{"id":166878,"date":"1990-04-24T00:00:00","date_gmt":"1990-04-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-ekbal-sharma-vs-state-of-bihar-anr-on-24-april-1990"},"modified":"2016-08-08T00:40:20","modified_gmt":"2016-08-07T19:10:20","slug":"ram-ekbal-sharma-vs-state-of-bihar-anr-on-24-april-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-ekbal-sharma-vs-state-of-bihar-anr-on-24-april-1990","title":{"rendered":"Ram Ekbal Sharma vs State Of Bihar & Anr on 24 April, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ram Ekbal Sharma vs State Of Bihar & Anr on 24 April, 1990<\/div>\n
Equivalent citations: 1990 AIR 1368, \t\t 1990 SCR (2) 679<\/div>\n
Author: B Ray<\/div>\n
Bench: Ray, B.C. (J)<\/div>\n
           PETITIONER:\nRAM EKBAL SHARMA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF BIHAR & ANR.\n\nDATE OF JUDGMENT24\/04\/1990\n\nBENCH:\nRAY, B.C. (J)\nBENCH:\nRAY, B.C. (J)\nREDDY, K. JAYACHANDRA (J)\n\nCITATION:\n 1990 AIR 1368\t\t  1990 SCR  (2) 679\n 1990 SCC  (3) 504\t  1990 SCALE  (1)12\n\n\nACT:\n    Bihar  Service Code, 1979: Section\t74(b)(ii)--Order  of\ncompulsory retirement--Couched in innocuous language--Valid-\nity Court--Whether could lift the veil, in appropriate cases\nto ascertain basis of order.\n    Constitution   of\tIndia,\t 1950:\t Articles   14\t and\n311(2)--Order of compulsory retirement--Couched in innocuous\nlanguage, but made by way of punishment----Whether violative\nof.\n\n\n\nHEADNOTE:\n    The\t appellant, an officer of Bihar State, filed a\twrit\npetition  before  the High Court, challenging the  order  of\ncompulsory retirement passed by the respondent State,  under\nRule 74(b)(ii) of Bihar Service Code, 1979, contending\tthat\nthroughout  his\t service  of 30 years he  had  an  exemplary\nservice career and his integrity remained unquestionable and\nthat  neither any adverse remarks were communicated  to\t him\nnor any departmental proceedings were initiated against him,\nnor  any  explanation called for from him.  The\t High  Court\ndismissed the writ petition by a laconic order.\n    In the appeal, by special leave, the appellant contended\nthat  though  the order was couched in innocuous  terms\t and\nmade in compliance with the provisions of Rule 74(b)(ii)  of\nBihar  Service Code on appellant's reaching the age of\tmore\nthan  50  years, and prima facie not appearing to  cast\t any\nstigma, it was not made in public interest, but made by\t way\nof  punishment\tfor oblique purposes,  in  consideration  of\nextraneous matter and purporting to removal from service  on\ncertain serious allegations of misconduct, casting a stigma,\nand  hence  the order was illegal, bad and in  violation  of\naudi alterem partem rule and Article 311(2) of the Constitu-\ntion and was liable to be quashed.\n    On behalf of the respondent-State it was contended\tthat\nthe  order  had\t been made in  public  interest\t under\tRule\n74(b)(ii)  and\tthere  was nothing to show  from  the  order\nitself that it had been made by way of punishment, casting a\nstigma,\t the  language of the order was innocuous,  and\t the\nappellant  could  not delve into the secretariat  files,  to\nfind out the basis of the order.\n680\nAllowing the appeal, this Court,\n    HELD: 1.1 Even though the order of compulsory retirement\nis couched in innocuous language without making\t imputations\nagainst\t the government servant, who is directed to be\tcom-\npulsorily retired from service, the Court, if challenged, in\nappropriate cases can lift the veil to find out whether\t the\norder  is based on any misconduct of the government  servant\nconcerned or the order has been made bona fide and not\twith\nany  oblique or extraneous purposes. Mere form of the  order\nin  such cases cannot deter the Court from delving into\t the\nbasis of the order if the order in question is challenged by\nthe concerned government servant. [693F-G]\n    Shamsher  Singh & Anr. v. State of Punjab, [1975] 1\t SCR\n894  and Anoop Jaiswal v. Government of India and Am'.,\t AIR<\/a>\n1984 SC 636, relied on.\n    Shyam Lalv. The State of U. P. & Anr., [1955] 1 SCR\t 26;\nBaldev\tRaj Chadha v. Union of India and Ors.,<\/a> [1980] 4\t SCC\n321 and Union of India v. Col. J.N. Sinha and Anr.,<\/a> [1971] 1\nSCR 791, referred to.\n    I.N.  Saxsena v. The State of Madhya Pradesh,  [1967]  2\nSCR 496, distinguished.\n    1.2\t The object of Rule 74(b)(ii) of the  Bihar  Service\nCode is to get rid of the government servant who has  become\ndead  wood. This order is made only to do away with  service\nof only those employees who have lost their utility,  become\nuseless and whose further continuance in service is  consid-\nered not to be in public interest. [655D]\n    1.3\t In the instant case, the appellant had\t an  unblem-\nished career, and undoubtedly by dint of merit and  flawless\nservice\t career,  had  been promoted to the  post  of  Joint\nDirector and ultimately to the post of General Manager.