Ram Ekbal
Sharma Vs. State of Bihar & Anr [1990] INSC 156 (24 April 1990)
Ray,
B.C. (J) Ray, B.C. (J) Reddy, K. Jayachandra (J)
CITATION:
1990 AIR 1368 1990 SCR (2) 679 1990 SCC (3) 504 1990 SCALE (1)12
ACT:
Bihar
Service Code, 1979: Section 74(b)(ii)--Order of compulsory retirement--Couched
in innocuous language--Valid- ity Court--Whether could lift the veil, in
appropriate cases to ascertain basis of order.
Constitution
of India, 1950: Articles 14 and
311(2)--Order of compulsory retirement--Couched in innocuous language, but made
by way of punishment----Whether violative of.
HEAD NOTE:
The
appellant, an officer of Bihar State, filed a writ petition before the High
Court, challenging the order of compulsory retirement passed by the respondent
State, under Rule 74(b)(ii) of Bihar Service Code, 1979, contending that
throughout his service of 30 years he had an exemplary service career and his
integrity remained unquestionable and that neither any adverse remarks were
communicated to him nor any departmental proceedings were initiated against
him, nor any explanation called for from him. The High Court dismissed the writ
petition by a laconic order.
In the
appeal, by special leave, the appellant contended that though the order was
couched in innocuous terms and made in compliance with the provisions of Rule
74(b)(ii) of Bihar Service Code on appellant's reaching the age of more than 50
years, and prima facie not appearing to cast any stigma, it was not made in
public interest, but made by way of punishment for oblique purposes, in
consideration of extraneous matter and purporting to removal from service on
certain serious allegations of misconduct, casting a stigma, and hence the
order was illegal, bad and in violation of audi alterem partem rule and Article
311(2) of the Constitu- tion and was liable to be quashed.
On
behalf of the respondent-State it was contended that the order had been made in
public interest under Rule 74(b)(ii) and there was nothing to show from the
order itself that it had been made by way of punishment, casting a stigma, the
language of the order was innocuous, and the appellant could not delve into the
secretariat files, to find out the basis of the order.
680
Allowing the appeal, this Court,
HELD:
1.1 Even though the order of compulsory retirement is couched in innocuous
language without making imputations against the government servant, who is
directed to be com- pulsorily 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. [693F-G] Shamsher Singh & Anr. v. State of Punjab, [1975] 1 SCR 894 and Anoop Jaiswal
v. Government of India and Am'., AIR 1984 SC 636, relied on.
Shyam Lalv.
The State of U. P. & Anr., [1955] 1 SCR 26; Baldev Raj Chadha v. Union of
India and Ors., [1980] 4 SCC 321 and Union of India v. Col. J.N. Sinha and Anr.,
[1971] 1 SCR 791, referred to.
I.N. Saxsena
v. The State of Madhya Pradesh, [1967] 2 SCR 496, distinguished.
1.2 The
object of Rule 74(b)(ii) of the Bihar Service Code is to get rid of the
government servant who has become dead wood. This order is made only to do away
with service of only those employees who have lost their utility, become
useless and whose further continuance in service is consid- ered not to be in
public interest. [655D]
1.3 In
the instant case, the appellant had an unblem- ished career, and undoubtedly by
dint of merit and flawless service career, had been promoted to the post of
Joint Director and ultimately to the post of General Manager. The
counter-affidavit filed on behalf of the respondent-State has categorically
stated that while passing the order of compulsory retirement the officers
concerned were guided by the report dated September 19, 1987 which stated that
the appellant was responsible for grave and serious financial irregularities
resulting in financial loss to the State Government, without giving any
opportunity of hearing and without intimating allegations to the appellant
before forming the opinion. The memorandum in question has clearly stated that
the order of compulsory retirement was made as the appellant's misconduct
tarnished the image of the Gov- ernment in the public. This categorical 681
statement clearly proves that the basis of making the order is the report dated
September 19, 1987. Therefore, the order of compulsory
retirement cannot be defended on the mere plea that it has been made in
accordance with the provisions of Rule 74(b)(ii) which prima facie does not
make any imputa- tion or does not cast any stigma on the career of the appel- lant.
