Tajamul Hussain v. State Of Bihar — 1975 DIGILAW 64 (PAT)

Judgment B.D.SINGH, J. 1. This application by Tajamul Hussain under Article 226 of the Constitution of India is directed against an order dated the 23rd June, 1973 (Annexure 5) passed by the State of Bihar through the Secretary, Irrigation Department (Respondent No. 1) retiring the petitioner compulsorily under Rule 74 (b) of the Bihar Service Code (hereinafter to be referred to as the Code). 2. In order to appreciate the point involved in this case, it is necessary to state briefly the facts. On 1-8-1937 the petitioner was appointed as temporary overseer in the Department of Irrigation, Government of Bihar, and worked in that capacity until 20-12-1940 when his appointment came to an end, as stated in paragraph 3 of the writ application. On 24-11-1942 the petitioner was appointed as overseer in the same department on permanent basis. On 28-7-1955 he was promoted on an officiating basis as assistant engineer and in March, 1959, he was confirmed on that post. On 15-3-1966 he was promoted to the post of Executive Engineer in the Minor (Unified) Irrigation Department. On 6-8-1970, by a resolution of the Government of that date (Annexure 1) it was resolved that a proceeding be drawn up against the petitioner in the manner prescribed under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, (hereinafter to be referred to as the Rules) on the two charges: set forth in the said resolution. Briefly stated, the charges were : (1) the petitioner had amassed assets of the value of Rupees 56,637 which was disproportionate to his known sources of income and that showed that he had acquired wealth by abusing his power and office, and (2) he acquired immovable property in the form of land without obtaining prior approval of the Government in violation of Rule 15 (1) of the Bihar Government Servants Conduct Rules. In pursuance of the aforesaid resolution a departmental enquiry was conducted, according to the petitioner, in violation of the principle of natural justice and without giving adequate opportunity to him: to defend himself. The petitioner filed written statement in the said proceeding, a copy of which is Annexure 2 to the writ application On 12-11-1970 he requested the inquiring officer to allow him to examine an important witness in his defence but the said prayer was rejected. The petitioner filed written statement in the said proceeding, a copy of which is Annexure 2 to the writ application On 12-11-1970 he requested the inquiring officer to allow him to examine an important witness in his defence but the said prayer was rejected. A copy of the relevant portion of the order-sheet is Annexure 3 to the writ application. Subsequently, the petitioner came to know that the inquiring officer gave finding against him. In paragraph 12 of the writ application he has stated that on 8-12-1971 the Bihar Public Service Commission .had found him fit for promotion as officiating Superintending Engineer (vide Annexure 4). Thereafter on 23-6-73 the respondent No. 1 passed the impugned order. Under memo No. 10529 dated 23-6-73 (Annexure 6) the petitioner was asked to show cause as to why 25 per cent out of the pension amount admissible to him should not be deducted as required under Rule 43-A of the Bihar Pension Rules in view of the fact that the enquiring officer had found that he had accumulated assets disproportionate to his known sources of income and had acquired immovable property without prior approval of the Government. In the application the petitioner has prayed for quashing of Annexure 5. 3. On behalf of the respondents a. counter-affidavit has been filed on 24-2-75 inter alia supporting the impugned order as contained in Annexure 5. 4. Mr. Basudev Prasad, learned counsel appearing on behalf cf the petitioner, has assailed the impugned order directing the petitioner to retire compulsorily under Rule 74 of the Code. The chief point raised by him is that the respondent No. 1 once having directed to initiate a departmental proceeding under Rule 55 of the Rules could not have passed the order of compulsory retirement of the petitioner, instead of passing an order on the enquiry report itself. He contended that by the impugned order respondent No. 1 has in reality passed order by way of punishment on the facts and circumstances of the instant case. He emphasised that it was mala fide action on the part of respondent No. 1 to have passed the impugned order for collateral purpose. It was not a case of compulsory retirement simpliciter. 5. He emphasised that it was mala fide action on the part of respondent No. 1 to have passed the impugned order for collateral purpose. It was not a case of compulsory retirement simpliciter. 