IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7863 of 2000 Jai Prakash Ram, Son of Shio Balak Ram, Resident of village – Bhariar, Police Station – Brahmpur, District – Buxar. ….. Petitioner. Versus 1. The State of Bihar. 2. The Collector, Bhojpur, Ara. 3. The District Welfare Officer, Bhojpur, Ara. 4. The Circle Officer, Piro, Bhojpur, Ara. 5. The Deputy Collector, Land Reforms, Sadar Ara. ….. Respondents. For the Petitioner : -- Mrs. Kanak Verma, Advocate For the State : -- Mr. Shashi Bhushan Kumar, SC – 16. ----------- 09/ 30.06.2009 Heard counsel for the petitioner and counsel for the State. The prayer made in this writ application reads as follows :- “That this petition is for issuance of writ of certiorari for quashing the order of Collector, issued vide memo No. 07 dated 3.1.2000 by which the petitioner has been second time retired compulsory with effect from 29.12.1999 by way of punishment and further the petitioner will be entitle for suspension allowance for the suspended period and further granted all admissible leave for the period for which he was not paid salary and the remaining period of the granted the admissible leave has been approved as leave without pay.” The counsel for the petitioner with reference to the aforementioned relief would submit that the impugned order passed by the Collector of the district awarding punishment of compulsory retirement cannot be sustained because the - 2 - petitioner was given no opportunity of hearing after the matter was remitted under the order of this Court in C.W.J.C. No. 8163 of 1996. Mrs. Kanak Verma, learned counsel for the petitioner, in fact, would submit that punishment which has been awarded to the petitioner is not in keeping with the opinion given by the Enquiry officer, inasmuch as the Enquiry Officer had recommended for awarding of only a minor punishment, but the disciplinary authority has chosen to inflict a major punishment. She would finally submit that the impugned order of compulsory retirement could not have been passed because the petitioner had not completed 21 years of service. Counsel for the State on the other hand would submit that this Court in the order dated 5.3.1998 (Annexure-7) had remanded the matter to the Collector for passing a fresh order only because copy of enquiry report was not served upon the petitioner before passing of the order of compulsory retirement. The counsel for the State has pointed out that the order of punishment awarding compulsory retirement was thus quashed with a direction to pass fresh order and therefore no procedural error has been - 3 - committed by the Collector in passing the impugned order, inasmuch as not only the copy of enquiry report was supplied to the petitioner but he was also given opportunity of hearing. Counsel for the State has also submitted that the order of punishment of compulsory retirement in terms of Disciplinary Control and Appeal Rules cannot be equated with the order of compulsory retirement in terms of Rule 74 of Bihar Service Code in which alone there is a requirement completion of service of 21 years. In the opinion of this Court when the earlier enquiry was held and the petitioner was removed from his service on 27.12.1995, the only infirmity found by this Court was that the petitioner was removed from service without supplying of copy of the enquiry report as would be evident from the following passage of the order of this Court dated 5.3.1998:- “The writ application is bound to succeed on a short question; as such, it is not necessary to state the facts in detail. Suffice it to say that copy of enquiry report was not served upon the petitioner before awarding punishment, as a result of which, the petitioner has been prejudiced. A counter affidavit on behalf of the State has been filed, from which it appears that enquiry report has been supplied to the petitioner subsequent to passing of the order of compulsory retirement. As the copy of enquiry report was not served upon the petitioner before passing of the order of compulsory retirement, contained in - 4 - Annexure-5, the punishment awarding compulsory retirement is fit to be quashed. Accordingly, this application is allowed, order contained in Annexure-5 is quashed and the matter is remanded to the District Collector, Bhojpur at Ara to pass an order afresh after giving opportunity of hearing to the petitioner.” From the reading of the aforementioned earlier order of this Court, it would therefore be clear that although this Court held was that the order impugned in that writ application inflicting punishment of compulsory retirement from service was not sustainable in absence of supply of the copy of the enquiry report, the matter, in fact, was ultimately remitted to the District Collector to pass a fresh order after giving opportunity of hearing to the petitioner and therefore counsel for the petitioner does not seem to be correct that a direction was also given by this Court to hold an enquiry and pass an order only after holding such fresh enquiry. That being so, the first point as raised by the counsel for the petitioner must be rejected. The further submission of the counsel for the petitioner that the petitioner on remand was not given opportunity of hearing is also incorrect, inasmuch as, the petitioner has suppressed relevant facts in this regard in the - 5 - writ application. The respondents have however brought on record the notice dated 4.11.1999 issued by the Collector asking the petitioner to file his second show cause reply as against the charges in the light of the findings recorded by the Enquiry Officer. The petitioner, in fact, on receipt of the said enquiry report and the notice dated 4.11.1999 had submitted his show cause reply to 26.11.1999. This fact was not mentioned by the petitioner in the writ application. Nonetheless on perusal of Annexure – A and B, notice dated 4.11.1999 and reply