[657E, 689F-H, 690A, 693H, 694A] In view of the clear and specific averments
made by the respondent-State that the order has been made under Rule 74(b)(ii)
as the appellant was found to have committed grave financial irregularities
leading to financial loss to the State, the order cannot but be said to have
been made by way of punishment. Such an order is in contravention of Article
311 of the Constitution and arbitrary as it violates princi- ples of natural
justice. It has not been made bona fide, but for collateral purposes and for
extraneous consideration by way of punishment and is, therefore, illegal,
unwarranted and liable to be quashed. [694A-B, C] Accordingly the order of
compulsory retirement is set aside and the respondents are directed to
reinstate the appellant with full back wages. [694D]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1995 of 1990.
From
the Judgment and Order dated 23.11.1988 of the Patna High Court in C.W.J.C. No.
8457 of 1988.
A.K.
Sen. Shankar Ghosh and M.P. Jha for the Appellant.
G.S. Misra
for the Respondents.
The
Judgment of the Court was delivered by J. This appeal on special leave is
directed against the judgment and order dated November 23, 1988 passed in
C.W.J.C. No. 8457 of 1988 by the High Court, Patna dismiss- ing the writ
petition moved by the appellant assailing the order of his compulsory
retirement from service by notifica- tion dated October 26, 1988 issued by the
Government of Bihar compulsorily retiring him from service with effect from the
date of issue of the notification.
The
salient facts giving rise to this appeal are that the appellant was initially
appointed on December
9, 1957 to the post of
Industrial Expansion Officer and he was con- firmed to the said post on May 15, 682 1958. The appellant was promoted to the post of
Planning-cum Evaluation officer, a Gazetted post, on December 19, 1973 because of his excellent service
career. The appellant was further promoted to the next higher post of
Industrial Economist by notification dated September 24, 1983 with effect from December 19, 1978 in the scale of Rs.1350-2000.
Because
of excellent character role and merit of the appellant, he was promoted to the
next higher post of Joint Director in his original scale of pay of Rs.1350-2000
with 20 per cent personal pay for holding such higher post which he held from September 24, 1983 to March 31, 1984. From April 1, 1984
the appellant was provided with the higher post of General Manager under the
respondent-State in its Industries Department.
The
respondent-State issued a notification on September 16, 1988 promoting a large number of juniors
to the higher scale of Rs.1575-2300 without considering the case of the
appellant.
Being
aggrieved the appellant filed one representation against his supersession which
was made without considering the case of the appellant. The representation was
filed on October 7,
1988. In the said
representation the appellant brought to the notice of the respondent State that
the serv- ice record of the appellant throughout remained excellent, integrity
beyond doubt and the appellant was never communi- cated with any punishment in
his service career.
While
the appellant was awaiting for a decision, the respondent State issued the
impugned notification dated October 26, 1988
compulsorily retiring the appellant from the post of General Manager, District
Industries Centre, Deoghar under the provisions of Rule 74(b)(ii) of the Bihar
Service Code.
The
appellant claimed that the aforesaid order of com- pulsory retirement has been
issued by the respondent-State on the basis of a memorandum dated October 6, 1988 though in the garb of Rule 74(b)(ii)
of the Bihar Service Code, but in fact this has been made as a measure of punishment.
Being
aggrieved and dissatisfied by the order of compul- sory retirement passed
against him by the respondents, the appellant preferred a writ petition being
C.W.J.C. No. 8457 of 1988 before the High Court, Patna questioning the im- pugned
order on the grounds inter alia 683 that the appellant throughout his 30 years
had an exemplary service career and his integrity remained unquestionable, that
the appellant was never communicated with any adverse remarks nor any
departmental proceeding was ever initiated against the appellant, nor any
explanation was ever called for. The High Court without at all considering and appreci-
ating the contentions dismissed the writ application by a laconic order.
Feeling
aggrieved by the said order the instant appeal on special leave has been filed.
