Judgment S.C.Misra and S.Wasiuddin JJ. 1. The petitioner was employed as Clerk in the Excise Department at Hazaribagh. A proceeding was started against him for certain irregularities amounting to misconduct on his part in course of discharge of his duties as a Clerk of Excise Department. The charges were as many as 17. The Inquiring Officer, however, found only six charges established against him, being charge Nos. 1, 5, 12, 13, 14 and 15. According to the Inquiring Officer, the acts of the Clerk amounted to violation of Rule 12 of the Government Servants Conduct Rules. It may be stated that the proceeding was started against the petitioner on 17th August, 1959 and the report was submitted on the 9th of November, 1960. On the 8th of September, 1961, the petitioner was asked to show cause against his removal from service. Cause was shown by the petitioner on the 1st of November, 1961. It appears that the petitioner, after the submission of the report by the Inquiring Officer, obtained a certificate from the Civil Surgeon to the effect that he (the petitioner) was invalid and he could not discharge his duties properly, in that state of his health. On 31st of January, 1962 an order was passed by the Commissioner of Excise, directing retirement of the petitioner on invalid pension with effect from 19th of July, 1961. It appears further, however, that the Government was not satisfied with the order of the Commissioner of Excise, and it was decided that the order of retirement on invalid pension passed by the Commissioner of Excise was not a legal order because it amounted to violation of Rule 73(f) of the Bihar Service Code, Accordingly, the order of retirement on invalid pension was revoked by the Government on the 5th of October, 1963. The show cause petition filed by the petitioner against the proposed punishment of dismissal from service was considered by the Commissioner of Excise again and on the 1st of November, 1963 order was passed dismissing the petitioner from service. 2. Learned Counsel for the petitioner has urged, as his most substantial point, that after the Commissioner of Excise passed his order on 31st of January, 1962. 2. Learned Counsel for the petitioner has urged, as his most substantial point, that after the Commissioner of Excise passed his order on 31st of January, 1962. Accepting the certificate of the Civil Surgeon about the petitioners state of health and after having ordered that he should retire on invalid pension with effect from the 19th of July, 1961, it was not open to any other authority to reopen that question and to pass a different order on a subsequent date dismissing the petitioner from service while taking into account charge Nos. 1, 5, 12, 13, 14 and 15 out of the list of charges framed against, him. Learned Counsel has contended that the effect of the order of retirement, on medical ground, on invalid pension was to terminate the last point of service of the petitioner, after which he ceased to be in Government employment. After that order, the order of dismissal could not be passed, and such an order must be treated to be void. Reference has been made by learned Counsel, in support of his contention, to the judgment of Lord Roche in the case of R.T. Rangachart v. Secretary of State A.I.R. 1937 P.C. 27. In that case also a sub Inspector of Police was proceeded against for certain irregularities in the discharge of his duties, and the inquiry was being conducted by the Assistant Superintendent of Police, one Mr. Charsley. The Superintendent of Police of the district, however, before the inquiry report could be submitted, felt on a discussion held by him with Mr. Charsley that evidence against the officer was doubtful and inconclusion, that charges should be dropped and that, accordingly, the Sub Inspector Rangachari should be allowed to retire on invalid pension if he could produce a medical certificate to that effect. The Sub Inspector Rangachari produced certificate to, that effect and he was allowed to retire or invalid pension. After this, however, Mr. Kalimullah, Superintendent of Police, was succeeded by another Superintendent of Police, who, on consideration of Mr. Charsleys inquiry report, held the Sub Inspector guilty of the irregularities which had been made the subject matter of charge framed against him. The successor of Mr. Kalimullah took a different view and in agreement with the inquiry report passed the order of dismissal against the Sub Inspector. He brought a suit for a declaration that the order passed by Mr. The successor of Mr. Kalimullah took a different view and in agreement with the inquiry report passed the order of dismissal against the Sub Inspector. He brought a suit for a declaration that the order passed by Mr. Loveluck, the successor of Mr. Kalimullah, was without jurisdiction and that the order of retirement on invalid pension passed by the predecessors of Mr. Loveluck was a valid order and could not be interfered with. The Privy Council, in agreement with the Indian Courts, held that the Sub Inspector had, for some months, duly and properly ceased to be in service and, therefore, the subsequent order passed by Mr. Loveluck was a mere nullity and could not be sustained. It may, however, be pointed out that in that case the proceeding started against the Sub Inspector Rangachari was already dropped by the Superintendent of Police which he was competent to do. The Privy Council decision proceeded upon the footing that no body on either side challenged the authority of the Superintendent Mr. Kalimullah to drop the proceeding against the appellant Rangachari. That being so, when the order of retirement on invalid pension was passed, there was no proceeding pending against him. In the present case, however, the position is different. In this case proceeding was still pending as it will be clear from the facts set out above that the proceeding was started in 1959 and was not terminated on the 31st of January, 1962 when the order of the Commissioner of Excise directing retirement of the petitioner on invalid pension with effect from 19th of July, 1961 was passed. Mr. Braj Kishore Prasad No. 2 has strenuously urged that it should be construed by the Court that the Commissioner of Excise passed that order of compulsory retirement only after the report by the Inquiring Officer was submitted holding the petitioner guilty of 6 charges and after the show cause petition was filed by the petitioner on the 1st of November, 1961. When the Commissioner of Excise accepted the certificate of petitioners unfitness granted by the Civil Surgeon, it must be construed to be an order passed in the proceeding started against the petitioner as such. It is true that if that position could be established, there might be some force in the argument advanced by the learned Counsel for the petitioner. Mr. It is true that if that position could be established, there might be some force in the argument advanced by the learned Counsel for the petitioner. Mr. K. P. Verma for the State has, however, contended that