IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15497 of 2011 ====================================================== 1. Yogendra Prasad S/O Late Mogal Sah R/O Village- Sirisiyamani, P.O.- Hussepur, P.S.- Amnaur, District- Saran (Chapra) Presently Residing At Quarter No.- 17c, Road No.- 9, Police Station- Gardanibagh, District- Patna .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Secretary, Agriculture Department, Government Of Bihar, Patna 3. The Agriculture Production Commissioner, Bihar, Patna 4. The Director, Agriculture, Bihar, Patna 5. The Assistant Director (Hq), Soil Conservation Directorate, Department Of Agriculture, Bihar, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Girish Chandra Jha For the Respondent/s : Mr. Ajay Sc11 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 3 19-12-2011 Heard learned counsel for the petitioner and the State. I.A. No.8731/11 is stated to have been filed on 15.12.2011 laying out a formal challenge to the appellate order dated 22.9.2011 as appended at Annexure-A to the counter affidavit. It is not available on record. The office shall place the original on record. The Court requested the counsel for the petitioner to make available his copy for perusal so as not to hold up the proceedings on that ground. Having heard counsel for the parties the I.A. is Patna High Court CWJC No.15497 of 2011 (3) dt.19-12-2011 2 allowed and the appellate order is permitted to be challenged also. The petitioner, a driver in the Secretariat cadre, is aggrieved by the order dated 8.3.2011 compulsorily retiring him from service. Learned counsel for the petitioner submits that the order is bad for non-compliance of Rule- 74(b)(ii) of the Bihar Service Code as it has not been preceded by three months‟ notice or pay in lieu thereof. It is next contended that the order is punitive in nature for alleged inefficiency as a driver and should therefore have been preceded by a proper departmental proceeding before imposition of punishment in the camouflage of compulsory retirement. The recitals in the impugned order itself reflect that he has not lost his utility as a driver classifying him as a „dead wood‟. A rhetoric recital of the words “public interest” shall not lend validity to an order not in accordance with law. Reliance has been placed on (2001) 3 SCC 314 (State of Gujarat vs. Umed Bhai M. Patel). Learned counsel for the State submitted that the impugned order adequately reflects that the petitioner was no longer capable of discharge of duties as a driver and had therefore become „dead wood‟. The impugned order also reflects his indisciplined conduct. Reliance was placed on a Division Bench decision in C.W.J.C. No.9317/09 (Krishna Patna High Court CWJC No.15497 of 2011 (3) dt.19-12-2011 3 Kant Shukla vs. State of Bihar) dated 22.4.2011 to urge that mere absence of the required notice under Rule-74(b)(ii) by itself may not be sufficient to invalidate the order. An order of compulsory retirement can be passed when an employee has lost his utility in service and is classified more as a burden or dead wood on the establishment. It is not considered stigmatic and he is honourably allowed to go without any reflection of his service career or superannuation benefits. But, an order of compulsory retirement cannot be utilized as a short cut method to dispense with services where otherwise a disciplinary proceeding may have been more appropriate. Even a non-stigmatic order of compulsory retirement may be interfered with after lifting the veil. In other cases even if the order of compulsory retirement does not use the words „public interest‟ the Court can always lift the veil to satisfy itself whether the impugned order can be upheld. Public interest is a much wider term to be construed from the entirety of the surrounding circumstances. Each case shall therefore depend on its own facts. The petitioner was a driver. Clause-4 (a) of the impugned order states that he was unable to drive after 6.00 p.m. Counsel for the petitioner disputed the contention submitting that it was a temporary disability due to eye Patna High Court CWJC No.15497 of 2011 (3) dt.19-12-2011 4 treatment. The Court need not go into it as the ground itself manifests that he was in a position to discharge his duties during normal working hours. Likewise, Clause-4(b) makes allegations of negligence in discharge of duties and non- presentation for duty at the time. It casts aspersions on him and states that a show cause was issued. Clause-4(c) is connected with the same stating that he expressed his inability by not having reported for duty on the morning concerned. The recitals in Clause-4 therefore make it manifest that the petitioner has not lost his utility as a driver for the respondents. There are no allegations that he was unable to drive, unfit to drive, that he was meeting with accidents on the official vehicle or otherwise. The recitals in the order make it manifest that there were allegations for deficiency in discharge of duties by him. That may make it or may not make it an act of indiscipline. If aspersions were to be cast, he was to be given an opportunity to defend in a proper departmental proceeding before final orders could be passed against him. In Umedbhai M. Patel‟s case (supra) the Supreme Court at paragraph-11(vi) and (viii) has held as follows:- “11(vi). The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.” “11(viii). Compulsory retirement shall not be imposed as a punitive measure.” Patna High Court CWJC No.15497 of 2011 (3) dt.19-12-2011 5 In Baldeo Raj Chaddha vs. Union of India & Ors.) the Supreme Court has held at paragraph-8 has held as follows:- “8. …So it is that we must emphatically state that under the guise of „public interest‟ if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. To constitutionalise the Rule, we must so read it as to free it from the potential for the mischiefs we have just projected. The exercise of power must be bona fide and promote public interest. There is no demonstrable ground to infer mala fides here and the only infirmity alleged which deserves serious notice is as to whether the order has been made in public interest. When an order is challenged and its validity depends on its being supported by public interest the State must disclose the material so that the Court may be satisfied that the order is not bad for want of any material whatever which, to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of „public interest‟ justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations. The limitations on judicial power in this area are well known and we are confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest.” In Krishna Kant Shukla (supra) the facts were entirely different. On examination of the entire service record of the petitioner the Division Bench arrived at the conclusion that it was in fact in public interest to compulsorily retire him. It was in that background that the Division Bench opined that strict compliance with Rule-74(b)(ii) may not be fatal at all times. It has no application to the facts of the present case. Patna High Court CWJC No.15497 of 2011 (3) dt.19-12-2011 6 The respondents have filed counter affidavit. It does not set out any grounds to satisfy the Court from the point of view of any reasonable prudent person that the petitioner had lost his utility and efficiency entirely as a driver incapable of driving motor vehicles for the Department thus rendering him a dead wood. The impugned order dated 8.3.2011 is not sustainable. The appellate order dated 22.9.2011 which is cryptic and non-speaking also automatically collapses. The writ application is allowed. Krishna Chandra Jha/- (Navin Sinha, J)