The
only crucial question that fails for consideration in this Court is whether the
impugned order of compulsory retirement from service has been made by the
Appointing Authority in public interest in accordance with Rule 74(b)(ii) of
Bihar Service Code, 1979 or for any oblique motive as an extraneous
consideration or by way of punish- ment casting stigma on the service career of
the appellant even though the impugned order was couched in innocuous language.
The
relevant Rule 74(b) reads as follows:
"Rule
74(b)(i): Notwithstanding anything contained in the preceding subrule a
Government Servant may, after giving at least three months' previous notice, in
writing, to the appointing authority concerned, retire from service on the date
on which such a Government servant completes thirty years of qualifying service
or attains fifty years of age or any date thereafter to be specified in the
notice.
Provided
that no Government servant under suspension shall retire from service except
with the specific approval of the State Government.
Provided
further that in case of officers and servants of the Patna High Court
(including those of Circuit Bench at Ranchi), under the rule marking authority of the Chief Justice, no such officers
and servants under suspension shall retire from service except with the
specific approval of the Chief Justice.
Rule
74(b)(ii): The appointing authority concerned may, after giving a Government
servant at least three months' previous 684 notice in writing, or an amount
equal to three months' pay and allowances in lieu of such notice, require him
in public interest to retire from service on the date on which such a
Government servant completes thirty years of qualifying service or attains
fifty years of age or on any date there- after to be specified in the
notice." On a plain reading of the said Rule it appears that the
appointing authority has been conferred power to retire a government servant
from service in public interest after giving three months' prior notice in
writing or an amount equal to three months' pay and allowances in lieu of such
notice on the date on which such government servant com- pletes thirty years of
qualifying service or attains fifty years of age or on any date thereafter to
be specified in the notice. The impugned notification was made on October 26,
1988 by the Government of Bihar intimating the appellant that as he had
completed the age of more than 50 years, and in the opinion of the Government
of Bihar, in public inter- est he is compulsorily retired from service with
effect from the date of issue of this notification. He will be paid salary of
three months with allowances in lieu of three months' notice under Rule 74(b)(ii)
of Bihar Service Code.
It has
been contended on behalf of the appellant that though the impugned order is
couched in innocuous terms and it is made in compliance with the provisions of
Rule 74(b)(ii) of Bihar Service Code on appellant's reaching the age of more
than 50 years and it does not prima facie appear to cast any stigma on the
service career of the appellant yet it has been made by way of punishment
casting stigma on the appellant's service career and as such the impugned order
is illegal, bad and the same has been made in viola- tion of audi alterem partem
rule as well as Article 311(2) of the Constitution. It has been further
submitted in this connection that the power to retire the appellant compulso- rily
from service has not been made in public interest under Rule 74(b)(ii) of Bihar
Service Code but on the basis of the fact finding report given by the Deputy
Development Commis- sioner, Dumka by his letter dated September 19, 1987 re- garding
grave financial irregularities committed by the appellant in consideration of
which a memorandum was pre- pared by the Additional Commissioner-cum-Special
Secretary, Shri T. Nand Kumar on October 6, 1988 recommending to the
respondent-State to compulsorily retire the appellant from service under Rule
74(b)(ii) of Bihar Code. It has also been contended that the basis of the order
was made with oblique purposes 685 in consideration of extraneous matter and
the impugned order purports to removal from service on certain serious allega- tions
of misconduct and consequently it casts a stigma on the service career of the
appellant. Such order of compulso- ry retirement from service though appears to
be innocuous, has been made by way of punishment and as such it is liable to be
set aside and quashed.
It
has, on the other hand, been urged on behalf of the respondent-State that the
impugned order has been made under Rule 74(b)(ii) of Bihar Service Code in
public interest and there is nothing to show from the order itself that it has
been made by way of punishment and it casts a stigma on the service career of
the appellant. The language of the order is innocuous. The appellant cannot
delve into the secretari- at files to find out the basis of the order. Some
decisions have been cited at the bar in support of this submission.
