STATE OF HIMACHAL PRADESH Vs. SADHU RAM ETC.

JUDGEMENT

(1.) The State of Himachal Pradesh has presented this second appeal against the judgment dated 25th February, 1971 of the District Judge, Simla, whereby agreeing with the findings of the Senior Sub -Judge, he has decreed the suit filed by Sadhu Ram for a declaration that the order of his compulsory retirement from service is void and illegal, and that he should be deemed to have continued in service as Patwari in the Revenue Department. The suit of the Plaintiff was based on the allegations, that he was appointed as Revenue Patwari in the erstwhile State of Patiala 33 years ago and after about 3 years of service, he was confirmed. In the year 1956, merger of Pepsu took place with Punjab, and the services of the Plaintiff were transferred and integrated and he was posted as revenue Patwari, in the Tehsil Kandaghat within the District of Simla. In the year 1960, the Plaintiff was functioning as revenue Patwari in Garkhal Circle, Tehsil Kandaghat. A complaint was made against him that he had accepted a bribe of Rs. 100 from one Daultia whose mutation case was pending and the Patwari was creating difficulties in making the mutation. A trap was laid for the Plaintiff and it was alleged that he was caught red -handed accepting the bribe. However, no case was registered against him under the Prevention of Corruption Act. A preliminary enquiry was held by the vigilance police and on that basis a charge -sheet was served upon the Plaintiff and the enquiry was entrusted to the Divisional Enquiry Officer, Simla. The report was submitted to the Deputy Commissioner, Simla, who issued a show -cause notice to the Plaintiff as to why he should not be dismissed from service. The Deputy Commissioner by his order dated 8 -11 -1961 removed the Plaintiff from service. Subsequently the Plaintiff came in appeal before the Commissioner, Ambala Division, and by his order dated 9 -10 -1963 the Commissioner accepted finding of the Deputy Commissioner, but modified the penalty inasmuch as, that he ordered for the compulsory retirement of the Plaintiff. Thereafter the Plaintiff came in revision before the Financial Commissioner, but could not succeed and the order of compulsory retirement was maintained.

(2.) According to the Plaintiff, the order of compulsory retirement amounted to a penalty within the meaning of Article 311 of the Constitution. Full opportunity was denied to him, in as much as the copy of the complaint filed against him as well as copies of statements of the witnesses were not supplied to him, and as such he was handicapped from cross -examining the witnesses. It was also asserted that the Deputy Commissioner gave the order of removal because he was influenced by certain instructions issued by the Punjab Government which were to the effect that dishonest Government servants would preferably be removed from service and a lenient view would not be taken in their case. It was further contended that the Deputy Commissioner did not consider properly the report of the enquiry officer and did not even mention in his order that he agreed with the findings of the enquiry officer. The Plaintiff submitted that he was governed by the rules of Patiala State and a tribunal was required to be appointed and only then the enquiry could proceed against him.

(3.) The suit was originally filed before the learned Senior Sub -Judge and he gave the findings that reasonable opportunity was not given to the Plaintiff and that the Deputy Commissioner had really based his order on certain executive instructions of the Punjab Government which could not be binding upon him. He further held that the Deputy Commissioner did not even mention in his order that he agreed with the findings of the enquiry officer. According to the learned Senior Sub -Judge, "compulsory retirement" was not one of the penalties prescribed under the rules and, therefore, such a penalty could not be awarded. He further held that Pepsu rules applied and a tribunal was required to be appointed. With these findings, he could not but hold that the order of compulsory retirement was illegal and hence unenforceable. He decreed the suit for the declaration claimed and further ordered for the reinstatement of the Plaintiff.