Full Judgment Text
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PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
J. AHMED
DATE OF JUDGMENT07/03/1979
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION:
1979 AIR 1022 1979 SCR (3) 504
1979 SCC (2) 286
ACT:
All India Services (Death-cum-Retirment) Rules 1958-r.
16-Scope of.
Words and Phrases: Misconduct-What constitutes to
attract punishment in disciplinary proceedings-Mene acts of
omission and commission or negligence in performance of
duty-If misconduct.
HEADNOTE:
The respondent, an officer belonging to the Indian
Administrative Service, was due to retire on February 1,
1962. Since a departmental enquiry in respect of some
charges levelled against him was pending, he was retained in
service, in the first instance, for a period of three months
beyond the date of his retirement or till the termination of
departmental proceedings whichever was earlier. This date
was, however, extended from time to time and eventually on
August 28, 1963 an order under r. 16(2) of the All India
Services (Death-cum-Retirement) Rules, 1958 was passed. That
Rule provides that "a member of the service under suspension
on a charge of misconduct shall not be required or permitted
to retire from service but shall be retained in service
until the enquiry into the charges against him is concluded
and a final order is passed."
The charges levelled against the respondent were (1)
that he completely failed to take any effective preventive
measures against widespread disturbances which broke out in
the district, (2) that he showed complete lack of leadership
and failed to give proper directions to his subordinate
officers, (3) that he did not personally visit the scene of
disturbances; (4) that he did not keep the Government
informed of the extent of disturbances; and (5) that he
showed complete inaptitude, lack of foresight, capacity to
take firm and quick decision and, that therefore, he proved
himself completely unfit to hold any responsible position.
On the report of the enquiry officer that all the
charges (except one) were substantially proved, he was
removed from service.
Striking down the order of his removal from service,
the High Court held that (i) negligence and efficiency in
the performance of one’s duty would not constitute
misconduct so as to attract punishment of removal from
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service and (ii) under r. 16(2) an officer could be retained
in service only for the purpose of holding or completing
disciplinary proceedings for misconduct and since in this
case there was no enquiry into what could be called
misconduct, his retention in service beyond his date of
retirement was void.
Dismissing the appeal,
^
HELD: 1(a) No case, stricto sensu, for a disciplinary
proceeding for misconduct had been made out against the
respondent. Any deficiency in the discharge of one’s duties
would not constitute misconduct. The enquiry held
505
was to establish that the respondent was not fit to hold a
responsible post; it did not establish any misconduct on his
part to deserve the punishment. [516 H]
(b) Conduct which is blameworthy on the part of a
government servant in the context of the Conduct Rules would
be misconduct, that is if a government servant conducts
himself in a way which is not consistent with due and
faithful discharge of his duties it is misconduct.
Similarly, disregard of an essential condition of the
contract of service may constitute misconduct. So too an
error or omission resulting in serious or atrocious
consequences may amount to misconduct. But competence for
the post, capability to hold and discharge the functions
attached to it with requisite efficiency are different from
some act or omission on the part of its holder so as to be
called misconduct. A single act or omission or error of
judgment while holding a post of responsibility
unaccompanied by serious or atrocious conduct would not
constitute misconduct. [511 G-H]
Pierce v. Foster, 17 QB 536 at 542; Laws v. London
Chronicle (Indicator Newspapers),[1959] 1 WLR 698; S.
Govinda Menon v. Union of India, [1967] 2 SCR 566; P.H.
Kalyani v. Air France, Calcutta, [1964] 2 SCR 104; referred
to.
(c) The All India Services (Conduct) Rules, 1954
prescribe a code of conduct for members of the service, such
for example as, that every member shall at all times
maintain absolute integrity and devotion to duty and that an
act or omission contrary to or in breach of the prescribed
norms of conduct would constittute misconduct for
disciplinary proceedings. But the Rules are not exhaustive.
In the absence of an exhaustive or self-contained code,
therefore it would not be correct to say that only that act
or omission would constitute misconduct for the purposes of
Discipline and Appeal Rules which is contrary to the
provisions of the Conduct Rules. [511 C-E]
In the instant case all that the charges framed against
the respondent show is that he was not a very efficient
officer. They did not specify any act or omission in
derogation of or contrary to Conduct Rules, except the
general rule (r.3) prescribing devotion to duty. Lack of
leadership, inaptitude, lack of foresight, lack of firmness
and indecisiveness which are deficiencies in the personal
character or ability of a Government servant would not by
themselves constitute misconduct for the purpose of
disciplinary proceedings. They may be relevant while
considering an officer’s promotion to higher post or for his
retention in a higher post but they cannot be elevated to
the level of acts of omission or commission contemplated by
Discipline and Appeal Rules for imposing punishment. When
the respondent was sought to be removed from service as a
disciplinary measure by way of penalty, a clear case of
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misconduct should have been established.