\t The\ncounter-affidavit  filed on behalf of  the  respondent-State\nhas  categorically  stated that while passing the  order  of\ncompulsory retirement the officers concerned were guided  by\nthe  report dated September 19, 1987 which stated  that\t the\nappellant  was responsible for grave and  serious  financial\nirregularities\tresulting  in financial loss  to  the  State\nGovernment,  without giving any opportunity of\thearing\t and\nwithout\t intimating  allegations  to  the  appellant  before\nforming the opinion. The memorandum in question has  clearly\nstated\tthat the order of compulsory retirement was made  as\nthe  appellant's misconduct tarnished the image of the\tGov-\nernment in the public. This categorical\n681\nstatement clearly proves that the basis of making the  order\nis the report dated September 19, 1987. Therefore, the order\nof compulsory retirement cannot be defended on the mere plea\nthat  it has been made in accordance with the provisions  of\nRule  74(b)(ii) which prima facie does not make any  imputa-\ntion or does not cast any stigma on the career of the appel-\nlant. [657E, 689F-H, 690A, 693H, 694A]\n    In view of the clear and specific averments made by\t the\nrespondent-State  that\tthe order has been made\t under\tRule\n74(b)(ii) as the appellant was found to have committed grave\nfinancial  irregularities leading to financial loss  to\t the\nState, the order cannot but be said to have been made by way\nof punishment. Such an order is in contravention of  Article\n311 of the Constitution and arbitrary as it violates princi-\nples of natural justice. It has not been made bona fide, but\nfor collateral purposes and for extraneous consideration  by\nway  of punishment and is, therefore,  illegal,\t unwarranted\nand liable to be quashed. [694A-B, C]\n    Accordingly\t the order of compulsory retirement  is\t set\naside  and  the respondents are directed  to  reinstate\t the\nappellant with full back wages. [694D]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1995  of
\n1990.\n<\/p>\n
    From  the  Judgment and Order dated\t 23.11.1988  of\t the
\nPatna High Court in C.W.J.C. No. 8457 of 1988.
\nA.K. Sen. Shankar Ghosh and M.P. Jha for the Appellant.
\nG.S. Misra for the Respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\n\tJ. This appeal on special leave is directed  against
\nthe  judgment  and order dated November 23, 1988  passed  in
\nC.W.J.C. No. 8457 of 1988 by the High Court, Patna  dismiss-
\ning  the writ petition moved by the appellant assailing\t the
\norder of his compulsory retirement from service by notifica-
\ntion  dated  October 26, 1988 issued by\t the  Government  of
\nBihar  compulsorily  retiring him from service\twith  effect
\nfrom the date of issue of the notification.
\n    The\t salient facts giving rise to this appeal  are\tthat
\nthe appellant was initially appointed on December 9, 1957 to
\nthe  post  of Industrial Expansion Officer and he  was\tcon-
\nfirmed to the said post on May 15,
\n682<\/span>
\n1958. The appellant was promoted to the post of Planning-cum
\nEvaluation  officer, a Gazetted post, on December  19,\t1973
\nbecause\t of his excellent service career. The appellant\t was
\nfurther\t promoted  to  the next higher\tpost  of  Industrial
\nEconomist  by  notification dated September  24,  1983\twith
\neffect from December 19, 1978 in the scale of Rs.1350-2000.
\n    Because  of\t excellent character role and merit  of\t the
\nappellant, he was promoted to the next higher post of  Joint
\nDirector  in his original scale of pay of Rs.1350-2000\twith
\n20 per cent personal pay for holding such higher post  which
\nhe  held  from September 24, 1983 to March  31,\t 1984.\tFrom
\nApril  1,  1984 the appellant was provided with\t the  higher
\npost  of General Manager under the respondent-State  in\t its
\nIndustries Department.\n<\/p>\n
    The respondent-State issued a notification on  September
\n16,  1988 promoting a large number of juniors to the  higher
\nscale  of Rs.1575-2300 without considering the case  of\t the
\nappellant.\n<\/p>\n
    Being  aggrieved the appellant filed one  representation
\nagainst his supersession which was made without\t considering
\nthe  case of the appellant. The representation was filed  on
\nOctober\t 7, 1988. In the said representation  the  appellant
\nbrought to the notice of the respondent State that the serv-
\nice  record of the appellant throughout remained  excellent,
\nintegrity beyond doubt and the appellant was never  communi-
\ncated with any punishment in his service career.
\n    While  the\tappellant was awaiting for a  decision,\t the
\nrespondent  State  issued the  impugned\t notification  dated
\nOctober\t 26, 1988 compulsorily retiring the  appellant\tfrom
\nthe  post  of General Manager, District\t Industries  Centre,
\nDeoghar under the provisions of Rule 74(b)(ii) of the  Bihar
\nService Code.\n<\/p>\n
    The\t appellant claimed that the aforesaid order of\tcom-
\npulsory\t retirement has been issued by the  respondent-State
\non the basis of a memorandum dated October 6, 1988 though in
\nthe garb of Rule 74(b)(ii) of the Bihar Service Code, but in
\nfact this has been made as a measure of punishment.
