IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.167 of 2008 Nandjee Ram son of lat eGhuraram resident of village:- Bahuara, P.S. Jagdishpur, District:- Bhojpur, In charge Executive Engineer, Public Health Engineering Department, Public Health Division, Saharsa .. Petitioner/Appellant Versus 1. THE STATE OF BIHAR 2. Secretary, Public Health Engineering Department, Government of Bihar, Patna 3. Deputy Secretary, Public Health Engineering Department, Government of Bihar, Patna … Respondents/Respondents ----------- For the Appellant Mr. Sunil Kumar Verma Mr. suman Kumar verma For the Respondent Mr. Prabhakar Tekriwal, G.A.I Mr. Alok Kumar, A.C. to G.A.I 6 16.05.2011 The present appeal has been filed against the order dated 23.01.2008 passed by learned Single Judge in C.W.J.C. No. 7407 of 2007. The petitioner is the appellant herein. He is aggrieved by his order of compulsory retirement dated 30.05.2007 which was passed much prior to his scheduled date of superannuation i.e. on 31.12.2016 and also the said order is not in public interest. It has been submitted before the learned Single Judge that the departmental proceedings have been initiated against the petitioner- appellant herein for his guilt and the said proceeding is still pending for final adjudication. The departmental proceeding is at the stage for submitting enquiry report after considering the explanation of the petitioner- 2 appellant herein. It has also been contended by learned counsel for the petitioner-appellant herein that the order of compulsory retirement is supposed to be under Rule-74(b) (ii) of the Bihar service Code. It has further been contended that the order has been passed as a measure of punishment in the garb of public interest under the guise of invoking the provisions of Rule-74(b)(ii) of the Bihar service Code even though the departmental proceedings against the petitioner-appellant herein is still pending for final decision. Meanwhile, the petitioner-appellant herein was punished with the order of compulsory retirement which is in violation of principles of natural justice as also violates the provisions of Article 311 of the Constitution of India. It has also been further contended that the petitioner-appellant herein had an exemplary service career and his integrity remained unquestionable and he was not communicated any adverse remarks at any point of time. The respondent-state urged before the 3 learned Single Judge that the order of compulsory retirement was simpliciter in nature under Rule 74 of the Bihar Service Code and the impugned order was not one of punishment which cast no stigma as the government had taken the decision in view of the past service record of the petitioner-appellant herein and decided that it was not in public interest to continue with his services. Hence, the order of the learned Single Judge needs no interference. Learned Single Judge having heard both the parties on merits dismissed the writ petition on the ground that even though the departmental proceedings have been initiated against the petitioner-appellant herein for alleged financial irregularities, it had not reached at its culmination. Show causes were asked from the petitioner-appellant herein with regard to his conduct as a public servant. There were reports also doubting his integrity. It has also been observed that on more than one occasion he had been visited with the punishment of censure. It has also been observed by the learned Single Judge that departmental proceedings have not arrived at a determination of his guilt so as to visit him 4 with punishment. What is under consideration was with regard to his doubtful integrity in view of his past conduct and the desirability of continuing him in service. In that background, it has been further held that considering his past service record in its entirety a bona fide decision was taken that it was not in public interest to continue the petitioner-appellant herein with his services. His efficiency came in doubt in the mind of the employer. The learned Single Judge has further held that the order of compulsory retirement does not make any stigma on the petitioner- appellant herein, hence, dismissed the writ petition. In