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Sushil Kumar Choudhary v. State Of Bihar And Another

Patna High Court

Dec 22, 1964

Judgment

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Structured Summary of the Opinion

Factual and Procedural Background

The petitioner, S.K. Chowdhury, served as Inspector of Boilers under the Government of Bihar. He was born on 2nd August 1906 and, for the purposes of the dispute, it was conceded that he was treated as having completed the age of superannuation on 4th August 1961 (the opinion also treats 5th August 1961 as the operative date of compulsory retirement in its conclusions). Prior to his retirement the Department of Labour and Employment initiated a departmental enquiry (Resolution and charge-sheet dated 15th February 1961). A special officer submitted a report on 17th August 1961.

No suspension order was made before 26th October 1961; on that date the Government made an order placing the petitioner under suspension (annexure A), which the petitioner says was served on him on 4th November 1961. By letter/Memo dated 2nd November 1961 (Annexure B), the Government informed the petitioner and the Accountant-General that his service was extended on grounds of “public service” for four months with effect from 5th August 1961 under Rule 73(a) of the Bihar Service Code; the memo communicated Government sanction to that effect.

The petitioner contends that he had retired on attaining the age of superannuation and that he did not apply for extension of service, nor did he receive salary or emoluments after 31st July 1961. On 1st December 1961 the Government issued a showcause notice (Annexure C) proposing dismissal and inviting a reply within 15 days or by 25th December 1961. The petitioner applied for a writ (under Article 226) seeking quashing of the departmental proceedings, suspension order, retrospective extension and the showcause notice on the ground that he had already retired and that subsequent actions were illegal and void.

In the respondents' counter-affidavit it was stated that the petitioner had applied on 18th October 1960 for extension for two years and that the Government had verbally intimated and subsequently confirmed (by telegram dated 4th September 1961) that retention in service was necessary because of vacant sanctioned posts; the respondents relied on Rule 73(a) to justify extension. The petitioner filed a rejoinder denying these assertions and produced correspondence (Annexures D to D/–12) to show his service was not in fact extended and that he sought to make over charge on 5th August 1961, though formal handing over did not occur because no one arrived to take charge.

The writ petition was heard; the primary judgment was delivered by Untwalia, J., with Ramaswami, C.J. concurring. The application was allowed and the impugned orders were quashed. No costs were ordered.

Legal Issues Presented

Whether the petitioner must be regarded as having retired on attaining the age of superannuation (the operative date treated in the opinion being 4th/5th August 1961), thereby rendering any subsequent departmental action void.
Whether the Government validly extended the petitioner’s service under Rule 73(a) of the Bihar Service Code with effect from 5th August 1961, and whether that order was vitiated by mala fides or was a colourable exercise of power.
Whether the suspension dated 26th October 1961 and the reliance on Rule 73(f) to retain the petitioner in service were lawful, given that suspension occurred after the date of compulsory retirement.
Whether the showcause notice proposing dismissal (Annexure C) and consequent departmental proceedings were ultra vires if the petitioner had already retired and the extension/suspension orders were invalid.
Whether Rule 73(a) can be unilaterally applied by the Government without the consent of the Government servant (as questioned by the court).

Arguments of the Parties

Petitioner's Arguments

The petitioner had attained superannuation and retired on 4th (or effectively 5th) August 1961 and therefore was no longer in service when subsequent orders were made.
He did not apply for extension of service after superannuation and did not receive salary or emoluments after 31st July 1961.
The order of suspension dated 26th October 1961, the retrospective extension dated 2nd November 1961 under Rule 73(a), and the showcause notice dated 1st December 1961 were ultra vires, illegal and void.
Documents annexed to his rejoinder (Annexures D to D/–12) show that no valid extension under Rule 73(a) was granted following his application in October 1960, and that he attempted to hand over charge on 5th August 1961.

Respondents' Arguments (State of Bihar)

The respondents (through the Advocate-General and counter-affidavit) stated that the petitioner had applied on 18th October 1960 for extension of service for two years (Annexure 2 to the counter-affidavit).
Because certain sanctioned posts of Inspector of Boilers remained vacant, the Government considered it necessary in the interest of public service to retain the petitioner beyond the date of compulsory retirement under Rule 73(a) of the Bihar Service Code; verbal intimation and a confirming telegram dated 4th September 1961 were given.
On conclusion of the departmental enquiry report and findings of disproportionate resources, the Government ordered suspension (annexure A) and later communicated extension under Rule 73(a) (Annexure B) and issued the showcause notice proposing dismissal (Annexure C).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court undertook a step-by-step analysis focused on timing, the applicable Service Code rules, and the procedural sequence actually followed by the Government:

