Bhagwat Prasad Singh vs The State of Bihar and Another

S.K. Homchaudhuri, J.—This petition is directed against the order issued under memo No. 397 dated 21.5.1990 (Annexure-1) by the Collector, Samastipur (Respondent No. 2) dismissing the Petitioner from service with effect from 19.9.1987.

The Petitioner assailed the impugned order on the short ground that on attaining the age of superannuation he having retired from service on 31.12.1987 the employer and employee relation between him and the Respondents came to an and after 31.12.87 and, as such, the impugned order dated 21.5.1990 passed after his retirement is a nullity.

To appreciate the point involved in the case, it is necessary to state the facts leading to the passing of the impugned order in a nutshell. While working as Nazir in the District Nazarat, Samastipur, a criminal proceeding was initiated against the Petitioner on the allegation of defalcation or embezzlement of Government fund. A departmental proceeding was also initiated against him on the same allegation of defalcation or embezzlement of the Government fund and chargesheet was issued on 18.1.1982. The Petitioner submitted reply to the charges denying the allegations. A domestic enquiry was held and the Enquiry Officer after conclusion of the enquiry gave finding holding that charges against the Petitioner were established. Thereafter, a second show-cause notice was issued by the disciplinary authority asking the Petitioner to make representation against the proposed penalty of removal from service. After receipt of the second show-cause notice, the Petitioner approached this Court in C.W.J.C. No. 1222 of 1982 contending that enquiry proceeding was initiated in violation of principle of natural justice. By order dated 30.3.1982, the writ petition was admitted and an interim order was passed as follows:

During the pendency of this Writ application, no further steps shall be taken on the basis of the enquiry report as contained in Annexure-I to the writ application and the show cause notice (Annexure-2). It is made clear that the Petitioner shall remain under suspension during the pendency of this application and that order is not being stayed.

C.W.J.C. No. 1222 of 1982 was, however, dismissed on withdrawal by order dated 7.9.1987. The order of the High Court was communicated to Respondent No. 2 by letter dated 7.9.87 itself. The Petitioner did not submit any reply to the second show-cause notice. Thereafter, by the impugned order dated 21.5.1990, Respondent No. 2, the Collector, Samastipur passed the impugned order dismissing the Petitioner from service with retrospective effect from 19.9.1987 on the date of receipt of the order of the High Court dated 7.9.1987.

I have heard Mr. R.N. Mukhopadhaya, learned Counsel for the Petitioner and Mr. D.N. Singh, learned Standing Counsel No. 2 for the Respondent.

Mr. R.N. Mukhopadhaya, learned Counsel for the Petitioner, submitted that it is well settled that after retirement, a Government servant ceases to remain an employee of the Government. In the instant case, undisputedly, the Petitioner attained the age of superannuation on 31.12.1987 and no order was passed by the Government extending the service of the Petitioner and consequently the Petitioner retired from service on 31.12.1987. Thus Petitioner ceased to remain an employee under the Respondents and became a pensioner after his retirement. As such, the impugned order passed after the Petitioner''s retirement from service is a nullity. Mr. Mukhopadhaya further submitted that the impugned order purporting to give retrospective effect thereof is ex-facie illegal.

In support of his contention, Mr. Mukhopadhaya placed reliance on a decision of the Hon''ble Supreme Court in the case of C.L. Verma Vs. State of M.P. and another, He also placed reliance on a decision of the Andhra Pradesh High Court in the case of N.L. Sastry v. State of Andhra Pradesh reported in 1969 3 S.L.R. 372.

Mr. D.N. Singh learned Standing Counsel No. 2, on the other hand, submitted that the departmental proceeding was initiated against the Petitioner on the charge of defalcation of public fund to the tune of Rs. 4,42,625.76 paise in the year 1982 and after holding domestic enquiry the charge against the Petitioner was established. The domestic enquiry was concluded in the year 1982. However, because of the interim order passed in C.W.J.C. No. 1222 of 1982, the departmental proceeding could not be concluded. After dismissal of the said Writ petition on withdrawal by order dated 7.9.1987, the departmental proceeding could be concluded, the disciplinary authority waited for submission of the reply to the second show cause notice. But the Petitioner not having submitted reply to the second show cause, the disciplinary authority ultimately passed the impugned order dated 21.5.1990 dismissing him from service.

I have considered the submissions made on behalf of the Petitioner and on behalf of the Respondents and perused the impugned order. Admittedly, the Petitioner on attaining the age of superannuation i.e. 58 years retired from service on 31.12.1987. Learned Standing Counsel has not been able to lay hand on any rules under which the departmental proceedings could be confirmed after retirement of the Petitioner from service. In the case of B.J. Shelat Vs. State of Gujarat and Others, the Hon''ble Supreme Court has held that once a Government servant has effectively retired from service, disciplinary action cannot be taken against him. In the case of C.L. Verma (supra) the Hon''ble Supreme Court held that the Appellant, having attained the age of superannuation i.e. 58 years, he ceased to be a Government servant and in view of the fact that he had already superannuated, the Government had no right to deal with in its disciplinary jurisdiction available in regard to employees. In the case of N.L. Sastry (supra), the Petitioner retired from service during the pendency of the departmental proceeding. However, the departmental proceeding continued and punishment was imposed on him after his retirement. The Andhra Pradesh High Court held that the continuance of the enquiry and punishment imposed after attaining the age of superannuation was illegal as no specific order was passed to retain the Government servant in service after the age of superannuation.

Recently in the case of Union of India and others Vs. Sayed Muzaffar Mir, , the Hon''ble Supreme Court reiterated the aforesaid view. In that case the Respondent Railway employee, was suspended in contemplation of a departmental proceeding and during the continuance of the departmental proceeding, he gave a notice of voluntary retirement under Rule 1802(b)(I) of Indian Railways Establishment Code and statutory period of notice had expired without an order being passed by the authority either withholding the permission or retaining the Railway Employee in service and that after expiry of the statutory period of notice of voluntary retirement, the order of removal was passed on conclusion of the departmental proceeding. The Hon''ble Supreme Court upheld the judgment of the Central Administrative Tribunal holding that the order of removal passed after the expiry of the statutory period of notice of voluntary retirement was a nullity.

The aforesaid deacons squarely apply on the facts of the instant case. Admittedly the Petitioner''s service was not extended by the appropriate authority after he attained the age of superannuation on 31.12.1987 and consequently the Petitioner effectively retired from service on and from 31.12.1987. The impugned order of dismissal was passed on 21.5.1990 long after the retirement of the Petitioner, when the disciplinary action could be taken against him. As such, the impugned order is illegal and without jurisdiction and is a nullity.

For the reasons stated above; the petition is allowed and the impugned order issued under Memo No. 397 dated 21.5.1990 (Annexure 1) by the Collector, Samastipur (Respondent No. 2) is set aside.

However, this decision setting aside the impugned order shall not preclude the Respondents to proceed against the Petitioner under the provisions of the Bihar Pension Rules in accordance with law. I make no order as to cost.