the present case, learned counsel appearing on behalf of appellant has contended that even though order of compulsory retirement has been passed indicating financial irregularities on the part of the petitioner- appellant herein with respect to certain financial irregularities, but the Inquiry Officer has not submitted any report with regard to financial irregularities. It has been argued by learned counsel for the State that Rule 74(b)(ii) of the Bihar 5 Service Code confers power on the appointing Authority to order for compulsory retirement of a Government servant on his attaining fifty years of age or after completing thirty years of qualifying service in the public interest. It has also been further contended that as the appellant was found to be “no utility” the order has been passed to retire him compulsorily from service. It has also been contended by the learned counsel for the appellant that even though order of compulsory retirement has been passed on 30.05.2007, wherein it has been indicated that the appellant shall be paid three months salary which was paid to him on 31.05.2008 i.e. merely after a period of one year which is also against the provision of Rule 74(b)(ii) of Bihar Service Code, which indicates that the appointing authority desires compulsory retirement of a government servant at least three month’s prior notice in writing, or on payment of an amount equal to three month’s pay and allowance in lieu of such notice. Learned counsel has further argued that in this particular case, the state has not 6 issued three month’s notice in writing, or order for payment of an amount equal to three month’s pay and allowance in lieu of such notice which itself violates the provisions of Rule 74 (b) (ii) of the Bihar Service Code and hence the order has to be set aside on that ground alone as it has violated the provisions of Rule 74(b)(ii) of the Bihar Service Code is mandatory in nature. compulsory retirement of the appellant cannot be allowed in view of law laid down by the Apex Court in the judgment rendered in the case of Ram Ekbal Sharma vs. State of Bihar and another reported in [AIR 1990 SC 1368} as it violates the provisions of Art. 311 of the Constitution of India. It has also been stated that the said judgment was also relied upon before the learned Single Judge, but, however, the learned Single Judge took the different view in dismissing the writ petition. We had also an occasion to go through the entire materials placed before the Single Judge and also the order of learned Single Judge. The appellant was appointed as Assistant Engineer in the year 1986 in the Public Health Engineering Department, Govt. of Bihar and 7 subsequently, promoted as Executive Engineer. It is the fact that he had faced with some departmental proceedings and punishment of censure was also awarded to him on earlier occasion. It appears that a departmental proceeding was initiated against the petitioner with respect to certain financial irregularities in which enquiry officer has not submitted any report. The record also shows that the respondents call for a report from the Cabinet Vigilance with respect to the appellant and also with regard to other employees of the department. A report was submitted by the vigilance on 17.08.2007 which clearly indicates that no proceeding is pending against the appellant in the vigilance department. The order of compulsory retirement indicates that there were financial irregularities committed by the appellant herein for which departmental proceedings are still pending. Invoking the provisions of Rule 74(b)(ii)of the Bihar Service Code, the order of compulsory retirement has been passed. For sake of convenience Rule 74(b) (ii) of the Bihar Service Code is extracted hereinbelow:- 8 “7(b)(ii) The appointing authority concerned may after giving a Government servant at least three month’s previous notice in writing, or an amount equal to three month’s pay and allowance in lieu of such notice, require him in public interest, to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.” It has been contended by the learned counsel for the appellant that there were some financial irregularities for which departmental proceedings are