Timing and presumption of retirement: The court accepted the concession that the petitioner was treated as having completed his age of superannuation on 4th August 1961 (and proceeded to treat 5th August 1961 as the operative date of compulsory retirement in its conclusions). The core question was whether subsequent executive acts could validly keep him in service after that date.
Sequence of executive acts: Although the departmental enquiry had been initiated in February 1961, there was no suspension order before 26th October 1961. The court observed that suspension under a misconduct charge, if relied upon to retain a servant beyond retirement, must have been in place before the date of compulsory retirement if Rule 73(f) is to be invoked.
Proper application of Rule 73(f): The court quoted Rule 73(f), which explicitly provides that 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 until the enquiry is concluded. The court held that Rule 73(f) could only apply if suspension had been effected prior to the date of compulsory retirement; that was not the case here.
Validity of retrospective extension under Rule 73(a): Rule 73(a) allows retention in service after the date of compulsory retirement with the sanction of the State Government on public grounds which must be recorded in writing. The court expressed doubt whether Rule 73(a) can be unilaterally applied without the consent of the government servant and found that, on the facts, the retrospective extension dated 2nd November 1961 (purporting to take effect from 5th August 1961) was not genuinely for the purpose of “public service” but was intended to patch up the Government’s failure to comply with Rule 73(f) earlier. The court characterized the extension as mala fide and a colourable exercise of power.
Consequence for the suspension order: Because the extension was vitiated, the court concluded that the suspension order of 26th October 1961 could not be treated as validly predicated on a continuation in service under Rule 73(f). The court further noted that no specific order had been shown to have been passed retaining the petitioner in service expressly under Rule 73(f).
Equitable and rule-based constraint: Despite expressing regret that a delinquent servant might escape departmental consequences, the court held that procedural and rule-based requirements could not be ignored; the Government's failure to take appropriate action at the appropriate time deprived it of the power to punish the petitioner as a result of the departmental enquiry.

Holding and Implications

APPLICATION ALLOWED; IMPUGNED ORDERS QUASHED.

Holding (directed effect): The court held that the petitioner retired from service on and from 5th August 1961 upon attaining the age of superannuation. It declared that:

The order of suspension dated 26th October 1961 (Annexure A) is ultra vires, illegal and void.
The order of extension of service dated 2nd November 1961 (Annexure B) purportedly under Rule 73(a) and taking effect from 5th August 1961 is mala fide, a colourable exercise of power, vitiated and void.
The second notice under Article 311(2) of the Constitution dated 1st December 1961 (Annexure C) proposing dismissal is ultra vires, illegal and void.
The writ in the nature of certiorari under Article 226 was granted to quash these orders. The court refused to make any order as to costs.

Broader implications: The opinion confines itself to the facts and rules involved in this case. The court emphasized the necessity of following the formal requirements of the Service Code (particularly the timing and proper invocation of Rules 73(a) and 73(f)) and held that the Government cannot retrospectively cure its procedural failure by back-dating an extension for the purpose of continuing disciplinary proceedings. The decision directly affects only the parties by quashing the specified orders; the opinion does not purport to announce a new general precedent beyond the legal reasoning applied to these facts.

Judicial Disposition

The application was allowed. Ramaswami, C.J., agreed with Untwalia, J.'s judgment. The final line of the opinion records: "Petition allowed." No order as to costs was made.

Show all summary ...

Untwalia, J.:— The petitioner has obtained a rule from this Court against the State of Bihar and the Secretary to the Government of Bihar, Department of Labour and Employment, to show cause why the departmental proceedings pending against the petitioner for dismissal from service be not quashed on the ground that the petitioner retired from service with effect from the 4th of August, 1961, and any action taken or order made thereafter for retaining him in service for the purposes of departmental action are illegal and void. Cause has been shown by the learned Advocate-General on behalf of the respondents.

2. The petitioner was at the relevant time serving as Inspector of Boilers under the Government of Bihar. His case is that he retired from service on the 2nd of August, 1961, upon attaining the age of superannuation, i.e, 55 years. For the purposes of this case, it has been conceded on all hands that somehow or other the petitioner was treated as having completed the age of 55 years not on the 2nd of August, 1961 as it ought to have been according to the date of his birth, which was 2nd of August, 1906, but on the 4th of August, 1961, and that will be the date which will be referred to hereinafter as the date on which the petitioner completed his age of superannuation. It appears that sometime prior to the petitioner's retirement the Government of Bihar in the Department of Labour and Employment decided that an enquiry should be made into the resources of the petitioner as there were reasons to believe that the petitioner had accumulated wealth by unfair means while he was in the service of the State Government as Inspector of Boilers. Annexure 1 to the counter-affidavit filed on behalf of the respondents is a copy of the resolution and the charge-sheet dated 15th of February, 1961, initiating the departmental enquiry against the petitioner. That enquiry was held by a special Officer, Political and Appointment Department, Government of Bihar, Shri R.P Singh, who submitted a report on the 17th of August, 1961. Thereupon on 26th of October, 1961, the Government made an order suspending the petitioner from service with effect from the date on which the order was to be served on him which, according to the petitioner's case, was served on 4th November, 1961.

