Jharkhand High Court
Suresh Prasad Singh vs Bihar State Food & Civil Supli on 1 March, 2013
Equivalent citations: 2013 (3) AJR 87
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
W.P. (S). No. 6550 of 2002
[In the matter of an application under Article 226 of the Constitution of India]
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Suresh Prasad Singh ..... Petitioner
Versus
1. Bihar State Food & Civil Supplies Corporation Ltd.,
Sone Bhawan, 5th Floor, Birchand Patel Path, Patna
2. Managing Director, Bihar State Food & Civil
Supplies Corporation Ltd., Patna
3. Chief of Administration, Bihar State Food & Civil
Supplies Corporation Ltd., Patna
4. Chief of Finance, Bihar State Food & Civil
Supplies Corporation Ltd., Patna
5. Incharge District Manager, Bihar State Food & Civil
Supplies Corporation Ltd., Hazaribagh.
6. Incharge District Manager, Bihar State Food & Civil
Supplies Corporation Ltd., Gumla
7. The Jharkhand State Food & Civil Supplies Corporation
through its Chairman cum Managing Director,
4th Floor, Project Building, Dhurwa, Ranchi .... Respondents
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For the Petitioner : Mr. Rahul Kumar,Mr. Prabhat Singh, Advocates
For the State : Mr. Rishi Pallav, JC. To AG.
For the J.F.S.C. : Mr.Mirnal Kanti Roy
For the B.F.S.C. : Mr. Romit Satender.
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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By Court: Challenging the order of compulsory retirement dated 14.09.2002,
the petitioner has approached this Court.
(2) The petitioner was appointed as Lab Assistant on 10.06.1975. It has been stated by the petitioner that when he was posted at Gumla, he filed a complaint case being Complaint Case No. 75 of 2002 on 20 th April, 2002 before the Chief Judicial Magistrate, Gumla against the concerned night guard and the in-charge, District Manager, Gumla. Thereafter, several authorities started putting pressure on the petitioner and without any reason the petitioner was put under suspension on 08.05.2002 on vague allegation of attempting to cause loss to the Corporation. (3) The departmental proceeding did not culminate into the report of the enquiry officer. In the meantime by order dated 14.09.2002 the order of 2 compulsory retirement has been passed. Aggrieved by the order of compulsory retirement the petitioner has approached this Court. (4) A counter-affidavit has been filed on behalf of Respondent Nos. 1-4, taking a plea that in the year 1997 itself on the allegations of defalcation etc, a charge memo was served upon the petitioner on 30 th August 1997. However, the petitioner did not participate in the proceeding. An order of compulsory retirement from service was passed on consideration of the career record of the petitioner taking into account all the relevant rules and circulars of the Corporation. In the counter- affidavit filed on behalf of the respondents, it has been stated :-
19. "That, it is respectfully submitted that during service period petitioner was not working in the interest of Corporation and there was charges of misappropriation of food grains in several District offices for example when petitioner was posted at Begusarai District Office of respondent Corporation there was also several charges against the petitioner for which charge memo was issued on 30.08.1998.
20. That, after his joining at Gumla as In-charge laboratory, the petitioner was directed to take charge of the godowns of the Corporation at Gumla and Palkot vide letter bearing no. 305 dated 30.4.2001.
21. That, it is humbly stated and submitted that vide letter bearing no. 147 dated 01.03.2002, and letter no. 229 dated 18.03.2002, the petitioner was directed to appear before the office of the respondent no. 6 along with records of store, in take register, sale register, and other relevant document but the petitioner did not appear nor did he produce the records called for from him. This gave rise to suspicion that the affairs of the two godowns are not being managed properly. Under such circumstances one Shri Govind Thakur, Deputy Manager was given the charge of the two godowns vide letter bearing memo no. 263 dated 27.03.2002.
22. That, however despite specific directions to the petitioner, he did not hand over charge of the two godowns to Shri Govind Thakur and hence a reminder was sent to the petitioner vide letter bearing no. 267 dated 04.04.2002, yet the petitioner avoided to hand over charge of the two godowns, one pretext or the other.
