Keshav Murti v. State of Bihar — 1992 DIGILAW 107 (PAT)

JUDGMENT Choudhary S.N. Mishra, J. The Sole plaintiff in action, is the appellant in this first appeal having been directed against the judgment and decree dated 21st May, 1986 passed by the Subordinate Judge, Patna in T. S. No. 55/81 whereby the suit filed by the plaintiff-appellant was dismissed 305/85 by the learned Subordinate Judge, 1st Court at Patna for the following reliefs : "(i) That on adjudication of the facts stated above, the Court may be pleased to hold and declare that the Order of the Compulsory Retirement of the plaintiff, as contained in Govt. of Bihar, Home (Police) Deptt. Order No. I/R-4-202/75 H (p) 10522 dated Patna, the 25th October 1975, is illegal, malafide, punitive, retaliatory, arbitrary, for collateral purposes, of fending Article 311 of the Constitution of India, which has deprived the plaintiff of his right to continue on the post of Dy. Supdt. of Police: getting the subsequent promotion to the rank of Supdt. of Police and to get pay, Allowances and other emoluments, etc. till the date of his superannuation and, the plaintiff in view of his having superannuated, is entitled to get all the monetary reliefs had he not been Compulsorily retired and; also the action of the Govt. in withholding the salary for 14 days, from 1/3/1973 till 14/3/1973 on the scale of Pay of Dy. S.P. and also the Travelling Allowance, amounting to Rs. 80/- (rupees eighty) only and in not allowing to cross Efficiency Bar are illegal due to inefficient Administration, not expected of the Civilised Government and, the Plaintiff, is entitled to get the same. (ii) Any other reliefs, to which the Plaintiff may be adjudged entitled, may be granted. 2. The plaintiff case in short is that he was born on 18th November, 1920 and on 28th December, 1939, he was appointed' as Stenographer Sub-Inspector of Police in Bihar Police Force The minimum age for recruitment on the post aforesaid was 20 years, but the plaintiff was on that day 19 years, 1 month and 10 days only. Since the plaintiff was other wise found fit for appointment, the deficiency in age was condoned by the Government as per their order, contained in Memo No. 9835 dated 15.12.39. A copy of the said order was enclosed along with the plaint as Annexure-1. 3. Since the plaintiff was other wise found fit for appointment, the deficiency in age was condoned by the Government as per their order, contained in Memo No. 9835 dated 15.12.39. A copy of the said order was enclosed along with the plaint as Annexure-1. 3. The plaintiff by virtue of his merit efficiency and integrity, went on getting successive promotions after crossing the efficiency bar and ultimately he was promoted to the post of Dy. Supdt. of Police where he worked from 22nd November, 1968 till the order of Compulsory retirement was served upon him. 4. Subsequently the superior officers recommended to the Government to allow the plaintiff to cross the efficiency bar in the pay scale of the Dy. Supdt. of Police. The true copies of those letters of recommendations were enclosed along with the plaint as Annexures 2 and 3. 5. There is not a single adverse remark communicated to the plaintiff during the 20 years of the service. The plaintiff was recommended to cross the efficiency bar by the Director General-cum-Inspector General of Police only on 10.5.1975 but the plaintiff was compulsorily retired immediately on 27.10.1975 in absence of any adverse remark by the authorities during these 5 months. The policy decisions of the State Government that steps for compulsory retirement is to be taken to weed out only in-efficient and corrupt officers. 6. On the basis of the aforesaid facts the suit was instituted for the reliefs as stated above. 7. The defendant appeared and contested the suit by filing their written statement wherein inter alia they have stated that, no doubt, 18.11.1920 is the date of birth mentioned in the Service Book of the plaintiff but the same is, on the face of it, is wrong since he could not have been appointed as being under age. It is further alleged that there has been no relaxation of the plaintiff as per record available in the office. They also alleged that the order of compulsory retirement is based on account of un-satisfactorily record of service of the plaintiff. 8. It has further been alleged that the plaintiff had earlier filed a writ application in the High Court against the order of compulsory retirement which was dismissed in limine on 22.12.1975. They also alleged that the order of compulsory retirement is based on account of un-satisfactorily record of service of the plaintiff. 8. It has further been alleged that the plaintiff had earlier filed a writ application in the High Court against the order of compulsory retirement which was dismissed in limine on 22.12.1975. It was also stated that the State Government constituted tribunal for reviewing the cases of compulsory retirement, but the said tribunal did not find any merit in the representation of the plaintiff. 9. On the basis of the aforesaid pleadings the court below has framed number of issues out of which the relevant issues are as follows: “4. Is the suit barred by principles of resjudicata ? 