IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15339 of 2007 Binod Kumar Pathak, son of late Ram Sharan Pathak, Professor Colony, Vilasi Town, Police Station-Deoghar Town, District- Deoghar….. Petitioner Versus 1. BIHAR STATE SCHEDULED CASTE CO-OPERATIVE Development Corporation through its Managing Director, Malyanjil Bhawan, Budha Colony, Patna. 2. Managing Director, Bihar State Scheduled Castef Co-operative Development Corporation Ltd., Malyanil Bhawan, Budha Colony, Distyrict-Patna…. Respondents. ----------- For the petitioner: Mr. Vindya Keshari Kumar, Senior Advocate Mr. Amit Prakash, Advocate Mrs. Soni Shrivastava, Advocate For the respondens: Mr. R.S. Pradhan, Senior Advocate Mr. A.N.Rai, Advocate --------- 3. 19.1.2011 Heard learned Senior Counsel for the petitioner and learned Senior Counsel for the respondent Bihar Scheduled Castes Co-operative Development Corporation. The petitioner seeks quashing of the order dated 31.5.2006 passed by the Managing Director of the Corporation, by which the original petitioner had been compulsorily retired. The petitioner has further claimed for production and quashing of the order No.166 dated 7.6.2005, but it is submitted by learned counsel for the petitioner that since the same appears to have been passed after a departmental proceeding had been initiated and for which a separate cause of action has arisen, he will not be pressing the same in the present writ petition and seeks permission to file a separate - 2 - writ petition for the same, if so advised. The present matter is, accordingly, confined only to challenge to the order dated 31.5.2006 with liberty to the petitioner to challenge the order dated 7.6.2005 in appropriate proceedings, as he may be advised. The short facts of this case are that the original petitioner was appointed as a Clerk-cum- Typist in the respondent Corporation in the year 1979 and was subsequently given several promotions. Lastly, he was working on the post of Inspector-cum-Recovery Officer. The petitioner was also reverted to the post of Clerk-cum-Typist, which was challenged by him in C.W.J.C.No.7417/2005, which was allowed by order dated 23.7.2007 of this Court. By the impugned office order dated 31.5.2006 passed by the Managing Director of the respondent Corporation, the original petitioner was compulsorily retired from the service of the Corporation. The said impugned order refers to a departmental proceeding initiated on 30.9.2004, which appears to have ultimately resulted in an order dated 30.6.2005 regularising the leave of the petitioner as leave without pay. The impugned - 3 - order dated 31.5.2006 refers to two charges against the petitioner; firstly that he remained absent from 1.6.2005 to 4.1.2006 without leave and secondly, he granted a loan of Rs.1,40,000/- to one Shankar Paswan. In the course of enquiry, it was found that the second instalment of the loan had been released without first complying with the condition of the first instalment and thus it has been held that the petitioner had connived with the said Shankar Paswan and misused the fund of the Corporation. It was thus found that the original petitioner lacked devotion to duty, discipline and honesty and his service in the matter of recovery was also dissatisfactory. For the said reasons, he was compulsorily retired from the service of the Corporation. Learned counsel for the petitioner submits that the impugned order is evidently an order of compulsory retirement as a punishment and the same could not have been imposed without holding a proper disciplinary enquiry against the original petitioner which has not been done. It is urged that for that single reason alone, the impugned order is fit to be quashed. In support of the same, learned counsel - 4 - for the petitioner relies upon a decision of a Division Bench of this Court in the case of Bihar State Road Transport Corporation vs. Vidya Nand Sharma: 2009 (2) PLJR 559, in paragraph No.10 of which it has been held as follows: “10. In a long line of cases, it has been held by the Supreme Court that if the order of compulsory retirement casts a stigma on an employee, or in other words it contains statement casting aspersion on the conduct of the employee, such conduct may attract provisions of disciplinary action but the order of compulsory retirement would be rendered bad in law. On the other hand, if the statement in the order of compulsory retirement does not really amount to charge or imputation but it only refers to the assessment of his work or efficiency, the order of compulsory retirement would stand as it is not an order of punishment. This is what has been observed by the - 5 - Supreme Court in the case of Allahabad Bank Officers’ Association in paragraph 17 of the report. It is as follows: “17. The above discussion of case law makes it clear that if the order of compulsory retirement casts a stigma on the Government servant in the sense that it contains a statement casting aspersion on his conduct or character, then the Court will treat that order as an order of punishment, attracting provisions of Article 311 (2) of the Constitution. The reason is that as a charge of imputation is made the condition for passing the order, the court would infer therefrom that the real intention of the Government was to punish the Government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot inferred. So also, if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the Government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment. Whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it.” - 6 - Learned counsel for the respondent Corporation, on the other hand, sought to support the aforesaid order stating that it is evident from the impugned order that the petitioner had been repeatedly absenting himself without taking leave and further he had colluded with a loanee of the Bank in the matter of grant of loan without complying with the pre-condition for the grant of loan and was thus guilty of the misuse of the fund of the Corporation. He also submits that on account of repeated laches on the part of the petitioner in this regard, the order of compulsory retirement has been passed in the interest of the Corporation and thus the same ought to be upheld. From a perusal of the materials on the record, it is evident that the impugned order dated 31.5.2006 has not been passed after initiating any departmental proceedings and giving reasonable opportunity to the original petitioner to be heard in the matter. Thus, the said order can only be upheld, if it can be said to have been passed in public interest without causing any stigma or aspersion on the original petitioner but only after going through his entire service record - 7 - with special emphasis of the last five years. From a perusal of the impugned order, it is evident that misconduct and charges have been alleged against the original petitioner and it is thus an order, which casts aspersion on the character or conduct of the original petitioner and is a stigma upon him. In the said circumstances as has been held in a catena of decisions of the Apex Court and of this Court including the aforesaid case of Vidya Nand Sharma (supra), the order could only have been passed after holding a proper departmental enquiry. The same not having been held, it cannot be allowed to stand. It is, accordingly, quashed. The petitioner would also be entitled to all consequential benefits upon the quashing of the said order. The writ application is, thus, disposed of in terms of the aforesaid observations and directions. VPS ( Ramesh Kumar Datta, J. )