23. That, since the respondent Corporation was left with no option and in view of the fact that because 3 of the non handing over charge of the petitioner, the distribution of food griains among the economically weaker sections of the society was being adversely affected, the office of the answering respondent vide its letter bearing no. 289 dated 06.04.2002, requested the Deputy Commissioner, Gumla to depute a magistrate, in whose presence the locks of two godowns would be broke open and an inventory of the articles could be prepared.
24. That, in view of the orders of the Deputy Commissioner, Gumla issued vide memo no. 222 dated 15.06.2002, deputed Shri Kumar Vinod, Executive Magistrate to prepare an inventory of article in Gumla godown and similarly Block Development Officer, Palkot was given the said duty with regard to the Palkot Godown and accordingly in terms of the orders of the Deputy Commissioner, Gumla an inventory of Gumla land Palkot was prepared and charge of the same was handed over to Shri Govind Thakur.
25. That, in terms of the inventory report so prepared, it transpired that there has been loss and embezzlement of a sum of Rs. 8,01,890.81 from the Gumla godown and Rs. 4,04,316.99 from the Palkot godown. Thus in total there was a loss and embezzlement of Rs. 12,06.207.80 from the two godowns during the tenure of the petitioner and apart from that important documents of the Corporation have been reported misplaced by the petitioner in order to cover up his misdeeds.
26. That, so far as a the representation of the petitioner to the Deputy Commissioner dated 09.04.2002, requesting the latter to conduct an impartial enquiry in the affairs of the corporation, it is submitted that the Additional Collector, Gumla vide his letter bearing no. 145 dated 13.04.2002, had constituted a committee comprising of one Shri Anil Kumar Singh, Executive magistrate, Gumla.
27. That, however the petitioner did not co-operate with the enquiry officer and in the meantime the night guard Shri Chedan Oraon made a written complaint against the petitioner regard to black marketing of the stored grains by the petitioner.
28. That, under such compelling circumstances the petitioner's services had to be placed under suspension vide letter no. 2822 dated 08.05.2002, and his headquarter was fixed at Hazaribagh.
29. That, the petitioner was not co-operating with the enquiry and in the meantime petitioner kept himself absented unauthorizedly.
30. That, it is relevant to submit here that earlier in other District offices of respondent Corporation serious charges against the petitioner have been proved but petitioner could not amend himself ultimately respondent Corporation had no option except retire him compulsorily. Hence in the interest 4 of Corporation impugned order of compulsory retirement dated 14.09.2002, has been issued as contained in Annexure-2 of the writ petition which is mainly under challenged in the writ petition."
(5) Heard counsel for both the parties at length and perused the documents on record.
(6) Learned counsel for the petitioner has confined his argument only to the order of compulsory retirement dated 14.09.2002. He has submitted that the pre-conditions contemplated under Rule 29(B) of the Service Conduct Rules of the Bihar State Food & Civil Supplies Corporation Ltd. have not been followed by the respondents while issuing the impugned order dated 14.9.2002. Rule 29(B) of Service Conduct Rules of the Bihar State Food and Civil Supplies Corporation Ltd are extracted below:
Rules 29(B) "COMPULSORY RETIREMENT : Notwithstanding anything contained in "Conduct and Disciplinary Rules", the Managing Director shall, if he is of the opinion that it is in the overall interest of the Corporation to do so, have the absolute right to retire any employee of the Corporation by giving him notice of not less than three months in writing or three months pay and allowances, in lieu of such notice it such an employee is considered to be inefficient or corrupt (doubtful integrity) or medically unfit.
Whereas compulsory retirement of any employee of the Corporation will not be treated as punishment, the Managing Director can compulsorily retire any employee of the Corporation without assigning any reason or following the "Principles of Natural Justice."
(7) On perusal of Rule 29(B) of the Conduct Rules, I find that before passing the order of the compulsory retirement, the Managing Director is required to first form an opinion in the overall interest of the corporation.