(d) In the context of disciplinary proceedings,
misconduct does not mean misbehaviour involving some form of
guilty mind or mens rea. Gross or habitual negligence in the
performance of one’s duty may not involve mens rea but yet
it may constitute misconduct for disciplinary proceedings.
[513 D]
2(a) The respondent was no longer in service on the
date on which the order removing him from service was made
and to retain him in service
506
beyond the period of his normal retirement with a view to
punishing him was wholly unjustified. [517 C-D]
(b) Since the State Government had no power to retain
him in service under r. 16(1)(a) of the Retirement Rules
beyond August 1, 1962 it could not continue the enquiry
thereafter. Although under r. 16(1)(b) the Central
Government had power to retain him in service beyond six
months of the date of his retirement, no order had been
passed by it. [515 H]
(c) Before r. 16(2) (which provides that a member of
the service under suspension on a charge of misconduct shall
not be required or permitted to retire from service until
the enquiry into the charges against him is concluded and a
final order passed) would be attracted it must be shown that
a member of the service was under suspension on a charge of
misconduct and an enquiry was being conducted against him.
No misconduct having been alleged against the respondent, it
cannot be said that r. 16(2) was attracted and that he was
deemed to have been retained in service until the enquiry
was concluded. [516 F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2152 of
1969.
Appeal by Special Leave from the Judgment and Order
dated 1-8-1967 of the Assam and Nagaland High Court in Civil
Rule No. 256 of 1966.
Naunit Lal for the Appellant.
S. K. Dutta, S. K. Nandy and A. Sen for the Respondent.
The Judgment of the Court was delivered by
DESAI. J.-Respondent J. Ahmed joined service in Assam
State in 1945 and some time in 1959 came to be promoted to
the Indian Administrative Service Cadre. In that very year
he was posted as Deputy Commissioner and District
Magistrate, Nowgong District. While he was holding the
aforementioned post, some time in the beginning of June 1960
there were large scale disturbances in Nowgong city and
District area described in official parlance as ’language
disturbances’. There was considerable damage to property.
One Shri A. N. Kidwai, the then Additional Chief Secretary
to the Government of Assam, undertook an inquiry into the
causes of disturbances at Nowgong with a view to
ascertaining the responsibility of District officials.
After Shri Kidwai submitted his Report, the Government took
the first step of suspending the respondent from service by
an order dated 14th September 1960. The Chief Secretary to
the Government of Assam by his communication dated 13th
September 1960 conveyed to the respondent various charges
framed against him and called upon him to submit his
explanation. A statement of allegations was annexed to the
communication. Respondent submitted his explanation and
thereafter the Government appointed respondent
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507
No. 4, K. Balachandran as the Enquiry Officer. After the
inquiry was concluded, the Enquiry Officer submitted his
report. It may be noticed that respondent was born on 1st
February 1907 and according to Rule 16 of the All India
Services (Death-cum-Retirement Benefits) Rules, 1958
(’Retirement Rules’ for short), then in force, the age of
retirement being 55 years, the respondent would have retired
from service on 1st February 1962. First, the Governor of
Assam by his order dated 31st January 1962 purporting to
exercise power under Rule 16(1) of the Retirement Rules,
directed that the respondent then under suspension be
retained in service for a period of three months beyond the
date of his retirement which fell on Ist February 1962 or
till the termination of departmental proceedings drawn up
against him whichever is earlier. By subsequent orders dated
21st June 1962, Ist September 1962, 23rd February 1963 and
28th August 1963 respondent was retained in service, till
the inquiry pending against him concluded and final orders
were passed in the proceedings. It may be mentioned that the
order dated 28th August 1963 was made by the Governor in
exercise of the powers conferred by subrule (2) of rule 16
of the Retirement Rules. The Enquiry Officer submitted his
report holding charges 1, 2, 3, 5 and 6 proved and in
respect of charge No. 4 the finding recorded was that though
the charge was proved, the Enquiry Officer took note of
certain extenuating circumstances mentioned in the report. A
Memorandum dated 22nd February 1963 was served by the
Government of India on the respondent forwarding the report
of the Enquiry Officer and the respondent was called upon to
show cause why the provisional penalty determined by the
Government of removal from service be not imposed upon him.
