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2015 DIGILAW 138 (PAT)

Balakant Prasad Singh v. State of Bihar

2015-01-21

SHIVAJI PANDEY

body2015
SHIVAJI PANDEY, J.:–Heard learned counsel for the petitioner and learned counsel for the State as well as Patna Municipal Corporation. 2. In the present writ petition petitioner is challenging the order as contained in memo no.3877 dated 21.7.2012 (Annexure-4) issued by the Commissioner, Patna Municipal Corporation by which he has been compulsorily retired from service. 3. In appears from the record that petitioner has filed an application for his leave on account of marriage of his son for the period from 10.4.2012 to 30.4.2-012 as on account of marriage in his family he was not in position to attend his official duty. His application was not allowed and he was directed to report to the duty. In the event of his non-joining to the duty the Commissioner, Patna Municipal Corporation in exercise of power under Rule 74 of the Bihar Service Code vide Office Order no.3877 dated 21.7.2012 compulsorily retired the petitioner from service. From the order it appears that he has been dismissed from service on account of charge of misconduct and the Chairman, Patna Municipal Corporation cannot apply the provision for compulsory retirement when he has been discharged on the charge of misconduct. If the Corporation was so sanguine to dismiss an employee, the Corporation has to initiate a proceeding against him and the manner he has been dismissed on the ground of compulsory retirement suffers from illegality as termination of service on compulsory retirement applies when after examining the service record the employer arrived to a conclusion that the employee is dead wood and cannot be carried further. 4. In the present case the petitioner has been dismissed from service on account of misconduct that has been mentioned in the office order dated 21.7.2012 which is not sustainable. Accordingly the same is quashed. 5. As has been informed by the parties there is stay order by this Court and the petitioner has been allowed to join the duty and also Corporation has decided to proceed departmentally against him. This Court is not giving any opinion on the decision of the Corporation but certainly the order by which petitioner has been dismissed from service on the charge of misconduct without holding any departmental proceeding is not sustainable. Accordingly the same is quashed. 6. Accordingly this writ petition is allowed. This Court is not giving any opinion on the decision of the Corporation but certainly the order by which petitioner has been dismissed from service on the charge of misconduct without holding any departmental proceeding is not sustainable. Accordingly the same is quashed. 6. Accordingly this writ petition is allowed. In view of the order dated 7.8.2012 by which this Court has stayed the impugned order the petitioner cannot be deprived of his back salary from the date of stay dated 7.8.2012 till today.