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PETITIONER: KIRTI BHUSAN SINGH

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT16/07/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1986 AIR 2116            1986 SCR  (3) 230  1986 SCC  (3) 675        1986 SCALE  (2)26

ACT:      Invalid pension-Recalling  nearly after  two years  the permission granted,  during the pendency of the departmental enquiry, to  an employee  to retire  on invalid  pension and dismissing him-Validity  of the  orders-Bihar Service  Code, Rules 73 (f) and Bihar Pension Rules, Rule 116 applicability of.

HEADNOTE:      The appellant  was a  clerk in the Excise Department of the State  of Bihar. In a disciplinary proceeding instituted against him,  the Inquiring  Officer found  that six  out of seventeen charges  framed against  him had  been established and submitted  his  report  accordingly  on  9.11.1960.  The Excise Commissioner  accepted the  report of  the  Inquiring Officer and issued a show cause notice dated 8.9.1961 to the appellant as  to why  he should not be removed from service. The appellant  submitted his  reply to  the said  notice  on 1.11.1961.  After  the  submission  of  the  Report  by  the Inquiring Officer,  the civil  surgeon of  the area issued a certificate to  the effect that the appellant was an invalid and he  could not discharge his duties properly in the state of his  health. On  31.1.1962, an  order was  passed by  the Excise  Commissioner   directing  the   retirement  of   the appellant on  invalid pension  under Rule  116 of  the Bihar Pension Rules  with effect  from 19.7.1961. On 5.10.1963 the Government of  Bihar passed  an order  revoking the order of retirement under  Rule 73(f)  of the  Bihar Service Code and thereafter  the  Excise  Commissioner  passed  an  order  on 1.11.1963  dismissing   the  appellant   from  service.  The appellant challenged  the said  order of  revocation of  the order of  retirement and the order of dismissal passed later on in  the Patna  High Court.  The High  Court dismissed the writ petition  but  granted  a  certificate  of  fitness  to appeal.      Allowing the appeal, the Court, ^      HELD: 1.1  In the absence of a provision which entitled the State 231 Government to  revoke an  order  of  retirement  on  medical grounds which  had become  effective and  final,  the  order

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dated 5.10.1963  passed by the State Government revoking the order of  retirement is  without the  authority of  law. The order of  dismissal passed  thereafter is  also  a  nullity. [234E-F]      1.2. The  expression "compulsory  retirement" found  in Rule 73(f) of the Bihar Service Code refers to retirement of a  Government   servant  on   his  attaining   the  age   of superannuation.  The   appellant’s  case   is  not   one  of retirement  from   service  on  his  attaining  the  age  of superannuation. No order asking the appellant to continue in service before he had attained the age of superannuation for the purpose  of concluding a departmental inquiry instituted against him had also been passed by the competent authority. On the other hand the appellant had been permitted to retire from service  on invalid  pension on  medical  grounds  even before he had attained the age of superannuation. Rule 73(f) of the  Bihar Service  Code is  clearly inapplicable  to the case of  the appellant.  Further at  the time  the order  of retirement  on   medical  grounds   was  passed  the  Excise Commissioner had  also before him the medical certificate of the Civil  Surgeon. At  that stage  two courses were open to the Excise  Commissioner. He  could have either dimissed the appellant if  he felt  that the charges had been established or he  could have  ordered his retirement on invalid pension under rule  116 of  the  Bihar  Pension  Rules.  The  Excise Commissioner,  however,   passed  an   order  directing  the retirement of  the appellant on January 31, 1962 with effect from July  19, 1961.  Thus the  appellant  ceased  to  be  a Government  employee.   Any  order   of   dismissal   passed thereafter would  be unsustainable unless it was permissible under law  to the  State Government  to revoke  the order of retirement and  to reinstate  him in  his former  status  as Government servant before the order of dismissal was passed. [234B-E; 233F-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 683 of 1971      From the Judgment and Order dated 3.4.1969 of the Patna High Court in Civil Writ Jurisdiction Case No. 444 of 1967.      B.P. Singh for the Appellant.      D. Goburdahn for the Respondents.      The Judgment of the Court was delivered by 232      VENKATARAMIAH, J.  This appeal  by certificate is filed against the  judgment of  the High  Court of  Patna in Civil Writ Jurisdiction Case No. 444 of 1967 delivered on April 3, 1969.      The appellant  was employed  as a  Clerk in  the Excise Department of  the  State  of  Bihar  at  Hazaribagh.  In  a disciplinary proceeding  instituted against  him, 17 charges were framed against him. During the enquiry he had been kept under suspension.  The Inquiring  Officer however found only six  of  them  established  and  accordingly  a  report  was submitted by  him  on  November  9,  1960.  On  the  8th  of September, 1961  the  appellant  was  asked  by  the  Excise Commissioner, who  was the  Disciplinary Authority,  to show cause why  he  should  not  be  removed  from  service.  The appellant submitted his reply to the said notice on November 1, 1961 showing cause against the proposed action. After the submission of  the report by the Inquiring Officer the civil surgeon of  the area issued a certificate to the effect that the appellant  was an invalid and he could not discharge his

