Chairman, Bihar Rajya v. Beej Nigam Ltd., New Secretariat, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14472 of 2007 ====================================================== Kusheshwar Tanti son of late Kamal Tanti, resident of village Bariahi Bazar Tola Safabad, Police Station Bangaon, District Saharsa, .... .... Petitioner 1. The State Of Bihar, 2. The Agricultural Production Commissioner-cum-Chairman, Bihar Rajya Versus Beej Nigam Ltd., New Secretariat, Patna, .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : M/s Abdul Mannan Khan, Md.Najmul Hoda and Binay Kumar Bineet, Advocates For the State For the Corporation : Mr. Manoj Kumar, AC to GP 3 : M/s S. Pandey and Nalin Vilochan Tiwary, Advocates ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN ORAL ORDER 7 04-12-2013 I have heard learned counsel for the petitioner and the respondents. The petitioner seeks quashing of letter no. 1060 dated 03.08.2007 contained in Annexure 1 passed by the Company Secretary, Bihar State Seeds Corporation Limited, Patna, (hereinafter to be referred to as “the Corporation”), by which the petitioner has been compulsorily retired. Learned counsel for the petitioner submits that it would appear from the order itself that the petitioner was issued show- cause notice upon some charges. The notice has been appended as Annexure 2 which speaks as follows:-
Facts
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Legal Reasoning
this Court in L.P.A. No. 167 of 2008 (Nandjee Ram v. The State of Bihar and others) which was disposed of vide order dated 16.05.2011 after placing reliance upon the decision of the Supreme Court in Ram Ekbal Sharma(supra). The order of the learned Single Judge was set aside and the petitioner-appellant was directed to be reinstated in service with all the consequential benefits. This Court, in view of aforesaid decisions of the Apex Court and the Division Bench would also hold that the order of Patna High Court CWJC No.14472 of 2007 (7) dt.04-12-2013 7 compulsory retirement cannot be sustained in the facts and circumstances mentioned above. Accordingly, the writ petition stands allowed and the order impugned is quashed and set aside. The petitioner is directed to be reinstated in service with all consequential benefits. However, it is observed that, since admittedly the petitioner is yet to attain his age of superannuation, this order would not come in the way of the authority concerned in initiating a disciplinary proceeding against him for the charges concerned, if it so desires. (Dr. Ravi Ranjan, J) SC/-
Arguments
learned counsel has placed reliance upon he decision of the Apex Court rendered in Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another (AIR 1992 Supreme Court, 1020) and Pyare Mohan Lal v. State of Jharkhand and others [(2010) 10 Supreme Court Cases, 693]. Per contra, learned counsel for the petitioner has placed reliance upon a decision of the Apex Court rendered in Ram Patna High Court CWJC No.14472 of 2007 (7) dt.04-12-2013 4 Ekbal Sharma v. State of Bihar and another (AIR 1990 Supreme Court, 1368). It is submitted that the aforesaid decision was taken by the Supreme Court considering the identical situation as in that case also an employee was compulsorily retired under Rule 74(b)(ii) of the Bihar Service Code. Upon consideration of the rival contentions this Court finds force in the submission raised on behalf of the petitioner. The Hon’ble Supreme Court after considering the provision concerned and several earlier decisions of the Apex Court has come to the following conclusion in paragraph 28:- “28. 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 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 Patna High Court CWJC No.14472 of 2007 (7) dt.04-12-2013 5 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 the India as well as it is arbitrary as it violates principles of natural justice land the same has not been made bona fide.” However, the order impugned (Annexure 1) in the present case is not couched in innocuous language rather some statement has been recorded making out some charges against the petitioner. It has been stated that the notice was given to the petitioner but he did not respond. It has further been stated in the office order that he had remained absent on many occasions and had not followed the command of the superiors after his transfer to Kudra. From the report of the 3-man committee also it appears that the charges were levelled against several persons and show-cause notices were issued upon the petitioner and others but the petitioner did not reply within the time and his case was considered without waiting further. It is stated that there is error in the impugned order while stating that the petitioner had not filed reply to the show-cause Patna High Court CWJC No.14472 of 2007 (7) dt.04-12-2013 6 notice at all. In fact, he had filed reply to the same but after the stipulated time fixed by the committee for the said purpose. However, it has been held that conduct of all the employees suffered from the vice of misdemeanour, indiscipline, negligence in duty and ignorance of the orders of the superiors which have been found to have been proved by the committee. Thus, in my opinion, serious charges were levelled against the petitioner and the order appears to be punitive in nature. The petitioner would not file show-cause within time. However, the charges have been found to be proved by the Committee. Thus, in my considered opinion, in such case, a full-fledged disciplinary proceeding was required before inflicting such punishment. Similar view has been taken by a Division Bench of