to order the appellant Shyamlal Mohanlal to produce daily book and ledger for a certain year.
Presumably it was a request to issue summons as contemplated by section 94 of the old Code.
The Learned Magistrate rejected the request on the ground that in so doing the guarantee of immunity from self incrimination would be violated.
The matter ultimately came to this Court and the question that was put in forefront before the Court was whether the expression 'person ' in section 94(1) which is the sale as section 91(1) of the new Code, comprehends within its sweep a person accused of an offence and if it does, whether an issue of summons to produce a document in his possession or power would violate the immunity against self incrimination guaranteed by Article 20(3).
The majority opinion handed down by Sikri, J. ruled that section 94(1) upon its true construction does not 680 apply to an accused person.
While recording this opinion there is no reference to the decision of the larger Bench in Kathi Kalu oghad 's case (supra).
Shah, J. in his dissenting judgment referred to the observation that the accused may have documentary evidence in his possession which may throw some light on the controversy and if it is a document which is not his statement conveying his personal Knowledge relating to the charge against him, he may be called upon to produce it.
Proceeding further it was observed that article 20(3) would be no bar to the summons being issued to a person accused of an offence to produce a thing or document except in the circumstances herein above mentioned.
Whatever that may be, it is indisputable that according to the majority opinion the expression 'person ' in section 91(1) (new Code) does not take within its sweep a person accused of an offence which would mean that a summons issued to an accused person to produce a thing or document considered necessary or desirable for the purpose of an investigation, inquiry or trial would imply compulsion and the document or thing so produced would be compelled testimony and would be violative of the constitutional immunity against self incrimination.
There appears to be some conflict between the observations in M. P. Sharma 's case (supra) as reconsidered in Kothi Kala oghad 's case (supra) and the one in the case of Shyamlal Mohanlal (supra).
However, as this case is not directly relatable to a summons issued under section 91(1), we do not consider it necessary to refer the matter to a larger Bench to resolve the conflict.
In view of the decision in Shyamlal Mohanlal 's case (supra) one must proceed on the basis that a summons to produce a thing or document as contemplated by section 91(1) cannot be issued to a person accused of an offence calling upon him to produce document or thing considered necessary or desirable for the purpose of an investigation, inquiry, trial or other proceeding under the Code of Criminal Procedure.
If summons as hereinbefore discussed cannot be issued to an accused person under section 91(1), ipso facto a search warrant contemplated by section 93(1) (a) cannot be issued by the Court for the obvious reason that it can only be issued where the Court could have issued a summons but would not issue the same under the apprehension that the person to whom such summons is issued will not or would not produce the thing as required by such summons or requisition.
A search warrant under section 93(1)(a) could only be issued where a summons could have been issued under section 91(1) but the same would not be issued on an apprehension that the person, to whom 681 the summons is directed would not comply with the same and, there A fore, in order to obtain the document or thing to produce which the summons was to be.
issued, a search warrant may be issued under section 93 (1) (a) .
Section 93, however, also envisages situations other than one contemplated by section 93(1)(a) for issuance of a search warrant.
It must be made distinctly clear that the present search warrant is not issued under section 93 ( 1 ) (a) .
Section 93(1) (b) comprehends a situation where a search warrant may be issued to procure a document or thing not known to the Court to be in the possession of any person.
In other words, a general search warrant may be issued to procure the document or thing and it can be recovered from any person who may be ultimately found in possession of it and it was not known to the Court that the person from whose possession it was found was in possession of it.
In the present case the search warrant was to be executed at the office of the Sabha and it can be said that office bearers of the Sabha were the persons who were in possession of the documents in respect of which the search warrant was issued.
Therefore, clause (b) of section 93(1) would not be attracted.
Section 93(1) (c) of the new Code comprehends a situation where the Court may issue a search warrant when it considers that the purpose of an inquiry, trial or other proceeding under the Code will be served by a general search or inspection to search, seize and produce the documents mentioned in the list.
When such a general search warrant is issued, in execution of it the premises even in possession of the accused can be searched and documents found therein can be seized irrespective of the fact that the documents may contain some statement made by the accused upon his personal knowledge and which when proved may have the tendency to incriminate the accused.