5. In order to find support to his contention that the impugned order was in fact the result of the finding of the inquiring officer in his report, he referred to the statements contained in paragraph 3 if the counter-affidavit, the relevant portion of which is as follows: "That with regard to the statement made in paragraph No. 2 of the writ petition, it is s.ated that the statements are incorrect and misleading and the petitioner was made to retire from Government service under Rule 74 (1) of the Bihar Service Code and under Government Servants Conduct Rule 15 (1), after giving the petitioner ample opportunity to show cause in accordance with law and principles of natural justice........." In this connection he also referred to the statement made in , paragraph 8 of the counter-affidavit, the relevant portion of which is as under: "That with regard to the statements made in paragraph No. 13 of the writ petition, it is stated and submitted that on receipt of the enquiry report of the Commissioner, Departmental Enquiries, the same was duly examined in Irrigation Department and after the decision of the Government, necessary orders were passed and the same was communicated to him vide Department Memo No. 10528 dated 23-6-73 under Rule 43-A of the Bihar Pension Rules; the petitioner was also afforded an opportunity to show cause as is apparent from Annexure 6 to the writ petition itself........." Therefore, he submitted that the contention of the petitioner finds support, from the above statements made in the counter-affidavit. He emphasised that his submission is also fortified by the judgment of the Supreme Court in Madan Gopal V/s. State of Punjab, ( AIR 1963 SC 531 ). He drew our attention particularly to para. 4 of the judgment at p. 532 which is to this effect: "The appellant was a temporary, employee, and his employment was liable to. be terminated by notice of one month without assigning any reason. He drew our attention particularly to para. 4 of the judgment at p. 532 which is to this effect: "The appellant was a temporary, employee, and his employment was liable to. be terminated by notice of one month without assigning any reason. The Deputy Commissioner, however, did not act in exercise of this authority : the appellant was served with a charge-sheet setting out his misdemeanour, an enquiry was held in respect of the alleged misdemeanour and his employment was terminated because in the view of the Settlement Officerwith which view the Deputy Commissioner agreedthe misdemeanour was proved. Such a termination amouned to casting a stigma affecting his future career. In State of Bihar V/s. Gopi kishore Prasad, AIR 1960 SC 689 the learned Chief Justice in dealing with cases of termination of service or discharge of public servant on probation set out five propositions of which the 3rd is enunciated thus : But, if instead of terminating such a persons service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Art. 311 (2) of the Constitution." On the basis of the said observation he urged that the same principle should be extended in the instant case. Since the respondent No. 1 was desirous of passing an order of compulsory retirement of the petitioner, it could have been done without holding an inquiry into his alleged misconduct or inefficiency, but, instead, in the present case also inquiry was set up and finding of the inquiring officer was against the petiioner. Instead of proceeding on the basis of the inquiry report, respondent No. 1 chose to pass the impugned order making the petitioner to retire compulsorily. Obviously, therefore, the impugned order was by way of punishment and in such a case the petitioner was entitled to the protection under Article 311 (2) of the Constitution. 6. Mr. Instead of proceeding on the basis of the inquiry report, respondent No. 1 chose to pass the impugned order making the petitioner to retire compulsorily. Obviously, therefore, the impugned order was by way of punishment and in such a case the petitioner was entitled to the protection under Article 311 (2) of the Constitution. 6. Mr. Prasad also referred to the decision in State of Bihar V/s. Shiva Bhikshuk Mishra, AIR 1971 SC 1011 = (1971 Lab IC 724) where it was held that for applicability of Article 311 of the Constitution it was not necessary that there should be express words of stigma attributable to the conduct of Government servant in the impugned order. There was no rigid principle that one had only to look to the order and if it did not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government officer it must be held to have been made in the ordinary course of administrative routine, end the Court was debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The form of order was not conclusive of its true nature and, it might merely be a cloak or camouflage for an order founded on misconduct. It might be that an order, which was innocuous on the face and did not contain any imputation of misconduct was a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test would always be whether the misconduct was a mere motive or was the very foundation of the order. The above observation was approved, learned counsel submitted, in another later judgment of the Supreme Court in State of Uttar Pradesh V/s Sughar Singh, AIR 