ORDER
A.K. Shrivastava, J.
1. By this petition filed under Article 226/227 of the Constitution of India, the petitioner has challenged the order dated 21-9-2000 passed by the M.P. State Administrative Tribunal, Jabalpur (in short ‘the Tribunal’) in O.A. No. 5054/2000 dismissing his original application, summarily, being premature.
2. The petitioner was serving as Assistant Treasury Officer, Balaghat. Earlier a charge-sheet was issued against him on 26-2-1980 and a departmental enquiry was conducted. In the said enquiry, the enquiry officer found that the charges were not proved. However, the disciplinary authority, differing with the findings recorded by the enquiry officer, passed the order on 19-12-1986 directing the petitioner to retire compulsorily. This order which is annexed as Annexure P-5 to this petition, was assailed before this Court by filing a writ petition which was subsequently transferred to the Tribunal and the same was registered as T.A. No. 1150/88 in the Tribunal. The said Transfer Application was allowed by the Tribunal vide order dated 5-4-1997 (Annexure P-6). The Tribunal while passing the said order issued following directions:–
“11. The Disciplinary Authority may, if so advise give an opportunity to the petitioner of showing cause as to why the findings given by the disciplinary authority may not be substituted in place of the findings given by the enquiry officer. If giving of such an opportunity is contemplated by the disciplinary authority the same to be done within 3 months of a certified copy of this order being produced before the disciplinary authority by the petitioner. A copy of this order be also sent to the respondent Nos. 1 and 2 by the Tribunal within 15 days of passing of this order by Registered Acknowledgment Due Post and compliance of this order be reported to the Registrar within the said period. However, even if on a proof being produced by the petitioner that a certified copy of this order had been produced before the respondent Nos. 1 and 2 but no action pertaining to giving opportunity to the petitioner as contemplated above was given within the period prescribed then the order of imposing penalty of compulsory retirement of the petitioner shall be treated as non-existent and the service record of the petitioner shall be considered as if no such penalty was imposed on him.”
3. A show-cause notice was issued to the petitioner on 11-6-1997. A reply was submitted by the petitioner on 7-8-97 but no action was taken
against him. Consequently, he was reinstated in the service and was posted as Assistant Treasury Officer vide order dated 27-9-1997 (Annexure P-9).
4. After a span of three years, vide order dated 8-9-2000 (Annexure P-1) and also consequential order of termination dated 13-9-2000 (Annexure P-2), the petitioner was compulsorily retired with retrospective effect from 19-12-1986 under Rule 10 (7) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. The order of compulsory retirement was passed by way of penalty.
5. The petitioner assailed the aforesaid orders by filing original application before the Tribunal. The Tribunal did not find any merit and the same has been dismissed by the impugned order.
6. We have heard Shri R.K. Gupta, learned Counsel for the petitioner and Shri S.K. Yadav, learned Government Advocate for the State.
7. Upon hearing learned Counsel for the parties, it is unmistakable clear that the order (Annexure P-l) passed by the Director, Treasury & Accounts and the consequential order (Annexure P-2) passed by the Treasury Officer imposing penalty of compulsory retirement by giving retrospective effect from 19-12-1986 is arbitrary and is contrary to the service jurisprudence. The Supreme Court in the case of R. Jeevaratnam v. Slate of Madras, AIR 1966 SC 951, has held that an order of dismissal with retrospective effect is in substance an order of dismissal as from the date of the order with the super-added direction that the order should operate retrospectively from an anterior date. The impugned order is palpably illegal and is a product of exercise of power without jurisdiction. The order has been issued on 8-9-2000. It can not take effect retrospectively. This Court in the case of The Stale of M.P. v. Laxmi Chand Awadhiya and Anr. (W.P. No. 5510/2000) by following the verdict of the Apex Court in the case of R. Jeevaratnam’s case (supra), has held as under:–
“13. This Court had agreed with the findings recorded by the Tribunal and while so doing had granted leave to the State Government to proceed in accordance with law and the said direction was given as the order of compulsory retirement was nullified on a technical ground. This Court had nowhere stated that the earlier order, on proper scrutiny if affirmed will rise like a phoenix. In this context we may profitably refer to the decision rendered in the case of Jeevaratnam v. State of Madras, AIR 1966 SC 951, wherein a three Judge Bench of the Apex Court in Paragraphs 3 and 4 held as under:–
“3. Counsel for the appellant next contended that the order of dismissal dated October 17, 1950 having been passed with
retrospective effect is illegal and inoperative. Counsel for the respondent submitted (1) the order of dismissal with the retrospective effect as from the date of the suspension is valid in its entirety, and (2) in any event, the order is valid and effective as from October 17, 1950. The High Court accepted the first contention, and declined to express any opinion on the second contention. In our opinion, the second contention of the respondent is sound, and in this view of the matter, we decline to express any opinion on the first contention. Counsel for the appellant conceded that if the respondent’s second contention is accepted, the appeal must fail.
4. The order dated October 17, 1950, directed that the appellant be dismissed from service with effect from the date of the suspension, that is to say from May 20, 1949. In substance, this order directed that (1) the appellant be dismissed, and (2) the dismissal do operate retrospectively as from May 20, 1949. The two parts of this composite order are separable. The first part of the order operates as a dismissal of the appellant as from October 17, 1950. The invalidity of the second part of the order assuming this part of the order. The order of dismissal as from October 17, 1950 is valid and effective. The appellant has been lawfully dismissed, and he is not entitled to claim that he is still in service.”
14. We may also note here that their Lordships referred to the decision rendered in the case of Hemant Kumar v. S.N. Mukherjee, AIR 1954 Cal. 340, and approved the same indicating that the order of suspension cannot be retrospectively made valid but would be bound from the date of passing of the same. The law laid down in the case of Sudhir Ranjan v. State of West Bengal, AIR 1961 Cal. 626, wherein the High Court had held contrary to the aforesaid proposition was not given the stamp of approval. Their Lordships opined that an order of dismissal with retrospective effect, in substance, is an order of dismissal as on the date. In view of the aforesaid enunciation of law, there remains no scintilla of doubt in our mind that the impugned order passed by the competent authority vide Annexure P-7 on 3-1-2000 cannot be held to be retrospectively applicable as such as applicability is contrary to the basic jurisprudence of service law.”
8. In this view of the matter, we quash the order of the Tribunal dated 21-9-2000 as well as the orders dated 8-9-2000 (Annexure P-l) and 13-9-2000
(Annexure P-2) so far as they relate to effect the order from retrospective date, i.e., 19-12-1986.
9. We have been informed that the departmental appeal has been filed by the petitioner against the order dated 8-9-2000 (Annexure P-l) before the Secretary, Ministry of Finance, Government of Madhya Pradesh, copy of which has been annexed to this writ petition as Annexure P-12. The Secretary, Ministry of Finance is hereby directed to decide the appeal of the petitioner within a period of two months from the date of the filing of the certified copy of this order before him.
10. The petition is hereby allowed to the extent indicated above.
Parties to bear their respective costs.