Ultimately, by order dated 11th October 1963 the President,
after consultation with the Union Public Service Commission,
imposed the penalty of removal from service on the
respondent. A memorial submitted by the respondent to the
President under Rule 20 of the All India Services
(Discipline & Appeal) Rules, 1955, (’Discipline and Appeal
Rules’ for short), against the imposition of the penalty was
rejected.
The respondent filed a petition under Article 226 of
the Constitution in the High Court of Assam and Nagaland.
Two contentions were raised before the High Court: (1)
Whether rule 16(2) of the Retirement Rules is attracted so
as to retain the respondent in service beyond the period of
his normal retirement for the purpose of completing
disciplinary proceedings against the respondent; and (2) if
rule 16(2) was not attracted, whether the retention of
respondent beyond the normal period of his retirement was
valid and if it was not valid, whether he
508
could be removed from service after he had actually and
effectively retired from service ? While examining these two
contentions, the High Court was of the opinion that
disciplinary proceedings can be held and punishment can be
imposed for misconduct and the charges held did not disclose
any misconduct because negligence in performance of duty or
inefficiency in discharge of duty would not constitute
misconduct. On the second point it was held that if the
Enquiry was not for any misconduct, sub-rule (2) of rule 16
would not be attracted and the Government had no power to
retain the respondent in service for the purpose of holding
or completing disciplinary proceeding which can only be for
misconduct, and as there was no inquiry into what can be
styled as misconduct, the retention in service of the
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respondent beyond the period of retirement was not legal and
valid, and, therefore, the respondent could not bemoved from
service from which he had retired. In accordance with these
findings, the writ petition filed by the respondent was
allowed declaring that the respondent was deemed to have
retired from service from Ist February 1962 and that the
punitive or disciplinary action taken against him after that
date is completely without jurisdiction and wholly
unjustified, and the same was quashed.
The Union of India and the State of Assam have
preferred this appeal by special leave.
Rule 3 of the Discipline and Appeal Rules provides that
the penalties therein set out may, for good and sufficient
reasons, be imposed on a member of service. One such penalty
prescribed therein is ’removal from service which shall not
disqualify for future employment’. Rule 4 prescribes the
authority competent to institute disciplinary proceedings.
Where a member of a service has committed any act or
omission which renders him liable to any penalty specified
in rule 3, an inquiry shall be held according to procedure
prescribed in rule 5. Therefore penalty prescribed in rule 3
can be imposed upon a member of the service for any act or
omission committed by him which, according to rule 3, must
provide good and sufficient reason to impose one or the
other of the penalties mentioned therein. Rule 7 of the
Discipline and Appeal Rules enables the Government to put
under suspension a member of the Service during disciplinary
proceeding if having regard to the nature of charges and
circumstances the Government thinks it proper to do so. Sub-
rule (2) of Rule 16 of the Retirement Rules as it stood at
the relevant time reads as under:
"16(2). A member of the service under suspension
on a charge of misconduct shall not be required or
permitted to retire from the service but shall be
retained in service until the
509
inquiry into the charges against him is concluded and a
final order is passed".
A survey of these rules would show that disciplinary
proceedings can be held against a member of the service for
any act or omission which renders him liable to a penalty
and such penalty can be imposed for good and sufficient
reasons. All India Services (Conduct) Rules, 1954, prescribe
a code of conduct for members of service. Discipline and
Appeal Rules provide for disciplinary action and imposition
of penalties. Sub-rule (2) of rule 16 of the Retirement
Rules contemplates a situation where a member of service
against whom disciplinary proceeding is pending is likely to
retire and the proceedings may be thwarted and provides for
his retention in service beyond the date of his retirement
till the completion of the inquiry, provided the delinquent
officer is under suspension on a charge of misconduct.