1974 SC 423 = (1974 Lab IC 353) wherein it was held that an order of reversion was in its immediate effect bound always to be a reduction in rank. Even a reversion from a higher but temporary or officiating rank to a lower substantive rank was in a sense a reduction. But such orders of reversion were not always reduction in rank within the meaning of Article 311. Even a reversion from a higher but temporary or officiating rank to a lower substantive rank was in a sense a reduction. But such orders of reversion were not always reduction in rank within the meaning of Article 311. If the officer was promoted substantively to a higher post or rank, he got a right to that particular post or rank and if he was afterwards reverted to the lower post or rank which he held before it was a reduction in rank in the technical sense in which the expression was used in Article 311. The real test in all such cases was to ascertain if the officer concerned had a right to the post from which he was revered. If he had a right to the post, then a reversion was a punishment, and could not be ordered except in compliance with the provisions of Art. 311.. If, on the other hand, the officer concerned had no right to the post, he could be reverted without attracting the provisions of Article 311. But even in that case, he could no be reverted in a manner which would show conclusively that the intention was to punish him. The order itself might expressly state that the officer concerned was being reverted by way of punishment. In fact the order might in various other ways cast a stigma on the officer concerned. In all such cases, the order was to be taken as a punishment. Sometimes again, the order of reversion might bring upon the officer certain penal consequences like forfeiture of pay and allowances or loss of seniority in the subordinate rank or the stoppage or postponement of future chances of promotion; in such cases also the Government servant must be regarded as having been punished and his reversion to the substantive rank] must be treated as a reduction in rank. In such a case Article 311 would be attracted. Their Lordships also held in that case that where the basis for such reversion was admitted to be an adverse entry in the character roll, the order of reversion was by way of punishment and amounted to reduction in rank. 7. Mr. In such a case Article 311 would be attracted. Their Lordships also held in that case that where the basis for such reversion was admitted to be an adverse entry in the character roll, the order of reversion was by way of punishment and amounted to reduction in rank. 7. Mr. Brishketu Sharan Sinha, Government Pleader No. II, appearing on behalf of the respondents, on the other hand in support of the impugned order, contended that it did not contain any stigma, since the instant case was a case of compulsory retirement, under Rule 74 of the Code. Regarding the case relied upon by the counsel of the petitioner he urged that none of those cases related to compulsory retirement. Mr. Sinha submitted that the statement made in paragraph 8 of the counter-affidavit, the relevant portion of which has been extracted above, was really meant for reply to the statement made in paragraph 13 of the writ petition. It was, however clear from paragraph 8 that it related to the order passed under Annexure 6 as obviously it refers to Rule 43-A of the Bihar Pension Rules. By mistake, Department Memo No. 10528 was mentioned instead of 10529, as mentioned in Annexure 6. In my opinion, it is clear that the assertion made in paragraph 8 of the counter-affidavit related to the matter concerning Annexure 6. In the instant case, the petitioner has not challenged the order as contained in Annexure 6. The application is confined to Annexure 5 alone. The statement made in paragraph 3 of the counter-affidavit, the relevant portion of which has been quoted above, also cannot be considered as an admission on the part of the respondents that the order of compulsory retirement of the petitioner was passed on the basis of the enquiry report. Besides, in Dalip Singh V/s. State of Punjab ( AIR 1960 SC 1305 ), which was a case of compulsory retirement, it was held at p. 1308 as under: "In the case before us the order of the Rajpramukh does not purport to be passed on any charge of misconduct or inefficiency. All it states is that the compulsory retirement is for administrative reasons. It was only after the appellants own insistence to be supplied with the grounds which led to the decision that certain charges were communicated to him. All it states is that the compulsory retirement is for administrative reasons. It was only after the appellants own insistence to be supplied with the grounds which led to the decision that certain charges were communicated to him. There is therefore no basis for saying that the order of retirement contained any imputation or charge against the officer. The fact that considerations of misconduct or inefficiency weighed with the Government in coming to its conclusion whether any action should be taken under Rule 278 does not amount to any imputation or charge against the officer." It may be noticed that in the present case also whatever statement was made on behalf pf the respondents in the counter-affidavit was by way of reply to the assertion made by the petitioner in the application. Therefore, in my opinion, nothing turns upon those statements made in the counter-affidavit. 