of the petitioner dated 26.11.1999 it is clear and stands even otherwise admitted in the rejoinder affidavit filed by this petitioner, this Court must hold that the earlier order of this Court giving opportunity to the petitioner was fully complied with by the respondent. As a matter of fact the petitioner was also given opportunity of personal hearing as would appear from the notice issued by the office of the Collector on 27.12.1999 in which the petitioner was asked to appear before the Collector on 29.12.1999. In presence of all these materials, it is very difficult to this Court to hold that the petitioner was not given - 6 - reasonable opportunity to defend himself either at the stage of enquiry or at the stage of inflicting punishment. In this context it has to be also noted that even in course of enquiry, the Enquiry Officer had examined witnesses like, Circle Officer, Circle Inspector, Anchal Amin and others on the charges and the petitioner was also allowed to participate in the enquiry. Therefore, the petitioner cannot be heard to say that he was not given opportunity to defend himself even in course of enquiry. In the light of the aforementioned findings, the judgment of this Court referred to and relied by the counsel for the petitioner in the case of Ranjan Kumar Vs. Nalanda Gramin Bank & Ors reported in 2003 (1) PLJR 722. will have no application to the facts of this case, inasmuch as the issue in that case was confined to disagreement with the findings of the Enquiry Officer by the disciplinary authority. It was in that context that this Court had held that assigning of reason would be necessary for holding the delinquent guilty of the charges. Therefore, this Court finds that the ratio of the Ranjan Kumar (supra) cannot be made application to the facts of this case. Here, admittedly the - 7 - Enquiry Officer had held the petitioner guilty for both the charges and had only recorded that the petitioner being the member of Scheduled Caste should be inflicted with a lesser punishment. That however could not have been done by the Enquiry Officer as his role was confined to record findings and any thing said by him as with regard to quantum of punishment was an irrelevant opinion which was not binding on the disciplinary authority. The disciplinary authority in fact is always free to pass his own order and award punishment as per the gravity of the charges in the light of the findings recorded in the enquiry report. At this stage one must also look into gravity of the two charges. The petitioner was the Revenue Karamchari and yet he had maintained a fictitious register 2, which was not even authorized by the competent authority. Moreover, the petitioner is also said to have issued 57 receipts of settlement in favour of such persons for whom there was no order of the competent authority. The defence of the petitioner in course of enquiry was that he was given oral orders by the authority, but he did not name which authority had given such oral orders to him. As a matter of fact in - 8 - course of enquiry the Circle Officer, Circle Inspector and Anchal Amin in their deposition had altogether denied to have given any such instruction to the petitioner. In the comments/reply filed by the petitioner to the enquiry report he had taken a new plea that it was the Additional Collector had given him such instructions, but the petitioner did not name who was the Additional Collector. Obviously the petitioner was trying to dupe the authorities not only at the stage of his functioning as Revenue Karamchari but also even in course of enquiry. Thus when both these charges were found to be proved, the misconduct on the part of the petitioner was established and retaining such a dare devil employee in service by itself could have been detrimental. That being so, in the opinion of this Court the impugned order inflicting punishment of compulsory retirement of such an indisciplined person like the petitioner was only fit and proper and at least needs no interference of this Court. The submission of the counsel for the petitioner that the petitioner had never completed 21 years of service and as such could not have awarded the order of punishment of compulsory retirement in terms of Discipline Control and - 9 - Appeal Rules has to be only noted for its being rejected. The concept of compulsory retirement under Rule 74 of Bihar Service Code envisaging 21 years of minimum service is entirely different to the punishment of compulsory retirement in terms of Discipline Control and Appeal Rules wherein there is no minimum period of length of service prescribed for awarding the punishment of compulsory retirement. This Court would therefore hold that the punishment of the petitioner by way of compulsory retirement is not in any way illegal and as such cannot be interfered by this Court in exercise of power under Article 226 of the Constitution. It, however, must be made clear that even if a person has been compulsorily retired by way of disciplinary action he would still be entitled for payment of retirement benefits which can be withheld only in case of dismissal or removal from service in terms of Rule 101 of the Bihar Pension Rules read with its Rule 46. It is therefore clear that the petitioner would be entitled for payment of all retirement benefits for the period of service rendered by him from - 10 - 19.5.1981 to 29.12.1999, i.e. 18 years 7 months and 10 days, which on computation comes to 19 years whereas the qualifying length of service under the Pension Rules is only 10 years. The petitioner, therefore, if he has not been paid the retirement benefit on account of impugned order of punishment, must be paid the same within a period of two months from the date of receipt/production of a copy of this order. With the aforementioned observations and directions, this writ application is dismissed. DKS/ (Mihir Kumar Jha, J.)