The respondent contended and the contention has found
favour with the High Court that the charges framed against
the respondent, even if they are held proved, would not
constitute misconduct, and, therefore, it could not be said
that he was under suspension on a charge of misconduct and
accordingly sub-rule (2) of rule 16 would not be attracted
and he could not be retained in service beyond the date of
his retirement. It was said that retention in service being
invalid, imposition of penalty after his retirement is
illegal. Therefore, what constitutes misconduct for a member
of a service liable to be removed from service on proof of
such misconduct in a disciplinary proceeding, looms large in
this case.
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To appreciate the contention it is better to have a
look at the charges framed against the respondent. They are
as under:
"(i) Completely failed to take any effective
preventive measures against widespread disturbances
breaking out in Nowgong District in spite of adequate
warning being conveyed.
(ii) Showed complete lack of leadership when the
disturbances actually did break out and failed to give
proper direction to your subordinate Magistrates and
co-ordinate co-operations with the police to restore
Law and Order;
(iii) Did not personally visit the scenes of
disturbances within the town or in the Rural areas, in
time to take personal control of the situation and to
exercise necessary supervision;
510
(iv) Did not keep Government informed of the
actual picture and extent of the disturbances;
(v) Showed complete inaptitude, lack of foresight,
lack of firmness and capacity to take quick and firm
decision and were, thus largely responsible for
complete break down of Law and Order in Nowgong town as
well as the rural areas of Nowgong District.
Thus you proved yourself completely unfit to hold
any responsible position".
The Inquiry Officer has treated the statement in the
letter conveying the charges that the respondent proved
himself completely unfit to hold a responsible position as a
separate and independent charge which on the face of it is
merely a surmise or a conclusion drawn from the five charges
set out above. This surmise or conclusion has to be ignored
and cannot be treated as a specific charge.
The five charges listed above at a glance would convey
the impression that the respondent was not a very efficient
officer. Some negligence is being attributed to him and some
lack of qualities expected of an officer of the rank of
Deputy Commissioner are listed as charges. to wit, charge
No. 2 refers to the quality of lack of leadership and charge
No. 5 enumerates inaptitude, lack of foresight, lack of
firmness and indecisiveness. These are qualities undoubtedly
expected of a superior officer and they may be very relevant
while considering whether a person should be promoted to the
higher post or not or having been promoted, whether he
should be retained in the higher post or not or they may be
relevant for deciding the competence of the person to hold
the post, but they cannot be elevated to the level of acts
of omission or commission as contemplated by Rule 4 of the
Discipline and Appeal Rules so as to incur penalty under
rule 3. Competence for the post, capability to hold the
same, efficiency requisite for a post, ability to discharge
function attached to the post, are things different from
some act or omission of the holder of the post which may be
styled as misconduct so as to incur the penalty under the
rules. The words ’acts and omission’ contemplated by rule 4
of the Discipline and Appeal Rules have to be understood in
the context of the All India Services (Conduct) Rules, 1954
(’Conduct Rules’ for short). The Government has prescribed
by Conduct Rules a code of conduct for the members of All
India Services. Rule 3 is of a general nature which provides
that every member of the service shall at all times maintain
absolute integrity and devotion to duty. Lack of integrity,
if proved, would undoubtedly en-
511
tail penalty. Failure to come up to the highest expectations
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of an officer holding a responsible post or lack of aptitude
or qualities of leadership would not constitute failure to
maintain devotion to duty. The expression ’devotion to duty’
appears to have been used as something opposed to
indifference to duty or easy-going or light-hearted approach
to duty. If rule 3 were the only rule in the Conduct Rules
it would have been rather difficult to ascertain what
constitutes misconduct in a given situation. But rules 4 to
18 of the Conduct Rules prescribe code of conduct for
members of service and it can safely stated that an act or
omission contrary to or in breach of prescribed rules of
conduct would constitute misconduct for disciplinary
proceedings. This code of conduct being not exhaustive it
would not be prudent to say that only that act or omission
would constitute misconduct for the purpose of Discipline
and Appeal Rules which is contrary to the various provisions
in the Conduct Rules. The inhibitions in the Conduct Rules
clearly provide that an act or omission contrary thereto as
to run counter to the expected code of conduct would
certainly constitute misconduct. Some other act or ommission
may as well constitute misconduct. Allegations in the
various charges do not specify any act or omission in
derogation of or contrary to Conduct Rules save the general
rule 3 prescribing devotion to duty. It is, however,
difficult to believe that lack of efficiency, failure to
attain the highest standard of administrative ability while
holding a high post would themselves constitute misconduct.
