IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7678 of 2003 BINOD KUMAR SINGH S/o late Lakshman Singh, C/o Sri Panchanand Singh, Jaya Sadan, Dhakanpura, P.S.Gardanibagh, Patna, At present posted as Assistant, Suger Cane Department, Vikash Bhawan, Patna. …………………. Petitioner ----------- VERSUS 1. THE STATE OF BIHAR 2. The Chief Secretary, Government of Bihar, Patna. 3. The Secretary, Department of Personnel and Administrative Reforms, Government of Bihar , Patna. 4. The Deputy Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna. ……………………… Respondents ------------ For the petitioner—Mr. Tej Bahadur Singh, Sr. Advocate. Mr. Ram kishore Singh For the State - Mr. Zaki Haider, A.C to G.A-6 ------------ 6 11.01.2011 By this writ application the petitioner challenged the order passed in appeal by the Chief Secretary Government of Bihar dated 19.9.02 (Annexure 1). By the said impugned order, upon the petitioner’s giving an undertaking that the order of compulsory retirement as passed in terms of Rules 74(a) and 74 (b)(2)( ii) of the Bihar Service Code ( Annexure 4) was withdrawn and substituted by other set of major punishments and the same was prayed to be quashed by an amendment petition which amendment was allowed. Petitioner has also challenged the original order dated 26.2.02 (Annexure 4 ) by which in terms of Rule 74 (a) and Rule 74 (b) (2)(ii) of the Bihar Service Code petitioner was asked to retire compulsorily with effect from 28.2.02 as he was not found fit to be continued in service. Counter affidavit has been filed to which rejoinder has been filed. Thereafter further counter affidavit and today a 2 second supplementary counter affidavit has been filed. Heard the parties and with their consent the writ application is being disposed of at this stage itself. At the very outset, I may notice and mention that in the counter affidavit in paragraphs 14 and 18 it was stated on behalf of respondents and an objection was taken by the respondent as against the petitioner moving this Court under Article 226. It was stated in the counter affidavit that the act of the petitioner in moving the present writ application itself amounted to in subordination resulting in misconduct for which appropriate proceedings would be taken up, this Court by the very first order being order dated 1.9.03 had observed, the desirability of the State to file a further affidavit withdrawing the aforesaid submissions. The reason apparently was that any attempt to stop a person from seeking his constitutional remedy on threat of disciplinary proceeding amounts to criminal contempt as has been held by the Constitution Bench of the Apex Court in the Case of Pratap Singh v/s Gurubakesh Singh since reported in A.I.R 1962 S.C 1172. Regrettably though, three counter affidavits have been filed, but the said submission has not been withdrawn rather in the last counter affidavit, which was filed today, similar statement is recorded. However, in fairness to the learned counsel for the State when this fact was brought to his notice by the Court, he fairly conceded and agreed that let it be recorded that State would take no such action against the petitioner for having moved the constitutional forum 3 for redressal of his grievance. This matter is thus closed. The facts are not in dispute. The petitioner was initially appointed on 14.12.71 as an Assistant in the Irrigation Department, now known as Water Resources Department, Government of Bihar Patna. He was posted in the office of the Chief Engineer in the Advance Planning Division. He was in 1991 posted in the Vigilance Section of the Water Resources Department where he continued till 1997. It is important to note that in 1997 the petitioner was transferred to the Animal Husbandry Department and thus was sent out of the vigilance section of the Water Resources Department. It has been asserted by the petitioner and not denied by the State that up to this stage there was no departmental proceeding or any serious complaint against the petitioner with regard to his service. The petitioner is in the joint cadre of Assistant of Secretariat and attached offices and is covered by the Joint Cadre of Assistants of Secretariat and Attached Offices Rules 1992. The petitioner while in the Water Resources Department, being aggrieved by the final gradation list as prepared, depriving the petitioner of his rightful place challenged the same before this Court in C.W.J.C No. 11379 of 1992. He succeeded before this Court and the final gradation list was quashed. Petitioner asserts and which is not denied that in the old gradation list he was shown at serial 1198. Now as per the new gradation list, which has been prepared and this Court has affirmed, he was placed at serial 589. Thus he was effectively shifted upward 600 4 places above large number of promotees and direct recruits, a place that was earlier being denied to him by the authorities. The writ petition of the petitioner challenging the gradation list was disposed of on 26.4.2000 (Annexure 9 to the amendment petition). As noted above, in 1997 petitioner was out of the Water Resources Department and in the year 2000 the said judgment of this Court upset the entire gradation list and petitioner gained 600 places above in the seniority, this was in the year 2000. In 2001 a show cause was issued to the petitioner while he was in the Animal Husbandry Department on 17.10.01 (Annexure 2) stating therein that the petitioner was asked to show cause on basis of certain allegations leveled for his work in the Water Resources Department which notices were issued in 1997, 1998, 1999, which remained unresponded and as such fresh notice is being