still pending which is also indicated in the impugned order. The impugned order has been translated in English by the learned counsel for the appellant, which is quoted hereinbelow: fcgkj ljdkj yksd LokLF; vfHk;a=.k foHkkx ladYi iVuk] fnukad 339@30-05-2007 jkT; ljdkj ds laKku esa ;g ckr vkbZ gS fd fiNys dqN le; ls Jh uUnth jke] izHkkjh dk;Zikyd vfHk;ark yksd LokLF; izeaMy] lgjlk ds fo:) dbZ vkjksi xfBr gq, gS ,o dqN foHkkxh; dk;Zokfg;k Hkh py jgh gS A bl ch; bUgs dbZckj y?kq n.M Hkh vf/kjksfir fd;s tk pqds gS A budk lEiw.kZ fooj.k fuEuizdkj gS & ¼d½ lEiw.kZ LoPNrk vfHk;ku ds rgr yksd LokLF; izeaMy vjfj;k esa fd;s x;s vfu;fer O;; ds vkjksi esa foHkkxh; ladYi] Kkikad 104] fnukad 01-06-2005 }kjk foHkkxh; dk;Zokgh lapkfyr dh x;h gS ftlij jkT; ljdkj dk fu.kZ; izrh{; gS A ¼[k½ yksd LokLF; izeaMy] lgjlk esa buds fo:) ljdkjh jkf”k ds nq:I;ksx djus dh f”kdk;r izkIr gksus ds mijkUr foHkkxh; i=kad 559] fnukad 20-10- 9 2006 }kjk eq[; vfHk;ark] yksd LokLF; vfHk;a=.k foHkkx] Hkkxyiqj ls tkWap izfrosnu dh ekax dh x;h gS A ¼x½ yksd LokLF; izeaMy] vjfj;k inLFkkiu dky esa buds }kjk cjrh x;h xEHkhj foRrh; vfu;ferrkvksa dh tkap v/kh{k.k vfHk;ark yksd LokLF; vfHk;a=.k vpy iwf.kZ;k ls djk;h x;h gS A v/kh{k.k vfHk;ark ds i=kad 98] fnukad 29-01-2007 ds }kjk izkIr tkp izfrosnu ds vk/kkj ij foHkkxh; Kkikad 255] fnukad 02-05-2007 }kjk Jh jke ls Li’Vhdj.k dh Hkh ekax dh x;h gS A ¼?k½ fcgkj jkT; ty i’kZn] iVuk inLFkkiu dky ds nkSjku cjrh x;h vfu;ferrk ds fy, izca/k funs”kd] fcgkj jkT; ty i’kZn] iVuk ds i=kad 831] fnukad 05-06-2000 }kjk Jh jke ds fo:) izi=& “d” ls vkjksi i= xfBr djrs gq, fuyEcu ,oa foHkkxh; dk;Zokgh dh vuq”kalk ds lkFk jkT; ljdkj dks miyC/k djk;k x;k Fkk A bl laca/k esa Jh jke ls izkIr Li’Vhdj.k ij uxj fodkl foHkkx fcgkj] iVuk ls earR; dh ekax dh x;h Fkh A uxj fodkl foHkkx] fcgkj] iVuk ds i=kad 897] fnukad 30-08- 2006 }kjk Jh jke dks fuyafcr djus dh vuq”kalk dh x;h gS A ¼p½ eq[; vfHk;ark] yksd LokLF; vfHk;a=.k foHkkx] Hkkxyiqj ds i=kad 912] fnukad 30-12-2006 ds }kjk Jh jke ds fo:) ,d duh; vfHk;ark Jh pUns”oj eaMy dks :015]51]054@& ¼iUnzg yk[k bD;kou gtkj pkSou½ dk vfu;fer Hkqxrku djus rFkk l{kerk ls ckgj tkdj dkyc) izksUufr nsus ,oa vfu;fer :i ls okf’kZd osruo`f) dh Lohd`rh nsus dk vkjksi izfrosfnr fd;k x;k gS] ftlds vkyksd esa foHkkxh; i=kad 197] fnukad 28-03-2007 ds }kjk Jh jke ls Li’Vhdj.k dh ekax dh x;h gS] rFkk ¼N½ foRrh; o’kZ 2006&07 es Jh jke dks dfri; vU; ekekyksa esa vuq”kklfud dkjZokbZ ds i”pkr~ dbZ y?kq n.M Hkh fn;s x;s gS] tks fuEuor gS & ¼i½ foHkkxh; ladYi] Kkikad 466] fnukad 09-10-2006 }kjk fyf[kr psrkouh dh ltk nh x;h gS A ¼ii½ foHkkxh; ladYi] Kkikad 645] fnukad 12-12-2006 }kjk fuUnu dh ltk nh x;h gS A ¼iii½ foHkkxh; ladYi] Kkikad 646] fnukad 12-12-2006 }kjk fuUnu dh ltk nh x;h gS A 10 ¼iv½ izHkkjh dk;Zikyd vfHk;ark] yksd LokLF; izeaMy] lgjlk ds :i esa buds }kjk xzkeh.k tykiwfrZ ;kstuk dk izkDdyu miyC/k ugh djk;k x;k Fkk ftlds dkj.k foHkkxh; i=kad 589] fnukad 10-11-2006 }kjk Jh jke ls Li’Vhdj.k dh ekax dh x;h Fkh A buds izkIr Li’Vhdj.k ij leh{kkijkar bUgs foHkkxh; i=kad 22] fnukad 05- 01-2007 }kjk Hkfo’; ds fy;s lpsr fd;k x;k gS A ¼2½ jkT; ljdkj }kjk lesfdr :i ls mi;qZDr ekeyks dh leh{kk dh x;h gS A leh{kksijkar jkT; ljdkj }kjk ;g vfHker dk;e fd;k x;k gS fd foxr dqN vof/k ls Jh jke dk dk;Z dyki vR;ar gh vlarks’kizn gks x;k gS A muds }kjk u rks dk;ksZ ds izfr vfHk:fp fn[kkbZ tk jgh gS vkSj u muls dk;Z lEiknu dh {kerk ifjyf{kr gks jgh gS A lk/kkj.k ls lk/kkj.k dk;ksZ ds fu’iknu esa vusdksa funs”k fn;s tkus ds ckotwn Hkh os v{ke gksrs tk jgs gS A buij le>kus cq>kus dk dksbZ Hkh vlj ugh iM jgk gS rFkk Hkfo’; esa lq/kkj ds dksbZ y{k.k Hkh n`f’Vxkspj ugh gks jgs gS A urhtru buds izHkkj ds {ks]= esa fodkl dh ;kstuk;s BIi gks x;h gS A ¼3½ mi;qZDr rF;ksa ds vk/kkj ij jkT; ljdkj dks ;g fo”okl djus dk dkj.k gS fd Jhjke dh dk;Z n{krk ;k vkpkj vc ,slk ugh jg x;k gS] ftlls yksdfgr esa mUgs ljdkjh lsok esa cus jgus fn;k tk; A ,rnFkZ jkT; ljdkj fcgkj lsok lafgrk ds fu;e 74 ¼[k½ ¼ii½ ds v/khu Jh jke dks fnukad 31-05-2007 ds vijkg~u ls vfuok;Z lsok fuo`fr ds QyLo:Ik bUgs rhu ekg dh fyf[kr lwpuk ds cnys rhu ekg ds vkns; osru HkRrs ds lerqY; jkf”k dk Hkqxrku fd;k tk;sxk A vkns”k & vkns”k fn;k tkrk gS fd ladYi dh izfr Jh uUnth jke] izHkkjh dk;Zikyd vfHk;ark] yksd