Decided on December 06,1960

R.P.AGARWALA Appellant
STATE OF BIHAR Respondents

Referred Judgements :-



Kanhaiya Singh, J. - (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 :
"Sub: Compulsory retirement of Shri R. P. Agarwala S. E. Irrigation Department. I am directed to say that Shri R. P. Agarwala, a permanent Executive Engineer in the B. E. S. Class I (Officiating as S. E.) was asked in this Department memo No. 3/C-on dated 11-2-1958 through the Chief Engineer, Irrigation (north) to show cause why he should not be compulsorily retired from service under Rule 74 of the B. S. C. on account of certain allegations of his dishonest conduct, as set forth in the annexure thereto. 2. The explanation submitted by him has been considered by Government. While his explanation in respect of certain charges has; been considered satisfactory, that in respect of other charges has been found unsatisfactory. The charges that have been proved against him are serious, particularly that relating to the acquisition of assets by him, disproportionate to his known sources of income. An analysis of his C/Rs also shows that, barring a few flashes of good reports in some years, his work has all along been of average quality and he has often been regarded as technically not quite sound and also lacking in initiative and drive. He was also once severely censured by Government for irregularities committed in connection with the purchase of motor vehicle. Thus Shri Agarwala has, not only been dishonest but also inefficient. Government have, therefore, decided that be should be compulsorily retired from service. 3. Shri R. P. Agarwala should, therefore, be compulsorily retired from Government service with effect from the date of (sic) the order is served on him."
It was communicated by the Chief Engineer to the Petitioner by his letter No. 19-C/E dated 28th May, 1959, which may be reproduced :
"Sub--Compulsory retirement of Shri R. P. Agarwala, Superintending Engineer, Irrigation Department. I am desired to send herewith a copy of letter received from the Secretary to Government, Irrigation Department, Bihar for your information. You are requested to make over charge to Shri M. P. Singh Executive Engineer, Design (North) immediately. The date when you hand over charge should be reported in due course."
It is this order which the petitioner seeks to set aside on the ground, inter alia, that the order was illegal and void in that it was made in violation of the mandatory provisions of Article 311 (2) of the Constitution without affording him any reasonable opportunity to meet and refuse the charges levelled against him. He further pleaded that even if the State of Bihar had powers to order compulsory retirement without assigning any reason, the impugned order amounted to his removal from service since the imputation of misconduct constituted an indelible stigma on his character, integrity and efficiency and was ultra vires and unconstitutional as he wag not given reasonable opportunity of showing cause against the action proposed to be taken in regard to him, as required by clause (2) of Article 311 of the Constitution.
(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.

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