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duties properly in that state of health. On January 31, 1962 an order was passed by the Excise Commissioner directing the retirement of  the appellant  on invalid  pension under rule 116 of  the Bihar  Pension Rules  with effect  from July 19, 1961. Thus he ceased to be a Government employee. Nearly one year and  nine months  after the  date of  retirement of the appellant on October 5, 1963 the Government of Bihar revoked the order  of  retirement  and  the  relevant  part  of  its communication reads thus:           "I am  to invite  a reference  to this  department           memo No. 869 dated 31-1-62 with which the order of           the  Excise   Commissioner  was  conveyed  to  you           allowing Excise  Clerk, Shri  Kirti  Bhusan  Singh           (Under suspension)  to retire  on invalid  pension           with effect  from 19-7-61  under rule 116 of Bihar           Pensions Rules."                "The said order has been re-examined by Govt.           in the  light of  Rule 73(f)  of the Bihar Service           Code,  and   it  has   been   found   that   since           departmental proceedings  were pending against the           Excise Clerk  it was  irregular to  permit him  to           retire on  invalid pension. Govt. have, therefore,           decided to  revoke the  order of the Excise Commr.           contained in  his memo No. 869 dated 31-1-62. As a           result the  Excise Clerk  should be  deemed to  be           continuing under  suspension and  that he would be           entitled to subsistence 233           allowances as  may be  admissible to him under the           Rules  till   final  orders   are  passed  on  the           proceedings which  were pending against him at the           time the said memo was issued."      Thereafter the  Excise Commissioner  passed an order on November 1,  1963 dismissing the appellant from service. The appellant questioned  the order  of dismissal  in  the  Writ Petition before  the High  Court out  of which  this  appeal arises.      In the High Court the appellant contended that after he had been retired from service by the order dated January 31, 1962 with  effect from  July 19, 1961 it was not permissible to the State Government to revoke the order of retirement by its  order   dated  October   5,  1963  and  to  the  Excise Commissioner to  pass an  order of  dismissal  from  service thereafter on  November 1,  1963. On  behalf  of  the  State Government it  was contended  that it  was open to the State Government under  rule 73(f)  of the  Bihar Service  Code to revoke the  order of  the Excise  Commissioner retiring  the appellant on  invalid pension  and therefore  the  order  of dismissal passed  subsequently was  a valid  order. The High Court accepting  the contention urged on behalf of the State Government dismissed the Writ Petition.      In  this   appeal  the  appellant  has  questioned  the correctness of  the judgment of the High Court. In this case the facts  are not in dispute. By January 31, 1962 the reply to the  show cause  notice had already been submitted by the appellant. The  Excise Commissioner  had also before him the medical certificate  of the Civil Surgeon. At that stage two courses were  open to the Excise Commissioner. He could have either dismissed  the appellant  if he felt that the charges had been established or he could have ordered his retirement on invalid  pension under  rule 116  of  the  Bihar  Pension Rules. The  Excise Commissioner,  however, passed  an  order directing the  retirement of  the appellant  on January  31, 1962 with  effect from  July 19,  1961. Thus  the  appellant ceased to  be a  Government employee. Any order of dismissal

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passed thereafter  would  be  unsustainable  unless  it  was permissible under  law to the State Government to revoke the order of  retirement and  to reinstate  him  in  his  former status as  Government servant  before the order of dismissal was passed.  Rule 73(f)  of the  Bihar Service Code on which reliance is placed by the State Government reads thus:           "Notwithstanding anything  contained in  foregoing           clauses, a  Government servant under suspension on           a charge of 234           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."      The expression  ’compulsory retirement’  found in  rule 73(f) of  the Bihar  Service Code  refers to retirement of a Government   servant   on   his   attaining   the   age   of superannuation. This  is not  a case  in which the appellant had been permitted to retire from service on the ground that he had  attained the  age of superannuation. No order asking the appellant  to continue in service before he had attained the age  of superannuation  for the  purpose of concluding a departmental inquiry  instituted against  him had  also been passed by  the competent  authority. On  the other  hand the appellant had  been permitted  to  retire  from  service  on invalid pension  on  medical  grounds  even  before  he  had attained the  age of superannuation. Rule 73(f) of the Bihar Service Code  is clearly  inapplicable to  the case  of  the appellant.  No  other  provision  which  enabled  the  State Government or  the competent authority to revoke an order of retirement on  invalid pension is brought to our notice. The order of  retirement on  medical grounds  having thus become effective and  final  it  was  not  open  to  the  competent authority to  proceed with  the disciplinary proceedings and to pass  an order  of punishment. We are of the view that in the absence  of such  a provision  which entitled  the State Government to  revoke an  order  of  retirement  on  medical grounds which  had become  effective and  final,  the  order dated  October  5,  1963  passed  by  the  State  Government revoking the  order of  retirement should  be held as having been passed without the authority of law and is liable to be set  aside.   It,  therefore,  follows  that  the  order  of dismissal passed thereafter was also a nullity.      We,  therefore,   allow  this  appeal,  set  aside  the judgment of  the High Court and quash the order of the State Government dated  October 5,  1963  revoking  the  order  of retirement of the appellant and the order of dismissal dated November 1, 1963 passed by the Excise Commissioner.      We  are   informed  by  the  learned  counsel  for  the appellant that  the appellant  had died on December 28, 1984 during the  pendency of  this appeal.  We, therefore, direct the State Government to pay to the 235 legal representatives  of the  appellant all  the arrears of pension due  to appellant  from November  1, 1963  up to the date of  his death.  The State Government shall also pay the costs of  this appeal  to the  legal representatives  of the appellant. S.R.                                         Appeal allowed. 236