If it is so, every officer rated average would be guilty of
misconduct. Charges in this case as stated earlier clearly
indicate lack of efficiency, lack of foresight and
indecisiveness as serious lapses on the part of the
respondent. These deficiencies in personal character of
personal ability would not constitute misconduct for the
purpose of disciplinary proceedings.
It would be appropriate at this stage to ascertain what
generally constitutes misconduct, especially in the context
of disciplinary proceedings entailing penalty.
Code of conduct as set out in the Conduct Rules clearly
indicates the conduct expected of a member of the service.
It would follow that that conduct which is blameworthy for
the Government servant in the context of Conduct Rules would
be misconduct. If a servant conducts himself in a way
inconsistent with due and faithful discharge of his duty in
service, it is misconduct [see Pierce v. Foster(1)]. A
disregard of an essential condition of the contract of
service may constitute misconduct [see Laws v. London
Chronicle .(Indicator Newspapers) (2)]. This
512
view was adopted in Shardaprasad Onkarprasad Tiwari v.
Divisional Superintendent, Central Railway, Nagpur Division,
Nagpur(1), and Satubha K. Vaghela v. Moosa Raza(2). The High
Court has noted the definition of misconduct in Stroud’s
Judicial Dictionary which runs as under:
"Misconduct means, misconduct arising from ill
motive; acts of negligence, errors of judgment, or
innocent mistake, do not constitute such misconduct".
In industrial jurisprudence amongst others, habitual or
gross negligence constitute misconduct but in Management,
Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik(3), in
the absence of standing orders governing the employee’s
undertaking, unsatisfactory work was treated as misconduct
in the context of discharge being assailed as punitive. In
S. Govinda Menon v. Unio nof India(4), the mamnner in which
a member of the service discharged his quasi judicial
function disclosing abuse of power was treated as
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constituting misconduct for initiating disciplinary
proceedings. A single act of omission or error of judgment
would ordinarily not constitute misconduct though if such
error or omission results in serious or atrocious
consequences the same may amount to misconduct as was held
by this Court in P. H. Kalyani v. Air France, Calcutta(5),
wherein it was found that the two mistakes committed by the
employee while checking the load-sheets and balance charts
would involve possible accident to the aircraft and possible
loss of human life and, therefore, the negligence in work in
the context of serious consequences was treated as
misconduct. It is, however, difficult to believe that lack
of efficiency or attainment of highest standards in
discharge of duty attached to public office would ipso facto
constitute misconduct. There may be negligence in
performance of duty and a lapse in performance of duty or
error of judgment in evaluating the developing situation may
be negligence in discharge of duty but would not constitute
misconduct unless the consequences directly attributable to
negligence would be such as to be irreparable or the
resultant damage would be so heavy that the degree of
culpability would be very high. An error can be indicative
of negligence and the degree of culpability may indicate the
grossness of the negligence. Carelessness can often be
productive of more harm than deliberate wickedness or
malevolence. Leaving aside the classic example of the sentry
who sleeps at his post
513
and allows the enemy to slip through, there are other more
familiar instances of which a railway cabinman signals in a
train on the same track where there is a stationary train
causing headlong collision; a nurse giving intravenous
injection which ought to be given intramuscular causing
instantaneous death; a pilot overlooking an instrument
showing snag in engine and the aircraft crashes causing
heavy loss of life. Misplaced sympathy can be a great evil
[see Navinchandra Shakerchand shah v. Manager, Ahmedabad Co-
op. Department Stores Ltd.(1)]. But in any case, failure to
attain the highest standard of efficiency in performance of
duty permitting an inference of negligence would not
constitute misconduct nor for the purpose of Rule 3 of the
Conduct Rules as would indicate lack of devotion to duty.
The High Court was of the opinion that misconduct in
the context of disciplinary proceeding means misbehaviour
involving some form of guilty mind or mens rea. We find it
difficult to subscribe to this view because gross or
habitual negligence in performance of duty may no involve
mens rea but may still constitute misconduct for
disciplinary proceedings.