\n    Being aggrieved and dissatisfied by the order of compul-
\nsory  retirement passed against him by the respondents,\t the
\nappellant preferred a writ petition being C.W.J.C. No.\t8457
\nof  1988  before the High Court, Patna questioning  the\t im-
\npugned order on the grounds inter alia
\n683<\/span>
\nthat the appellant throughout his 30 years had an  exemplary
\nservice\t career and his integrity  remained  unquestionable,
\nthat  the appellant was never communicated with any  adverse
\nremarks\t nor any departmental proceeding was ever  initiated
\nagainst\t the appellant, nor any explanation was ever  called
\nfor. The High Court without at all considering and  appreci-
\nating  the contentions dismissed the writ application  by  a
\nlaconic order.\n<\/p>\n
    Feeling  aggrieved by the said order the instant  appeal
\non special leave has been filed.\n<\/p>\n
    The\t only crucial question that fails for  consideration
\nin  this Court is whether the impugned order  of  compulsory
\nretirement  from  service has been made\t by  the  Appointing
\nAuthority  in  public  interest\t in  accordance\t with\tRule
\n74(b)(ii)  of  Bihar Service Code, 1979 or for\tany  oblique
\nmotive\tas an extraneous consideration or by way of  punish-
\nment  casting stigma on the service career of the  appellant
\neven  though  the impugned order was  couched  in  innocuous
\nlanguage.\n<\/p>\n
The relevant Rule 74(b) reads as follows:\n<\/p>\n
“Rule  74(b)(i): Notwithstanding anything contained  in\t the
\npreceding subrule a Government Servant may, after giving  at
\nleast  three  months’ previous notice, in  writing,  to\t the
\nappointing  authority concerned, retire from service on\t the
\ndate  on  which such a Government servant  completes  thirty
\nyears of qualifying service or attains fifty years of age or
\nany date thereafter to be specified in the notice.
\nProvided  that no Government servant under suspension  shall
\nretire from service except with the specific approval of the
\nState Government.\n<\/p>\n
Provided  further that in case of officers and\tservants  of
\nthe  Patna High Court (including those of Circuit  Bench  at
\nRanchi),  under\t the  rule marking authority  of  the  Chief
\nJustice,  no  such officers and\t servants  under  suspension
\nshall retire from service except with the specific  approval
\nof the Chief Justice.\n<\/p>\n
Rule  74(b)(ii):  The appointing  authority  concerned\tmay,
\nafter  giving  a Government servant at least  three  months’
\nprevious
\n684<\/span>
\nnotice\tin writing, or an amount equal to three months’\t pay
\nand allowances in lieu of such notice, require him in public
\ninterest to retire from service on the date on which such  a
\nGovernment  servant  completes thirty  years  of  qualifying
\nservice or attains fifty years of age or on any date  there-
\nafter to be specified in the notice.”\n<\/p>\n
    On a plain reading of the said Rule it appears that\t the
\nappointing  authority has been conferred power to  retire  a
\ngovernment  servant  from service in public  interest  after
\ngiving\tthree months’ prior notice in writing or  an  amount
\nequal  to three months’ pay and allowances in lieu  of\tsuch
\nnotice\ton  the date on which such government  servant\tcom-
\npletes\tthirty years of qualifying service or attains  fifty
\nyears  of age or on any date thereafter to be  specified  in
\nthe  notice. The impugned notification was made\t on  October
\n26, 1988 by the Government of Bihar intimating the appellant
\nthat as he had completed the age of more than 50 years,\t and
\nin the opinion of the Government of Bihar, in public  inter-
\nest he is compulsorily retired from service with effect from
\nthe  date  of issue of this notification. He  will  be\tpaid
\nsalary\tof  three months with allowances in  lieu  of  three
\nmonths’ notice under Rule 74(b)(ii) of Bihar Service Code.
