JUDGMENT
R.L. Narasimham, C.J.
1. This is an application under , Articles 226 and 227 of the Constitution to quash the order of the Government of Bihar in the Department , of Agriculture and Animal Husbandry- (Annexure XIII) directing the entry of “severe censures” in the confidential character roll of the petitioner.
2. The petitioner was working as Range Assistant Engineer in the Bihar Agricultural Service, after having been appointed in 1944. On the 13th September, 1957, the Government of Bihar became aware of the fact that large sums of money, quite disproportionate to the income of the petitioner, were deposited on various dates, extending from September, 1947, to April, 1953, in some, of the Banks to the credit of the petitioner and his wife. A preliminary enquiry was held, and he was called upon to explain hew he came in possession of such sums of money. He gave some sort of explanation; but this was not accepted, and, on the 4th April, 1959, the Government of Bihar decided to draw up regular departmental proceedings against him (Annexure IV). The alleged act of misconduct was said to consists in voilation of Sub-rule (5) of Rule 15 of the Bihar Government Servants Conduct Rules, which is as follows:
A Government servant found to be in possession of pecuniary resources or property disproportionate to his known, sources of income, for which he cannot satisfactorily account, shall, unless the contrary is proved, be presumed to have been guilty of grave misconduct in the discharge of his official duty.
Enquiry was held according to law. The petitioner was given an opportunity to have his say, and, ultimately, the enquiring officer, by his report dated the 20th February, 1961 (Annexure IX), held that the petitioner was guilty of the contravention of the said sub-rule, and recommended that he should be. either permanently debarred from promotion or his increment should be stopped for four years. The second notice, asking him to show cause why the proposed punishment may not be imposed, was also issued. He was placed under suspension from the 7th November, 1959. On the 12th March, 1965, the order of suspension was withdrawn, and the Government allowed him to retire from service on his attaining the 55th year, which was the normal date for superannuation (Annexure XII). I may quote the relevant portion of the Government order:
In continuation of Government Order No. 168 Agri/C dated 12-3-65, I am directed to say that the question to allow Sri J. D. Roy, an officer in Class II (Senior) of the Bihar Agricultural Service (Category II), to continue in Government service after attaining the age of- 55 years had been under consideration of the State Government for some time past. After careful consideration, the State Government have been pleased to order that Sri J. D. Roy may retire from service and for this he may be served with three months’ notice as required under Government . order FI-6O1/63, 10583-P dated the 24th August, 1963.” This order of retirement, however, did not terminate the departmental proceedings, and, ultimately, in December, 1966, the proceedings were closed with the following order:
I am directed to refer to Government Resolution No. 176 dated 4/4/59, on the above noted subject, and to say that, after careful consideration of the findings of the Conducting officer and the second show cause petition submitted by Sri J. D. Roy, it has been found that Sri Roy has not satisfactorily accounted for his possession of property disproportionate to, his known sources of income and, therefore, the charge of violation of Sub-rule (5) of Rule 15 of the Bihar Government Servants Conduct Rules is proved against him.
2. The State Government has, therefore, been pleased to order that an entry of severe “censure may be made in his Confidential Character Roll.
3. The Accountant General, Bihar, is being informed.
4. Sri Roy may be informed accordingly.
3. Mr. R.S. Sinha for the petitioner urged the following grounds in support of his contention that the impugned order is invalid:
(i) The order of the Government retiring the petitioner from service dated the 12th March, 1965 (Annexure XII), must he deemed to be an order of compulsory retirement, and, as such, an order of punishment in the departmental proceeding. Hence, the Government had no jurisdiction to impose double punishment by way of awarding censure more than a year thereafter.
(ii) There is no power in the Government to pass any order of punishment on a Government servant after he has retired from Service.
(iii) Sub-rule (5) of Rule 15 of the Government Servants Conduct Rules came into force after 1956. The accumulations, disproportionate to the assets of the petitioner, were alleged to have been made prior to that date. The said sub-rule cannot be given retrospective effect, and hence the authorities committed an error of law in holding the petitioner guilty of contravention of that sub-rule. These grounds will be dealt with in turn.
