Md. Dawood Nadeem v. State Of Bihar — 1990 DIGILAW 427 (PAT)

Judgment N. Pandey, J. 1. In both the writ petitions, the petitioners felling aggrieved by an order dated 26-11-1988 purported to have been passed under Rule 74 (a)of the Bihar Service Code, 1952 (hereinafter referred to as the Code), compulsorily retireing them from service with effect from the date of issue of the notification, have moved this Court. As the facts and law involved in both the writ petitions are common, therefore, by common judgment with the consent of the parties, these writ petitions are being disposed of. 2. The salient facts giving rise to these petitions are that petitioner md. Dawood Nadeem was Initially appointed as Lower Division Assistant in the Jail Department on 2-4-1962. He was allowed to cross the efficiency bar and subsequently confirmed on the said post with effect from 5-6-1971. Because of his excellent service career, he was subsequently appointed as assistant Jailor on 1-9-1972 and confirmed on the said post with effect from 1-9-1973. The State Government after considering his entire character rolls pranted Time Bound Promotion in the Selection Grade vide its order dated 4-6-1988. Petitioner Rama Shankar Mishra was initially appointed as warder in the Central Jail, Bhagalpur on 1-8-1958 and was subsequently confirmed on the said post with effect from 1-7-1960. Because of the excellent character roll and merit, the petitioner was subsequently promoted as Assistant Jailor on 18-9-1971 and confirmed against the said post with effect from18-9--1972. 3. Both the petitioner have asserted that time to time the Department had made an over all assessment of their service records and nothing adverse was communicated Time to time their service records were scrutinised and finding no adverse remarks promotions were given to the petitionerat the relevant time the petitioners were posted as Assistant Jailor Munger District jail. It appears that on 27-6-1988 at about 6 P. m. , an unfortunate incident took place inside the Jail premises in which one under trial prisoner was murdered by another under trial prisoner Prisoner. The incidendnt was reported to the Police and the First Information Report was lodged against of persons including the Jailor, Warder and Havildar. The petitioners do not figure in the first informat,on report. The investigation was carried out and at no stage petitioners were held responsible. 4. The appears that the superintendent. The incidendnt was reported to the Police and the First Information Report was lodged against of persons including the Jailor, Warder and Havildar. The petitioners do not figure in the first informat,on report. The investigation was carried out and at no stage petitioners were held responsible. 4. The appears that the superintendent. Central Jail, Bhagalpur forwarded the copy of the charge-sheet to the petitioners purported to have been issued by the I G prisons askng them to submit their show-cause within the time stipulated therein from the date of receipt of the charge-sheet The petitioners also learnt from the aforesaid communication that the State Government has set up an enquiry committee consisting of the A. I. ,g Prison and the superintendent, Centeral jail, Bhagalpur to enquire nito the incident which led to the murder of an under trial prisoner namely Gopal Mandal on 27-6-1988. Copies ot the charge sheet have been annexed and marked as annexures 3 and 4 with the respective petitions. 5. Petitioners having received the aforementioned charge-sheet requested the Superintendent, Bhagalpur Central Jail to furnish certain papers including various reports submitted by the District Magistrate, Munger,the superintenden of Police Munger A. I. G, Prison, Patna and the Superintendent, central Jail, Bhagalpur in order to enable them to submit effective show cause but no document was sup lied to them. According to the petitioners aforementioned authorities held enquiry without giving any notice to them. 6. While the petitioners were waiting for the relevant materials for which they had requested the Superintendent of Bhaglpur Central Jail respondent No.2 ,issued the impugned notification dated 26th November 1988, compulsorily retiring the pettioners from the post of Asistant jailor under the provision of Rule 74 (a) of the Code. 7. The petitioners have claimed that the aforesaid orders of compulsory retirement have been issued by the Respondent No.2 by way of punishment though under the garb of Rule 74 (a) of the Code but in fact have been made as a measure of punishment. 8. 7. The petitioners have claimed that the aforesaid orders of compulsory retirement have been issued by the Respondent No.2 by way of punishment though under the garb of Rule 74 (a) of the Code but in fact have been made as a measure of punishment. 