\n    It\thas been contended on behalf of the  appellant\tthat
\nthough the impugned order is couched in innocuous terms\t and
\nit  is\tmade  in  compliance with  the\tprovisions  of\tRule
\n74(b)(ii) of Bihar Service Code on appellant’s reaching\t the
\nage of more than 50 years and it does not prima facie appear
\nto  cast any stigma on the service career of  the  appellant
\nyet it has been made by way of punishment casting stigma  on
\nthe  appellant’s  service career and as\t such  the  impugned
\norder  is illegal, bad and the same has been made in  viola-
\ntion  of audi alterem partem rule as well as Article  311(2)
\nof  the Constitution. It has been further submitted in\tthis
\nconnection that the power to retire the appellant  compulso-
\nrily from service has not been made in public interest under
\nRule 74(b)(ii) of Bihar Service Code but on the basis of the
\nfact finding report given by the Deputy Development  Commis-
\nsioner,\t Dumka by his letter dated September 19,   1987\t re-
\ngarding\t grave\tfinancial irregularities  committed  by\t the
\nappellant  in consideration of which a memorandum  was\tpre-
\npared by the Additional Commissioner-cum-Special  Secretary,
\nShri  T. Nand Kumar on October 6, 1988 recommending  to\t the
\nrespondent-State  to compulsorily retire the appellant\tfrom
\nservice under Rule 74(b)(ii) of Bihar Code. It has also been
\ncontended that the basis of the order was made with  oblique
\npurposes
\n685<\/span>
\nin consideration of extraneous matter and the impugned order
\npurports to removal from service on certain serious  allega-
\ntions  of misconduct and consequently it casts a  stigma  on
\nthe service career of the appellant. Such order of compulso-
\nry  retirement from service though appears to be  innocuous,
\nhas been made by way of punishment and as such it is  liable
\nto be set aside and quashed.\n<\/p>\n
    It\thas, on the other hand, been urged on behalf of\t the
\nrespondent-State that the impugned order has been made under
\nRule 74(b)(ii) of Bihar Service Code in public interest\t and
\nthere  is nothing to show from the order itself that it\t has
\nbeen made by way of punishment and it casts a stigma on\t the
\nservice\t career of the appellant. The language of the  order
\nis innocuous. The appellant cannot delve into the secretari-
\nat files to find out the basis of the order. Some  decisions
\nhave been cited at the bar in support of this submission.
\n    Rule  74(b)(ii) of the Bihar Service Code confers  power
\non the Appointing Authority to compulsorily retire a govern-
\nment  servant  on  his attaining 50 years of  age  or  after
\ncompleting  30 years of qualifying service in public  inter-
\nest. The object of this rule is to get rid of the government
\nservant who has become dead wood. This order is made only to
\ndo  away with service of only those employees who have\tlost
\ntheir utility, become useless and whose further\t continuance
\nin  service is considered not to be in public  interest.  In
\nthe instant case the appellant has an unblemished career and
\nundoubtedly by dint of his merit and flawless service career
\nhe  had been promoted to the post of Joint Director in\t1983
\nand  subsequently on 1st April, 1984 he was promoted to\t the
\nhigher post of General Manager under the respondent State in
\nits  Industries Department. The appellant  has\tspecifically
\npleaded\t in paragraph K of this appeal that he came to\tknow
\nthat  the impugned order of compulsory retirement  has\tbeen
\nissued by the respondent State on the basis of a  memorandum
\ndated October 6, 1988. It has been further pleaded that\t the
\nappellant came to know from the memorandum that the impugned
\norder  of compulsory retirement dated October 26,  1988\t has
\nbeen  issued by the respondent-State though in the  garb  of
\nRule  74(b)(ii) of the Bihar Service Code, but in  fact\t the
\nsame  has been issued as a measure of punishment. This\tfact
\nwill be evident from the memorandum dated 6th October,\t1988
\nwherein the State has alleged that six items of charges have
\nbeen  proved against the petitioner (appellant).  The  State
\nGovernment  has also accepted that there is no\tquestion  of
\ngoing into the formality of departmental proceeding but\t has
\ndecided\t to retire the petitioner compulsorily\tunder  Rules
\n74(b)(ii) of the Bihar Service Code. Paragraphs
\n686<\/span>
\n2  to  4 of the Memorandum dated 6th October, 1988  make  it
\nclear  that  the impugned order dated October  26,  1988  of
\ncompulsory  retirement,\t has been issued as  a\tmeasure’  of
\npunishment. It is further submitted that the order passed on
\nOctober\t 26, 1988 was without giving any notice or any\tshow
\ncause to the petitioner.\n<\/p>\n
It  has been stated in para 4 to 7 of the  counter-affidavit
\nas under:\n<\/p>\n
(4)  That  it is not at all necessary to  draw\tdepartmental
\nproceeding against the petitioner (appellant) before effect-
\ning his compulsory retirement from government service. Since
\nhis  retirement\t under Rule 74(b)(ii) of the  Bihar  Service
\nCode does not amount to dismissal or removal from government
\nservice\t within the meaning of clause (2) of Article 311  of
\nthe-Constitution, it is, therefore, not necessary to  obtain
\nthe  advice of the Bihar Public Service Commission  (Limita-
\ntion of Functions) Regulation, 1956.\n<\/p>\n
(5)  That it is relevant to state that while the  petitioner
\n(appellant) was General Manager, District Industries Centre,
\nDumka  and  Deoghar during the year 1985  onwards  till\t his
\ncompulsory  retirement, an enquiry into the serious  charges
\nof  corruption,\t omission and commission  of  financial\t and
\nadministrative\tlapses\tand foul play against him  had\tbeen
\nconducted  respectively by Deputy Development  Commissioner,
\nDumka, Deputy Commissioner, Dumka and Additional Director of
\nIndustries, Bihar, Patna.\n<\/p>\n
The above charges were proved such as:\n<\/p>\n
(i)  The  charge of registration of bogus unit\thad  clearly
\nbeen established;\n<\/p>\n
(ii) Allegations of recommendations and sanction of  capital
\nsubsidy on D.G. sets to bogus units have been proved;\n<\/p>\n
(iii) Where there were no D.G. sets and the unit was  bogus,
\nsubsidy\t had  been sanctioned against the  departmental\t in-
\nstructions;\n<\/p>\n
(iv)  Seed money had been sanctioned to\t non-existent  units
\nand payments made in violation of Government orders;\n<\/p>\n
687<\/span><\/p>\n
(v) Registration had been done for restricted items;\n<\/p>\n
(vi)  Subsidy on D.G. sets had been sanctioned and  payments
\nmade to units located outside his jurisdiction; and\n<\/p>\n
(vii)  Appointment of persons had been made on ad hoc  basis
\nbeyond his delegated powers in gross violation of Government
\nrules.\n<\/p>\n
(6)  That in the above mentioned cases registration;  recom-
\nmendations  and\t payments had been made\t by  the  petitioner
\n(appellant)  after making personal inspections of the  units
\nwhich facts are sufficient to prove that he had commited the
\nsaid  irregularities  knowingly for his personal  gains\t and
\nthereby the State Government had suffered a heavy loss. This
\nmisconduct  on his part had tarnished the image of the\tGov-
\nernment\t in  the  public. It is,  therefore,  his  so-called
\nexemplary  service record which has no co-relation with\t his
\ncompulsory retirement as stated in the aforesaid paragraph.
