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1998 DIGILAW 823 (PAT)

Sadanand Ram v. State of Bihar

1998-11-25

AFTAB ALAM

body1998
ORDER It is unfortunate that though grave charges against the petitioner were established in a departmental enquiry, he continues to be able to evade punishment due to fatal irregularities committed by the Bihar Public Service Commission ('the Commission', for short) in passing the punishment order. 2. The petitioner was an employee of the Commission and was working as an Assistant Secretary at the material time. He was charged with corrpution and gross misconduct. The charges against the petitioner were that he tampered with the records of the Commission, interpolated in the list of the selected candidates and made alterations in the marks obtained by his son in the selection test held by the Bihar Subordinate Services Selection Board (which was in existence at the material time) in order to secure recommendation in his favour. The charges evidently being grave in nature, he was put under suspension on 24.8.1994 and a departmental enquiry was held to investigate into the charges. The enquiry officer submitted his report on 14.9.1995 holding that the charges were established against the petitioner. The petitioner was then give a second show cause notice and he was finally dismissed from service by office order no. 526, dated 2.12.1995. He challenged that order before this court in CWJC No. 218/1996. In that case a learned single Judge of this court found and held that the order was issued by a person who did not have the legal authority to pass an order of dismissal against the petitioner. Consequently, this court interfered in the petitioner's favour and quashed the order of dismissal by judgment and order, dated 3.2.1998. 3. At this stage, it would be important to note the operative order passed by this court in that case which was as follows: "Be that as it may, in the background of the facts noticed above, I have no option but to quash the impugned order, dated 2.12.1995 (annexure-1) with a direction to the respondent Chairman of the Commission as well as the Secretary, Department of Personnel & Administrative Reforms to take prompt steps so that fresh order can be recorded by the competent authority in accordance with law." (emphasis added) 4. Here it is also important to note that 31.1.1996 was the petitioner's date of retirement and that date went by while that case was pending before this court and much before the judgment and order was passed in that case on 3.2.1997. However, from a persual of the judgment in CWJC No. 218/1996 it appears that neither party brought this fact to the notice of this court and there is no indication of the fact in that judgment that the petitioner would stand superannuated from service w.e.f. 31.1.1996. 5. After the order of this court the Administrative officer of the Commission on the direction of the disciplinary authority issued office order no. 222, dated 10.7.1997 (Annexure-1) once again dismissing the petitioner retrospectively w.e.f. 2.12.1995 It is this order which comes under challenge in this writ petition. 6. It is a long order which runs into two and a half typed pages and narrates, in some detail, the earlier developments in this case. In sum and substance, however, that order purports to dismiss the petitioner from service retrospectively w.e.f.w.12.1995, the date on which the earlier order of dismissal was passed notwithstanding that the petitioner would have, in any event, retired from service on 31.1.1996. From the order it is also evident that though a disciplinary authority was quite conscious that the date of retirement of the petitioner was 31.1.1996, he deemed fit to pass the retrospective order of dismissal relying upon the directions given by this court in the earlier writ petition as quoted here-in-above. 7. In my considered view the impugned order is quite illegal and unsustainable. It is well settled that an order of dismissal can be passed only from the date of the order (see R. Jeevaratnam vs. State, of Madras, A.I.R. 1966 S.C. 951) It is equally well established that a disciplinary proceeding comes to an end with the severance of the relationship of employer and employee and no order of dismissal can, therefore, be passed after the date of retirement of the delinquent employee. If any authority is required, one may see State of Punjab vs. Khemi Ram, A.I.R. 1970 S.C. 214 and B.J. Shelat vs. State of Gujrat and others, A.I.R. 1978 S.C. 1109. 8. Here it may also be pointed out that the petitioner's conditions of service were governed by the Bihar Public Service Commission (Conditions of Service) Regulations, 1960. If any authority is required, one may see State of Punjab vs. Khemi Ram, A.I.R. 1970 S.C. 214 and B.J. Shelat vs. State of Gujrat and others, A.I.R. 1978 S.C. 1109. 8. Here it may also be pointed out that the petitioner's conditions of service were governed by the Bihar Public Service Commission (Conditions of Service) Regulations, 1960. Those regulations do not contain any provisions concerning imposition of penalty for misconduct in service. Rule 32, however, provides for application of general law or rules framed by the State Govt. under Article 309 of the Constitution in respect of all matters not specifically provided for in those rules, Rule 32 is as follows: "32. In respect of all matters not specifically provided for in these rules and conditions of service of the staff of the Commission will be regulated by the general law or rules framed by the State Government under Article 309 of the Constitution of India for persons appointed to public services in connection with the affairs of the State." 9. In the relevant rules framed by the State Govt. there is no provision for dismissing a Govt. employee retrospect, after the date of his superannuation from service. 10. There is, thus, no statutory sanction for the impugned order. The Commission, perhaps conscious of this legal position, has sought to rely upon the earlier order passed by this court. In para 13 of the counter affidavit it is stated as follows: "That the Disciplinary Authority further observed that the petitioner was earlier dismissed by Office Order No. 526, dated 2.12.1995 with immediate effect while he was still in service and his normal date of retirement was 31.1.1996. It was further observed that this Hon'ble Court in its order dated 3.2.1997 was pleased to direct the Secretary/Officer delegated the power of the Secretary to record fresh order in the light of this Hon'ble Court's order dated 3.2.1997 and considering the seriousness of the charges against the petitioner, the Disciplinary Authority was pleased to pass the order of dismissal of the petitioner from the service. It was further directed that the order of dismissal shall be effective from the date on which the earlier order of dismissal was passed against the delinquent employee, the petitioner. The order of the Disciplinary Authority dated 10.7.1997 is Annexure 1 to the writ petition." 11. It was further directed that the order of dismissal shall be effective from the date on which the earlier order of dismissal was passed against the delinquent employee, the petitioner. The order of the Disciplinary Authority dated 10.7.1997 is Annexure 1 to the writ petition." 11. Again in para 18 of the counter affidavit, it is stated as follows: “That it is humbly submitted that in accordance with the order passed by this Hon'ble Court on 3.2.1997 in C.W.J.C. No. 218/96, the fresh order has been recorded by the competent authority, which is in accordance with law and the direction of this Hon'ble court, which does not need any interference by this Hon'ble Court in the facts and circumstanceds of this case." 12. In my view the Commission has thoroughly mis-interpreted the direction given by this court. This court directed the Commission as well as the Secretary, Department of Personnel & Admn. Reforms to pass fresh order in accordance with law. On the basis of that order it was not open 'to the commission to pas an order contrary to law and for which there is no legal sanction. 13. I am, therefore, constrained to hold that the order dated 10.7.1997 is bad and illegal and calls for an interference by this court. The impugned order, dated 10.7.97 as contained in annexure 1 is accordingly set aside. 14. However, having regard to the seriousness of the charges against the petitioner this court considers it highly undesirable to let the petitioner go completely unpunished taking advantage of the technical lapses in passing the order of punishment. It is, therefore, directed that it will be open to the Commission to proceed against the petitioner in terms of Rule 43 of the Bihar Pension Rules or under any other relevant statute concerning the petitioner's retiral benefits and to pass appropriate orders in accordance with law. It is further directed that the period spent in litigation before this court on the two occasions (concerning CWJC No. 218/1996 and the present case) will be discounted for computing the period under proviso (a) (ii) to Rule 43 of the Bihar Pension Rules. 15. In the result, this writ petition stands allowed subject to the above observations and directions.