issued as noted above dated 17.10.01 making serious allegations against the petitioner and asking the petitioner to furnish his show cause within 15 days, failing which ex parte proceedings would be taken up. Along with the show cause, appended was a charge sheet which clearly mentioned that while petitioner was in the Water Resources Department he was found prima facie guilty of various acts and omissions which were in detail enumerated therein. The show cause along with the charge sheet is Annexure 2 to the writ petition. In response thereto, the petitioner filed his show cause on 30.10.01 (Annexure 3). The charge sheet having been 5 submitted, show cause having been filed it appears for reasons. Best known to the Department, the Department did not decide to proceed further with the departmental inquiry, as no inquiry was then conducted instead came with the impugned order dated 26.2.02 (Annexure 4) wherein it was stated that petitioner’s services were not found satisfactory and as such in terms of Rule 74 (a) and Rule 74 (b) of the Bihar Service Code, petitioner was being compulsorily retired with effect from 28.2.02 and in lieu of that three months pay is being given to him. Petitioner still having a long period of service, being aggrieved by the premature cessation of his service, filed an appeal before the State Government. The matter was heard by the Chief Secretary. On 6.9.02 (Annexure 6), the petitioner was informed that the Chief Secretary was inclined to recall the order and pass fresh order provided the petitioner gave an undertaking that he would not raise any claim against the Government nor would he challenge the same before any Court or before any authority. Petitioner had little option and accordingly on 19.9.02 (Annexure 7) petitioner gave the required undertaking and upon petitioner giving an undertaking as aforesaid the appellate impugned order dated 19.9.02 (Annexure 1 ) was passed wherein recalling the order of compulsory retirement the following “ punishment” was imposed;- (i) Petitioner was reinstated in his basic grade at the lowest pay scale and would be considered for yearly increment in salary only if his work was found satisfactory. 6 (ii) Petitioner was held disentitled to any further promotion. (iii) As the health of petitioner is not good he is to be posted in department which had little work. (iv) If any further complaint is received against the petitioner he would be compulsorily retired. (v) The punishment order would be effective from the date of its issuance and as such for the period in between his compulsory retirement (28.2.02) and the date of reinstatement he would not claim anything but the period would be counted for his retiral benefit. (vi) The petitioner would have to give an undertaking that he would not lay claim against the State before any authority nor would approach any Court with any claim against this order that was being passed. Mr. Tej Bahadur Singh learned Senior counsel challenging the orders as contained in Annexure 1 and 4, submits that in view of the facts stated above it would be seen that the order of compulsory retirement and the subsequent order are by way of major punishment, and that being so, no such action could be taken without a duly constituted and conducted departmental proceedings. In fact a departmental proceeding was contemplated and charge sheet was issued, but then nothing further was done and the departmental proceeding was abandoned and order of compulsory retirement was passed. Seeing these facts in its true perspectives would be that in fact 7 the compulsory retirement itself was by way of major punishment, which stands vitiated as also the appellate order which replaces the punishment by another major punishment .In this regard Rule 12 of the Joint Cadre of Assistants of Secretariat & Attached Offices Rules, 1992 may be referred wherein major punishments that can be inflicted includes compulsory retirement and reduction in pay scale with stoppage of promotion and lower stage in time scale. Contesting this on behalf of the State it is argued that State exercised the power under Rule 74 of the Bihar Service Code and in particular Rule 74(a) and 74(b) (ii) thereof and that being so there was no requirement of any departmental proceedings or any show cause or compliance with the principles of natural justice. The order passed was thus valid and cannot be interfered with; it was not punitive in nature. It is the correctness of the stands that have to be judged in the present case. Having considered the matter, in my view, the writ petition must succeed. It is apparent from the facts above that first with definite allegations and charges, a departmental proceeding for taking disciplinary action was sought to be initiated. A show cause notice issued to the petitioner along with charge sheet, finding him prima facie guilty. Petitioner filed his show cause; then suddenly abandoning further proceedings the order of compulsory retirement was passed ( Annexure 4) clearly stating that petitioner was not found fit for continuing in service. Thus apart from others a clear stigma is being attached while 8 compulsorily retiring the petitioner. In my view, these facts coupled together, clearly established that compulsory retirement was intended to be by way of punishment and that being a major punishment it was necessary to follow the procedure in that regard but that procedure having been initiated was abandoned midway and the course was changed to a compulsory retirement simpliciter but with the stigma. Thus even though reference is made to Rule 74 of the Service Code, it is essentially punishment. If that be so, then