The Secretary, Department of Personnel and Administrative Reforms v. Government of Bihar, Old Secretariat, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8589 of 2008 ====================================================== Raj Kumar Singh, s/o Late Sardar Ram Yatan Singh, R/o Village- Mosimpur, P.O. + P.S. Khusroopur, Patna. .... .... Petitioner. 1. The State of Bihar. 2. The Secretary, Department of Personnel and Administrative Reforms, Versus Government of Bihar, Old Secretariat, Patna. 3. The Deputy Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Old Secretariat, Patna. 4. The Under Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Old Secretariat, Patna. 5. The Secretary, Department of Art, Culture and Youth, Government of Bihar, Vikas Bhawan, Patna. 6. The Additional Secretary, Department of Art, Culture and Youth, Government of Bihar, Vikas Bhawan, Patna. 7. The Joint Secretary, Department of Art, Culture and Youth, Government of Bihar, Vikas Bhawan, Patna. 8. The Under Secretary, Department of Art, Culture and Youth, Government of Bihar, Vikas Bhawan, Patna
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Alok Kumar Sinha No.1 Mr. Bhola Kumar For the Respondent/s : Mr. Bijay Kumar Pandey, AC to GP-20 ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 4 18-11-2013 Heard learned counsel for the petitioner and the State. 2. The petitioner prays for quashing the order as contained in Memo no.0404 dated 21.11.2005 issued by Secretary, Department of Personnel and Administrative Reforms, Government of Bihar (respondent no.2) communicated to the petitioner under the signature of Deputy Secretary of the said Department (Annexure-12) whereby he has been compulsorily retired under Rule 74 (a) of Bihar Service Code. 3. Before I take up the rival submission, it would be 2 Patna High Court CWJC No.8589 of 2008 (4) dt.18-11-2013 2 / 6 necessary to notice the facts of the brief: 4. The petitioner was appointed as Typist in State Government service on 12.03.1979 on recommendation of Bihar Public Service Commission (hereinafter referred to as „the B.P.S.C.‟). Subsequent thereto, on the basis of Limited Competitive Examination conducted by the B.P.S.C., the petitioner was appointed as Personal Assistant. The petitioner vide order dated 17.05.1994 issued by the Department of Personnel and Administrative Reforms, Government of Bihar, was deputed as Personal Assistant in Jagjivan Ram Institute of Parliamentary Studies and Political Science Research, Patna. Thereafter his services was repatriated to parent department i.e. Department of Personnel and Administrative Reforms, Government of Bihar vide letter no.50 dated 11.08.1995. 5. It would appear from the pleadings of the parties that as petitioner did not give joining at Jagjivan Ram Institute of Parliamentary Studies and Political Science Research, Patna, his services were repatriated to his parent department. Even after repatriation, the petitioner gave his joining only after one month on 14.09.1995 and thereafter again he absented. The petitioner was asked explanation for his unauthorized absence vide letter no.577 dated 30.09.1995. However, he did not join the duty nor replied to the explanation. The petitioner only on 24.12.1998 gave 3 Patna High Court CWJC No.8589 of 2008 (4) dt.18-11-2013 3 / 6 his joining. He was again asked explanation with regard to his absence. The petitioner took plea of being infected with Jaundice. 6. The matter did not end here as petitioner again absented on being posted in the Department of Fisheries and Animal Husbandry vide Memo no.99 dated 08.04.1999. During his posting in the Department of Fisheries and Animal Husbandry, a criminal case was instituted against him and others in the year 2000. He was put under suspension. However, his suspension was later on revoked on 16.10.2004, whereafter he was directed to report in the Department of Art, Culture and Youth, Bihar, Patna vide Memo no. 274 dated 09.11.2004. The petitioner again absented. 7. It further appears that charge was framed and the petitioner was asked to submit his show-cause vide Memo no.577 dated 30.09.1995. It is the case of the respondents that as the petitioner was not coming to office, all efforts to serve the charge memo on him failed and ultimately publication was made in Daily Newspaper “DAINIK JAGRAN” on 10.07.2005. The petitioner represented before the Under Secretary, Department of Art, Culture and Youth, Bihar, Patna claiming himself to be on duty since 11.11.2004. The petitioner was again asked to submit his show-cause vide letter no. 7588 dated 18.08.2005 but all in vain. Ultimately, the respondent no.2 vide Memo no.0404 dated 4 Patna High Court CWJC No.8589 of 2008 (4) dt.18-11-2013 4 / 6 21.11.2005 compulsorily retired the petitioner from service under Rule 74(a) of Bihar Service Code. 8. The petitioner submits that no proper Departmental proceeding was conducted. He did not report to duty, as he was down with Jaundice. He submits that Rule 74 (a) of Bihar Service Code would not be applicable nor any action could possibly be taken under Rule 76 of the Code. 9. On the other hand, counsel for the State justified the order of compulsory retirement. The petitioner time and again remained on unauthorized absence. Furthermore, the Government can retire any person from service if he has put in 21 years of duty and 25 years of total service calculated from the date of his first appointment, to retire from service, if it considers that his efficiency or conduct is not such as to justify his retention in service. 10. I have heard the counsel for the parties. 11. Before I take up the points raised by the petitioner, it would be necessary to notice Rule 74(a) of the Bihar Service Code under which the petitioner has been compulsorily retired. Rule 74(a) is quoted herein below: “The State Government may require any Government servant who has completed twenty one years of duty and twenty-five years of total service 5 Patna High Court CWJC No.8589 of 2008 (4) dt.18-11-2013 5 / 6 calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Where any Government servant is so required to retire no claim to any special compensation shall be entertained.” 12. From bare perusal of Rule 74(a), it appears that a Government may compulsorily retire an employee if he has put in twenty one years of duty and 25 years of total service, if it considers that his efficiency or conduct is not such as to justify his continuance in service. 13. In the instant case, I find that the petitioner has remained under unauthorized absence not once or twice but as many as five to six occasions. All efforts to serve charge memo on him failed in as much as the Government had to resort to paper publication in DAINIK JAGRAN on 10.07.2005. The conduct of the petitioner has not been one to justify retention in service. The respondent no.2 while passing the order of compulsory retirement has too observed that the efficiency and the conduct of the petitioner is such which do not require any further continuance in service. 14. I find as such no infirmity in the impugned order dated 21.11.2005 retiring petitioner under Rule 74(a) of the Bihar Service Code. 6 Patna High Court CWJC No.8589 of 2008 (4) dt.18-11-2013 6 / 6 15. The plea of not holding full fledged departmental proceeding would not be of any avail, as the order retiring from service was passed seeing the over all conduct of petitioner from 1995 itself. The respondents could have passed the order under Rule 74(a) of the Bihar Service Code without giving an opportunity of hearing, but they chose to give opportunity in all fairness to the petitioner. No full fledged departmental proceeding is required where an order to retire a person is passed under Rule 74(a) of the Service Code, as it is not a punishment under Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. 16. In the backdrop of findings arrived in foregoing paragraphs, I do not find any merit in this application and it is accordingly, dismissed. It goes without saying that if the petitioner files a representation for payment of his retiral benefits, the same would be settled within a period of four months from the date of receipt of a copy of this order. Uday/- (Samarendra Pratap Singh, J)