Ramadhar Singh Vs. State of Jharkhand and ors. - Court Judgment

Excerpt:
(a) service law - removal from service--on the ground of misconduct--entitlement of pension--since appellant was removed from service on the ground of committing an act of misconduct in terms of rule 101 of the bihar pension rules--his past services stood forfeited--therefore, he was held not entitled to receive pension (bihar pension rules, 1950--rule 101).(b) bihar and orissa sub-ordinate services (discipline and appeal) rules, 1935 - rule 2, explanation ii--applicability of--government servant removed from service by imposing penalty--though explanation ii to rule does relate to a probationer--could be applicable to hold applicable mutatis mutandis with respect to any other government servant. - motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - 2. in the course of his judgment, while dwelling upon the scope of bihar and orissa subordinate services (discipline and appeal) rules, 1935. the learned single judge clearly held that the case of the appellant was not covered by explanation 1 below rule 2 of these rules and that the appellant's ease was, in fact, covered by the analogy to be drawn on the basis of explanation 11 of the said rule 2 in as much as the order by which the appellant was removed from service in the facts and circumstance of the case was purely and patently penal in nature, also because admittedly the appellant was removed from service by way of his being awarded a punishment for an act of misconduct and that this cast a stigma upon him. even though explanation ii to rule 2 does relate to a probationer, the analogy can be drawn since the pith and substance of the meaning given to the expression 'discharge' as occurring in that rule clearly suggests that the discharge shall be considered as a removal or dismissal from service if it is for some specific fault or an act of misconduct etc. learned single judge was therefore, perfectly right in dismissing the writ application by holding that the appellant was not entitled to receive pension. 4. rule 2 of 1935 rules clearly suggests that some penalties may for good and sufficient reasons, be imposed upon 'a member of the service. it reads thus :2. the following penalties may for good and sufficient reasons, be imposed upon any member of a subordinate service, viz. want of vacancy, failure to acquire prescribed special qualification or to pass prescribed test;orderthe court1. this appeal under clause 10 of the letters patent has been filed by the appellant against the judgment dated 30th july, 2001 passed by a learned single judge of this court in w.p.(s) no. 3369 of 2001 whereby while dismissing the writ application of the appellant, the learned single judge held that the appellant-writ petitioner was not entitled to receive pension or other retrial benefits because he was removed from service and that based on such removal from service, his right to receive pension on the basis of rule 46 of the bihar pension rules, 1950 stood extinguished.2. in the course of his judgment, while dwelling upon the scope of bihar and orissa subordinate services (discipline and appeal) rules, 1935. the learned single judge clearly held that the case of the appellant was not covered by explanation 1 below rule 2 of these rules and that the appellant's ease was, in fact, covered by the analogy to be drawn on the basis of explanation 11 of the said rule 2 in as much as the order by which the appellant was removed from service in the facts and circumstance of the case was purely and patently penal in nature, also because admittedly the appellant was removed from service by way of his being awarded a punishment for an act of misconduct and that this cast a stigma upon him. even though in the removal order, the hindi expression used was 'sewa se mukt'. its english translation came to be mentioned as 'discharged'. semantics apart, the fact remains that the appellant was removed from service by way of imposition of a penalty, by awarding a punishment and this was a stigma upon his career. even though explanation ii to rule 2 does relate to a probationer, the analogy can be drawn since the pith and substance of the meaning given to the expression 'discharge' as occurring in that rule clearly suggests that the discharge shall be considered as a removal or dismissal from service if it is for some specific fault or an act of misconduct etc. the pith and substance contained in explanation ii can be bodily lifted and held applicable mutatis mutandis with respect to any other government servant (not necessarily a probationer) because of the meaning assigned to the expression 'discharge in the facts and circumstances of this case. learned single judge was therefore, perfectly right in dismissing the writ application by holding that the appellant was not entitled to receive pension. also because the appellant was removed from service on the ground of committing an act of misconduct, in terms of rule 101 of the bihar pension rules his past service stood forfeited and. therefore, he was held not entitled to receive pension.3. learned counsel for the appellant has relied upon a single bench judgment of patna high court in the case of raghunan-dan mishra v. the state of bihar fit ors.. reported fn 1985 pljr 446. where the learned single judge of patna high court with reference to the terminology used in the removal order held that since it did not amount to removal or dismissal as per 1935 rules and since it was a simpliciter discharge from service, the petitioner in that case could not be denied the benefit of pension. for the reasons which we hereinafter state, we do not agree with the aforesaid view of the learned single judge of patna high court.4. rule 2 of 1935 rules clearly suggests that some penalties may for good and sufficient reasons, be imposed upon 'a member of the service. the relevant extract of rule 2 in so far as it relates to us may be reproduced. it reads thus :'2. the following penalties may for good and sufficient reasons, be imposed upon any member of a subordinate service, viz.; (i) censure: (ii) withholding of increments or promotion, including stoppage at an efficiency bar; (iii) reduction to a lower post or time-scale or to a lower stage in a time scale; (iv) recovery from pay of the whole or part of any pecuniary loss caused to government by the negligence or breach or order; (iv-a) compulsory retirement; (v) fine; (vi) suspension; (vii) removal from the civil service of the crown, which does not disqualify from future employment; (viii) dismissal from the civil services of the crown which ordinarily disqualifies from future employment: provided that the penalty of fine shall be imposed only on menials and inferior servant; explanation 1.--the discharge- (a) of person appointed on probation, during or at the end of the period of probation, on grounds arising or at the specific conditions laid down by the appointing authority e.g. want of vacancy, failure to acquire prescribed special qualification or to pass prescribed test; (b) of a person appointed, otherwise than under contract, to hold a temporary appointment, on the expiration of the period of the appointment; (c) of a person engaged under contract in accordance with the term of his contract: does not amount to removal or dismissal within the meaning of this rule. explanation 2.---the discharge of a probationer, whether during or at the end of the period of probation, for some specific fault or on account of his un-suitability for the service amounts to removal or dismissal within the meaning of the rule. explanation 3---...' 5. as will be apparently clear, the expression 'discharge' does not find a mention in rule 2 in any of the eight categories/classes of penalties mentioned therein, in other words, what it means is that 'discharge' is not one of the penalties finding any mention in rule 2. the first six types of penalties mentioned in clause (i) to (vi) of rule 2 are penalties which are not related to a government servant being removed from service. it is only clauses (vii) and (viii) of rule 2 which talk of the government servant being removed from service and the expressions used in these two clauses are 'removal from service' and 'dismissal from service'. at the risk of repetition, we observe that the expression 'discharge from service' does not find a mention in rule 2. does it therefore, mean that the appellant, being discharged from service, was removed from service illegally? the answer has to be in negative. the appellant undoubtedly was removed from service by way of imposition of a penalty and the penalty was imposed upon him in accordance with the procedures prescribed under the 1935 rules. the imposition of penalty upon the appellant was by way of a punishment and it carried a stigma. the punishment was awarded to him because of an act of misconduct, that was attributed to him. he was not therefore, discharged from service in the sense explanation 1 to rule 2 indicates because it was not a case of a simpliciter discharge of a probationer. therefore, whether the english translation of the words 'sewa se mukt' in the removal order was mentioned as 'discharged' it did not change or alter the basic premise that the appellant was, in fact, removed from service and that this removal was because of an act of misconduct alleged against him. the removal, therefore, was patently by way of imposition of a major penalty upon him and this penalty undoubtedly would fall either under clause vii or under clause viii of rule 2 of 1935 rules. such a penalty, even though might have been styled as a 'discharge' cannot be termed as a 'discharge simpliciter' as might be the contemplation of explanation i. the learned single judge of patna high court, therefore, in the case of raghunandan mishra (supra) made the aforesaid observations with out any reference to rule 2 (supra). the learned single judge of patna high court therefore, appears to have taken too technical and simplistic a view of the expression 'discharge' and. thus, apparently fell in error in its interpretation on due application to the facts and circumstances of that case. with due respect, we do not agree with the said view.in the result, the appeal is dismissed, but without any order as to costs.

Judgment:
ORDER

The Court

1. This appeal under Clause 10 of the Letters Patent has been filed by the appellant against the judgment dated 30th July, 2001 passed by a learned Single Judge of this Court in W.P.(s) No. 3369 of 2001 whereby while dismissing the writ application of the appellant, the learned Single Judge held that the appellant-writ petitioner was not entitled to receive pension or other retrial benefits because he was removed from service and that based on such removal from service, his right to receive pension on the basis of Rule 46 of the Bihar Pension Rules, 1950 stood extinguished.

2. In the course of his judgment, while dwelling upon the scope of Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935. the learned Single Judge clearly held that the case of the appellant was not covered by Explanation 1 below Rule 2 of these Rules and that the appellant's ease was, in fact, covered by the analogy to be drawn on the basis of Explanation 11 of the said Rule 2 in as much as the order by which the appellant was removed from service in the facts and circumstance of the case was purely and patently penal in nature, also because admittedly the appellant was removed from service by way of his being awarded a punishment for an act of misconduct and that this cast a stigma upon him. Even though in the removal order, the Hindi expression used was 'Sewa se Mukt'. Its English translation came to be mentioned as 'discharged'. Semantics apart, the fact remains that the appellant was removed from service by way of imposition of a penalty, by awarding a punishment and this was a stigma upon his career. Even though Explanation II to Rule 2 does relate to a probationer, the analogy can be drawn since the pith and substance of the meaning given to the expression 'discharge' as occurring in that Rule clearly suggests that the discharge shall be considered as a removal or dismissal from service if it is for some specific fault or an act of misconduct etc. The pith and substance contained in Explanation II can be bodily lifted and held applicable mutatis mutandis with respect to any other Government servant (not necessarily a probationer) because of the meaning assigned to the expression 'discharge in the facts and circumstances of this case. Learned Single Judge was therefore, perfectly right in dismissing the writ application by holding that the appellant was not entitled to receive pension. Also because the appellant was removed from service on the ground of committing an act of misconduct, in terms of Rule 101 of the Bihar Pension Rules his past service stood forfeited and. therefore, he was held not entitled to receive pension.

3. Learned Counsel for the appellant has relied upon a Single Bench Judgment of Patna High Court in the case of Raghunan-dan Mishra v. The State of Bihar fit Ors.. reported fn 1985 PLJR 446. where the learned Single Judge of Patna High Court with reference to the terminology used in the removal order held that since it did not amount to removal or dismissal as per 1935 Rules and since it was a simpliciter discharge from service, the petitioner in that case could not be denied the benefit of pension. For the reasons which we hereinafter state, we do not agree with the aforesaid view of the learned Single Judge of Patna High Court.

4. Rule 2 of 1935 Rules clearly suggests that some penalties may for good and sufficient reasons, be imposed upon 'a member of the service. The relevant extract of Rule 2 in so far as it relates to us may be reproduced. It reads thus :

'2. The following penalties may for good and sufficient reasons, be Imposed upon any member of a Subordinate service, viz.;

(i) Censure:

(ii) Withholding of increments or promotion, including stoppage at an efficiency bar;

(iii) Reduction to a lower post or time-scale or to a lower stage in a time scale;

(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by the negligence or breach or order;

(iv-a) Compulsory retirement;

(v) Fine;

(vi) Suspension;

(vii) Removal from the Civil Service of the Crown, which does not disqualify from future employment;

(viii) Dismissal from the Civil Services of the Crown which ordinarily disqualifies from future employment:

Provided that the penalty of fine shall be imposed only on menials and inferior servant;

Explanation 1.--The discharge-

(a) of person appointed on probation, during or at the end of the period of probation, on grounds arising or at the specific conditions laid down by the appointing authority e.g. want of vacancy, failure to acquire prescribed special qualification or to pass prescribed test;

(b) of a person appointed, otherwise than under contract, to hold a temporary appointment, on the expiration of the period of the appointment;

(c) of a person engaged under contract in accordance with the term of his contract:

does not amount to removal or dismissal within the meaning of this Rule.

Explanation 2.---The discharge of a probationer, whether during or at the end of the period of probation, for some specific fault or on account of his un-suitability for the service amounts to removal or dismissal within the meaning of the Rule.

Explanation 3---...'

5. As will be apparently clear, the expression 'discharge' does not find a mention in Rule 2 in any of the eight categories/Classes of penalties mentioned therein, in other words, what it means is that 'discharge' is not one of the penalties finding any mention in Rule 2. The first six types of penalties mentioned in Clause (i) to (vi) of Rule 2 are penalties which are not related to a Government Servant being removed from service. It is only Clauses (vii) and (viii) of Rule 2 which talk of the Government Servant being removed from service and the expressions used in these two clauses are 'removal from service' and 'dismissal from service'. At the risk of repetition, we observe that the expression 'discharge from service' does not find a mention in Rule 2. Does it therefore, mean that the appellant, being discharged from service, was removed from service illegally? The answer has to be in negative. The appellant undoubtedly was removed from service by way of imposition of a penalty and the penalty was imposed upon him in accordance with the procedures prescribed under the 1935 Rules. The imposition of penalty upon the appellant was by way of a punishment and it carried a stigma. The punishment was awarded to him because of an act of misconduct, that was attributed to him. He was not therefore, discharged from service in the sense Explanation 1 to Rule 2 indicates because it was not a case of a simpliciter discharge of a probationer. Therefore, whether the English translation of the words 'Sewa se Mukt' in the removal order was mentioned as 'discharged' it did not change or alter the basic premise that the appellant was, in fact, removed from service and that this removal was because of an act of misconduct alleged against him. The removal, therefore, was patently by way of imposition of a major penalty upon him and this penalty undoubtedly would fall either under Clause VII or under Clause VIII of Rule 2 of 1935 Rules. Such a penalty, even though might have been styled as a 'discharge' cannot be termed as a 'discharge simpliciter' as might be the contemplation of Explanation I. The learned Single Judge of Patna High Court, therefore, in the case of Raghunandan Mishra (supra) made the aforesaid observations with out any reference to Rule 2 (supra). The learned Single Judge of Patna High Court therefore, appears to have taken too technical and simplistic a view of the expression 'discharge' and. thus, apparently fell in error in its interpretation on due application to the facts and circumstances of that case. With due respect, we do not agree with the said view.

In the result, the appeal is dismissed, but without any order as to costs.