8. The crucial question falls for consideration before me whether the impugned orders of compulsory retirement of the petitioners from service have been made by Respondent No.2 in public interest in accordance with Rule 74 (a)of the Code or for any oblique motive as an extraneous consideraion or by way of punishment, casting stigma on the service career of the petitioners even though on the fact of it the orders are innocuous. Ther levant Rule 74 (a) reads thus : "74. (a) The State Government may require any Government servant who has completed twenty one years of duty and twenty five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Where any Gwernment is so required to retire, no claim to any special compensation shall be entertained. On a plain reading of the aforesaid provision it appears that the appointing authority has been empowered to compulsorily retire a Governments servant from service in public interest. 9. It has been contended on behalf of the petitioners that though the impugned orders appear to be innocuous in terms of the provisions of Rule 74 (a)of the Code, prima facie it does not cast any stigma on the service career of the petitioners, but it has been made by way of punishment against the petitioners and therefore, the orders are illegal and have been made in violation of the provisions of Article 311 of the Constitution of India as also in violation of the Rule of audi alteram partem. It has been further contended that the impugned orders have been passed with oblique motive for the purpose of removing the petitioners from service. The orders of compulsory retirement although appears to be innocent but have been made by way of punishment, they are liable to be quashed. 10. It has been further contended that the impugned orders have been passed with oblique motive for the purpose of removing the petitioners from service. The orders of compulsory retirement although appears to be innocent but have been made by way of punishment, they are liable to be quashed. 10. On the other hand, it has been argued on behalf of the Respondent state that the impugned orders have been made under the provisions of Rule 74 (a) of the Code in Public interest and there is nothing apparent from the order that it has been made by way of punishment. It is not open to the petitioners to look into the file, maintained with the Respondent No.2 to find out the basis of the order The object of the Rule is to get ride of such government employees, who are found to be inefficient and their services are no longer required in the public interest. Respondent No.2 considering the materials available with him was satisfied that on account of the deliberate latches on the part of the petitioners, the incident in question took place at the Central Jail. He was perfectly justified in coming to the conclusion that it was in the public interest to pass an order of compulsory retirement against the petitioners. He further contended that the A. I. G. , Prisons, held enquiry and after examining certain witnesses, in his report dated 3-7-1988, found the petitioners absence on the day of incident as unauthorised. It has been further contended that in view of the equiry conducted by various authorities, there was no question of going into the formality of departmental proceeding. In these cases counter-affidavits have also been filed on behalf of Respondent no.2. In both the affidavits facts are similar. Paragraph Nos.10,12, 13,14 and 22 of the counter-affidavit filed in CWJC No.410 of 1989 are as follows : "that in reply to the statement made in Paragraph Nos.11-16 and 17 of the writ application it is stated that no doubt a charge has been framed against the petitioner and a direction was issued to file show cause, if any within 15 days but instead of giving show-cause to the charge framed against the petitioner he tiled a representation on 30-8-1988 through the Superintendent, Khagana district Jail. That in reply to the statement made in Paragraph Nos.14 and 15 of the writ application, it is stated that no doubt that the petitioner was neither named in the F. I. R. , nor charge sheet was submitted against him but he has been retired compulsorly on account of the mis-conduct on the part of the petitioner because without talcing written permission from the Jailor he was absent from the jail premises and during the aforesaid period the said occurrence had taken place. That in reply to the statement made in Paragraph no.18 of the writ application, it is stated that a preliminary enquiry was held by the Superintendent of Special Central Jail, bhagalpur and Assistant Inspector General of Prisons with regard to the alleged incident in which an under trial prisoner namely gopal Mandal has lost his life. The enquiry report has been submitted on 3-7-1988 in which it is found that the aforesaid incident has taken place in the jail premises as to when none of the officers were present on duty except the Jailor and the situation was beyond the control of the jailor and a gate wader. That it is further stated that after considering the preliminary report submitted by the aforesaid officers as contained in Annexure-A to this counter-affidavit the State Government instead of initiating any departmental proceeding against the petitioner though the charges had been framed, the State Government after considering the provisions laid down under Rule 74 (a) of the Bihar Service code has decided to retire the petitioner after considering his efficiency or conduct is not such as to justify his retention in service. That in reply to the statement made in