IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14944 of 2010 DR.DHIRENDRA KUMAR DAS' ARVIND' . Versus THE STATE OF BIHAR & ORS . ----------- 03. 18.11.2010 Heard learned counsel for the petitioner, for the State and for the Rural Institute Birauli (hereinafter referred to as the Institute). The petitioner, a Lecturer in the Institute is aggrieved by the order for his compulsory retirement dated 5.8.2010. Learned counsel for the petitioner submits that he belongs to the Bihar Education Service Class-II and therefore is amenable to the disciplinary control of the Department of Higher Education of the State Government. He has been appointed as a Lecturer by the Department and not the Institute. The impugned order passed by the Director of the Institute is without jurisdiction. It is next submitted that a show cause notice was issued to the petitioner on 18.11.2009 duly replied by him. He was then placed under suspension on 30.11.2009. This Court in C.W.J.C. No. 1015 of 2010 quashed the suspension in light of the provisions of Rule 9(7) of the Bihar C.C.A. Rules, 2005. Learned counsel next submits that the order of compulsory retirement is, in fact, a punishment. 2 Therefore, full procedure of a departmental enquiry, with liberty to defend and a finding of guilt had to be arrived at before he can be removed from service. The order is essentially one of dismissal in the garb of compulsory retirement. It is lastly submitted that there has been no compliance with Rule 74, Sub-rule-2 of the Bihar Service Code by giving three months notice in writing or pay and allowance in lieu of such notice. The order does not even state that it was being issued in public interest. Learned counsel for the State and the Institute have both opposed the application. The Court has gone through the counter affidavit filed by them separately along with their enclosures. The law relating to compulsory retirement stands crystalised into definite principles, which have been broadly summarised thus in (2001) 3 SCC 314 (State of Gujarat v. Umedbhai M. Patel) at paragraph- 11 as follows:- “11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus: (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. 3 (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure.” The show cause notice issued to the petitioner on 18.11.2009 states that he was asked to show cause for unauthorized absence which was not found acceptable. He had made objectionable remarks against the Director of the Administration this was unbecoming of his status as a Senior Lecturer. He was requested not to create unnecessary hurdles in the functioning of the Institute. The petitioner denied the allegations. When he was suspended, this Court in C.W.J.C. No. 1015 of 2010 noticed that on 17.6.2010 4 the Human Resources Development Department, Government of Bihar had resolved to conduct a departmental proceeding against the petitioner. Even after such resolution the authorities could well decide not to hold a departmental proceeding and to pass an order simplicitor of compulsory retirement. But if they chose to do otherwise or from the materials placed by the parties on record before the Court it becomes obvious that it was in effect an order of dismissal or termination in the garb of compulsory retirement and no procedures have been followed for imposition of a punishment, the order for compulsory retirement may become unsustainable in the law. It has already been noticed above that one of the grievance is non-compliance with Rule 74 (2) of the Bihar Service Code regulating compulsory retirement by absence of due notice and there being no recital in the impugned order that it was being done in public interest. Merely because an order of compulsory retirement may be couched in simple language that may not be determinative. Once the parties file their pleadings, the Court can lift the veil and if it transpired that it is actually an order of punishment without following procedures the order again become 5 unsustainable. The order of compulsory retirement states that his conduct, efficiency and work culture was far from satisfactory. This Court does not consider it necessary to deal with effect of the words whether it is a compulsory retirement simplicitor or it is stigmatic as the issues stand fully resolved by the respective stand taken by the respondents in their counter affidavit. In 1990 (3) SCC 504 (Ram Ekbal Sharma Versus State of Bihar and Another) it has been held at paragraph-32 as follows:- “32. On a consideration of the above decisions the legal position that now emerges is that even though the 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 and 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 case. This being the 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 6 Rule 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 Article 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.” While the impugned order dated 5.8.2010 orders compulsory retirement, the Human Resources Development Department in his counter affidavit seeks to raise issues of illegality in the initial appointment of the petitioner. The respondents cannot give one reason in the impugned order and file a counter affidavit completely on a tangent with the same. The counter affidavit of the Human Resources Development Department goes on to state that the petitioner is a litigant, disobedient and insincere to duty. He is a regular absconder, indulges in cheap politics, down grading academic environment of the Institute. He has been very casual in teaching students. The petitioner has become a serious liability for the Institute. He is 7 notorious for dereliction of his duty. The counter affidavit filed by the Institute reiterates almost the same language. The reliance by the Institute on the resolution of the Governing Body only weakens its case further, when it states that due to fall of number of students in English, there is no need for the petitioner. From the materials discussed above, it goes beyond the pale of controversy and needs no further discussion upon lifting of the veil that the order dated 5.8.2010 is, in fact, an order of punishment in the garb of compulsory retirement without following procedures for imposition of a major punishment by holding a regular departmental proceeding with opportunity to defend. The order dated 5.8.2010 is therefore not sustainable. It is accordingly set aside. The application stands allowed. P.K. ( Navin Sinha, J.)