However, such a search and seizure pursuant to a search warrant issued under section 93(1) (c) will not have even the remotest tendency to compel the accused to incriminate himself.
He is expected to do nothing.
He is not required to participate in the search.
He may remain a passive spectator.
He may even remain absent.
Search can be conducted under the authority of such warrant in the presence of the accused.
Merely because he is occupying the premises which is to be searched under the authority of the search warrant it cannot even remotely be said that by such search and consequent seizure of documents including the documents which may contain statements attributable to the personal knowledge of the 682 accused and which may have tendency to incriminate him, would violate the constitutional guarantee against self incrimination because he is not compelled to do anything.
A passive submission to search cannot be styled as a compulsion on the accused to submit to search and if anything is recovered during search which may provide incriminating evidence against the accused it cannot be styled as compelled testimony.
This is too obvious to need any precedent in support.
The immunity against self crimination extends to any incriminating evidence which the accused may be compelled to give.
It does not extend to cover such situation as where evidence which may have tendency to incriminate the accused is being collected without in any manner compelling him or asking him to be a party to the collection of the evidence.
Search of the premises occupied by the accused without the accused being compelled to be a party to such search would not be violative of the constitutional guarantee enshrined in Article 20(3).
It was, however, urged that section 93(1) (c) must be read in the context of section 93(1) (b) and it would mean that where documents are known to be at a certain place and in possession of a certain person any general search warrant as contemplated by section 93(1) (c) will have to be ruled out because in such a situation section 93(1)(a) alone would be attracted.
Section 93(1)(b) comprehends a situation where the Court issues a search warrant in respect of a document or a thing to be recovered from a certain place but it is not known to the Court whether that document or thing is in possession of any particular person.
Under clause (b) there is a definite allegation to recover certain document or thing from a certain specific place but the Court is unaware of the fact whether that document or thing or the place is in possession of a particular person.
Section 93(1)(c) comprehends a situation where a search warrant can be issued as the Court is unaware of not only the person but even the place where the documents may be found and that a general search is necessary.
One cannot, therefore, cut down the power of the Court under section 93(1) (c) by importing into it some of the requirements of section 93(1)(b).
No canon of construction would permit such an erosion of power of the Court to issue a general search warrant.
It also comprehends not merely a general search but even an inspection meaning thereby inspection of a place and a general search thereof and seizure of documents or things which the Court considers necessary or desirable for the purpose of an investigation, inquiry, trial or other proceeding under the Code.
The High Court accordingly sustained the general search warrant in this case under section 93(1)(c).
683 Turning to the facts of this case it was contended that the order of the Magistrate clearly disclosed an utter non application of mind and a mere mechanical disposal of the application before the Court.
Undoubtedly the order is of a laconic nature.
But then there are certain aspects of the case which cannot be overlooked before this Court would interfere in such an interlocutory order.
The appellant and his co accused are office bearers of a public institution styled as H.M.D.P. Sabha.
We were informed at the hearing of this petition that this Sabha is a public institution engaged in the. activity of running educational institutions and supporting objects or activities of a general charitable nature.
When the first complaint was filed, the allegation therein was that criminal breach of trust in respect of funds of the public institution has been committed by the office bearers thereof.
A search warrant was issued but it was quashed by the Kerala High Court.
Thereafter an other complaint was filed making some more serious allegations and a search warrant was sought.
Now, this search warrant was being issued to conduct search of the premises used as office of an institution.
The place will be in possession of the institution.
The office bearers of the Sabha are accused of an offence.
Documents and books of accounts of the institution are required for the purpose of the trial against the office bearers of the institution.
The office premises could not be said to be in possession of any individual accused but stricto sensu it would be in possession of the institution.
Books of accounts and other documents of the institution could not be said to be in personal custody or possession of the office bearers of the institution but they are in possession of the institution and are lying in the office of the institution.
A search of such a public place under the authority of a general search warrant can easily be sustained under section 93(1)(c).
