Nageshwar Singh vs State of Bihar and Others

K.B.N. Singh, C.J.—In this writ application the petitioner prays for quashing an order dated the 24th September, 1975 of his compulsory retirement from service on attaining the age of 55 years. A copy of the said order is attached as Annexure ''3'' to this application.

The petitioner entered Government service as Sub-Inspector of Schools in the year 1942 and after some promotion in the year 1968 he was posted as District Superintendent of Education at Hazaribagh. The petitioner''s predecessor-in-office had called for quotations for purchase of books distribution as prizes in the middle schools and also for the library in the primary and middle schools in the district, but before finalising the deal he was transferred. Thereafter an instruction was received from the Deputy Director of Education (Primary) not to purchase books at district level and as such the petitioner had to drop the purchase of books for which quotations were called for. A year thereafter the petitioner received instructions from the Deputy Director of Education directing him to purchase the books within the limits of fund available for the purpose and accordingly orders were placed for purchase of books. On 4th January, 1968, the petitioner called for the statement of accounts from the cheque writer of his office from whose statement it transpired that although orders were placed for purchase of books worth about rupees two and a half lacs, but the Head clerk-cum-Accountant of the office received supplies of books from the publishers worth rupees three lacs and he also got the whole amount paid. On 5th March, 1968, the petitioner reported against the Head clerk-cum-Accountant for misguiding the petitioner in this regard. Consequently the Head clerk-cum-Accountant was suspended by the department. On 13th and 14th May, 1968, the Regional Deputy Director of Education, Ranchi, submitted a report against the petitioner and three clerks in addition to the Head clerk-cum-Accountant of the petitioner''s office and thereafter by an order dated 22.8.1968 of Deputy Secretary to the Government, the petitioner was suspended pending enquiry regarding irregularities and misuse of funds as reported. A copy of the said suspension order has been filed as annexure ''2'' to this application. Nothing further has been stated about that enquiry in the writ application and it appears that while under suspension the petitioner has been compulsorily retired.

Mr. Sinha appearing on behalf of the petitioner has urged that pending investigation of charges of misconduct, he could not be compulsorily retired in view of embargo put on such retirement under Rule 73(f) of the Bihar Service Code as it then existed. The relevant portion of the rule may be quoted as under:

Notwithstanding anything contained in foregoing clauses, a Government servant under suspension on a charge of misconduct, shall not be required or permitted to retire on reaching the date of compulsory retirement, but shall be retained in service until the enquiry into the charge is concluded and a final order is passed thereon by the competent authority.

On a refence to order of suspension (Annexure ''2'') it will appear that no depend charge for misconduct was levelled against the petitioner and all that is stated in the suspension order is as follows:

In view of the reports of gross irregularities and also misuse of public funds by Shri Nageshwar Singh, District Superintendent of Education, Hazaribagh a member of class 11 B.E.S. the Governor of Bihar is pleased to order that pending a full and thorough enquiry into the reports, Shri Nageshwar Singh, District Superintendent of Education, Hazaribagh is placed under suspension with effect from the date on which this order is served on him.

It is thus apparent that the petitioner has been suspended pending a full and thorough enquiry into the reports of gross irregularities and misuse of funds and till that stage no definite change o f misconduct was levelled against the petitioner. Besides that, Rule 73(f) authorised the State Government not to allow a Government servant who is being proceeded against on a charge of misconduct either to compulsorily retire or to retire on superannuation. The provision appears to be enabling provison to stop the erring Government servants charged with misconduct from escaping punishment either by way of compulsory retirement or on superannuation.

The view we have taken gains support from the following observation in the case of K.B. Singh v. State of Bihar 1969 B.L.J.R. 291.

We are inclined to hold that this provision has been incorporated in the Bihar Service Code in order to enable Government to come to finding in respect of an officer facing the charge of misconduct so that he may not avoid it by taking recourse to the device no retirement so as to prevent a finding being recorded against him.

It is not the effect of clothing an erring Government servant with any right in his favour to continue in service which may be enforceable in a court of law. It is open to the Government not to proceed with an enquiry and exercise option to compulsorily retire such a Government servant in the public interest.

Mr. Sinha has next contended that during the period of suspension the petitioner has ceased to be a Government servant and there was no relationship of master and servant between the petitioner and the State Government so that the State Government may exercise option of compulsory retiring the petitioner. In support of his submission learned Counsel has relied on certain observations made in the case of Hotel Imperial v. Hotel Workers'' Union AIR 1959 S.C. 1345 the portion relied may be reproduced:

In first question therefore that falls for consideration is the extent of the power of the employer to suspend an employee under the ordinary law of master and servant. It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied terms in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, the absence of such power either as an express terms in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the so-called period of suspension. Where, however there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. These principles of the ordinary law of master and servant are well settled and have not been disputed before us by either party.

It is difficult to appreciate how it helps the learned Counsel for the petitioner. Temporary suspension of the relationship of master and servant is on account of the provisions contained in the contract of employment or the statutes or the rules framed thereunder. It has not the effect of terminating the relationship of master and servant between the employer and the employee. Under the Bihar Service Code, the petitioner is entitled to subsistence allowance etc, as laid down in Rule 96, Mr. Sinha has relied on Clause (2) of this rule that no subsistence allowance will be paid unless the Government servant furnishes a certificate to the effect that he is not engaged in any other employment, business, profession or vocation. The provision for subsistence allowance is for the substenance of the Government servant while under suspension. That is why a certificate is required as mentioned in Clause (2). From this clause, no inference is permissible that the relationship of master and servant between the Government servant and the Government has been completely snapped If that would have been the effect, then at the conclusion of any inquiry against a suspended Government servant, no punishment could have been inflicted. Failure on the part of the Government servant to furnish the requisite certificate as required by Clause (2), only disqualifies the Government servant from getting the benefit of subsistence allowance to which he is entitled under Rule 96. Clause (1) of Rule 97 lays down that when a Government servant, who has been dismissed, removed or suspended, is reinstated, the authority competent to order his reinstatement shall consider and make specific order regarding pay and allowance to be paid to the Government servant for the period of his absence from duty and whether or not the said period shall be treated as period spent on duty. Clause (2) of this rule lays down that where a Government servant has been fully exonerated and in case of suspension which has been held to be wholly unjustified, the Government servant shall be paid full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended as the case may be. Clause (4) lays down that in cases falling under Clause (2), the period of his absence shall be treated as on duty for all purposes. From these rules it is manifest that a Government servant under suspension does not cease to be Government servant as urged by Mr. Sinha.

Mr. Sinha has also contended that the order of compulsory retirement casts a stigma against the petitioner inasmuch as it mentions therein that the petitioner who is under suspension is compulsorily retired, thus indicating that there has been something wrong with the officer concerned, as while in suspension he has been retired. By the impugned Annexure five officers have been compulsorily retired under Rule 74(b) of the Bihar Service Code on attaining the age of 55 years while mentioning the description of the officers against the petitioner it is mentioned, "Ex-District Superintendent of Education, Ranchi, under suspension." It only mentions the present position of the officer in the cadre. It is well settled that suspension pending some enquiry is no punishment. Therefore, the mere fact that an officer under suspension is being compulsorily retired does not cast any stigma so as to attract the provisions of Article 311 of the Constitution.

It is thus apparent that there is no merit in this application and it is accordingly dismissed, but in the circumstances of the case there would be no order as to costs.

UDAY SINHA, J.

I agree.