4. Ground No. (i)-It is true that the order of compulsory retirement has been held in several decisions to amount to punishment; but, if a Government servant is retired on his attaining the age of superannuation, such an order of retirement cannot be held to amount to compulsory retirement by way of punishment. I have already quoted the substance of the order of the Government ” dated the 12th March, 1965 (Annexure XII); Therein, the Government have stated that, inasmuch as the petitioner has attained the age of superannuation, viz., 55 he was permitted to retire from service with the usual three months’ notice. It is true that, under the new rule in force, the Government could have retained him in service till the attainment of the 58th year; but they were not bound to do so, and the rules themselves provide that, on a Government servant attaining the 55th year, the Government may ask him to retire after giving him three months’ notice. The expression ‘compulsory retirement” is sometimes somewhat inaccurately used in respect of those instances where a Government servant, on attaining the normal date of superannuation, viz., 55 years is required to retire and is not given extension of service up to the 58th year. Compulsory retirement, as an order of punishment, can be given only when he is compelled to retire before attaining the age of superannuation. Hence, the order of the Government, dated the 12th March, 1965, cannot be held to be an order of compulsory retirement amounting to punishment. It is not stated anywhere in that order that the departmental proceeding, which was then pending against the petitioner, was closed. The proceeding still remained in force, and, until the order of punishment by censure was passed in December, 1966, the proceeding did not terminate. The petitioner, quite properly, did not challenge the validity of the order of retirement (Annexure XII). I must, therefore, reject the extreme contention that it amounted to a punishment in the departmental proceeding then pending, and, as such, the Government had no jurisdiction to pass an other order of punishment one year later.
5. Ground No. (ii)- This is the most important question for consideration. It is true that, under the normal rules regulating the conditions of service of public servants, disciplinary proceedings come to an end on the date of superannuation of the public servant concerned. But the rule-making authority was aware that, in some instances, the Government servant may attain the age of superannuation when the departmental proceeding against him is till pending. Clause (f) of Rule 73 of the Bihar Service Code was inserted with a view to meet such a contingency. Clause (f) is as follows:
Notwithstanding anything contained in foregoing clause, a Government servant under suspension on a charge of misconduct shall not be required or permitted to retire on reaching the age 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.” This clause in terms, will not apply here because the order of suspension was removed, and the petitioner was permitted to retire by virtue of Annexure XII.
6. Counsel for the Government also could not cite before us any statutory provision authorising the continuance of the departmental proceeding after the date of retirement and passing an order of punishment in the same; but Mr. Varma invited our attention to Rule 43(b) of the Bihar Pension Rules, 1950, which assumes that, in respect of certain types of punishment, a departmental proceeding initiated prior to the date of superannuation of a Government servant may continue. I may quote the relevant portions of Rule 43(b):
The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement:
Provided that–
(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment,
(i) shall not be instituted save with the sanction of the State Government;
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and
(iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made:
(b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with Sub-clause (ii) of Clause (a); and (c) the Bihar Public Service Commission shall be consulted before final orders are passed.
This rule authorises the continuance of a departmental proceeding initiated prior to the date of superannuation and the passing of an. order of punishment for the recovery from the pension of the whole or any party of a pecuniary loss except to the Government during service for that purpose with the special sanction of the State Government even after the officer has retired. This punishment comes under Clause (iv) of Rule 49 of the Civil Services (classification, Control & Appeal) Rules, 1930. Thus, there is an express provision in the service rules authorising the continuance of a departmental proceeding after the date of superannuation for the passing of such an order of punishment. It will be noticed that the punishment of censure is the mildest form of punishment prescribed in Clause (i) of Rule 49 of those Rules. If, therefore, the service rules authorise the passing of a punishment graver than “censure” even after the date of superannuation of a Government servant, there seems no justification for holding that the lessor punishment of censure cannot be passed in the same departmental proceeding. In any case, in the absence of an express prohibition in any of the services rules, it cannot be said as a proposition of law that, merely because an officer has superannuated, all the departmental proceedings pending against him must be deemed to have become ineffective,
7. I may now refer to certain decisions cited by Mr. R.S. Sinha, He relied on Harbilas Biswas v. Commissioner of Income Tax, West Bengal , which says that, once the relationship of master and servant has come to an end, the Government have no jurisdiction to continue the departmental proceeding. As a broad proposition of law, this may be correct; but, in the case of public servants it will be subject to the provisions of the rules regulating their conditions of service. I have already shown that the pension rules expressly contemplate the passing of punishment of a certain type, after the date of superannuation. This decision cannot, therefore, be of avail.