\n(7) That contention of the petitioner (appellant) as  stated
\nin para (viii) of the special leave petition that the  memo-
\nrandum which have formed the basis of causing the compulsory
\nretirement  of\tthe petitioner\t(appellant),  is  absolutely
\nwrong  and  without any substance. It is relevant  to  state
\nthat  the  memorandum being confidential papers of  the\t re-
\nspondent-State\tGovernment cannot be termed as the Order  of
\ncompulsory  retirement and which order does not contain\t any
\nword from which a stigma may be inferred.”\n<\/p>\n
    It has been further averred in para 8 of the said  affi-
\ndavit  that on a perusal of the order of compulsory  retire-
\nment of the petitioner (appellant), it is sufficiently clear
\nthat no stigma has been attached to the petitioner nor there
\nis  any\t word in the said Order from which a stigma  may  be
\ninferred.  The\tSupreme Court has held in the case  of\tI.N.
\nSaxsena v. The State of Madhya Pradesh, [967] 2 SCR 496 that
\nwhere  an  order requiting a Government\t servant  to  retire
\ncompulsorily contains express words from which a stigma\t can
\nbe  inferred  that order will amount to removal\t within\t the
\nmeaning of Article 311. But where there are no express words
\nin  the\t order itself which would throw any  stigma  on\t the
\nGovernment order, we cannot delve into Secretariat files  to
\ndiscover whether some kind of stigma can be inferred on such
\nresearch.\n<\/p>\n
688<\/span><\/p>\n
    In\tpara 9 it has been stated that it is, therefore,  as
\nper the decision of the Supreme Court in the said case,\t the
\nCourt  cannot  look  into the background  resulting  in\t the
\npassing\t of the order of compulsory retirement in  order  to
\ndiscover  whether  some kind of stigma can be  inferred\t and
\naccordingly  in the instant case the memorandum\t is  totally
\nirrelevant for the consideration by the Court and in view of
\nthe same the appeal of the appellant can be dismissed.
\n    A  supplementary affidavit has been filed on  behalf  of
\nthe  appellant sworn by Suhird Kumar, son of the  appellant.
\nIn  para 3 of the said affidavit it has been submitted\tthat
\nthe  memorandum\t is  prepared on the basis  of\ttwo  enquiry
\nreports\t done by the different officers without there  being
\nany  notice  or getting any other version and this  sort  of
\nmemorandum  cannot  be said to be a fair memorandum  in\t the
\neyes of law and so any action taken by the State  Government
\non the basis of the said Memorandum is bad and violative  of
\nArticle 14 and 16 of the Constitution of India.
\n    It is thus, clear and evident from the counter-affidavit
\nfiled on behalf of the State Government referred to  herein-
\nbefore\tthat the basis of the impugned order  of  compulsory
\nretirement  from service of the appellant is not  in  public
\ninterest  as  stated in the order of  compulsory  retirement
\ndated  October\t26, 1988. The impugned order, in  fact,\t has
\nbeen passed on the basis of the memorandum dated October  6,
\n1988  which is also based on the Report given by the  Deputy
\nDevelopment Commissioner, Dumka by his letter dated  Septem-
\nber 19, 1987 without asking any explanation from the  appel-
\nlant  and without giving him any opportunity to\t defend\t his
\ncase  before  the Deputy Development  Commissioner.  It\t is,
\ntherefore,  wrong to say that the basis of the order is\t not
\nthe  said  memorandum as well as the report  of\t the  Deputy
\nDevelopment  Commissioner  which clearly  evinces  that\t the
\nimpugned order of compulsory retirement is a mere camouflage
\nbeing  couched in innocuous terms and in fact the  same\t has
\nbeen made by way of punishment.\n<\/p>\n
    In support of the impugned order it has been  vehemently
\nurged  on behalf of the respondent-State that the  order  of
\ncompulsory  retirement dated October 26, 1988 does not\tshow
\nprima facie that it has been made by way of punishment.\t The
\nOrder  as  it  is, speaks of compulsory\t retirement  of\t the
\nappellant from service in accordance with the provisions  of
\nRule  74(b)(ii) of the Bihar Service Code. It has been\tcon-
\ntended\tfurther’ that this order being couched in  innocuous
\nterms  cannot be questioned and the appellant  cannot  delve
\ninto the secre-\n<\/p>\n
689<\/span><\/p>\n
tariat\tfiled  to  find out the basis of the  order  and  to
\nchallenge the same on that basis. Reference has been made in
\nthis connection to the case of 1. N. Saksena v. The State of
\nMadhya\tPradesh,<\/a> (supra). In that case, the State of  Madhya
\nPradesh issued a memorandum on February 28, 1963 raising the
\nage  of\t retirement of its employees from 55  to  58  years.