3. A copy of the order is annexure A to the writ application and reads thus:

“On conclusion of the enquiry on the charges framed in the departmental proceedings drawn up against Sri S.K Chowdhury, Inspector of Boilers, in this Department's Resolution No. Con-35/60-954 dated 15-2-1961 he has been found to be in possession of pecuniary resources or property disproportionate to his known sources of income. The Governor of Bihar is, therefore, pleased to order that Sri S.K Chowdhury shall be placed under suspension with effect from the date this order is served on him. During the period of suspension, Sri Chowdhury will draw subsistence grant at the rates mentioned in Rule 96 of the Bihar Service Code.”

4. Thereafter the Government of Bihar, in a letter addressed to the Accountant-General of Bihar, informed him that the petitioner's service had been extended on ground of ‘public service’ for a period of 4 months with effect from the 5th August, 1961. This order was communicated to the petitioner by Memo No. 8277 dated 2nd November, 1961, by the Under-Secretary to the Government of Bihar, a copy of which is Annuxure B to the writ, application. The order communicated is in these terms:

“I am directed to convey the sanction of the State Government, under Rule 73(a) of the Bihar Service Code, to the extension on grounds of public service of the services of Sri Susil Kumar Chowdhury, Inspector of Boilers for a period of four months with effect from the 5th August, 1961.”

5. The petitioner's case further is that he has not made any application for extension of his service after the age of superannuation nor has he been paid any salary or subsistence allowance for any period after the 31st of July, 1961. On the 9th of December, 1961, the petitioner received a letter dated 1st December, 1961, from the Government of Bihar, Department of Labour and Employment, asking him to show cause “against the punishment of dismissal from Government service proposed to be inflicted upon him within 15 (fifteen) days of receipt of this order or by the 25th December, 1961 whichever is later”. A copy of this letter is Annexure C to the writ application. The petitioner's contention is that the proposed punishment of dismissal from service mentioned in Annexure C is ultra vires and void as the petitioner must be deemed to have retired on attaining the age of superannuation on 4th August, 1961, and the order of suspension passed on the 26th of October, 1961, and the order dated 2nd November, 1961, extending his service retrospectively with effect from 5th of August, 1981, under rule 73(a) contained in the Bihar Service Code are illegal and ultra vires.

6. I shall state a few more facts with reference to the counter-affidavit filed on behalf of the respondents and the rejoinder to it filed by the petitioner before I proceed to discuss and decide the points urged on his behalf. In the 7th paragraph of the counter-affidavit, it is stated that the petitioner had applied to Commissioner of Labour, Government of Bihar, by his petition dated 18th of October, 1960, a copy of which is Annexure 2 to the counter-affidavit, praying for extension of his service for a period of 2 years after superannuation. In the 6th paragraph of the counter-affidavit it is stated that due to certain sanctioned posts of Inspector of Boilers having remained vacant it had been considered necessary to retain the petitioner in service beyond the date of his compulsory retirement in the interest of public service as contemplated under Rule 73(a) of the Bihar Service Code, verbal intimation had already been given to the petitioner and the Chief Inspector of boilers to this effect which was subsequently confirmed by a telegram dated 4th September, 1961.”

7. It is thus claimed that the petitioner continued in Government service and did not make over charge of his duties on the 4th of August, 1961. In the rejoinder of the petitioner, the facts stated in the 6th and 7th paragraphs of the counter-affidavit have been refuted, and copies of series of letters exchanged between the petitioner and the Government have been annexed as Annexures D to D/- 12, showing that the petitioner's service was not extended under Rule 73(a) of the Bihar Service Code upon his application filed in October, 1960. It is further stated that on the 5th August, 1961, the petitioner telephonically informed the Commissioner of Labour that, since he had already retired from service, arrangements should be made for taking over charge from him. The Commissioner replied that he was sending a man for taking over charge from the petitioner. Since nobody turned up to take charge, formal charge could not be made over, but the petitioner did not receive any salary or other emoluments after the 31st of July, 1961.