If the order of the learned Magistrate is construed to mean this, there is no, illegality committed in issuing a search warrant.
Of course, issuance of a search warrant is a serious matter and it would be advisable not to dispose of an application for search warrant in a mechanical way by a laconic order.
Issue of search warrant being in the discretion of the Magistrate it would be reasonable to expect of the Magistrate to give reasons which swayed his discretion in favour of granting the request.
A clear application of mind by the learned Magistrate must be discernible in the order granting the search warrant.
Having said this, we see no justification for interfering with the order of the High Court in this case.
P.B.R. Appeal dismissed.

summary/full:
Section 91 of the Code of Criminal Procedure, 1973 confers power on the court or an officer in charge of a police station to issue a summons or written order to any person in whose possession or power a document the production of which the court or the officer considers necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under D. the Code calling upon him to produce the document.
Section 93 of the Code contemplates three situations in which the court may issue a search warrant: (a) where the Court has reason to believe that a person to whom the summons or order under section 91 has been or might be addressed will not or would not produce the document or thing as required by such summons or requisition or (b) where such document or thing is not known to the court to be in the possession of any person or (c) where the court considers that the purposes of any enquiry, trial or other proceeding under this code will not be served by a general search or inspection, then it may issue a search warrant; and the person to whom such warrant is directed may search or inspect in accordance therewith and the provisions contained in the code.
The complainant (respondent No. 1 ) made an application before a magistrate for the issue of a warrant for the search and seizure of certain books and documents of a Sabha of which the accused were office bearers.
After the seizure of the books and documents, on the application of one of the accused persons, the magistrate directed their return to the persons from whom they were recovered.
In the respondent revision petition the High Court held that the provisions contained in section 93(1) of the Cr.
P.C. were not hit by article 20(3) of the Constitution.
Dismissing the appeal, ^ HELD: The High Court was right in sustaining the general search warrant under section 93(1)(c) of the Code.
[682 H] 1.
The immunity against self incrimination extends to any incriminating evidence which the accused may be compelled to give but does not extend to cover a situation where evidence which may have tendency to incrinate 674 the accused is being collected without compelling him to be a party to the collection of the evidence.
The search of the premises occupied by the accused, without compelling the accused to be party to such search, would not be violative of article 20(3) of the Constitution.
[682C] 2.
A search and seizure pursuant to a search warrant under section 93 ( 1 ) (c) 8 of the Code would not have the remotest tendency to compel an accused to incriminate himself.
He is not required to participate in the search.
He may remain a passive spectator or may even be absent.
Merely because the accused is occupying the premises to be searched it cannot be said that by such search and consequent seizure of documents, including the document which may contain statements attributable to the personal Knowledge of the accused and which may have a tendency to incriminate him, would violate the constitutional guarantee against self incrimination because he is not compelled to do anything.
A passive submission to search cannot be styled as compulsion on the accused to submit to search.
If anything is recovered during the search which may provide incriminating evidence against the accused it cannot be called a compelled testimony.
[681 G H] 3.
Section 93(1)(c) comprehends a situation where a search warrant can be issued as the court is unaware of not only the person but even the place where the documents may be found and that a general search is necessary.
Therefore, power of the court under this clause cannot be cut down by importing some of the requirements of cl.
(b) of the section 93(1).
[682 F G] In the instant case although the order of the magistrate was laconic certain important aspects could not be over looked.
The objects of the Sabha were of a general charitable nature.
An earlier search warrant was quashed by the High Court.
When the complainant made more serious allegation a search warrant was issued to conduct a search of the institution.
The office premises, the books and other documents of the Sabha could not be said to be in possession of any individual accused.
They were in the possession of the institution.
A search of such a public place under the authority of a general search warrant can easily be sustained under section 93(1)(c).
Viewed this way there was no illegality in the Magistrate 's order.
Shyamlal Mohanlal vs State of Gujarat, , M. P. Sharma & others vs Satish Chandra District Magistrate, Delhi & ors., [19541 SCR 1077, The State of Bombay vs Kathi Kalu Gohad & Ors. ; explained.