Further, it has been stipulated that once such an opinion has been formed, three month's previous notice in writing or three month's pay and allowances, in lieu of such notice, has to be given to the employee. Another condition which has been imposed under Rule 29(B) of the Conduct Rules is that the employee should have been considered to be inefficient or corrupt (doubtful integrity) or medically unfit. 5 (8) The learned counsel for the petitioner further submitted that Rule 29(B) of the Service Conduct Rules is pari- materia to Rule 74 of the Bihar Service Code. Rule 74 of Bihar Service Code are extracted below :
Rule 74. "(a) The State Government may require any Government servant who has completed twenty one years of duty and twenty -five years of total service 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.
[(b)(i) Notwithstanding anything contained in the preceding sub-rule a Government servant may, after giving at least three months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice:
Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government:] [Provided further that in case of the officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi) under the rule making authority of the Chief Justice, no such officer and servant under suspension shall retire from service except with the specific approval of the Chief Justice.] [(ii) The appointing authority concerned may after giving a Government servant at least three month's previous notice in writing, or an amount equal to three month's pay and allowance in lieu of such notice, require him in public interest, to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.] [ (iii) A government servant who retires voluntarily is required to retire in public interest under this rule on attaining age of 50 years, or completing qualifying service of 30 years, shall be entitled to retiring pension and death cum- retirement gratuity.] [Note 1- Compulsory retirement effected in pursuance of this rule does not amount to dismissal or removal from service within the meaning of clause (2) of Article 311 of the Constitution and a Govt. Servant so retired cannot claim, as a matter of right, that he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It shall also not be necessary, in such cases to follow the procedure laid down for the institution of departmental proceedings against the Govt. servant before retiring him compulsorily from Govt. service.] Note 2- The grant, under rule 183, of leave extending beyond the date on which a Government Servant must compulsorily retire, or beyond the date upto which a Govt.6
servant has been permitted to remain in service shall be treated as a sanction to an extension of service upto the date on which the leave expires."
(9) I find that Rule 74 of Bihar Service Code and Rule 29(B) of Service Conduct Rules of Bihar State Food & Civil Supplies Corporation Ltd. are pari-materia. In a case relating to Rule 74 of Bihar Code Rules, Patna High Court in the case of "Rana Abhai Singh versus The Hon'ble High Court of Judicature at Patna and others" reported in 2006 (3) PLJR 400, while recording that three months salary in lieu of three months' notice in terms of provisions of Rule 74 (b) (ii) of Bihar Service Code was not paid, held the order of compulsory retirement bad in law. In the case of "L.C. Bawa vs. V.K. Kapoor and Anr., 1987 LAB. I.C. 1878", a Division Bench of the Delhi High Court while interpreting rule 56 (j) of the Fundamental Rules has held that the order of pre-mature compulsory retirement of a Government servant can be passed only by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notices.
(10) The Hon'ble Supreme Court in the case of "Madhya Pradesh State Cooperative Dairy Federation Limited and another v. Rajnesh Kumar Jamindar and others" reported in (2009) 15 SCC 221, has held as under:
43. "It is now a well-settled principle of law that the employer would be bound by the rule of game. It must follow the standard laid down by itself. If procedures have been laid down for arriving at some kinds of decisions, the same should substantially be complied with even if the same are directory in nature. This rule was enunciated by Frankfurter, J. in Vitarelli v. Seaton wherein the learned Judge said:
" An executive agency must be rigorously held to the standards by which it professes its action to be judged.... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.....This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword."7
(11) In the Case of "Baikuntha Nath Das and another versus Chief District Medical Officer, Baripada and another" reported in (1992) 2 SCC 299 principles relating to compulsory retirement has been enumerated by the Hon'ble Supreme Court as under:
34. "The following principles emerge from the above discussions :
(i) An order of compulsory retirement is not a punishment. It implies no stigma not any suggestion of misbehaviour.
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above."