Rule
74(b)(ii) of the Bihar Service Code confers power on the Appointing Authority
to compulsorily retire a govern- ment servant on his attaining 50 years of age
or after completing 30 years of qualifying service in public inter- est. The
object of this rule is to get rid of the government servant who has become dead
wood. This order is made only to do away with service of only those employees
who have lost their utility, become useless and whose further continuance in
service is considered not to be in public interest. In the instant case the
appellant has an unblemished career and undoubtedly by dint of his merit and
flawless service career he had been promoted to the post of Joint Director in
1983 and subsequently on 1st April, 1984 he was promoted to the higher post of
General Manager under the respondent State in its Industries Department. The
appellant has specifically pleaded in paragraph K of this appeal that he came
to know that the impugned order of compulsory retirement has been issued by the
respondent State on the basis of a memorandum dated October 6, 1988. It has
been further pleaded that the appellant came to know from the memorandum that
the impugned order of compulsory retirement dated October 26, 1988 has been
issued by the respondent-State though in the garb of Rule 74(b)(ii) of the Bihar
Service Code, but in fact the same has been issued as a measure of punishment.
This fact will be evident from the memorandum dated 6th October, 1988 wherein
the State has alleged that six items of charges have been proved against the
petitioner (appellant). The State Government has also accepted that there is no
question of going into the formality of departmental proceeding but has decided
to retire the petitioner compulsorily under Rules 74(b)(ii) of the Bihar
Service Code. Paragraphs 686 2 to 4 of the Memorandum dated 6th October, 1988
make it clear that the impugned order dated October 26, 1988 of compulsory
retirement, has been issued as a measure' of punishment. It is further
submitted that the order passed on October 26, 1988 was without giving any notice or
any show cause to the petitioner.
It has
been stated in para 4
to 7 of the
counter-affidavit as under:
(4)
That it is not at all necessary to draw departmental proceeding against the
petitioner (appellant) before effect- ing his compulsory retirement from
government service. Since his retirement under Rule 74(b)(ii) of the Bihar
Service Code does not amount to dismissal or removal from government service
within the meaning of clause (2) of Article 311 of the-Constitution, it is,
therefore, not necessary to obtain the advice of the Bihar Public Service
Commission (Limita- tion of Functions) Regulation, 1956.
(5)
That it is relevant to state that while the petitioner (appellant) was General
Manager, District Industries Centre, Dumka and Deoghar during the year 1985
onwards till his compulsory retirement, an enquiry into the serious charges of
corruption, omission and commission of financial and administrative lapses and
foul play against him had been conducted respectively by Deputy Development Commissioner,
Dumka, Deputy Commissioner, Dumka and Additional Director of Industries, Bihar,
Patna.
The
above charges were proved such as:
(i)
The charge of registration of bogus unit had clearly been established;
(ii)
Allegations of recommendations and sanction of capital subsidy on D.G. sets to
bogus units have been proved;
(iii)
Where there were no D.G. sets and the unit was bogus, subsidy had been
sanctioned against the departmental in- structions;
(iv)
Seed money had been sanctioned to non-existent units and payments made in
violation of Government orders; 687
(v)
Registration had been done for restricted items;
(vi)
Subsidy on D.G. sets had been sanctioned and payments made to units located
outside his jurisdiction; and
(vii)
Appointment of persons had been made on ad hoc basis beyond his delegated
powers in gross violation of Government rules.
(6)
That in the above mentioned cases registration; recom- mendations and payments
had been made by the petitioner (appellant) after making personal inspections
of the units which facts are sufficient to prove that he had commited the said
irregularities knowingly for his personal gains and thereby the State
Government had suffered a heavy loss. This misconduct on his part had tarnished
the image of the Gov- ernment in the public. It is, therefore, his so-called
exemplary service record which has no co-relation with his compulsory
retirement as stated in the aforesaid paragraph.
