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

Respondent J. Ahmed joined service in Assam State in 1945 and some time in 1959 came to be promoted to the Indian Administrative Service Cadre. In that very year he was posted as Deputy Commissioner and District Magistrate, Nowgong District. While he was holding the aforementioned post, some time in the beginning of June, 1960 there were large scale disturbances in Nowgong city and District area described in official parlance as "language disturbances". There was considerable damage to property. One Shri A. N. Kidwai, the then Additional Chief Secretary to the Government of Assam, under took an inquiry into the causes of disturbances at Nowgong with a view to ascertaining the responsibility of District officials. After Shri Kidwai submitted his report, the Government took the first step of suspending the respondent from service by an order dated 14th September, 1960. The Chief Secretary to the Government of Assam by his communication, dated 13th September, 1960 conveyed to the respondent various charges framed against him and called upon him to submit his explanation. A statement of allegations was annexed to the communication. Respondent submitted his explanation and thereafter the Government appointed respondent No. 4 K. Balachandran as the Enquiry Officer. After the inquiry was concluded, the enquiry officer submitted his report. It may be noticed that respondent was born on 1st February, 1907 and according to Rule 16 of the All India Service (Death-cum-Retirement Benefits) Rules, 1958 ("Retirement Rules" for short), then in force, the age of retirement being 55 years, the respondent would have retired from service on 1st February, 1962. First, the Governor of Assam by his order dated 31st January, 1962 purporting to exercise power under Rule 16(1) of the Retirement Rules, directed that the respondent then under suspension be retained in service for a period of three months beyond the date of his retirement which fall on 1st February, 1962 or till the termination of departmental proceedings drawn up against him whichever is earlier. By subsequent orders dated 21st June, 1962, 1st September, 1962, 23rd February, 1963 and 28th August, 1963 respondent was retained in service, till the inquiry pending against him concluded and final orders were passed in the proceedings. It may be mentioned that the order dated 28th August, 1963 was made by the Governor in exercise of the powers conferred by sub-rule (2) of Rule 16 of the Retirement Rules. The enquiry officer submitted his report holding charges 1, 2, 3, 5 and 6 proved and in respect of charge No. 4 the finding recorded was that though the charge was proved, the enquiry officer took note of certain extenuating circumstances mentioned in the report. A memorandum dated 22nd February, 1963 was served by the Government of India on the respondent forwarding the report of the enquiry officer and the respondent was called upon to show cause why the provisional penalty determined by the Government of removal from service be not imposed upon him. Ultimately, by order dated 11th October, 1963 the President, after consultation with the Union Public Service Commission, imposed the penalty of removal from service on the respondent. A memorial submitted by the respondent to the resident under Rule 20 of the All India Service (Discipline & Appeal) Rule, 1955, ("Discipline and Appeal Rules" for short), against the imposition of the penalty was rejected2. The respondent filed a petition under Art. 226 of the Constitution in the High Court of Assam and Nagaland. Two contentions were raised before the High Court : (1) whether Rule 16(2) of the Retirement Rules is attracted so as to retain the respondent in service beyond the period of his normal retirement for the purpose of completing disciplinary proceedings against the respondent; and (2) if rule 16(2) was not attracted, whether the retention of respondent beyond the normal period of his retirement was valid and if it was not valid, whether he could be removed from service after he had actually and effectively retired from service ? While examining these two contentions, the High Court was of the opinion that disciplinary proceedings can be held and punishment can be imposed for misconduct and the charges ex facie did not disclose any misconduct because negligence in performance of duty or inefficiency in discharge of duty would not constitute misconduct. On the second point it was held that if the enquiry was not for any misconduct, sub-rule (2) of Rule 16 would not be attracted and the Government had no power to retain the respondent in service for the purpose of holding or completing disciplinary proceeding which can only be for misconduct, and as there was no enquiry into what can be styled as misconduct, the retention in service of the respondent beyond the period of retirement was not legal and valid, and, therefore, the respondent would not be removed from service from which he had retired. In accordance with these findings, the writ petition filed by the respondent was allowed declaring that the respondent was deemed to have retired from service from 1st February, 1962 and that the punitive or disciplinary action taken against him after that date is completely without jurisdiction and wholly unjustified, and the same was quashed3. The Union of India and the State of Assam have preferred this appeal by special leave.

Reasoning:
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.