Suraj Bans Singh vs The State of Bihar and Others

T. Meena Kumari and Akhilesh Chandra, JJ.—This Letters Patent Appeal was filed against the order dated passed by the learned single Judge in C.W.J.C. No. 13025 of 2005 upholding the order of compulsory retirement passed against the Appellant herein.

The case of the Appellant before the learned single Judge was that he was initially appointed as Amin in the concerned Department, Government of Bihar and subsequently he was posted as Revenue Karmchari in Chenari Circle in July 2004. Thereafter he was placed under suspension on 10th March 2005 in view of initiation of a departmental proceeding and finally he was reinstated. But however, the impugned order was passed by the Respondents on the ground that the revenue collection of other employees had gone upto 37.32 per cent, whereas Appellant''s collection was less than 25 per cent. The Enquiry Officer found him guilty of inadequate collection of revenue and had recommended his case to be considered sympathetically. But however, the District Magistrate, who was the disciplinary authority, passed the impugned order whereby the Petitioner (Appellant herein) was compulsorily retired from service in terms of Rule 74(a) of the Bihar Service Code (hereinafter, in short, referred to as the ''Code''). The said order was challenged in the writ petition and on dismissal of the same by the learned single Judge, this Letters Patent Appeal.

Learned Counsel appearing for the Petitioner-Appellant submitted that the procedure as contemplated u/s 74(a) of the Code was not followed wherein it is provided that the case of compulsory retirement has to be referred to a Committee of Senior Officers who will look into the records and which required an opportunity to be afforded to the person concerned.

Learned Govt. counsel appearing on behalf of Respondents before the learned single Judge contended that the procedure has really been followed in terms of rule-168(b) of the Board''s Miscellaneous Rules (hereinafter, in short, referred to as the ''Rules'') and mention of Rule 74 of the Code is a bona fide error. The learned single Judge dismissed the writ petition on the ground that Petitioner was posted in July 2004 as Revenue Karmchari and was placed under suspension on 10th March 2005 (Annexure-4 to the writ application). He further contended that merely a wrong provision is quoted, it will not render the order illegal. Reliance was placed upon the judgment of the Hon''ble Apex Court in the case of Mathura Prasad v. Union of India 2007 (1) PLJR 146 SC.

But however, this is a case where an order of compulsory retirement has been passed u/s 74(a) of the Code, whereas the State Government has taken the decision to retire the Appellant invoking the provisions of Section 74(a) of the Code.

Under such circumstances the duty is cast on the concerned authority to refer the matter to the Committee of senior Officers to scrutinize the case of the Appellant herein, but in such a case the contention of the Respondent State that the order has been purported to be passed u/s 168(b)of the Rules and not under Rule 74(a) of the Code, does not stand to reason for the reason that the State Government has not applied its mind to pass the order invoking he provisions of Section 74(a) of the Code and after having taken such a decision, the matter should have been referred to a Committee of senior Officers, as laid down in the subsequent circular of the Government. But in such a case it is not open to the Respondent-authorities to contend before the learned single Judge that the order has been passed udder Rule 168(b) of the Rules and also that misquoting the relevant rules i.e. Rule 74(a) of the Code is merely a bona fide error.

Learned Counsel for the Appellant contended that the order passed by the Respondent-authorities to retire the Appellant herein compulsorily, even though under Rule 74(a) of the Code, the matter has not been referred to the Committee of senor Officers and, therefore, it cannot be termed as ''bona fide error'' and in such circumstance, the learned single Judge could not have dismissed the writ petition and it was also contended by the learned Counsel that the order has not been passed under Rule 168(b) Rules and it cannot be said that non- mentioning of Rule 74(a) of the Code is a bona fide error. Learned A.C to A.A.G.I contended that the order should be read to have been passed u/s 168(b) of the Rules and not u/s 74(a) of the Code and non-referring the matter to a committee of senior Officer is a bona fide error. The order of compulsory retirement cannot be upheld for not following the procedure as laid down under Rule 74(a) of the Code.

In view of the divergent arguments before us, we had the occasion to go through Rule 74(a) of the Code which deals with the compulsory retirement of a person. The provisions of Rule 74(a) of the Code mandates the matter to be referred to a Committee of senior Officers to pass appropriate order. There is no material placed before us by the learned A.C. to A.A.G.I to show that such procedure has been followed and the contention of the learned Counsel appearing for the Respondents that the order has been passed under Rule 168(b) of the Rules, cannot be sustained for the reason that the State Government has decided to pass the order invoking the provisions of Rule 74(a) of the Code and not under Rule 168(b) of the Code.

In such view of the maters, we are of the opinion that the case as relied upon by the learned Counsel for the Respondent is not applicable to the present case simply because, had there been a bona fide error, as contended, the State Government would have come with corrigendum or modification to the effect that the order was passed under Rule 168(b) of the Rules. As no such corrigendum/modification has been brought on record by the Respondent-authorities, we are of the opinion that the order has been passed under Rule 74(a) of the Code and not under Rule 168(b) of the Board Revenue Rules. Under the circumstances, it is a glaring case where the authorities have not followed the procedure, hence, we are of the opinion that the order passed by the learned single Judge cannot be sustained and the same has to be set aside and, accordingly, it is set aside. The authorities concerned are directed to pass appropriate order afresh, disposing of the matter within 3 months following the relevant provisions of Rule 168(b) of the Rules.

Appeal allowed. No order as to costs.