(1.) The petitioner was employed as clerk in the Excise Department at Hazaribagh. A proceeding was started against him for certain irregularities amounting to misconduct on his part in coerce of discharge of his duties as a clerk of Excise Department. The charges were as many as seventeen. The inquiring officer however, found only six charges established against him being charges 1, 5,12,13, 14 and 15. According to the inquiring officer the acts of the clerk amounted to violation of Rule 12 of the Government Servants' Conduct Rules. It may be stated that the proceeding was started against the petitioner on 17 August 1969 and the report was submitted on 9 November 1960. On 8 September 1961, the petitioner was asked to show cause against his removal from service. Cause was shown by the petitioner on 1 November 1961, It appears that the petitioner, after the submission of the report by the inquiring officer obtained a certificate from the Civil Surgeon to the effect that he (the petitioner) was invalid and he could not discharge his duties properly, in that state of his health. On 31 January 1962, an order was passed by the Commissioner of Excise, directing retirement of the petitioner on invalid pension with effect from 19 July 1961. It appears further, however, that the Government was not satisfied with the order of the Commissioner of Excise and it was decided that the order of retirement on invalid pension passed by the Commissioner of Excise was not a legal order because it amounted to violation of Rule 73(f) of the Bihar Service Code. Accordingly, the order of retirement on invalid pension was revoked by the Government on 5 October 1963. The show-cause petition filed by the petitioner against the proposed punishment of dismissal from Service was considered by the Commissioner of Excise again and on 1 November 1963 order was passed dismissing the petitioner from service.
(2.) Learned counsel for the petitioner has urged, as his most substantial point, that after the Commissioner of Excise passed his order on 31 January 1962, accepting the certificate of the Civil Surgeon about the petitioner's state or health and after having ordered that he should retire on invalid pension with effect from 19 July 1961, it was not open to any other authority to reopen that question and to pass a different order on a subsequent date dismissing the petitioner from Service while taking into account charges 1,5,12,13, 14 and 15 out of the list of charges framed against him. Learned counsel has contended that the effect of the order of retirement, on medulla ground, on invalid pension was to terminate the last point of Service of the petitioner, after which he ceased to be in Government employment. After that order, the order of dismissal could not be passed, and such an order must be treated to be void. Reference has been made by learned Counsel, in support of his contention, to the Judgment of Lord Roche In the case of R.T. Rangachari v. Secretary of State A.I.R, 1937 P.O. 27. In that case also a sub-inspector of police was proceeded against for certain irregularities in the discharge of his duties, and the Inquiry was being conducted by the Assistant Superintendent of Police one Sri Charsley. The Superintendent of Police of the district, however, before the inquiry report could be submitted, felt on a discussion held by him with Sri Charsley that evidence against the officer was doubtful and inconclusive, that charges should be dropped and that, accordingly, the sub-inspector Rangachari should be allowed to retire on invalid pension if he could produce a medical certificate to that effect. The sub-inspector Rangchari produced certificate to that effect and he was allowed to retire on invalid pension. After this, however, Sri Kalimullah, Superintendent of Police, was succeeded by another Superintendent of Police, who, on consideration of Sri Charsley's inquiry report, held the sub-inspector guilty of the irregularities which had been made the subject-matter of charge framed against him. The succeseor of Sri Kalimullah took a different view and in agreement with the inquiry report passed the order of dismissal against the sub-inspector. He brought a suit for a declaration that the order passed by Sri Loveluck, the successor of Sri Kalimullah, was without jurisdiction and that the order of retirement on invalid pension passed by the predecessors of Sri Loveiuck was a valid order and could not be interfered with. The Privy Council, in agreement with the Indian Courts, held that the sub-inspector had, for some months duly and properly ceased to be in service and therefore, the subsequent order passed by Sri Loveluck was a mere nullity and could not be Buitained. It may, however, be pointed out that in that case the proceeding started against the sub-inspector Rangachari was already dropped by the Superintendent of Police which he was competent to do. The Privy Council decision proceeded upon the footing that no body on either side challenged the authority of the Superintendent Sri Kalimullah to drop the proceeding against the appellant Rangachari. That being so when the order of retirement on invalid pension was passad there was no proceeding pending Against him. In the present case, however, the position in different. In this case proceeding was still pending as it will be clear from the facts set out above that the proceeding was started in 1959 and was not terminated on 31 January 1962 when the order of the Commissioner of Excise directing retirement of the petitioner on invalid pension with effect from 19 July 1961 was passed. Sri Braj Kishore Prasad-2 has strenuously urged that it should be construed by the Court that the Commissioner of Excise passed that order of compulsory retirement only after the report by the inquiring officer was submitted holding the petitioner guilty of six charges and after the show-cause petition was filed by the petitioner on 1 November 1961. When the Commissioner of Excise accepted the certificate of petitioner's unfitness granted by the Civil Surgeon, it must be construed to be an order passed in the proceeding started against the petitioner as each. It is true that if that position could be established, there might be some force in the argument advanced by the learned Counsel for the petitioner. Sri K.P. Verma for the State has however, contended that the position was not so, and he has drawn our attention to the order of Sri S.V. Sohoni, in which all the facts have been sot out and it has been held that the Government revoked the order of the Commissioner of Excise by virtue of Rule 73(f) of the Bihar Service Code. because the order of the Commissioner was not passed in the inquiry proceeding but independently thereof on production of a certificate of invalidity of the petitioner. Sri Braj Kishore Prasad has not been able to bring to our notice anything on the record to show that this view of the Government was in any manner, faultily or otherwise unsupportable. The decision of the Privy council, therefore, on facts is clearly distinguishable from the facts and circumstances of the present case.
(3.) sri Braj Kiahore Prasad has, however, urged farther that Rule 73(f) of the Bihar Service Code is not applicable to the present case, and since Government order revoking the order of the Commissioner of Excise rests upon Rule 73(f), it must be held to be wrong because Rule 73(f) is not intended to cover a case like the present one. Rule 73(f) reads thus: