KIRTI BHUSAN SINGHversusSTATE OF BIHAR & ORS.

A

                          KIRTI BHUSAN SINGH
                                   v.
                         STATE OF BIHAR & ORS.
B
                                 JULY 16, 1986

          [E.S. VENKATARAMIAH AND V. BALAKRISHNA
                         ERADI, JJ.]

          Invalid pension-Recalling nearly after two years the permission
c   granted, during the pendency of the departmental enquiry, to an em-
    ployee to retire on invalid pension and dismissing him-Validity of the
    orders-Bihar Service Code, Rules 73 (f) and Bihar Pension Rules,
    Rule I! 6 applicability of.

D         The appellant was a clerk in the Excise Department of the State of
    Bihar. In a disciplinary proceeding instituted against him, the Inquir-
    ing Officer found that six out of seventeen charges framed against him
    had been established and submitted his report accordingly on 9.11.1960.
    The Excise Commissioner accepted the report of the Inquiring Officer
    and issued a show cause notice dated 8.9-1961 to the appellant as to why
E   he should not be removed from service. The1appellant submitted his
    reply to the said notice on 1.11.1961. After the submission of the Report
    by the Inquiring Officer, the civil surgeon of the area issued a certificate
    to the effect that the appellant was an invalid and he could not discharge
    his duties properly in the state of his health. On 31.1.1962, an order
    was passed by the Excise Commissioner directing the retirement of the
F   appellant on invalid pension under Rule 116 of the Bihar Pension Rules
    with effect from 19.7.1961. On 5.10.1963 the Government of Bihar
    passed an order revoking the order of retirement under Rule 73(f) of
    the Bihar Service Code and thereafter the Excise Commissioner passed
    an order on 1.11.1963 dismissing the appellant from service. The appel-
    lant challenged the said order of revocation of the order of retirement
G   and the order of dismissal passed later on in the Patna High Court. The
    High Court dismissed the writ petition but granted a certificate of fit-
    ness to appeal.

          Allowing the appeal, the Conrt,

H         HELD: 1.1 In the absence of a provision which entitled the State
                              K.B. SINGH v. STATE OF BIHAR                       231

         Government to revoke an order of retirement on medical grounds                A
         which had become effective and final, the order dated 5.10.1963 passed
         by .the State Government revoking the order of retirement is without
         the authority of law. The order of dismissal passed thereafter is also a
         nullity. [234E-FJ
                                                                                       B
                 1.2. The expression "compulsory retirement" found in Rule


J
          73(f) of the Bihar Service Code refers to retirement of a Government
          servant on his attaining the age of superannuation. The appellant's case
          is not one of retirement from service on his attaining the age of superan-
          nuation. No order asking the appellant to continue in service before he
\
          had attained the age of superannuation for the purpose of concluding a
          departmental inquiry instituted against him had also been passed by the      c
          competent authority. On the other hand the appellant had been permit-
    ,_    ted to retire from service on invalid pension on medical grounds even
          before he had attained the age of superannuation. Rule 73(f) of the
          Bihar Service Code is clearly inapplicable to the case of the appellant.
          Further at the time the order of retirement on medical grounds was
                                                                                       D
         passed the Excise Commissioner had also before him the medical certifi-
         cate of the Civil Surgeon. At that stage two courses were open to the
         Excise Commissioner. He could have either dimissed the appellant ifhe
         felt that the charges had been established or he could have ordered his
         retirement on invalid pension under rule 116 of the Bihar Pension
         Rules. The Excise Commissioner, however, passed an order directing
                                                                                       E
         the retirement of the appellant on January 31, 1962 with effect from
         July 19, 1961. Thus the appellant ceased to be a Government employee.
         Any order of dismissal passed thereafter would be unsustainable unless
         it was permissible under law to the State Government to revoke the
j        order of retirement and to reinstate him in his former status as Govern-
         ment servant before the order of dismissal was passed. [2348-E; 233F-G I
                                                                                       F
               CIVIL APPELLATE JURISDICTION: Civil Appeal No. 683
         of 1971

              From the Judgment and Order dated 3.4.1969 of the Patna High
         Court in Civil Writ Jurisdiction Case No. 444 of 1967.
                                                                                       G
               B.P. Singh for the Appellant.

               D. Goburdahn for the Respondents.

              The Judgment of the Court was delivered by                               H
    232                  SUPREME COURT REPORTS             11986] 3 S.C.R.

A         VENKATARAMIAH, J. This appeal by. certificate is filed
    against the judgment of the High Court of Patna in Civil Writ Jurisdic-
    tion Case No. 444 of 1967 delivered on April 3, 1969.

          The appellant was employed as a Clerk in the Excise Depart-
B   ment of the State of Bihar at Hazaribagh. In a disciplinary proceeding
    instituted against him, 17 charges were framed against him. During the
    enquiry he had been kept under suspension. The Inquiring Officer
    however found only six of them established and accordingly a report
    was submitted by him on November 9, 1960. On the 8th of September,
    1961 the appellant was asked by the Excise Commissioner, who was
                                                                                }
    the Disciplinary Authority, to show cause why he should not be re-
c   moved from service. The appellant submitted his reply to the said
    notice on November 1, 1961 showing cause against the proposed ac-
    tion. After the submission of the report by the Inquiring Officer the
    civil surgeon of the area issued a certificate to the effect that the
    appellant was an invalid and he could not discharge his duties properly
D   in that state of health. On January 31, 1962 an order was passed by the
    Excise Commissioner directing the retirement of the appellant on in-
    valid pension under rule 116 of the Bihar Pension Rules with effect
    from July 19, 196l. Thus he' ceased to be a Government employee.
    Nearly one year and nine months after th,e date of retirement of the
    appellant on October 5, 1963 the Government of Bihar revoked the
E   order of retirement and the relevant part of its communication reads
    thus: ·

                "I am to invite a reference to this department memo No.
                869 dated 31-1-62 with which the order of the Excise Com-
                missioner was conveyed to you allowing Excise Clerk, Shri
F               Kirti Bhusan Singh (Under suspension) to retire on invalid
                pension with effect from 19-7-61 under rule 116 of Bihar
                Pensions Rules."

