SHALIGRAM SINGH Vs. STATE OF JHARKHAND AND OTHERS

JUDGEMENT

(1.) In the accompanied writ application, the petitioner has, inter alia, prayed for setting aside the notification contained in memo No. 1897(S), dated 28.03.2011 issued by the Deputy Secretary, Road Construction Department, Government of Jharkhand, Ranchi pertaining to compulsory retirement under Rule 74(a) of Jharkhand Service Code. Initially the order of suspension vide notification dated 28.09.2010 was challenged in the instant writ application, and subsequently, by I.A No. 2922 of 2012, the order of compulsory retirement, vide notification dated 28.3.2011 relating to compulsory retirement of the petitioner, was filed to be incorporated in the amended writ petition by order dated 3.7.2014 and the interlocutory application has been allowed.

(2.) The factual matrix, in a nutshell, is that the petitioner was appointed as Assistant Engineer in the then Public Works Department, Government of Bihar in the year 1980 and was promoted to the post of Executive Engineer in the year 2000 and after bifurcation of the erstwhile State of Bihar, the petitioner was finally placed in the State of Jharkhand. While continuing and discharging his duty as Executive Engineer, he was placed under suspension. Prior to the notification, the report was called for and report was submitted before the conducting officer against the petitioner. The petitioner has been aggrieved by the order passed on 28.3.2011 pertaining to compulsory retirement from the services under the provisions of Rule 74(a) of Jharkhand Service Code. Learned counsel for the petitioner vehemently submits that the impugned order of compulsory retirement, vide Annexure-4, has been passed in derogation of Rule 74(a) of Jharkhand Service Code. Learned counsel for the petitioner submits that Rule 74(a) does not say regarding the compulsory retirement on public interest, whereas Rule 74 (b) (ii) envisages compulsory retirement on public interest. But Rule 74 (b) (ii) says that the appointing authority concerned may after giving a Government servant at least three month's previous notice in writing, or an amount equal to three month's pay and allowance in lieu of such notice require him in public interest, to retire from service. In the instant case, such a provision has not been complied so the impugned order of compulsory retirement is de hors the provisions of Rule 74 (a) of Jharkhand Service Code. Learned counsel further submits that the impugned order of punishment under Annexure-4 is stigmatic and punitive one which is against the settled proposition of law as per the decision in the case of Baikuntha Nath Das & Another Vs. Chief District Medical Officer, Baribado & Another reported in (1992) 2 SCC 299 . Learned counsel for the petitioner submits that on perusal of the impugned order under Annexure-4 which says that it is quite clear that the alleged mis-conduct has been mentioned in the impugned order which is stigmatic and punitive, therefore, the said impugned order is not legally sustainable. Learned counsel further submits that the petitioner was supposed to retire on 31.03.2011 but by virtue of impugned order dated 28.3.2011 alleged misconduct has been mentioned which is stigmatic which is against the celebrated judgment of Honourable Apex Court referred to in the later paragraph.

(3.) Earlier counter-affidavit has been filed controverting the averments made in the writ application but no counter-affidavit has been filed to the amended petition. Mr. D. K. Dubey, learned senior standing counsel for the respondents vehemently submits that the impugned order of Annexure-4 passed in terms of Rule 74 (a) of the Jharkhand Service Code empowers the respondents to verify and to see the conduct of the respondents before passing of the order of punishment for compulsory retirement. Therefore, considering all the aspects of the matter, the competent authority after taking approval by the State passed the impugned order as contained in Annexure-4, therefore, no illegality and no infirmity has been committed while passing the impugned order.