Having cleared the ground of what would constitute
misconduct for the purpose of disciplinary proceeding, a
look at the charges framed against the respondent would
affirmatively show that the charge inter alia alleged
failure to take any effective preventive measures meaning
thereby error in judgment in evaluating developing
situation. Similarly, failure to visit the scenes of
disturbance is another failure to perform the duty in a
certain manner. Charges Nos. 2 and 5 clearly indicate the
shortcomings in the personal capacity or degree of
efficiency of the respondent. It is alleged that respondent
showed complete lack of leadership when disturbances broke
out and he disclosed complete inaptitude, lack of foresight,
lack of firmness and capacity to take firm decision. These
are personal qualities which a man holding a post of Deputy
Commissioner would be expected to possess. They may be
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relevant considerations on the question of retaining him in
the post or for promotion, but such lack of personal quality
cannot constitute misconduct for the purpose of disciplinary
proceedings. In fact, charges 2, 5 and 6 are clear surmises
on account of the failure of the respondent to take
effective preventive measures to arrest or to nip in the bud
the ensuing disturbances. We do not take any notice of
charge No. 4 because even the Enquiry officer has noted that
there are number of extenuating circumstances which may
exonerate the respondent in respect of that charge. What was
styled as charge No. 6 is the conclu-
514
sion, viz., because of what transpired in the inquiry, the
Enquiry Officer was of the view that the respondent was
unfit to hold any responsible position. Somehow or other,
the Enquiry Officer completely failed to take note of what
was alleged in charges 2, 5 and 6 which was neither
misconduct nor even negligence but conclusions about the
absence or lack of personal qualities in the respondent. It
would thus transpire that the allegations made against the
respondent may indicate that he is not fit to hold the post
of Deputy Commissioner and that if it was possible he may be
reverted or he may be compulsorily retired, not by way of
punishment. But when the respondent is sought to be removed
as a disciplinary measure and by way of penalty, there
should have been clear case of misconduct, viz., such acts
and omissions which would render him liable for any of the
punishments set out in rule 3 of the Discipline & Appeal
Rules, 1955. No such case has been made out.
Mr. Naunit Lal for the appellant contended that the
word ’misconduct’ is nowhere used either in the Conduct
Rules or in the Discipline and Appeal Rules and the Court
should not import any concept of misconduct in this inquiry.
The word ’misconduct’ has relevance here because the
respondent in due course would have retired from service on
1st February 1962 on attaining the age of 55 years. The
inquiry could not be completed before the relevant date and
it became necessary for the Government to retain the
respondent in service beyond the normal period of retirement
on superannuation for continuing the inquiry. Rule 16(1) of
the Retirement Rules 1955 as it stood at the relevant time
provided for retirement on superannuation on attaining the
age of 55 years. There is a proviso to rule 16(1) which
enables the State Government to postpone the period of
retirement and retain the Government servant in service for
an aggregate period not exceeding six months and if the
retention in service beyond that period is required, the
same will have to be with the sanction of the Central
Government.
Respondent would have retired from service on attaining
the age of 55 years on 1st February 1962. He was served with
a charge-sheet dated 13th September 1960. The inquiry could
not be completed before the date of retirement of the
respondent. The Government of Assam by order dated 31st
January 1962 retained the respondent in service for a period
of three months beyond the date of his retirement which fell
on 1st February 1962 or till the termination of the
departmental proceedings drawn up against him whichever is
earlier. In view of the language of rule 16(1), the Assam
Government had no power to extend the period of service of a
member of the service beyond a period of six months in the
aggregate. Therefore, retention for a period of three months
would be legal and valid with the result that the
515
date of retirement of the respondent would be postponed to
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1st May 1962. Admittedly no order was made by the Assam
Government before 1st May 1962. The order postponing the
date of retirement and retention of the respondent in
service beyond 1st May 1962 was made on 21st June 1962. No
order was made by the Assam Government for postponing the
period of retirement of the respondent and his retention in
service before 1st May 1962. The State Government had power
under rule 16(1) (a) of the Retirement Rules to retain the
respondent in service for a period of six months in
aggregate and therefore, even though specific period was
mentioned in the order, simultaneously providing for
retention in service till the date of termination of the
proceedings, the extension would be valid for a period of
six months in the aggregate if the inquiry was continuing
till the expiration of six months but not exceeding six
months. In that event the respondent would retire from
service by 1st August 1962. Putting the construction on rule
16 (1) (a) and the order of extension, most favourable to
the State Government, it may be stated at once that
retention in service upto 1st August 1962 would be valid but
unfortunately the inquiry was not over by 1st August 1962.