8. Mr. Sinha then cited a decision of the Mysore High Court in K.S. Rajasekharish v. The State of Mysore A.I.R. 1968 Mysore 206 where it was held:
It is now well settled that a disciplinary proceeding against a Government servant comes to an end when he retires and there is no power in Government to retain him in service so that a punishment may be imposed on him in a pending disciplinary proceedings.
This decision is presumably based on the service rules in force in Mysore State and it cannot be applied mechanically in the State of Bihar where, as already pointed out, there are special provisions in the service rules to the contrary,
9. Mr. Sinha, thereupon, relied on Sushil Kumar Choudhary v. Stale of Bihar , where it was held that, except in respect of matters expressly provided for in Clause (f) of Rule 73 of the Bihar Service Code, the Government has no jurisdiction to retain a Government servant in service after the date of superannuation for the purpose of holding departmental enquiry. That clause did not apply on the facts of that case. On the other hand, the facts found were that the Government servant concerned attained the age of superannuation (55 years) on the 2nd August, 1961. The Government did not suspend him from service prior to that date; but they purported to suspend him on the 26th of October, 1961 (after he had attained the age of superannuation), and then, by an order dated the 2nd November, 1961 retrospectively extend his service from the 5th 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.” Such an order was rightly struck down as unconstitutional. Here, the facts are quite different. Moreover, in that case, the implications of Rule 43(b) of the Bihar Pension Rules did not arise for consideration.
10. Ground No. (iii)-This ground is wholly misconceived. There is no question of retrospectively applying Sub-rule (5) Of Rule 15 of the Bihar Government Servants Conduct Rules, The charge and the findings show clearly that, in the opinion of the Government, on the date of initiation of the departmental proceeding, viz., 4th April, 1959 (Annexure IV), the petitioner was found in possession of assets far in excess of his known means. It is true that the dates of acquisition of these assets were long prior to that date, and they extended over several years commencing from 1947 and ending in April, 1953; but the finding was that these assets were in the possession of the petitioner or of his wife on the date on which the charges were framed. The petitioner gave some sort of explanation, which was not accepted. Hence, on the date on which the proceedings were started, he was found to be in possession of resources disproportionate to his known sources of income, and, therefore, Sub-rule (5) of Rule 15 was attracted. The petitioner also did not take the plea at any stage that the sums deposited by him in the various Banks and the other assets collected by him from 1947 to 1953 were completely expended long before the date of the commencement of the departmental proceeding, viz., April, 1959, and that, on that date, he was not in possession of those assets. This is not a case of retrospectively applying Rule 15(5) of the Bihar Government Servants Conduct Rules. As pointed out in Sajjan Singh v. Slate of Punjab and referred to in Anil Bihari Saran v. State of Bihar A.I.R. 1957 Pat. 43 Para. 16:
To take into consideration the pecuniary resources or property in the possession of the accused or any other person on his behalf which are acquired before the date of the Act is not in any way giving the Act a retrospective operation. A statute cannot be said to be retrospective because a part of the requisitions for its action is drawn from a time antecedent to its passing.
11. For these reasons, this application is dismissed with costs: hearing fee Rs. 100/- payable to the State of Bihar.
B.N. Jha, J.
12. I agree.