(7)
That contention of the petitioner (appellant) as stated in para (viii) of the
special leave petition that the memo- randum which have formed the basis of
causing the compulsory retirement of the petitioner (appellant), is absolutely
wrong and without any substance. It is relevant to state that the memorandum
being confidential papers of the re- spondent-State Government cannot be termed
as the Order of compulsory retirement and which order does not contain any word
from which a stigma may be inferred." It has been further averred in para
8 of the said affi- davit that on a perusal of the order of compulsory retire- ment
of the petitioner (appellant), it is sufficiently clear that no stigma has been
attached to the petitioner nor there is any word in the said Order from which a
stigma may be inferred. The Supreme Court has held in the case of I.N. Saxsena
v. The State of Madhya Pradesh, [967] 2 SCR 496 that where an order requiting a
Government servant to retire compulsorily contains express words from which a
stigma can be inferred that order will amount to removal within the meaning of
Article 311. But where there are no express words in the order itself which
would throw any stigma on the Government order, we cannot delve into
Secretariat files to discover whether some kind of stigma can be inferred on
such research.
688 In
para 9 it has been stated that it is, therefore, as per the decision of the
Supreme Court in the said case, the Court cannot look into the background
resulting in the passing of the order of compulsory retirement in order to
discover whether some kind of stigma can be inferred and accordingly in the
instant case the memorandum is totally irrelevant for the consideration by the
Court and in view of the same the appeal of the appellant can be dismissed.
A
supplementary affidavit has been filed on behalf of the appellant sworn by Suhird
Kumar, son of the appellant.
In para
3 of the said affidavit it has been submitted that the memorandum is prepared
on the basis of two enquiry reports done by the different officers without
there being any notice or getting any other version and this sort of memorandum
cannot be said to be a fair memorandum in the eyes of law and so any action
taken by the State Government on the basis of the said Memorandum is bad and violative
of Article 14 and 16 of the Constitution of India.
It is
thus, clear and evident from the counter-affidavit filed on behalf of the State
Government referred to herein- before that the basis of the impugned order of
compulsory retirement from service of the appellant is not in public interest
as stated in the order of compulsory retirement dated October 26, 1988. The impugned order, in fact, has
been passed on the basis of the memorandum dated October 6, 1988 which is also
based on the Report given by the Deputy Development Commissioner, Dumka by his
letter dated Septem- ber 19, 1987 without asking any explanation from the appel-
lant and without giving him any opportunity to defend his case before the
Deputy Development Commissioner. It is, therefore, wrong to say that the basis
of the order is not the said memorandum as well as the report of the Deputy
Development Commissioner which clearly evinces that the impugned order of
compulsory retirement is a mere camouflage being couched in innocuous terms and
in fact the same has been made by way of punishment.
In
support of the impugned order it has been vehemently urged on behalf of the
respondent-State that the order of compulsory retirement dated October 26, 1988 does not show prima facie that it
has been made by way of punishment. The Order as it is, speaks of compulsory
retirement of the appellant from service in accordance with the provisions of
Rule 74(b)(ii) of the Bihar Service Code. It has been con- tended further' that
this order being couched in innocuous terms cannot be questioned and the
appellant cannot delve into the secre- 689 tariat filed to find out the basis
of the order and to challenge the same on that basis. Reference has been made
in this connection to the case of 1. N. Saksena v. The State of Madhya Pradesh, (supra). In that case, the State
of Madhya Pradesh issued a memorandum on February 28, 1963 raising the age of
retirement of its employees from 55 to 58 years.
