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Judgment
Amareshwar Sahay, J.—Heard the counsel for the parties.
The petitioner has challenged the order dated 09/05/2003, contained in memo No. 2804, passed by Respondent No. 3, contained in Annexure-9 to the writ petition, whereby the petitioner has been compulsorily retired from service of the respondents Corporation, i.e. Bihar State Food and Civil Supplies Corporation Limited in exercise of the powers under Rule 29(B) of the Conduct and Disciplinary Rules of the respondents Corporation.
According to the petitioner, he was an Assistant Godown Manager and was posted at Balumath, his grievance is that he has been illegally and arbitrarily retired compulsorily from the services of the Corporation without issuance of any charge sheet or without initiating a departmental proceeding against him and as a matter of fact the impugned order, contained in Annexure-9, has been passed by way of punishment as it appears from the statements made in the counter affidavit, wherein it is alleged that the petitioner was acting against the public interest, in clear violation of discipline and conduct Rules of the Corporation. In such a situation, the respondent authorities had no option but to proceed under Rule 29 (B) of the Service Conduct and Disciplinary Rule and, thereby, passed an order to compulsory retire the petitioner.
Mr. Annop Kumar Mehta, learned Counsel appearing for the petitioner by relying on the decision of the Supreme Court in the case of Ram Ekbal Sharma Vs. State of Bihar and another, has submitted that the impugned order, contained in Annexure-9, is nothing but an order of punishment and, therefore, without initiating a departmental proceeding against the petitioner, he could not have been ordered to compulsory retire from service.
On the other hand, Mr. R.K. Choudhary, learned Counsel appearing for the respondent Corporation has submitted that the compulsory retirement of the petitioner is not a punishment and it does not cast any stigma or imputation. By producing a copy of the judgment passed in CWJC No. 630 of 2003 by Patna High Court in the case of "Ramashish Singh v. The Bihar State Food & Civil Supplies Corporation Limited and Ors.", has submitted that exactly on similar facts and circumstances, the Patna High Court dismissed the writ petition filed by the employee of the Corporation, who was compulsorily retired from the service, holding that compulsory retirement is not a punishment and it does not cast any stigma not suggests any misbehaviour on the part of the petitioner.
I have carefully gone through the case law cited by both the parties as well relevant Rule of Service Conduct and Disciplinary Rule of the Corporation.
Rule 29 (B) of the Service Conduct and Disciplinary Rule of the Corporation read as under:
29(B). Notwithstanding anything contained in conduct and Disciplinary Rules'' the Managing Director shall, if he is of the opinion that it is in the over all 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 3 months in writing or 3 months pay and allowances, in lieu of such notice if 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.
The Supreme Court in the case of "Ram Ekbal Sharmaversus- State of Bihar and Anr." (Supra) has held as follows:
Even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in Anoop Jaiswal''s case. This being the position the respondent - State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74(b) (ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent-State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid Rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment. As such, such an order is in contravention of Art. 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide.
The aforesaid finding of the Supreme Court was arrived at on the facts that the petitioner was a Government Servant and, as such, under Clause 2 of Article 311 of the Constitution of India, the petitioner was entitled to be protected. Whereas in the present case, it appears that the protection under Article 311 of the Constitution of India is not available to the petitioner since he is not holding the civil post as he is not in the service of the State Government or Union of India and, therefore, the case law cited by the petitioner, i.e. "Ram Ekbal Sharma v. State of Bihar and Anr." (Supra) is not applicable in the facts and circumstances of the present case.
Now, coming to the unreported judgment of the Patna High Court in the case of "Ramashish Singh" (Supra), the relevant extract of the judgment is being reproduced herein below:
Having appreciated the rival submission, I find substance in the submission of Shri Pradhan. Petitioner is an employee of the Corporation and as such, protection under Article 311 of the Constitution of India is not available to him. Further an order of compulsory retirement is not a punishment. The order impugned does not cast any stigma nor suggest any misbehaviour on the part of the petitioner. It is only when the order of compulsory retirement is challenged before this Court, respondents have placed the background in which the order has been passed. The view which I have taken, finds support from the decision of this Court in the case of Ram Pal Singh (supra) which has been rendered on consideration of several authorities of the Supreme Court.
In the result, I do not find any merit in this writ application and it is dismissed accordingly, but no order as to cost.
Admittedly, the petitioner is not a Government Servant holding any civil post under the State Government or the Central Government and, therefore, the petitioner does not have the protection of Article 311(2) of the Constitution of India.
Rule 29 (B) of the Service Conduct and Disciplinary Rule of the Corporation, quoted herein above, clearly speaks that the order for compulsory retirement is not considered to be a punishment and the Managing Director is fully authorized to retire any employee of the Corporation without assigning any reason or without following the Principle of natural justice.
I find that the facts of the case of "Ramashish Singh v. The Bihar State Food & Civil Supplies Corporation Limited and Ors." (supra) are identical to the present case and as such the same is applicable in the present case also.
Having considered the rival submissions of the parties and on consideration of the case law discussed above, I hold that the order impugned cannot be said to be an order of punishment only because some backgrounds facts stated in the counter affidavit filed by the Corporation explaining the circumstances under which the petitioner was asked to compulsory retire from service. The order impugned does not cast any stigma or imputation on the petitioner and the impugned order does not suffer from any infirmity as claimed by the petitioner.
Accordingly, having found no merit, this writ application is dismissed but no order as to cost.