\nClause 5 of the memorandum, however, said that the  appoint-
\ning  Authority\tmay require a Government servant  to  retire
\nafter  he  attained  the age of 55 years  on  three  months’
\nnotice\twithout giving any reasons. The clause further\tsaid
\nthat this power was normally to be used to weed out  unsuit-
\nable  employees. The appellant who was a District  and\tSes-
\nsions  Judge  in the service of the State  Government  would
\nnormally  have\tretired at the age of 55  years\t in  August,
\n1963.  In September, 1963, however, Government\tcommunicated
\nto. him an order that he was to retire on December 31,\t1963
\nunder  Rule  56 of the Fundamental Rules applicable  to\t the
\nState  of Madhya Pradesh. This order was challenged  by\t the
\nappellant  by writ petition before the High Court of  Madhya
\nPradesh.  It  was rejected. Thereafter, the  appellant\tcame
\nwith a certificate, to this court. It has been held by\tthis
\nCourt in that case that:\n<\/p>\n
“Where there are no express words in the order of compulsory
\nretirement itself which would throw a stigma on the  Govern-
\nment  servant,\tthe Court would not delve  into\t Secretariat
\nfiles  to  discover  whether some kind of  stigma  could  be
\ninferred  on such research. Since in the present case  there
\nare  no words of stigma in the order  compulsorily  retiring
\nthe  appellant, there was no removal requiring action  under
\nArt. 311 of the Constitution.”\n<\/p>\n
    This  decision does not, in any way, apply to this\tcase
\nfor the simple reason that in the affidavit-in-counter filed
\nby  the\t respondent State it has been  categorically  stated
\nthat   while  passing  the  impugned  order  of\t  compulsory
\nretirement the officers concerned were guided by the  report
\ndated September 19, 1987 submitted by the Deputy Development
\nCommissioner, Dumka who stated in his report that the appel-
\nlant  was  responsible for the grave and  serious  financial
\nirregularities\tresulting  in financial loss  to  the  State
\nGovernment,  without giving any opportunity of\thearing\t and
\nwithout\t intimating the allegations to the appellant  before
\nforming his opinion. The said report was taken into  consid-
\neration and memorandum in question was issued on October 26,
\n1988  by  the Additional Secretary,  Industries\t Department,
\nGovernment of Bihar wherein it has been clearly stated\tthat
\nthe impugned order of compulsory retirement was made as\t the
\nsaid mis-\n<\/p>\n
690<\/span><\/p>\n
conduct on the part of the appellant tarnished the image  of
\nthe  Government\t in the public. This  categorical  statement
\nmade  in  the affidavit-in-counter clearly proves  that\t the
\nbasis  of making the order of compulsory retirement  of\t the
\nappellant  from the service is the aforesaid report  of\t the
\nDeputy Development Commissioner, Dumka referred to hereinbe-
\nfore. In such circumstances, it is futile to argue that\t the
\norder of compulsory retirement being couched in an innocuous
\nlanguage without causing any stigma is unassailable.