Paragraph Nos.37 and 38 of the writ application, it is stated that from the enquiry report as contained in Annexure-A to this counter-affidavit it is clear that at the time of occurrence the petitioner and one another Assistant jailor, namely. Rama Shankar Mishra, both were absent from the duty and in the meantime the alleged murder of Gopal Mandal had taken place in the Jail premises. At the relevant point of time except the Jailor and the gate warder, none of the officers were present and the situation was beyond thq control of the officers aforesaid and as such it cannot be said that the petitioner was not responsible for the alleged mis-conduct. " 11. At the relevant point of time except the Jailor and the gate warder, none of the officers were present and the situation was beyond thq control of the officers aforesaid and as such it cannot be said that the petitioner was not responsible for the alleged mis-conduct. " 11. It has also been asserted in the said counter-affidavits that after considering the preliminary report submitted by the A. I. G. , as contained in Annexure-A to the counter-affidavits, the State Government, instead of initiating any departmental proceeding against the petitioners, though the charges had been framed, decided to retire the petitioners compulsorily from service on the ground of their inefficiency and conduct. 12. It is thus clear and evident from the counter-affidavits filed on behalf of Respondent No.2 referred to above, that the basis of the impugned orders of compulsory retirement from service of the petitioners are not in the public interest as it has been stated in the impugned orders: The impugned orders, in fact, have been passed on the basis of the memorandum of charges framed by Respondent No.2 as also the report of the A. I. G. Prisons as contained in Annexure-A to the counter-affidavits. From the bare reference to the report of the A. I. G. , Prisons, contained in Annexure-A, it would appear that the same was submitted without giving any opportunity to the petitioners to defend their cases. There is no justification on the part of the State in saying that the basis of the impugned orders are not the said memorandum as also the report of the A. I. G. Prisons. There appears to be substance in the submission raised on behalf of the petitioners that the impugned orders of compulsory retirement are mere camouflage in terms of Rule 74 (a) of the Code. In fact, they are by way of punishment. 13. There appears to be substance in the submission raised on behalf of the petitioners that the impugned orders of compulsory retirement are mere camouflage in terms of Rule 74 (a) of the Code. In fact, they are by way of punishment. 13. In the case of Ram Ekbal Sharma V/s. The State of Bihar and another, AIR 1990 SC 1368 1 1991 (1) BLJ 144 (SC), it has been observed as follows : "on a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the Government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned Government servant as he has been held by this Court in Anoop Jaiswals case this being the position the respondent State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74 (b) (ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent-State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid Rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the Impugned order cannot but be said to have been made by way of punishment. As such, such an order is contravention of Article 311 of the Constitution of india as well as it is arbitrary as it violates principles of natural justice and the same has not been bona fide. " 14. It has been further contended that even the allegations levelled against the petitioners are considered properly, no punishment whatsoever can be awarded against them. " 14. It has been further contended that even the allegations levelled against the petitioners are considered properly, no punishment whatsoever can be awarded against them. It is apparent from the Counter-affidavits that for only one incident although the petitioners have got nothing to do with the same, the impugned orders for compulsory retirement have been passed. The allegation appears from the memorandum of charges, the report of the a. I. G. Prisons as also from the counter-affidavit that on 27-6-1988 at the time of incident the petitioners were not present at the Head quarter and all of them had gone to attend a marriage of the son of the Superintendent, central Jail, Munger. The A. I. G. Prisons, in his report, has submitted that the petitioners had obtained only oral permission from the Jailor. Sri baleshwar Singh, the Jailor, in his statement before the A. I. G. Prisons, accepted that he had given permission to the petitioners to leave the jail premises. 