R P AGARWALA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is a petition by R. P. Agarwala late Superintending Engineer in the Ministry of Irrigation in the State of Bihar under Article 226 of the Constitution to call up and quash the order of the State Government dated 25th May, 1959 whereby he was compulsorily retired from the Government service substantially on the ground that the Order was invalid and ultra vires for non-compliance with the mandatory provisions of Article 311 (2) of the Constitution,

(2.) The material facts may be shorty stated as follows : The petitioner having obtained the degree of Bachelor of Civil Engineering, joined the Bihar Engineering Service as an apprentice Engineer in the Irrigation Department of the State of Bihar on 27th July, 1930, and was confirmed as Assistant Engineer in July, 1931. He was promoted to officiate as the Executive Engineer from April, 1945 and was confirmed in that post in 1949. After having worked in different capacities he was promo-led to officiate as Superintending Engineer Irrigation Department in May, 1952. While so employed, he was asked by a letter dated 25th March, 1954, addressed to him by the Secretary to Government to furnish a complete and full statement of the details of all movable and immovable properties of and above the value of Rs. 100, including details of bank balance, ornaments Safety vault deposits, Life insurance policies, motor cars and other investments, held or acquired by him, his wife or any other member of his family living with or in any way dependent on him. On 5th May 1954, the petitioner submitted the required statement. Four years later in 1958 he was served with a notice dated 11th February, 1958, to show cause within thirty days of the receipt thereof as to why he should not be compulsorily retired, as it appeared that he was corrupt in the discharge of his duties. No less than ten instances of misconduct, including nepotism and dishonesty, on which the charges were based were set out therein (vide Annexure C). On 13th April, 1958, the petitioner showed cause. The charges and the explanation of the petitioner were considered by the Government which finally decided that the petitioner should be compulsorily retired from service with effect from the date the order was served upon him. This decision of the Government is contained in the letter No. 12348 dated 28th May, 1959, from the Secretary to Government, Irrigation Department, to the Chief Engineer Irrigation, Bihar and is as follows :

(3.) No formal enquiry was instituted against the petitioner and admittedly he was not afforded opportunity of showing cause against the action proposed to be taken in regard to him, as required by Article 311 (2). If, therefore, the impugned order of the Government amounted to dismissal or removal of the petitioner from Government service within the meaning of Article 311 (2) then the order must be held to be invalid, as the requirements of that Article had not been complied with. The State of Bihar, the respondent, however, contested the petition and urged that the order was nothing but an order of compulsory retirement, that it was entitled to retire a Government servant compulsorily by virtue of Rule 74 of the Bihar Service Code on the fulfilment of the conditions laid down therein and that hence the compulsory retirement, pursuant to a right conferred on it by Rule 74,_did not amount to dismissal or removal, as envisaged by Article 311 (2) of the Constitution, and the order in question was not ultra vires and invalid.