that it could not have been resorted to by the State except by way of punishment after following the disciplinary proceeding rules. The order of compulsory retirement thus cannot be sustained. Similarly the appellate order makes it abundantly clear that a punishment is to be imposed in no uncertain terms the appellate order says that compulsory retirement is being substituted by the punishment as passed in the appellate order (Annexure 1). It is elementary that no punishment, much less a major punishment can be imposed without a duly constituted and conducted disciplinary proceeding. In that view of the matter that having not being done, the appellate order and the original order both cannot be sustained. Here, I may like to clarify that compulsory retirement can be by way of punishment and can be otherwise where employee is found to be deadwood, and not in public interest to be continued. In the first case, where it is by way of a punishment the full procedures of departmental proceedings 9 have to be followed, the party has to be noticed, charges have to be framed inquiry officer has to be appointed, evidence has to be led opportunity to cross examine has to be granted and then inquiry officer is to submit his report, upon which a further notice is to be issued to the petitioner in respect of punishment, if the report of the inquiry officer is adverse and is accepted by the disciplinary authority. If the inquiry officer chooses to exonerate and the disciplinary authority chooses to disagree with the inquiry officer’s report, a further notice would be required to the delinquent officer in regard to reversing the inquiry officer’s report but where an action simpliciter is taken under Rule 74 of the Bihar Service Code to compulsorily retire without allegation or any stigma nothing is required to be done except payment for three months service or a three months notice. In the present case it would be seen that a departmental proceeding was initiated. For reasons best known to the authorities, it is abandoned midway and Rule 74 was resorted to for compulsorily retiring the petitioner. This cannot be done once a departmental proceeding is initiated upon specific charges, it has to be concluded and taken to its logical end not abandoning it midway and then resorting to simpliciter , compulsory retirement which would be mala fide in law and cannot be permitted. Thus both Annexure1 and Annexure 4 stand quashed I may also notice that indeed petitioner’s writ petition challenging the gradation list did cause a lot of problems to the department and a lot of heart- burning for a substantial 10 number of persons. Petitioner by virtue of the order in the writ petition gained 600 position above in the seniority list. Notwithstanding the shift in the gradation list he was appointed as an Assistant though entitled to promotions, but having upset the gradation list, he retired as an Assistant on 31st March 2010 after 40 years of service without a single promotion. This gain in position in the gradation list was totally nullified by the punishment. Mr. Tej Bahadur Singh, learned senior counsel submits that there is one more submission to make. These orders were passed in the year 2002 and the petitioner retired in the year 2010, for eight long years thereafter, there were no complaints against the petitioner, even then petitioner was not granted any promotion but was only granted increment within the pay scale. He submits that even though petitioner has retired, he is entitled to pursue his grievance. Both the original order and the appellate order having been set aside by this Court and there being no further complaints against the petitioner, petitioner would be entitled to promotions or at least now that he has superannuated, to the benefits, apart from full salary for the period during which he had been compulsorily retired till his reinstatement by the appellant order. Having considered this aspect of the matter, in my view, as the original orders as well as the appellate order of punishment are both being set aside, it would be deemed that no such orders were passed. If that be so then as a necessary corollary it would follow that petitioner 11 would be deemed to be in continuous service having not been compulsorily retired in the year 2002 till his reinstatement which he has been deprived by the appellate order. He would be further being entitled to consider for promotion as and when it become due with all consequential benefits. In fairness Learned counsel appearing on behalf of the petitioner and in support of the writ petition I must notice that he has rightly placed the judgment in the case of Ram Ekbal Sharma v.s State of Bihar, Since reported in AIR 1990 S.C 1368 and in the case of State of Gujrat v/s Surya Kant Chunni lal shah. Since reported in A.I.R 1999 (1) S.C.C 529 for the proposition that even though the order of compulsory retirement may be innocuous, in cases the Court can lift the veil and see the true reasons behind it. I may add that in some manners the facts emanating in the present case are similar to the cases of Chunni Lal( supra ) with regard to undertakings to be given and the shortcut method which were not approved by the Apex Court where departmental proceedings are abandoned and innocuous order of compulsory retirement not by way of punishment is passed. Thus, this writ application is allowed. Annexure 1 the appellate order and Annexure 4, the original order are quashed .The petitioner would be deemed to be in continuous service and entitled to remuneration and promotion in accordance with law even though he has superannuated already. Namita ( Navaniti Prasad Singh, J.) 12