LokLF; izeaMy] lgjlk@egkys[kkdkj] fcgkj] iVuk ,oa v/kh{kd] jktdh; eqnz.kky;] xqytkjckx] iVuk dks tkudkjh ,oa fcgkj jkti= ds vkxkeh vlk/kkj.k vad esa izdk”ku gsrq miyC/k djk;h tk; A fcgkj jkT;iky ds vkns”k ls g@0 ¼m)o ik.Ms;½ ljdkj ds mi lfpo A At this juncture, the learned counsel for the appellant has submitted that it was 11 never indicated in the order of learned Single Judge that the integrity of the appellant was found doubtful and it was subjected to consideration by the state Government. The findings of the learned Single Judge was based only on the aspect of the alleged financial irregularities as contained in the order of compulsory retirement, which itself shows that the State did not apply his independent mind while passing the order for compulsory retirement and the order was not based on any subjective satisfaction of the authority. In absence of such action coming forth from the respondent-State the order of compulsory retirement was not based on the doubtful integrity. The learned Single Judge has erred in coming to the conclusion that the order was based on consideration of integrity of the appellant in absence of such application of mind. There is no finding with regard to the integrity of the appellant in the order of learned Single Judge which itself would indicate that the order cannot be sustained. The learned counsel also relied upon the Judgment rendered in the case of Ram Ekbal Sharma (supra) on the similar fact where the 12 Hon’ble Apex Court has held that here is a case where show cause was issued to the appellant on 02.05.2007 alleging some financial irregularities and the enquiry report was filed by the enquiry officer on 29.01.2007 but the departmental proceeding was still pending. Meanwhile the order of compulsory retirement was passed invoking the provisions of Rule 74(b) (ii) of the Bihar Service Code. The learned counsel for the appellant relied upon the judgment rendered in the case of Ram Ekbal Sharma vs. State of Bihar and another reported in [AIR 1990 SC 1368} the relevant paragraph 28 of the said judgment is extracted hereinbelow:- “On a consideration of the above decisions the legal position that now emerges is that even if an order of compulsory retirement is couched in innocuous language without making any imputations against the Government servant who is directed to be compulsorily retired from service the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bona fide an not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned Government servant as has been held by this Court in Anoop Jaiswal’s case. This being the 13 position the respondent-State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of R.74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent-State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid Rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment. As such, such an order is in contravention of Art. 311 of the constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide. The Apex Court has also held in paragraph 29 of the said judgment that the impugned order has not been treated to be bonafide one but it was only for collateral purposes and on extraneous consideration byway of punishment. The impugned order is, therefore illegal and unwarranted, therefore, it is liable to be quashed, and therefore, a direction was given to the respondents to reinstate the appellant in service forthwith with full backwages. In the case of High Court of Punjab and Haryana vs. Ishwar Chand Jain and another 14 reported in 1999(4) SCC 579, the Apex Court has held that compulsory retirement was used as a short cut method to conclude the disciplinary proceedings and therefore, it was held that it violates the provision of Article 311 of the Constitution of India. Initially, a decision was taken to continue the disciplinary proceeding after retirement for a limited purpose. But, subsequently, acceptance of order of compulsory retirement of an employee by Government shows that insufficiency was done. The compulsory retirement was used as a short cut procedure to conclude the disciplinary proceedings. Compulsory retirement was virtually treated to be removal from service. In the above judgment, the Apex