8. The real question, in my opinion, to be decided in the present case is whether all the circumstances preceding or attendant on the impugned order should be examined in the case of order of compulsory retirement of the petitioner as contained in Annexure 5 in order to find out as to whether it was by way of punishment. In Shvamlal V/s. State of Uttar Pradesh ( AIR 1954 SC 369 ) it was observed that there could he no doubt that removal (using the term synonymously with dismissal) generally implied that the officer was regarded as in some manner blameworthy or deficient that was to say, that he had been guilty of some misconduct or was lacking in ability or capacity or the will to discharge his duties as he should have done. The action of removal taken against him in such circumstances was thus founded and justified on some ground personal to the officer. Such grounds, therefore, involved the levelling of some imputation or charge against the officer which might conceivably be controverted or explained by the officer. There was no such element of charge or imputation in the case of compulsory retirement. Further, R. 49 of the Civil Services (Classification, Control and Appeal) Rules clearly indicated that dismissal or removal was a punishment. This was imposed on an officer as a penalty. It involved loss of benefit already earned. But an officer who was compulsorily retired did not lose any part of the benefit that he had earned. Further, R. 49 of the Civil Services (Classification, Control and Appeal) Rules clearly indicated that dismissal or removal was a punishment. This was imposed on an officer as a penalty. It involved loss of benefit already earned. But an officer who was compulsorily retired did not lose any part of the benefit that he had earned. On compulsory retirement he would be entitled to the pension etc. that he had actually earned. There was no diminution of the accrued benefit. A compulsory retirement therefore did not amount to dismissal or removal and, therefore, did not attract the provisions of Article 311 of the Constitution or of Rule 55 and Note 1 to Article 465-A of the Civil Service Regulations was not repugnant to Article 311. In that case it was further held that the order of the President of India cctnpulsorily retiring an officer could not be challenged that he had not been afforded full opportunity of showing cause against the action sought to be taken in regard to him. It may be noticed that in that case also there was an inquiry and Shyamlal submitted his explanations, which, together with the Chief Engineers comments thereon were placed before the Union Public Service Commission. On 17-4-53 the President after considering the case, and the recommendation of the Commission, decided that Shyamlal should retire forthwith from service. In para 16 of the judgment at p. 374 their Lordships held that the question whether a termination of service brought about by compulsory retirement would tantamount to dismissal or removal from service so as to attract the provision of Article 311 of the Constitution would depend upon whether the nature and incidents of the action resulting in dismissal or removal were to be found in the action of compulsory retirement. 9. Reference may also be made to the State of Bombay V/s. Saubhagchand M. Doshi, ( AIR 1957 SC 892 ) where, their Lordships were considering the case of compulsory retirement. In that, case Rule 165-A of the Bombay Civil Services Rules, as adopted and amended in Saurashtra. was under consideration. The said rule relates to compulsory retirement of = that State, it may be noticed that in that case also AIR. In that, case Rule 165-A of the Bombay Civil Services Rules, as adopted and amended in Saurashtra. was under consideration. The said rule relates to compulsory retirement of = that State, it may be noticed that in that case also AIR. 1954 SC 369 (supra) was referred and reiterated that an order of retirement differed both from the order of dismissal and the order of removal, in that, it was not a form of punishment prescribed by the rules and involved no penal consequence inasmuch as the person retired was entitled to pension appropriate to the period of service standing to his credit. In para. 7 of the judgment Mr. N. C. Chatterjee.for Saubhagchand, respondent, however, contended that "that decision does not govern the present appeal, and his argument in support of this contention may thus be stated. The rule as to compulsory retirement embodied in Note 1 to Article 465-A, which was considered in (1955) 1 SCR 26 = ( AIR 