\n    It\tis pertinent to mention in this connection the\tcase
\nof  Shyam Lal v. The State of U.P. & Anr., [1955] 1  SCR  26
\nwherein it has been held by the Constitution Bench that:
\n“A compulsory retirement under the Civil Services (Classifi-
\ncation,\t Control and Appeal) Rules, does not amount to\tdis-
\nmissal\tor removal within the meaning of Article 311 of\t the
\nConstitution and therefore, does not fall within the  provi-
\nsions of the said Article.”\n<\/p>\n
“There\tis  no such element of charge or imputation  in\t the
\ncase  of  compulsory retirement. The  two  requirements\t for
\ncompulsory retirement are that the officer has completed  25
\nyears’\tservice\t and that it is in the\tpublic\tinterest  to
\ndispense  with\this further services. It is true  that\tthis
\npower of compulsory retirement may be used when the authori-
\nty exercising this power cannot substantiate the  misconduct
\nwhich  may be the real cause for taking the action but\twhat
\nis  important  to note is that the directions  in  the\tlast
\nsentence in Note 1 to Article 465-A make it abundantly clear
\nthat  an imputation or charge is not in terms made a  condi-
\ntion  for the exercise of the power. In other words, a\tcom-
\npulsory retirement has no stigma or implication of  misbeha-
\nviour or incapacity.”\n<\/p>\n
It has been further held that:\n<\/p>\n
“A  compulsory\tretirement does not amount to  dismissal  or
\nremoval\t and, therefore, does not attract the provisions  of
\nArticle 311 of the Constitution.\n<\/p>\n
    In Baldev Raj Chadha v. Union of India and Ors.,  [1980]
\n4 SCC 32 1 it was held that:\n<\/p>\n
691<\/span><\/p>\n
“The whole purpose of Fundamental Rule 56(j) is to weed\t out
\nthe  worthless\twithout\t the punitive  extremes\t covered  by
\nArticle\t 311  of the Constitution. But under  the  guise  of
\n‘public interest’ if unlimited direction is regarded accept-
\nable for making an order of premature retirement, it will be
\nthe  surest  menace  to public interest and  must  fail\t for
\nunreasonableness, arbitrariness and disguised dismissal. The
\nexercise  of  power  must be bona fide\tand  promote  public
\ninterest.”\n<\/p>\n
It has also been observed that:\n<\/p>\n
“An officer in continuous service for 14 years crossing\t the
\nefficiency bar and reaching the maximum salary in the  scale
\nand with no adverse entries at least for five years  immedi-
\nately before the compulsory retirement cannot be compulsori-
\nly retired on the score that long years ago, his performance
\nhad  been  poor, although his superiors had allowed  him  to
\ncross the efficiency bar without qualms.”\n<\/p>\n
    In\tthe  case of Union of India v. Col. J.N.  Sinha\t and
\nAnr.,<\/a>  [1971] 1 SCR 791 it has been observed by\t this  Court
\nthat:\n<\/p>\n
“Fundamental  Rule 56(i) does not in terms require that\t any
\nopportunity  should  be given to  the  concerned  Government
\nservant to show cause against his compulsory retirement.  It
\nsays  that the appropriate authority has the absolute  right
\nto retire a government servant if it is of the opinion\tthat
\nit  is\tin the public interest to do so. If  that  authority
\nbona fide forms that opinion the correctness of that opinion
\ncannot be challenged before courts, though it is open to  an
\naggrieved  party to contend that the requisite\topinion\t has
\nnot  been  formed  or the decision is  based  on  collateral
\ngrounds or that it is an arbitrary decision.”\n<\/p>\n
    In\tShamsher Singh & Anr. v. State of Punjab,  [1975]  1
\nSCR 814 the appellant Shamsher Singh was a Subordinate Judge
\non probation. His services were terminated by the Government
\nof  Punjab  in the name of Governor of Punjab  by  an  order
\nwhich  did not give any reasons for the termination. It\t has
\nbeen held that:\n<\/p>\n
“No  abstract  proposition can be laid down that  where\t the
\nservices of probationer are terminated without saying any-\n<\/p>\n
692<\/span><\/p>\n
thing  more  in the order of termination that it  can  never
\namount to a punishment in the facts and circumstances of the
\ncase.  If a probationer is discharged on the ground of\tmis-
\nconduct\t or  inefficiency or for similar  reason  without  a
\nproper enquiry and without his getting a reasonable opportu-
\nnity  of  showing cause against his discharge it  may  in  a
\ngiven case amount to removal from service within the meaning
\nof Article 311(2) of the Constitution.”\n<\/p>\n
    In\tthat case the appellant was asked to show cause\t why
\nhis  services should not be terminated and there  were\tfour
\ngrounds. One was that the appellant’s behaviour towards\t the
\nBar  and the litigant public was highly\t objectionable,\t de-
\nrogatory,  non-cooperative  and\t unbecoming  of\t a  judicial
\nofficer.  The second was that the appellant would leave\t his
\noffice\tearly.\tThe third was the complaint of\tOm  Prakash,
\nAgriculture Inspector that the appellant abused his position
\nby  proclaiming that he would get Om Prakash involved  in  a
\ncase if he did not cooperate with Mangal Singh, a friend  of
\nthe appellant and Block Development  officer, Sultanpur. The
\nfourth\twas the complaint of Prem Sagar that  the  appellant
\ndid  not  give full opportunity to Prem Sagar to  lead\tevi-
\ndence. Prem Sagar also complained that the decreeholder made
\nan  application\t for execution of the  decree  against\tPrem
\nSagar  and  the appellant without  obtaining  office  report
\nincorporated  some  additions in the original  judgment\t and
\nwarrant\t of possession. The appellant showed  cause  stating
\nthat  he was not provided with an opportunity to work  under
\nthe  same superior officer for at least six months  so\tthat