8. I may state at this stage that, although a paper from the records received by the Advocate-General from the Department of Labour and Employment showing the formal making over of charge by the petitioner on the 4th of November, 1961, was shown to us at the time of the hearing of this case, nothing was shown as to whether he did any work on or from the 5th of August, 1961, or was paid any emolument after the 31st of July, 1961, either by way of salary or subsistence allowance after the order of suspension was made against him.

9. From the facts stated above, it is clear that although the proceedings were started against the petitioner in February, 1961, no order of suspension was made against him prior to the 26th October, 1961. The petitioner was anxious to make over charge on the 5th of August, 1961—on the date of his compulsory retirement—on attaining the age of superannuation, may be, because departmental proceedings were pending against him, and the Government were not prepared to relieve him obviously for the same reason. In such a situation, can it be said that retention of the petitioner in service under Rule 73(a) of the Service Code was on ‘public grounds’, i.e, in the interest of ‘public service’ as mentioned in the order of retention dated 2nd November, 1961 or as stated in the 6th paragraph of the counter-affidavit that the petitioner's services were necessary to be retained?

10. I am doubtful whether power under Rule 73(a) can be unilaterally exercised by the Government without the consent of the Government servant. Even assuming that it could be so, the facts glaringly speak out that it was a colourable exercise of this power not for purposes of ‘public service’ as mentioned in the order dated 2nd November, 1961, and further elucidated in the 6th paragraph of the counter-affidavit but for the purpose of bringing the departmental proceedings initiated at the time when the petitioner was in service to a conclusion even after his retirement. Rule 73(a) says:

“Except as provided in other clauses of this rule the date of compulsory retirement of a Government servant, other than a ministerial or inferior government servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the State Government on public grounds which must be recorded in writing.”

11. Again, assuming in favour of the Government that the expression ‘public grounds’ in view of Rule 73(a) would include a ground for bringing the departmental enquiry to a conclusion against a delinquent Government servant, it is difficult to hold in this case on the face of the impugned order dated 2nd November, 1961, and the statements made in the 6th paragraph of the counter-affidavit that the petitioner was retained in service after the date of compulsory retirement on those grounds. Rule 73(f) says:

“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.”

12. This rule in terms could be availed of and applied to the case of the petitioner only if he would have been placed under suspension on a charge of misconduct prior to his date of compulsory retirement, i.e, 5th of August, 1961, and then he could be retained in service until the enquiry into the charge was completed and a final order was passed thereon by a competent authority. It is undisputed that the Government could place the petitioner under suspension when a departmental enquiry was contemplated or pending against him, and having failed to do so, it seems to me, they proceeded to suspend him on the 26th of October, 1981, when there was no order of extension of his service under Rule 73(a) of the Code. The Government thereafter proceeded to extend his service by order dated 2nd of November, 1961, retrospectively from the 5th of August, 1961, in order to patch up and cover their own negligence of not having taken any action against the petitioner by complying with the requirements of Rule 73(f) of the Service Code.

13. In that view of the matter I have no hesitation in holding that the order of extension of service made on the 2nd of November, 1961, under Rule 73(a) was, in law, mala fide and a colourable exercise of power and consequently the order is vitiated.

14. That being so, it is manifest that the order of suspension made against the petitioner on the 26th of October, 1961, cannot be held to be valid and consequently it follows that the petitioner could not be retained in service in exercise of the powers under Rule 73(f) of the Service Code until the enquiry into the charge was concluded and final order was passed thereon by the competent authority. I may also add that no specific order seems to have been passed under Rule 73(f) of the Service Code retaining the petitioner in service in exercise of the powers of the Government under the said rule.

15. Be that as it may—and very much as I wish that a delinquent Government servant should not be allowed to escape the consequences of the departmental proceedings if charges be found to have been proved against him—but with greatest reluctance, I have got to hold in this case that the Government having failed to take appropriate action at the appropriate time as required by the rules of the Service Code cannot now punish the petitioner as a result of the departmental enquiry.

16. In the result, the application is allowed and it is held that the petitioner retired from service on and from the 5th of August, 1961, on attaining the age of superannuation and that the order of suspension dated 26th October, 1961 contained in Annexure A, the order of extension of service dated 2nd of November, 1961, contained in annexure B and the second notice under Article 311(2) of the Constitution of India dated 1st December, 1961, contained in Annexure C to the writ application are ultra vires, illegal and void and must be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution. In the circumstances of the case, I would make no order as to cost.

17. Ramaswami, C.J:— I agree.

AJ/G.G.M/D.V.C

18. Petition allowed.