Court has held in paragraph 32 of the judgment rendered in the case of Ram Ekbal Sharma vs. State of Bihar and another reported in [AIR 1990 (3)SCC 504} has been observed as follows :- “In Ram Ekbal Sharma v. State of Bihar it was laid down that the court can lift the veil of an innocuous order in appropriate cases to find the real basis of the order of compulsory retirement of an officer. This is how the Court said: (SCC p.516, para 32) “32. “On a consideration of the above decisions the legal position that now emerges is that 15 even if an order of compulsory retirement is couched in innocuous language without making any imputations against the Government servant who is directed to be compulsorily retired from service the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bona fide an not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned Government servant as has been held by this Court in Anoop Jaiswal’s case. The Apex Court in the case of Baikuntha Nath Das v. Chief Distt. Medical Officer reported in [1992 (2) SCC 299] has observed as follows:- “ In Baikunth Nath Das v. Chief Distt. Medical Officer this Court laid the following principles, which a court has to keep in mind while considering the question of compulsory retirement: (SCC pp.315-16, para 34) “34. The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior. (ii) The order has to be passed by the Governmetn on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii)Principles of natural justice have no place in the context of an order of compulsory 16 retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary-in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter-of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, but favorable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory is not liable to be quashed by a court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.” In the present case, it has to be observed that even though the order of compulsory retirement has been upheld by the learned Single Judge on the ground of doubtful integrity, but the order of compulsory retirement did not indicate that the respondent 17 authorities have applied their independent mind, and therefore, it has to be observed that the integrity of the appellant was never under consideration by the respondent authorities at any point of time as the order did not indicate that the integrity of the appellant was found doubtful even though there were certain financial irregularities against which the departmental proceeding was still pending. It has to be observed that there may not be any finding by this Court with regard to integrity of the appellant which was never subjected to under consideration by the respondent authorities. Under the above circumstances, considering the facts that the order of compulsory retirement has to be judged on its own merits, in our opinion, the order of compulsory retirement was based on assumption as the appellants integrity was never under consideration which did not find place in the impugned order. Even though there was series of financial irregularities, but in the finding of this Court when such irregularities come to the conclusion the integrity of the employee was never found doubtful, when it was not at all 18 under consideration by the respondent authorities. Contention has been raised by the respondent’s counsel that the State has applied its own mind and has passed its order in view of subjective satisfaction. Under the above circumstances, we are of the opinion that the order of the learned Single has to be set aside. Accordingly, this appeal is allowed and the order of learned Single Judge is set aside. The respondents are directed to reinstate the appellant in service with all consequential benefits. However, we make it clear that if appellant was under suspension on the date of the order of compulsory retirement, the respondent authorities shall continue the departmental proceeding in accordance with law. We also make it clear that this order will not bar the State respondent from proceeding further with the departmental proceeding, if any, pending against the appellant in accordance with law. Ashwini (T.Meena Kumari,J.) (Akhilesh Chandra, J.)