Clause
5 of the memorandum, however, said that the appoint- ing Authority may require
a Government servant to retire after he attained the age of 55 years on three
months' notice without giving any reasons. The clause further said that this
power was normally to be used to weed out unsuit- able employees. The appellant
who was a District and Ses- sions Judge in the service of the State Government
would normally have retired at the age of 55 years in August, 1963. In
September, 1963, however, Government communicated to. him an order that he was
to retire on December 31, 1963 under Rule 56 of the Fundamental Rules
applicable to the State of Madhya Pradesh. This order was challenged by the
appellant by writ petition before the High Court of Madhya Pradesh. It was
rejected. Thereafter, the appellant came with a certificate, to this court. It
has been held by this Court in that case that:
"Where
there are no express words in the order of compulsory retirement itself which
would throw a stigma on the Govern- ment servant, the Court would not delve
into Secretariat files to discover whether some kind of stigma could be
inferred on such research. Since in the present case there are no words of
stigma in the order compulsorily retiring the appellant, there was no removal
requiring action under Art. 311 of the Constitution." This decision does
not, in any way, apply to this case for the simple reason that in the
affidavit-in-counter filed by the respondent State it has been categorically
stated that while passing the impugned order of compulsory retirement the
officers concerned were guided by the report dated September 19, 1987 submitted
by the Deputy Development Commissioner, Dumka who stated in his report that the
appel- lant was responsible for the grave and serious financial irregularities
resulting in financial loss to the State Government, without giving any
opportunity of hearing and without intimating the allegations to the appellant
before forming his opinion. The said report was taken into consid- eration and
memorandum in question was issued on October 26, 1988 by the Additional
Secretary, Industries Department, Government of Bihar wherein it has been
clearly stated that the impugned order of compulsory retirement was made as the
said mis- 690 conduct on the part of the appellant tarnished the image of the
Government in the public. This categorical statement made in the
affidavit-in-counter clearly proves that the basis of making the order of
compulsory retirement of the appellant from the service is the aforesaid report
of the Deputy Development Commissioner, Dumka referred to hereinbe- fore. In
such circumstances, it is futile to argue that the order of compulsory
retirement being couched in an innocuous language without causing any stigma is
unassailable.
It is
pertinent to mention in this connection the case of Shyam Lal v. The State of
U.P. & Anr., [1955] 1 SCR 26 wherein it has been held by the Constitution
Bench that:
"A
compulsory retirement under the Civil Services (Classifi- cation, Control and
Appeal) Rules, does not amount to dis- missal or removal within the meaning of
Article 311 of the Constitution and therefore, does not fall within the provi- sions
of the said Article." "There is no such element of charge or
imputation in the case of compulsory retirement. The two requirements for
compulsory retirement are that the officer has completed 25 years' service and
that it is in the public interest to dispense with his further services. It is
true that this power of compulsory retirement may be used when the authori- ty
exercising this power cannot substantiate the misconduct which may be the real
cause for taking the action but what is important to note is that the
directions in the last sentence in Note 1 to Article 465-A make it abundantly
clear that an imputation or charge is not in terms made a condi- tion for the
exercise of the power. In other words, a com- pulsory retirement has no stigma
or implication of misbeha- viour or incapacity." It has been further held
that:
"A
compulsory retirement does not amount to dismissal or removal and, therefore,
does not attract the provisions of Article 311 of the Constitution.
In Baldev
Raj Chadha v. Union of India and Ors., [1980] 4 SCC 32 1 it was held that:
691
"The whole purpose of Fundamental Rule 56(j) is to weed out the worthless
without the punitive extremes covered by Article 311 of the Constitution. But
under the guise of 'public interest' if unlimited direction is regarded accept-
able for making an order of premature retirement, it will be the surest menace
to public interest and must fail for unreasonableness, arbitrariness and
disguised dismissal. The exercise of power must be bona fide and promote public
interest." It has also been observed that:
"An
officer in continuous service for 14 years crossing the efficiency bar and
reaching the maximum salary in the scale and with no adverse entries at least
for five years immedi- ately before the compulsory retirement cannot be compulsori-
ly retired on the score that long years ago, his performance had been poor,
although his superiors had allowed him to cross the efficiency bar without
qualms." In the case of Union of India v. Col. J.N. Sinha and Anr., [1971]
1 SCR 791 it has been observed by this Court that:
"Fundamental
Rule 56(i) does not in terms require that any opportunity should be given to
the concerned Government servant to show cause against his compulsory
retirement. It says that the appropriate authority has the absolute right to
retire a government servant if it is of the opinion that it is in the public
