Case: Union Of India &amp; Ors Vs. J. Ahmed

service beyond 1st August, 1962. The order next in succession is of 1st September, 1962. This order is again made by the State of Assam. The State Government had no power to retain a member of the service for a period exceeding six months in the aggregate after the date of his normal retirement. The maximum period for which retention could be ordered by the State Government being thus six months, the respondent would have retired from service on 1st August, 1962. Even if an order had been made by the State Government to retain the respondent in service it would be without jurisdiction and the order in fact was made on 1st September, 1962. Now, undoubtedly under Rule 19(1)(b) the Central Government has power to retain a member of the service in service after the date of retirement for any period beyond six months. But in this connection it may be pointed out that no such order appears to have been made by the Central Government. All the subsequent orders were made by the Government of Assam. Such orders made by the Government of Assam would not have the effect of retaining the respondent in service beyond a period of six months from the date of his normal retirement. That being the maximum period, the State Government had no power to retain the respondent in service. If the State Government could not retain him in service beyond 1st August, 1962, it could not continue the inquiry thereafter. This position seems to be clearly established by the decision of this Court in State of Assam v. Padma Ram Borah, A.I.R. 1965 S.C. 473. In that case the State Government had made an order to retain the Government servant in service up to the end of March 31, 1961. Subsequent order extending the period was made on 9th May, 1961. This Court held that according to the earlier order of the State Government itself the service of the Government servant had come to an end on March 31, 1961 and the State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before March 31, 1961. It is thus clear that the retention of the respondent in service by order of the State Government not made before the retirement taking place on 1st August, 1962 and the State Government not having the power to retain the respondent, a member of the Indian Administrative service, beyond a period of six months, the respondent could not be said to have continued in service so that in inquiry could be continued against him. 15. Mr. Naunit Lal, however, contended that sub-rule (2) of Rule 16 clearly provides that a member of the service under suspension on a charge of misconduct shall not be required or permitted to retire from the service until the enquiry into the charges against him is concluded and a final order is passed. It is in the context of Sub-rule (2) of Rule 16 that the question of the nature of the proceedings held against the respondent assumed importance. If the inquiry was on a charge of misconduct, the respondent could be retained in service until the inquiry into the charges against him was concluded and a final order was made. But before Sub-rule (2) of Rule 16 would be attracted it must be shown that the member of the service was under suspension on a charge of misconduct and an inquiry was being conducted against him. As pointed out earlier, no misconduct as one would understand that word in the context of disciplinary proceeding was alleged against the respondent. There was an inquiry but before Sub-rule (2) of Rule 16 is attracted, it had to be an inquiry on a charge of misconduct. What is alleged is not misconduct as the word is understood in service jurisprudence in the context of disciplinary proceedings. Therefore, it could not be said that an inquiry on a charge of misconduct was being held against the respondent and Sub-rule (2) of Rule 16 would thus be attracted and he would be deemed to have been retained in service till the inquiry was concluded. 16. It thus appears crystal clear that there was no case stricto sensu for a disciplinary proceeding against the respondent. In fact the inquiry was held to be established that the respondent was not fit to hold a responsible post. The respondent was actually retiring from service and there was no question of his any more holding a responsible position. Yet not only the inquiry was initiated but he was retained in service beyond the date of his moral retirement till the final order was made on 11th October, 1963 when he was removed from the India Administrative Service. It appears that there was large scale disturbances in the State. There followed the usual search for a scapegoat and the respondent came handy. Some charges were framed none of which could constitute misconduct in law. Some charges were mere surmises. Substance of the allegations was that he was not a very efficient officer and lacked the quality of leadership and was deficient in the faculty of decision-making. These deficiencies in capacity would not constitute misconduct. If the respondent were a young man and was to continue in the post for a long period, such an inquiry may be made whether he should be retained in the responsible post. He may or may not be retained but to retain him in service beyond the period of his normal retirement with a view to punishing him was wholly unjustified. The High Court was, therefore, right in coming to the conclusion that the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is thus clear that the retention of the respondent in service by order of the State Government not made before the retirement taking place on 1st August, 1962 and the State Government not having the power to retain the respondent, a member of the Indian Administrative service, beyond a period of six months, the respondent could not be said to have continued in service so that in inquiry could be continued against himIt is in the context of Sub-rule (2) of Rule 16 that the question of the nature of the proceedings held against the respondent assumed importance. If the inquiry was on a charge of misconduct, the respondent could be retained in service until the inquiry into the charges against him was concluded and a final order was made. But before Sub-rule (2) of Rule 16 would be attracted it must be shown that the member of the service was under suspension on a charge of misconduct and an inquiry was being conducted against him. As pointed out earlier, no misconduct as one would understand that word in the context of disciplinary proceeding was alleged against the respondent. There was an inquiry but before Sub-rule (2) of Rule 16 is attracted, it had to be an inquiry on a charge of misconduct. What is alleged is not misconduct as the word is understood in service jurisprudence in the context of disciplinary proceedings. Therefore, it could not be said that an inquiry on a charge of misconduct was being held against the respondent and Sub-rule (2) of Rule 16 would thus be attracted and he would be deemed to have been retained in service till the inquiry was concluded16. It thus appears crystal clear that there was no case stricto sensu for a disciplinary proceeding against the respondent. In fact the inquiry was held to be established that the respondent was not fit to hold a responsible post. The respondent was actually retiring from service and there was no question of his any more holding a responsible position. Yet not only the inquiry was initiated but he was retained in service beyond the date of his moral retirement till the final order was made on 11th October, 1963 when he was removed from the India Administrative Service. It appears that there was large scale disturbances in the State. There followed the usual search for a scapegoat and the respondent came handy. Some charges were framed none of which could constitute misconduct in law. Some charges were mere surmises. Substance of the allegations was that he was not a very efficient officer and lacked the quality of leadership and was deficient in the faculty of decision-making. These deficiencies in capacity would not constitute misconduct. If the respondent were a young man and was to continue in the post for a long period, such an inquiry may be made whether he should be retained in the responsible post. He may or may not be retained but to retain him in service beyond the period of his normal retirement with a view to punishing him was wholly unjustified. The High Court was, therefore, right in coming to the conclusion that the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void.