1954 SC 369 ) was in these terms : Government retains an absolute right to retire any officer after he has completed twenty-five years qualifying service without giving any reasons, and no claim to special compensation on this account will be entertained. Rule 165-A differs from the above rule in a material particular in that after incorporating the above rule, it proceeds on to state that the right will not be exercised except on grounds of inefficiency or dishonesty. An order of retirement under Note 1 to Art. 465-A carries With it no stigma and no imputation against the character or the ability of the officer, whose services are terminated. But where the termination is under Rule 165-A,. it must reflect on the efficiency or the capacity of the officer, and where a persons services are terminated before the age of superannuation on grounds of inefficiency or dishonesty, that could be regarded only as dismissal or removal." Their Lordships overruled the contention of Mr. Chatterjee and held in para 10 of the judgment that the real criterion for deciding whether an order terminating the services of servant was one of dismissal or removal was to ascertain whether it involved any loss of benefits previously earned. Applying that test, an order under Rule 165-A, could not be held to be one of dismissal or removal, as it did not entail forfeiture of the proportionate pension due for past services. Applying that test, an order under Rule 165-A, could not be held to be one of dismissal or removal, as it did not entail forfeiture of the proportionate pension due for past services. 10. It will be useful to refer to another judgment in State of Uttar Pradesh V/s. Madan Mohan Nagar ( AIR 1967 SC 1260 ), which also relates to an order of compulsory retirement of Madan Mohan Nagar. In that case it Was emphasised in para 8 of the judgment that the order itself should be looked into as to whether it contains a stigma. If it contains, it is bad. On the other hand, if it did not contain any stigma, the order of compulsory retirement could not be challenged. I would like to refer to another judgment in I. N. Saksena V/s. State of Madhya Pradesh ( AIR 1967 SC 1264 ). That case also related to compulsory retirement. In that ease it was held that where there were no express words in the order itself, which would throw any stigma on the Government servant, the Court could not look into the background resulting in the passing of such order in order to discover whether some kind of stigma could be inferred. 11. In my opinion, the above cited decisions give complete answer to the contention of Mr. Basudev Prasad, learned counsel for the petitioner. In the instant case as well, the order of retirement contained in Annexure 5 does not contain any stigma the relevant portion of which reads thus: "...... Bihar Seva Sanheeta ke niyam 74-A me dee gayee saktion ka paryog karte hue Rajyapal nidesh dete hain kee Sri Tajamul Hussain, Karyapalak Abhiyanta, Laghu Sichai Pramandal, Gumla, (Ranchi) jo 55 varsh kee awastha prapt kar chuke hain ish adesh ko unhe tameel kiye jane kee tithi ya Bihar Rajyapatra me ish adesh ka prakashan kee tithi, jo pahle ho, se tin mahine ke awadhee ke samapt hone per rajya sewa se nibrit ho jayenge." In that view of the matter, in my opinion, the impugned order cannot be disapproved by looking to the background or the attending circumstances or by reference to those statements made in the counter-affidavit, which I have already dealt with. My view further finds support from a later judgment of the Supreme Court in the State of Uttar Pradesh V/s. Shyam Lal Sharma, AIR 1971 SC 2151 = (1971 Lab IC 1369) where it was held that if the order of compulsory retirement did not contain any stigma, resort could not be had to the Government files to discover any remark amounting to stigma. 12 After careful consideration, in my opinion, the observations in the cases relied upon by the learned counsel for the petitioner, are not applicable in the instant case, since the facts of those cases are quite different from the facts of the present case. It may be noticed that AIR 1963 SC 531 (supra) is not a case concerning compulsory retirement nor the case of S. Sukhbans Singh V/s. State of Punjab, ( AIR 1962 SC 1711 ), on which reliance was placed on behalf of the petitioner. Similarly, the case reported in AIR 1974 SC 423 = (1974 Lab IC 353) (supra) related to reversion and reduction in rank. Therefore, in my opinion, the principles laid down in those cases cannot be extended to the case of compulsory retirement the other cases being appropriate in the instant case, I have already elaborately discussed the decisions in which the principles relating to compulsory retirement have been laid down. Therefore, the contention of the learned counsel cannot be accepted. 13. In the result, the application is dismissed, and the order contained in Annexure 5 is confirmed. In the circumstances, however, there will be no order as to costs. BIRENDRA PRASAD SINHA, J. 14 I agree.