                      "The said order has been re-examined by Govt. in
                the light of Rule 73(f) of the Bihar Service Code, and it has
G               been found that since departmental proceedings were
                pending against the Excise Clerk it was irregular to permit
                him to retire on invalid pension. Govt. have, therefore,
                decided to revoke the order of the Excise Commr. con-
                tained in his memo No. 869 dated 31-1-62. As a result the
                Excise Clerk should be deemed to be continuing under
H               suspension and that he would be entitled to subsistence
           K.B. SINGH v. STATE OF B!HAR [VENKATARAMIAH, J.[             233

               allowances as may be admi.ssible to him under the Rules till    A
               final orders are passed on the proceedings which were
               pending against him at the time the said memo was issued."

          Thereafter the Excise Commissioner passed an order on
    November 1, 1963 dismissing the appellant from service. The appel-         B
    lant questioned the order of dismissal in the Writ Petition before the
    High Court out of which this appeal arises.

          In the High Court the appellant contended that after he had been
    retired from service by the order dated January 31, 1962 with effect
    from July 19, 1961 it was not permissible to the State Government to
    revoke the order of retirement by its order dated October 5; 1963 and      c
    to the Excise Commissioner to pass an order of dismissal from service
    thereafter on November 1, 1963. On behalf of the State Government it
    was contended that it was open to the State Government under rule
    73(f) of the Bihar Service Code to revoke the order of the Excise
    Commissioner retiring the appellant on invalid pension and therefore       D
    the order of dismissal passed subsequently was a valid order. The High
    Court accepting the contention urged on behalf of the State Govern-
    ment dismissed the Writ Petition.

          In this appeal the appellant has questioned the correctness of the
    judgment of the High Court. In this case the facts are not in dispute.     E
    By January 31, 1962 the reply to the show cause notice had already
    been submitted by the appellant. The Excise Commissioner had also
    before him the medical certificate of the Civil Surgeon. At that stage
    two courses were open to the Excise Commissioner. He could have
)   either dismissed the appellant if he felt that the charges had been
    established or he could have ordered his retirement on invalid pension     F
    under rule 116 of the Bihar Pension Rules. The Excise Commissioner,
    however, passed an order directing the retirement of the appellant on
    January· 31, 1962 with effect from July 19, 1961. Thus the appellant
    ceased to be a Government employee. Any order of dismissal passed
    thereafter would be unsustainable unless it was permissible under law
    to the State Government to revoke the order of retirement and to           G
    reinstate him in his former status as Government servant before the
    order of dismissal was passed. Rule 73(f) of the Bihar Service Code
    on which reliance is placed by the State Government reads thus:

               "Notwithstanding anything contained in foregoing clauses,
               a Government servant under suspension on a charge of            H
     234                   SUPREME COURT REPORTS              11986) 3 S.C.R.

A                misconduct, shall not be required or permitted to retire on
                 reaching the date of compulsory retirement but shall be
                                                                                   r·
                 retained in service until the enquiry into the charge is con-
                 cluded and a final order is passed thereon by the competent
                 authority."
B
           The expression 'compulsory retirement' found in rule 73(f) of the
     Bihar Service Code refers to retirement of a Government servant on
     his attaining the age of superannuation. This is not a case in which the
     appellant had been permitted to retire from service on the ground that
     he had attained the age of superannuation. No order asking the appel-
     lant to continue in service before he had attained the age of superan-
c    nuation for the purpose of concluding a departmental inquiry insti-
     tuted against him had also been passed by the competent authority. On
     the other hand the appellant had been permitted to retire from service
     on invalid pension on medical grounds even before he had attained the
     age of superannuation. Rule 73(f) of the Bihar Service Code is clearly
])
     inapplicable to the case of the appellant. No other provision which
     enabled the State Government or the competent authority to revoke
     an order of retirement on invalid pension is brought to our notice. The
     order of retirement on medical grounds having thus become effective
     and final it was not open to the competent authority to proceed with
     the disciplinary proceedings and to pass an order of punishment. We
     are of the view that in the absence of such a provision which entitled
E
     the State Government to revoke an order of retirement on medical
     grounds which had become effective and final, the order dated Oc-
     tober 5, 1963 passed by the State Government revoking the order of
     retirement should be held as having been passed without the authority
     of law and is liable to be set aside. It, therefore, follows that the order
     of dismissal passed thereafter was also a nullity.
F
          We, therefore, allow this appeal, set aside the judgment of the
     High Court and quash the order of the State Government dated
     October 5, 1963 revoking the order of retirement of the appellant and
     the order of dismissal dated November 1, 1963 passed by the Excise
     Commissioner.
G
           We are informed by the learned counsel for the appellant that
     the appellant had died on December 28, 1984 during the pendency of
     this appeal. We, therefore. direct the State Government to pay to the

H
                K.B. SINGH v. STATE OF BIHAR [VENKATARAMIAH. J.[            235

        legal representatives of the appellant all the arrears of pension due to   A
        the appellant from November 1, 1963 up to the date of his death. The
        State Government shall also pay the costs of this appeal to the legal
        representatives of the appellant.

                                                                                   B
        S.R.                                                   Appeal allowed.


J
...J.




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