15. The petitloners have asserted that they were not at fault for the alleged incident nor they were reasonable in any manner. An enquiry was conducted by the District-Magistrate, Superintendent of Police as also the superintendent, Central Jail, Bhagalpur, but nothing adverse was found against the petitioners. In connection with the finding of the A. I. G. , prisons, that the petitioners should not have left the Jail premises without valid permission, the petitioners have placed a reliance over the provisions of Role 224 of the Bihar Jail Manual, which reads thus : "2. The Jailor is authorised to grant leave of absence from the Jail to any subordinate officer without the sanction of the Superintendent ; but this leave shall not extend beyond six hours ; and during the subordinate officers absence the Jailor shall be held personally responsible for the due performance of the absentees duties. " On the basis of the aforesaid provision, it has been contended that the Jailor is a Chief Executive Officer of the Jail. He is under the immediate control of the Superintendent of Jail whereas other officers, including the petitioners are under the direct control of the Jailor. It is evident from the, enquiry report that the Jailor had granted permission to the petitioner. He is under the immediate control of the Superintendent of Jail whereas other officers, including the petitioners are under the direct control of the Jailor. It is evident from the, enquiry report that the Jailor had granted permission to the petitioner. On the basis of the aforementioned, it has been rightly contended that the order of compulsory retirement is bad in law and based on non-consideration of the relevant materials. 16. It has been further contended that in any view of the matter for one instance, like the present one, the petitioners who had excellent and brilliant career throughout, should not have been punished and thrown out of the job in such manner. It has been pointed out that throughout their service career, there was not a single adverse entry in their confidenttal character rolls. Contrary to that they had earned "good" remarks. However, neither it is a case of the petitioners nor to the State that on account of advene entry, the impugned orders of comoplsory retirement have been passed. Therefore, i am not required to record any finding on this question. 17. There appears to be no justification on the part of Respondent no.2 in saying that the impugned orders were passed In publlo interest. It has to be noticed that the rule does not lay down any x criteria, guidelines for the exercise of power, although public interest has been specified in the rule. In other words, the power of the State has to be exercised in the public interest only. In the case of Braj Mohan Singh Copra, V/s. State of Punjab, AIR 1987 sc 948 , it has been observed as follows : "the above rule invests obsolute right in the appropriate authority to retire an employee prematurely on his campletion of 25 years of qualifying service or 30 years of age. The appropriate authority as defined by Rule 2 means the authority which has the power to make substantive appointment to the post or service from which the Government. Employee is required to retire. Before a government employee is retired in exercise of power under this rule it is necessary that the Government servant must have completed 25 years of equalifying service or he must have attained 50 years of age and further he must be given three months notice in writing. Employee is required to retire. Before a government employee is retired in exercise of power under this rule it is necessary that the Government servant must have completed 25 years of equalifying service or he must have attained 50 years of age and further he must be given three months notice in writing. The rule does not lay down any criteria, guidelines for the exercise of power, although public interest is specified in the rule, which means power has to be exercised in the public interest only. The public interest in relation to public administration envisages retention of honest and efficient employees in service and dispensing the services of those who are in efficient, dead-wood or corrupt and dishonest. Therefore, the rule co. templates premature retirement of the Inefficient, corrupt or dead. would which would subserve the public interest". 18. In the counter-affidavit nothing has been shown that the petitioners were inefficient corrupt or dishonest rather it has been accepted that the petitioners career througout has bee brilliant and excellent. 19. On a plain consideration of the decision of the Supre me Court in the case of Ram Ekbal Sharma V/s. The State of Bihar and others, (supra) it is clear that if the order has bean passed by way of punishment, although innocuous in language such order is in contravention of Article 311 of the constitution as well it is arbitrary as it violates the principles of natural justice. As I have noticed earlier that in the counter affidavits state has come with a specific case that the petitioners were also guilty for the alleged occurrence in the Jail premises. The conduct of the petitioners have also been found unsatisfactory. 20. Considering the facts indicated above, I hold that the impugned orders have not been made bona fide but for collateral purposes and on extraneous consideration by way of punishment. Therefore, the impugned orders are held to be illegal and the same are liable to be quashed. I, therefore allow these petitions and quash the impugned orders, as contained in annexure to both the writ petitioners, but there will be no order as to costs. Petition allowed.