NAWAL KISHORE DUBEY Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a writ application under Article 226 of the Constitution of India by Shri nawal Kishore Dubey, who was holding the post of Deputy Superintendent of police in the State of Rajasthan till 11th September, 1901. On the 11th september, 1961 four Deputy Superintendents of Police including the petitioner were retired compulsorily from the government service under Rule 244 (2) of the rajasthan Service Rules by order of the Government. It was noted in the same order that they were permitted to proceed on privilege leave to the extent due, not exceeding 120 days, from the 18th of September, 1961. It was further ordered that their retirement would be effective from the date of expiry of such leave if availed of by them, otherwise with effect from 18th September. 1961. The petitioner's case is, that he did not avail of the earned leave which stood to his credit and, therefore, his retirement, according to the said order, became effective from the afternoon of the 18th September, 1961. His grievance is, that after his retirement, the Government issued another order dated 3rd October. 1961 (Ex. 7) whereby the order regarding his compulsory retirement was held in abeyance till the decision of the departmental enquiry which was pending against him before his retirement It is stated by him that while he was in service, he was served with a notice dated 24-5-61 by the Inspector General of Police, Rajasthan and he was also supplied with a statement of allegations together with charges on which departmental enquiry was proposed to be held under Rule 16 of the Rajasthan civil Services (Classification, Control and Appeal) Rules, 1958. He was required to submit his explanation within fifteen days. He submitted his explanation within time. On 25-7-61 he was suspended in connection with the departmental enquiry which was initiated against him. According to him, his suspension order as also the departmental enquiry should be taken to have been terminated when he was compulsorily retired from government service and after his retirement had become effective, no power was left with the government to hold the order of his retirement in abeyance and recommence the enquiry against him. He, therefore present ed a writ application in this Court on 13-5-63 and it was prayed by him that a writ of prohibition be issued against the State of Rajas-than restraining it from proceeding further with the departmental enquiry. It was also prayed that the notices dated 31-10-62 and 26-4-63, which were issued against him to show cause why he should not be punished with dismissal, should be quashed. While the petitioner's writ application was pending in this Court, the Government passed another order dated 30-6-64 (Ex. S-4) whereby he was dismissed from service. The petitioner then moved an application to amend his writ petition and after the permission was granted, he filed an amended writ application. In the amended petition, it has been prayed by him that the order of dismissal dated 306-64 should be quashed and it should be declared that he was effectively retired under Rule 244 (2) of the Rajasthan Service Rules,

(2.) THE writ application has been contested by the State of Rajasthan. It is admitted that the petitioner was retired compusorily under Rule 244 (2) of the rajasthan Service Rules by the order dated 11th September, 1961, but it is said that the said order was issued by mistake, as it escaped the notice of the government that the petitioner was already under suspension and departmental enquiry was going on against him. It is pointed out that the order of his compulsory retirement under Rule 244 (2) could not be issued on account of the provisions of Rule 56 (b) of the Rajasthan Services Rules. When this mistake was realised, the Government passed another order dated 3-10-61 holding the order of 11th September. 1961 in abeyance till further orders, thereafter the enquiry officer proceeded to hold an enquiry which was pending against the petitioner Since certain charges were found proved against him, he was served with another notice and was called upon to show cause why he should not be demoted to the post of Inspector of Police. This notice was dated 3040-62. The petitioner filed a reply to this notice and thereafter the papers were sent to the Public Service Commission for their advice. The Public Service Commission was not satisfied with the proposed punishment and advised the government that a fresh notice should be given to the petitioner as he deserved to be dismissed from service. In pursuance of this recommendation, a fresh notice was served upon the petitioner on 26-4-68 to show cause why he should not be dismissed from service. The petitioner submitted his reply on 26-6-63. It is admitted that the petitioner was then dismissed from service on 30-6-64. It is asserted on behalf of the respondent that since the petitioner was retired compulorily under Rule 244 (2) of the Rajasthan Service Rules by mistake, the government had and right to hold that order in abeyance and proceed with the departmental enquiry against the petitioner. It is further asserted that even though the petitioner was first served with a notice to show cause against his demotion, it was still open to the Government to issue another notice in view of the recommendation of the Public Service Commission to show cause against his dismissal. It is urged by the learned Deputy Government Advocate that the order of dismissal dated 30-6-64 passed against the petitioner is quite valid and, therefore, the writ application should be dismissed with costs.

(3.) THE questions, which arise for our determination, are (1) whether the order retiring the petitioner compulsorily under Rule 244 (2) of the Rajasthan Service rules could not have been passed on account of the provisions of Rule 56 (b) and (2) whether it was open to the government to keep in abeyance its order dated 11-9-61 after the petitioner's retirement had become effective on 18-9-61 and to re-commence the enquiry and pass an order of dismissal.