5. Is the suit bad for non compliance of provisions under Section 80 C.P.C. 7. Is the order of retiring the plaintiff compulsorily illegal.” 10. The court below decided issue nos.4 and 5 in favour of the plaintiff but however, issue no. 7 was decided against the plaintiff and accordingly the suit was dismissed. 11. Learned counsel appearing on behalf of the plaintiff appellant submitted that the impugned order of compulsory retiring the plaintiff cannot be said to be in public interest. His next submission is that the order of compulsory retirement though seems to be innocuous in form but in fact the said order was passed by way of punishment. He further submitted that the said impugned order is malafide, arbitrary and was passed under extraneous and collateral considerations based upon no evidence. 12. No one appear on behalf of the State at the time of hearing which continued for two days and as such the appeal was heard ex-parte. 13. The learned counsel while developing his argument has referred the relevant exhibits in support of his case and submitted that there has been no adverse remark whatsoever against the plaintiff during the last 20 years of service inasmuch as the plaintiff got successive promotions during his service and was allowed to cross the efficiency bar from time-to-time. 14. He further submits that he was recommended to cross efficiency bar on 10.5.1975 but surprisingly the order of compulsory retirement was passed on 27.10.1975 although there was no complaint whatsoever against the plaintiff during these 5 months. 15. 14. He further submits that he was recommended to cross efficiency bar on 10.5.1975 but surprisingly the order of compulsory retirement was passed on 27.10.1975 although there was no complaint whatsoever against the plaintiff during these 5 months. 15. He also submits that the form of order is not very relevant, the substance has to be seen and in the instant case recommendation which has been made the basis of the order should be read together in order to determine the character of the order under challenge. 16. The learned counsel has also submitted that the date of birth mentioned in the Service Book on the basis of the matriculation certificate and any alteration made subsequently by the authority behind the back of the plaintiff offends the principle of natural justice and the said altered date of birth entered in the Service Book cannot be relied upon. 17. The learned counsel also submitted that deficiency in age having been condoned by the authority and therefore, that should not be the ground for coming to the conclusion that the date of birth mentioned in the Service Book 'was not a correct' date of the plaintiff. 18. On the aforesaid submissions the learned counsel appearing on behalf of the plaintiff persuaded me to hold that the order of compulsory retirement of the plaintiff is wholly illegal arbitrary and without jurisdiction and therefore, the plaintiff is entitled for the reliefs sought for as aforesaid. 19. The learned counsel in support of his submission relied upon a decision of Swami Saran Saksena v. State of U.P. reported in 1979 BLJR 729. (SC) In that case the officer concerned was allowed to cross the efficiency bar and within few months order of compulsory retirement was passed against him on the ground of in-efficiency. Their Lordships quashed the order of compulsory retirement on the ground that the officer, who was allowed to cross the efficiency bar on the ground of efficiency and integrity cannot be said to be inefficient within few months. 20. That learned counsel next relied upon a decision of Baldev Raj Vs. State of Punjab & Ors. reported in 1984 BBCJ 99 (SC). In support of his proposition of law that the material must show that the order of compulsory retirement of the Government servant is in public interest and the same must not been used as a crop of rake the vengeance. State of Punjab & Ors. reported in 1984 BBCJ 99 (SC). In support of his proposition of law that the material must show that the order of compulsory retirement of the Government servant is in public interest and the same must not been used as a crop of rake the vengeance. The Government must explain that the order so passed is in the public interest. In 1984 BBCJ 99 (SC) (Supra) their Lordships has held in paragraph-7 of the judgment: "In the absence of any record and the annual confidential reports, it must be confessed that there was no material before the competent authority to pass the impugned order. When in view of the judgment of this Court, it became obligatory to reinstate the appellant in service, the power to order compulsory retirement was exercised not in public interest but to make a pretence of reinstatement and to get rid of the appellant. The High Court, in our opinion, was clearly in error in dismissing such a petition in limine. Accordingly, this appeal succeeds and is allowed and the order of compulsorily retiring the appellant from service dated February 11, 1980 is quashed and set aside.” 21. Reliance has also been placed in a decision of Baldev Raj Chadha v. Union of India and others reported in 1981 Supreme Court 70. 22. Reliance has also been placed in a decision of Ram Ekbal Sharma v. State of Bihar and another reported in 1990 Supreme Court 1368. Their Lordships after considering the various earlier decisions on the point in issue has held in paragraph 28 of the judgment 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 bonafide 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 has been held by this Court in Anoop Jaiswal's case. 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 has been held by this Court in Anoop Jaiswal's 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 R.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 in contravention of Art. 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 made bonafide." 23. The learned counsel has referred a decision of Bhoop Ram v. State of U.P. reported in 1989 Supreme Court 1329 and a decision of Sarjoo Prasad v. The General Manager and another reported in 1981 Supreme Court 1481, on the proposition that the school certificate is one of the factors to be considered while mentioning the date of birth in the Service Book and the subsequent change in the date of birth without notice to the concerned employee offends the principles of natural justice and the same cannot be relied upon. In the aforesaid decision 1981 S.C. 1481 (Supra) their Lordships has held in paragraph-1 of the Judgment: "In State of Orissa v. Dr. In the aforesaid decision 1981 S.C. 1481 (Supra) their Lordships has held in paragraph-1 of the Judgment: "In State of Orissa v. Dr. (Miss) Binapani Dei ( AIR 1967 SC 1269 ) this Court held that the date of birth without notice and without giving opportunity to the appellant cannot be altered to the disadvantage and prejudice of an employee because an administrative order which involves civil consequence must be made in conformity with the rule of natural justice which at its lowest minimum requires notice and opportunity to the person affected thereby That admittedly having not been done, on the short ground, we allow this appeal and set aside the order retiring the appellant from service as well as the order correcting the birth date." 24. In the instant case, admittedly there is not a single adverse remark against the plaintiff through out of his service career, inasmuch as, he has been promoted from the rank of Sub-Inspector Stenographer in the Police Department to the post of Dy. Supdt. of Police on his own merit. Not only that he was allowed 'to cross the efficiency bar on 10.5.1975 after considering his past performance but surprisingly the impugned order of compulsory retirement was passed on 27.10.1975, It is admitted position that nothing adverse have come against the plaintiff in between the period. 25. It is relevant to mention here that although the order of termination dated 27.10.1975 is innocuous in form but in fact, it was passed by way of punishment which is apparent from the facts that the department formulated the following four points as per their cabinet memoranda which is the basis for passing the order of compulsory retirement. These four points are: "(6) That the plaintiff committed forgery in his Service Book with regard to the date of birth. (b) That the plaintiff filed cases' against the Government. (c) That the C. C. Roll Remarks of the plaintiff were adverse and (d) That the integrity of the plaintiff was doubtful, while posted as D.S.P. in charge of Motor Vehicles Deptt. at Patna and also the plaintiff is unfit to perform Parade and Drill." 26. From the aforesaid charges it can be well said that the basis for the impugned order of compulsory retirement is because of the aforesaid allegations and, therefore, by way of punishment. 27. at Patna and also the plaintiff is unfit to perform Parade and Drill." 26. From the aforesaid charges it can be well said that the basis for the impugned order of compulsory retirement is because of the aforesaid allegations and, therefore, by way of punishment. 27. In the light of the circumstances and the facts aforesaid, it can easily be inferred that the plaintiff has been compulsory retired not in public interest but by way of punishment without giving an opportunity to explain the alleged charges. 28. Relying upon of the ratio of the aforesaid decisions, I am of the view that the order of the compulsory retirement passed against the plaintiff was not in the public interest but by way of punishment without giving an opportunity to explain the charges. The trial court completely failed to appreciate the case of the plaintiff in the right prospective and has dismissed the case on extraneous considerations. 29. In the premises aforesaid, I allow the appeal of the plaintiff, set aside the judgment and decree of the trial court and further hold that the impugned order of compulsory retirement against the plaintiff has not been made in public interest but for collateral purposes and extraneous considerations by way of punishment. The appellant is entitled for the cost of this appeal which I quantify at Rs. 2,000/- payable by the respondent Before I part with the case I must say that the plaintiff had already retired in normal course and, therefore, the benefit of this order is only financial which the plaintiff-appellant is entitled to get from the respondent State. Appeal allowed with cost.