the position was not so, and he has drawn our attention to the order of. Mr. S.V. Sohoni, in which all the facts have been set out and it has been held that the Government revoked the order of the Commissioner of Excise by virtue of Rule 73(1) of the Bihar Service Code, because the order of the Commissioner was not passed in the inquiry proceeding but independently thereof on production of a certificate of invalidity of the petitioner. Mr. Braj Kishore Prasad has not been able to bring to our notice anything on the record to show that this view of the Government was, in any manner, faulty or otherwise unsupportable. The decision of the Privy Council, therefore, on facts is clearly distinguishable from the facts and circumstances of the present case. 3. Mr. Braj Kishore Prasad has, however, urged further that Rule 73(f) of the Bihar Service Code is not applicable to the present case, and since Government order revoking the order of the Commissioner of Excise rests upon Rule 73 (f), it must be held to be wrong because Rule 73(f) is not intended to cover a case like the present one. Rule 73(f) reads thus: Notwithstanding anything contained in foregoing clauses, a Government servant under suspension on a charge of misconduct, shall not be required or permitted to retire on reaching the date of compulsory retirement but shall be retained in service until the enquiry into the charge is concluded and a final order is passed thereon by the competent authority. The argument of the learned Counsel proceeds on the footing that this rule applies only to the case of an officer who is due to retire on reaching the age of compulsory retirement as referred to in Rule 73(a). Compulsory retirement refers to the age of retirement of Government servants in ordinary course, which was 55 years before and which at present is 58 years. The petitioner has not attained the age of retirement in due course in terms of Rule 73(a). Compulsory retirement refers to the age of retirement of Government servants in ordinary course, which was 55 years before and which at present is 58 years. The petitioner has not attained the age of retirement in due course in terms of Rule 73(a). His is a case of retirement on medical ground, so that it cannot be brought within the scope of Rule 73(f) as being covered by the expression date of compulsory retirement referred to in that rule. In our opinion, however, it is difficult to accede to this contention. It is true, no doubt, that the expression date of compulsory retirement in Clause (f) of Rule 73 refers to retirement in normal course from Government service, and present case is not one covered by that. But it is obvious that Rule 73 (f) is intended to provide power to the Government to refuse permission to retire to a Government servant where a charge of misconduct is pending against him and he is suspended on that ground. If it were to be held that this rule, on a narrow construction, must be confined only to an officer who is due to retire under Clause (a) of this rule, that is to say, in the normal course of retirement on attaining the maximum age permissible to an officer after which he is to retire compulsorily, it would create an anomaly, because the object of this rule will be completely defeated. Such a situation will seldom arise when a charge of misconduct against an officer is being inquired into, and he is suspended and yet he is compelled to retire, compulsorily on attaining the maximum age for retirement. Normally, such a situation of the charge of misconduct being inquired into arises in a case of an officer who may not have attained the age of compulsory retirement. If, therefore, the contention of Mr. Braj Kishore Prasad were to prevail, it will bring about an anomalous situation. We are unable, therefore, to give such a narrow interpretation to Clause (f) of Rule 73. If, therefore, the contention of Mr. Braj Kishore Prasad were to prevail, it will bring about an anomalous situation. We are unable, therefore, to give such a narrow interpretation to Clause (f) of Rule 73. We are inclined to hold that this provision has been incorporated in the Bihar Service Code in order to enable Government to come to a finding in respect of an officer facing the charge of misconduct so that he may not avoid it by taking recourse to the device of retirement so as to prevent a finding being recorded against him. If that were so, the officer with very bad record of service may manage to retire arid seek employment elsewhere either in some other Government Department or, at any rate, before some other employer. It is with a view to stop such a loop whole that Clause (f) has been incorporated in Rule 73. For these reasons, it is difficult to accept the contention of Mr. Braj Kishore Prasad, and it must be held that the Government order revoking the order of retirement of the petitioner passed by the Commissioner of Excise was a legal order and in accordance with Rule 73(f). 4. Learned Counsel has also faintly contended that in any view the order of dismissal has been passed against the petitioner only with reference to a provisional order passed against him, which order was passed without giving a chance to the petitioner to show cause against his dismissal, as required under Article 311 of the Constitution of India. There is no force whatsoever in this contention, because it is not contended that the second order actually purporting to dismiss the petitioner was passed without giving opportunity to the petitioner to show cause. He filed his petition of show cause, it was considered and then the order was passed, although the way in which the order was passed giving effect to the provisional order already made was not so correct. It is only a question of formal words used by the dismissing authority, the Commissioner of Excise, but in substance it was the order alone which was operative for the dismissal of the petitioner, and that was passed only after the opportunity was given to the petitioner to show cause against the order of dismissal. It is only a question of formal words used by the dismissing authority, the Commissioner of Excise, but in substance it was the order alone which was operative for the dismissal of the petitioner, and that was passed only after the opportunity was given to the petitioner to show cause against the order of dismissal. It has also been urged by learned Counsel that out of 6 charges the finding on at least one of the charges, namely, charge No. 12, which related to his being arrested for gambling, was not proved against, the petitioner, which was not taken into consideration by the Commissioner of Excise. It may, however, be stated that the order of the Excise Commissioner has been passed on a consideration of all the charges of misconduct found against the petitioner by the Inquiry Officer, and there is, no infirmity in the order of dismissal passed against him, 5. For the reasons stated above, it must be held that there is no substance in this petition. It is dismissed. There will be no order as to cost.