\nindependent  opinion could k., formed about  his  knowledge,
\nwork  and  conduct.  Thereafter, the  appellant\t received  a
\nletter from the Deputy Secretary to the Government addressed
\nto  the\t Registrar, Punjab and Haryana High Court  that\t the
\nservices  of the appellant had been terminated. It has\tbeen
\nheld  that in the facts and circumstances of the case it  is
\nclear  that the order of the termination of  the  appellant,
\nShamsher  Singh was one of punishment. The authorities\twere
\nto  find out the suitability of the appellant. The order  of
\ntermination is in infraction of Rule 9 which makes it incum-
\nbent  upon the authority that the services of a\t probationer
\ncan be terminated on specific fault or on account of  unsat-
\nisfactory record implying unsuitability. The order of termi-
\nnation was, therefore, set aside.\n<\/p>\n
    This  judgment  has been followed in the case  of  Anoop
\nJaiswal v. Government of India and Anr., AIR<\/a> 1984 SC 636. It
\nhas been observed that:\n<\/p>\n
693<\/span><\/p>\n
“It  is, therefore, now well settled that where the form  of
\nthe  order is merely a camouflage for an order of  dismissal
\nfor  misconduct it is always open to the Court before  which
\nthe order is challenged to go behind the form and  ascertain
\nthe true character of the order. If the Court holds that the
\norder  though in the form is merely a determination  of\t em-
\nployment  is in reality a cloak for an order of\t punishment,
\nthe Court would not be debarred, merely because of the\tform
\nof  the order, in giving effect to the fights  conferred  by
\nlaw upon the employee.”\n<\/p>\n
It has also been observed that:\n<\/p>\n
“Even though the order of discharge may be non-committal, it
\ncannot\tstand  alone. Though the noting in the file  of\t the
\nGovernment may be irrelevant, the cause for the order cannot
\nbe ignored. The recommendation of the Director which is\t the
\nbasis or foundation for the order should be read along\twith
\nthe order for the purpose of determining its true character.
\nIf on reading the two together the Court reaches the conclu-
\nsion that the alleged act of misconduct was the cause of the
\norder and that but for that incident it would not have\tbeen
\npassed\tthen  it is inevitable that the order  of  discharge
\nshould\tfall  to the ground as the appellant  has  not\tbeen
\nafforded  a  reasonable\t opportunity to\t defend\t himself  as
\nprovided in Art. 3 11(2) of the Constitution.”\n<\/p>\n
    On\ta  consideration of the above  decisions  the  legal
\nposition  that now emerges is that even though the order  of
\ncompulsory  retirement\tis  couched  in\t innocuous  language
\nwithout making any imputations against the government  serv-
\nant who is directed to be compulsorily retired from service,
\nthe Court, if challenged, in appropriate cases can lift\t the
\nveil  to find out whether the order is based on any  miscon-
\nduct  of the government servant concerned or the  order\t has
\nbeen  made bona fide and not with any oblique or  extraneous
\npurposes. Mere form of the order in such cases cannot  deter
\nthe  Court from delving into the basis of the order  if\t the
\norder in question is challenged by the concerned  government
\nservant\t as has been held by this Court in  Anoop  Jaiswal’s
\ncase.  This being the position the  respondent-State  cannot
\ndefend\tthe order of compulsory retirement of the  appellant
\nin the instant case on the mere plea that the order has been
\nmade in accordance with the provisions of Rule 74(b)(ii)  of
\nthe Bihar Service Code
\n694<\/span>
\nwhich  prima facie does not make any imputation or does\t not
\ncast any stigma on the service career of the appellant.\t But
\nin  view  of the clear and specific averments  made  by\t the
\nrespondent-State  that the impugned order has been  made  to
\ncompulsorily  retire  the appellant from service  under\t the
\naforesaid Rule as the appellant was found to have  committed
\ngrave financial irregularities leading to financial loss  to
\nthe  State,  the impugned order cannot but be said  to\thave
\nbeen made by way of punishment. As such, such an order is in
\ncontravention of Article 311 of the Constitution of India as
\nwell as it is arbitrary as it violates principles of natural
\njustice and the same has not been made bona fide.
\n    In\tthe  premises aforesaid we hold\t that  the  impugned
\norder  has not been made bona fide but for  collateral\tpur-
\nposes and on extraneous consideration by way of\t punishment.
\nThe  impugned order is, therefore, illegal and unwanted\t and
\nso it is liable to be quashed and set aside. We,  therefore,
\nallow  the appeal and set aside the impugned order. We\tfur-
\nther  direct the respondents to reinstate the  appellant  in
\nservice forthwith with full back wages. The respondents will
\npay costs to the appellant.\n<\/p>\n
N.P.V.\t\t\t\t\t\t      Appeal\nallowed.\n695<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ram Ekbal Sharma vs State Of Bihar & Anr on 24 April, 1990 Equivalent citations: 1990 AIR 1368, 1990 SCR (2) 679 Author: B Ray Bench: Ray, B.C. (J) PETITIONER: RAM EKBAL SHARMA Vs. RESPONDENT: STATE OF BIHAR & ANR. DATE OF JUDGMENT24\/04\/1990 BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-166878","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRam Ekbal Sharma vs State Of Bihar & Anr on 24 April, 1990 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-ekbal-sharma-vs-state-of-bihar-anr-on-24-april-1990\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Ekbal Sharma vs State Of Bihar & Anr on 24 April, 1990 - 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