(12) In the case of "State of Gujarat versus Umedbhai M. Patel" reported in (2001) 3 SCC 314, the principles relating to compulsory retirement has been summarized by the Hon'ble Supreme Court as under :
11. "The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus :
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.8
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration,it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record can also be taken into consideration.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
(13) Respondent nos. 1-4 have filed supplementary counter-affidavit dated 22nd December, 2011 bringing on record letter dated 24.02.2003 of the District Manager, Hazaribagh, Bihar State Food and Civil Supplies Corporation Ltd. From the counter-affidavit and the materials on record, it is admitted position that the order of compulsory retirement has been passed on 14.9.2002. There is nothing on record even to indicate that three month's notice was given or salary and allowances in lieu of such three month's notice, has been paid to the petitioner. Only evidence which has been brought in the supplementary counter affidavit filed on behalf of respondent nos. 1-4, is letter dated 24.2.2003, whereby it has been indicated that the petitioner himself has refused to accept such payment by writing a letter on 24.2.2003.
(14) On consideration of all the materials on record and the order of compulsory retirement dated 14.09.2002, I find that order of compulsory retirement, does not disclose that an opinion has been formed about the inefficiency of the petitioner or the petitioner being unfit or of doubtful integrity. This is also not appearing from the record that Managing Director was of the opinion that it was under the overall interest of the corporation 9 that the service of the petitioner should be dispensed with and he should be compulsorily retired. Even mandatory requirement of three months' notice or in lieu of notice, payment of salary and allowances for the three months has been paid to the petitioner. It appears from the record of the case that only on 24.2.2003, the petitioner was offered such payment which the petitioner in my opinion has rightly refused to accept. I also find that though the allegation of misconduct relates to a period in the year 1997, the petitioner was suspended on 08.05.2002 and without waiting for outcome of the departmental enquiry, order of compulsory retirement was passed on 14.09.2002.
(15) In the result, this writ petition is allowed. Order of compulsory retirement dated 14.9.2002 is quashed. However, since a period of more than 10 years has passed after order of compulsory retirement has been passed, the payment of back wages to the petitioner has to be considered. I do not find any plea in the writ petition or in the supplementary affidavit filed by the petitioner that the petitioner was not gainfully employed during the period of ten years .
(16) In the case of "Hindustan Motors Limited Vs. Tapan Kumar Bhattacharya and Another" reported in (2002) 6 SCC 41, the Hon'ble Supreme Court while examining the matter in which the employee was dismissed from service and he remained unemployed for more than ten years, has held that since there is no pleading in respect to such claim of petitioner, therefore, payment of 50% back wages can be ordered. (17) In the case of "Cantonment Executive Officer and Another Vs. Vijay D. Wani and Others". reported in (2008) 12 SCC 230, the Hon'ble Supreme Court has ordered payment of 50 % back wages to the employee. It has been held;
17. " So far as grant of back wages is concerned, it depends upon case to case. But in the present case as the respondent was found guilty by the Cantonment Board 10 but the order of Cantonment Board was set-aside because it suffered from bias it will be unfair to deny 50% back wages to the respondent (herein). The Division Bench also directed that more than 13 years have passed, therefore, it did not permit the respondent to proceed against the petition afresh. The Division Bench decided the matter on 10.01.2005 and now more than 16 years have lapsed. Therefore, it would not be fair to permit the respondent to proceed afresh in the matter.
Consequently, we do not find any merit in this appeal and the same is dismissed.
18. The respondent be reinstated with the benefit of 50% back wages and continuity of service."
(18) Similar is the view taken by the Hon'ble Supreme Court in the case of "Bharat Coking Coal Ltd. Through Management Vs. National Coal Workers Congress", reported in (2009) 7 SCC 160 and in the case of "State of Uttar Pradesh and Others Vs. Ram Daras Yadav", reported in (2010) 2 SCC 236.
(19) I do not find any pleading in the writ petition that the petitioner was not gainfully employed after he was compulsorily retired from service on 14.09.2002. In view of the aforesaid, I hereby direct respondent No. 6 to reinstate the petitioner in service forthwith and pay 50% back wages to the petitioner from 14.09.2002 till his reinstatement in service with all consequential benefits, within a period of eight weeks from the date of communication of the Order.
(20) The writ petition is disposed of in the aforesaid terms. There shall however, be no order as to cost.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated the 1st March, 2013 Tanuj / Shanant / N.A.F.R.