interest to do so. If that authority bona fide forms that opinion the
correctness of that opinion cannot be challenged before courts, though it is
open to an aggrieved party to contend that the requisite opinion has not been
formed or the decision is based on collateral grounds or that it is an
arbitrary decision." In Shamsher Singh & Anr. v. State of Punjab,
[1975] 1 SCR 814 the appellant Shamsher Singh was a Subordinate Judge on
probation. His services were terminated by the Government of Punjab in the name
of Governor of Punjab by an order which did not give any reasons for the
termination. It has been held that:
"No
abstract proposition can be laid down that where the services of probationer
are terminated without saying any- 692 thing more in the order of termination
that it can never amount to a punishment in the facts and circumstances of the
case. If a probationer is discharged on the ground of mis- conduct or
inefficiency or for similar reason without a proper enquiry and without his
getting a reasonable opportu- nity of showing cause against his discharge it
may in a given case amount to removal from service within the meaning of
Article 311(2) of the Constitution." In that case the appellant was asked
to show cause why his services should not be terminated and there were four
grounds. One was that the appellant's behaviour towards the Bar and the
litigant public was highly objectionable, de- rogatory, non-cooperative and
unbecoming of a judicial officer. The second was that the appellant would leave
his office early. The third was the complaint of Om Prakash, Agriculture
Inspector that the appellant abused his position by proclaiming that he would
get Om Prakash involved in a case if he did not cooperate with Mangal Singh, a
friend of the appellant and Block Development officer, Sultanpur. The fourth
was the complaint of Prem Sagar that the appellant did not give full
opportunity to Prem Sagar to lead evi- dence. Prem Sagar also complained that
the decreeholder made an application for execution of the decree against Prem Sagar
and the appellant without obtaining office report incorporated some additions
in the original judgment and warrant of possession. The appellant showed cause
stating that he was not provided with an opportunity to work under the same
superior officer for at least six months so that independent opinion could k.,
formed about his knowledge, work and conduct. Thereafter, the appellant
received a letter from the Deputy Secretary to the Government addressed to the
Registrar, Punjab and Haryana High Court that the
services of the appellant had been terminated. It has been held that in the
facts and circumstances of the case it is clear that the order of the
termination of the appellant, Shamsher Singh was one of punishment. The
authorities were to find out the suitability of the appellant. The order of
termination is in infraction of Rule 9 which makes it incum- bent upon the
authority that the services of a probationer can be terminated on specific
fault or on account of unsat- isfactory record implying unsuitability. The
order of termi- nation was, therefore, set aside.
This
judgment has been followed in the case of Anoop Jaiswal v. Government of India
and Anr., AIR 1984 SC 636. It has been observed that:
693
"It is, therefore, now well settled that where the form of the order is
merely a camouflage for an order of dismissal for misconduct it is always open
to the Court before which the order is challenged to go behind the form and
ascertain the true character of the order. If the Court holds that the order
though in the form is merely a determination of em- ployment is in reality a
cloak for an order of punishment, the Court would not be debarred, merely
because of the form of the order, in giving effect to the fights conferred by
law upon the employee." It has also been observed that:
"Even
though the order of discharge may be non-committal, it cannot stand alone.
Though the noting in the file of the Government may be irrelevant, the cause
for the order cannot be ignored. The recommendation of the Director which is
the basis or foundation for the order should be read along with the order for
the purpose of determining its true character.
If on
reading the two together the Court reaches the conclu- sion that the alleged
act of misconduct was the cause of the order and that but for that incident it
would not have been passed then it is inevitable that the order of discharge
should fall to the ground as the appellant has not been afforded a reasonable
opportunity to defend himself as provided in Art. 3 11(2) of the
Constitution." 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 serv- ant 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 miscon- duct 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 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 Rule 74(b)(ii) of the Bihar Service Code 694 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 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 made bona fide.
In the
premises aforesaid we hold that the impugned order has not been made bona fide
but for collateral pur- poses and on extraneous consideration by way of
punishment.
The
impugned order is, therefore, illegal and unwanted and so it is liable to be
quashed and set aside. We, therefore, allow the appeal and set aside the
impugned order. We fur- ther direct the respondents to reinstate the appellant
in service forthwith with full back wages. The respondents will pay costs to
the appellant.
N.P.V.
Appeal allowed.
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