No order was made before 1st August 1962 for retention of
the respondent in service beyond 1st August 1962. The order
next in succession in of 1st September 1962. This order is
again made by the State of Assam. The State Government had
no power to retain a member of the service for a period
exceeding six months in the aggregate after the date of his
normal retirement. The maximum period for which retention
could be ordered by the State Government being thus six
months, the respondent would have retired from service on
1st August 1962. Even if an order had been made by the State
Government to retain the respondent in service it would be
without jurisdiction and the order in fact was made on 1st
September 1962. Now, undoubtedly under rule 16(1) (b) the
Central Government has power to retain a member of the
service in service after the date of retirement for any
period beyond six months. But in this connection it may be
pointed out that no such order appears to have been made by
the Central Government. All the subsequent orders were made
by the Government of Assam. Such orders made by the
Government of Assam would not have the effect of retaining
the respondent in service beyond a period of six months from
the date of his normal retirement. That being the maximum
period, the State Government had no power to retain the
respondent in service. If the State Government could not
retain him in service beyond 1st August, 1962, it could not
continue the inquiry thereafter. This position seems to be
clearly established by the decision of this Court in State
of Assam
516
v. Padma Ram Borah(1). In that case the State Government had
made an order to retain the Government servant in service up
to the end of March 31, 1961. Subsequent order extending the
period was made on 9th May 1961. This Court held that
according to the earlier order of the State Government
itself the service of the Government servant had come to an
end on March 31, 1961 and the State Government could not by
unilateral action create a fresh contract of service to take
effect from April 1, 1961. If the State Government wished to
continue the service of the respondent for a further period,
the State Government should have issued a notification
before March 31, 1961. It is thus clear that the retention
of the respondent in service by order of the State
Government not made before the retirement taking place on
1st August 1962 and the State Government not having the
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power to retain the respondent, a member of the Indian
Administrative Service, beyond a period of six months, the
respondent could not be said to have continued in service so
that an inquiry could be continued against him.
Mr. Naunit Lal, however, contended that sub-rule(2) of
rule 16 clearly provides that a member of the service under
suspension on a charge of misconduct shall not be required
or permitted to retire from the service until the enquiry
into the charges against him is concluded and a final order
is passed. It is in the context of sub-rule (2) of rule 16
that the question of the nature of the proceedings held
against the respondent assumed importance. If the inquiry
was on a charge of misconduct, the respondent could be
retained in service until the inquiry into the charges
against him was concluded and a final order was made. But
before sub-rule (2) of rule 16 would be attracted it must be
shown that the member of the service was under suspension on
a charge of misconduct and an inquiry was being conducted
against him. As pointed out earlier, no misconduct as one
would understand that word in the context of disciplinary
proceeding was alleged against the respondent. There was an
inquiry but before sub-rule (2) of rule 16 is attracted, it
had to be an inquiry on a charge of misconduct. What is
alleged is not misconduct as the word is understood in
service jurisprudence in the context of disciplinary
proceedings. Therefore, it could not be said that an inquiry
on a charge of misconduct was being held against the
respondent and sub-rule (2) of rule 16 would thus be
attracted and he would be deemed to have been retained in
service till the inquiry was concluded.
It thus appears crystal clear that there was no case
stricto sensu for a disciplinary proceeding against the
respondent. In fact the inquiry was held to establish that
the respondent was not fit to hold a respon-
517
sible post. The respondent was actually retiring from
service and there was no question of his any more holding a
responsible position. Yet not only the inquiry was initiated
but he was retained in service beyond the date of his normal
retirement till the final order was made on 11th October,
1963 when he was removed from the Indian Administrative
Service. It appears that there were large scale disturbances
in the State. There followed the usual search for a
scapegoat and the respondent came handy. Some charges were
framed none of which could costitute misconduct in law. Some
charges were mere surmises. Substance of the allegations was
that he was not a very efficient officer and lacked the
quality of leadership and was deficient in the faculty of
decision making. These deficiencies in capacity would not
constitute misconduct. If the respondent were a young man
and was to continue in the post for a long period, such an
inquiry may be made whether he should be retained in the
responsible post. He may or may not be retained but to
retain him in service beyond the period of his normal
retirement with a view to punishing him was wholly
unjustified. The High Court was, therefore, right in coming
to the conclusion that the respondent was no longer in
service on the date on which an order removing him from
service was made and, therefore, the order was illegal and
void.
Accordingly, this appeal fails and is dismissed with
costs.
P.B.R. Appeal dismissed.
518
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