SUSHIL KUMAR CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner has obtained a rule from this Court against the Stale of Bihar and the Secretary to the Government of Bihar, Department of Labour and Employment, to show cause why the departmental proceedings pending against the petitioner for dismissal from service be not quashed on the ground that the petitioner retired from service with effect from the 4th of August, 1961, and any action taken or order made thereafter for retaining him in service for the purposes of departmental action are illegal and void. Cause has been shown by the learned Advocate-General on behalf of the respondents.

(2.) The petitioner was at the relevant time serving as Inspector of Boilers under the Government of Bihar. His case is that he retired from service on the 2nd of August, 1901, upon attaining the age of superannuation, i.e., 55 years. For the purposes of this case, it has been conceded on all hands that somehow or other the petitioner was treated as having completed the age of 55 years not on the 2nd of August, 1961 as it ought to have been according to the date of his birth, which was 2nd of August, 1906, but on the 4th of August, 1961, and that will be the date which will be referred to hereinafter as the date on which the petitioner completed his age of superannuation. It appears that sometime prior to the petitioner's retirement the Government of Bihar in the Department of Labour and Employment decided that an enquiry should be made into the resources of the petitioner as there were reasons to believe that the petitioner had accumulated wealth by unfair means while he was in the service of the State Government as Inspector of Boilers. Annexure 1 to the counter- affidavit filed on behalf of the respondents is a copy of the resolution and the charge- sheet dated 15th of February, 1961, initiating the departmental enquiry against the petitioner. That enquiry was held by a special Officer, Political and Appointment Department, Government of Bihar, Shri K. P. Singh, who submitted a report on the 17th of August, 1961. Thereupon on 26th of October, 1961, the Government made an order suspending the petitioner from service with effect from the date on which the order was to be served on him which, according to the petitioner's case, was served on 4th November, 1961. A copy of the order is annexure A to the writ application and reads thus:

(3.) I shall state a few more facts with reference to the counter-affidavit filed on behalf of the respondents and the rejoinder to it filed by the petitioner before I proceed to discuss and decide the points urged on his behalf. In the 7th paragraph of the counter-affidavit, it is stated that the petitioner had applied to Commissioner of Labour, Government of Bihar, by his petition dated 18th of October, 1960, a copy of which is Annexure 2 to the counter-affidavit, praying for extension of his service for a period of 2 years after superannuation. In the 6th paragraph of the counter-affidavit it is stated that "due to certain sanctioned posts of Inspector of Boilers having remained vacant it had been considered necessary to retain the petitioner in service beyond the date of his compulsory retirement in the interest of public service as contemplated under Rule 73(a) of the Bihar Service Code, verbal intimation had already been given to the petitioner and the Chief Inspector of boilers to this effect which was subsequently confirmed by a telegram dated 4th September, 1961." It is thus claimed that the petitioner continued in Government service and did not make over charge of his duties on the 4th of August, 1961. In the rejoinder of the petitioner, the facts stated in the 6th and 7th paragraphs of the counter-affidavit have been refuted, and copies of series of letters exchanged between the petitioner and the Government have been annexed as Annexures D to D/12, showing that the petitioner's service was not extended under Rule 73(a) of the Bihar Service Code upon his application filed in October, 1960. It is further stated that on the 5th August, 1961, the petitioner telephonically informed the Commissioner of Labour that, since he had already retired from service, arrangements should be made for taking over charge from him. The Commissioner replied that he was sending a man for taking over charge from the petitioner. Since nobody turned up to take charge, formal charge could not be made over, but the petitioner did not receive any salary or other emoluments after the 31st of July, 1961. I may state at this stage that, although a paper from the records received by the Advocate-General from the Department of Labour and Employment showing the formal making over of charge by the petitioner on the 4th of November, 1961, was shown to us at the time of the hearing of this case, nothing was shown as to whether he did any work on or from the 5th of August, 1961, or was paid any emolument after the 31st of July, 1961, either by way of salary or subsistence allowance after the order of suspension was made against him.