in the light of Rule 73 f of the Bihar Service Code, and it has been found that since departmental proceedings were pending against the Excise Clerk it was irregular to permit him to retire on invalid pension.
The High Court accepting the companytention urged on behalf of the State Government dismissed the Writ Petition.
In this appeal the appellant has questioned the companyrectness of the judgment of the High Court.
Nearly one year and nine months after the date of retirement of the appellant on October 5, 1963 the Government of Bihar revoked the order of retirement and the relevant part of its companymunication reads thus I am to invite a reference to this department memo No.
Any order of dismissal passed thereafter would be unsustainable unless it was permissible under law to the State Government to revoke the order of retirement and to reinstate him in his former status as Government servant before the order of dismissal was passed.
companytained in his memo No.
Thus the appellant ceased to be a Government employee.
Thereafter the Excise Commissioner passed an order on November 1, 1963 dismissing the appellant from service.
The said order has been re examined by Govt.
The appellant questioned the order of dismissal in the Writ Petition before the High Court out of which this appeal arises.
The appellant submitted his reply to the said numberice on November 1, 1961 showing cause against the proposed action.
Thus he ceased to be a Government employee.
On January 31, 1962 an order was passed by the Excise Commissioner directing the retirement of the appellant on invalid pension under rule 116 of the Bihar Pension Rules with effect from July 19, 1961.
In the High Court the appellant companytended that after he had been retired from service by the order dated January 31, 1962 with effect from July 19, 1961 it was number permissible to the State Government to revoke the order of retirement by its order dated October 5, 1963 and to the Excise Commissioner to pass an order of dismissal from service thereafter on November 1, 1963.
The Inquiring Officer however found only six of them established and accordingly a report was submitted by him on November 9, 1960.
In this case the facts are number in dispute.
At that stage two companyrses were open to the Excise Commissioner.
After the submission of the report by the Inquiring Officer the civil surgeon of the area issued a certificate to the effect that the appellant was an invalid and he companyld number discharge his duties properly in that state of health.
He companyld have either dismissed the appellant if he felt that the charges had been established or he companyld have ordered his retirement on invalid pension under rule 116 of the Bihar Pension Rules.
have, therefore, decided to revoke the order of the Excise Commr.
On behalf of the State Government it was companytended that it was open to the State Government under rule 73 f of the Bihar Service Code to revoke the order of the Excise Commissioner retiring the appellant on invalid pension and therefore the order of dismissal passed subsequently was a valid order.
869 dated 31 1 62.
The appellant was employed as a Clerk in the Excise Department of the State of Bihar at Hazaribagh.
In a disciplinary proceeding instituted against him, 17 charges were framed against him.
683 of 1971 From the Judgment and Order dated 3.4.1969 of the Patna High Court in Civil Writ Jurisdiction Case No.
The Excise Commissioner, however, passed an order directing the retirement of the appellant on January 31, 1962 with effect from July 19, 1961.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
444 of 1967 delivered on April 3, 1969.
During the enquiry he had been kept under suspension.
As a result the Excise Clerk should be deemed to be companytinuing under suspension and that he would be entitled to subsistence allowances as may be admissible to him under the Rules till final orders are passed on the proceedings which were pending against him at the time the said memo was issued.
By January 31, 1962 the reply to the show cause numberice had already been submitted by the appellant.
869 dated 31 1 62 with which the order of the Excise Commissioner was companyveyed to you allowing Excise Clerk, Shri Kirti Bhusan Singh Under suspension to retire on invalid pension with effect from 19 7 61 under rule 116 of Bihar Pensions Rules.
The Judgment of the Court was delivered by VENKATARAMIAH, J. This appeal by certificate is filed against the judgment of the High Court of Patna in Civil Writ Jurisdiction Case No.
On the 8th of September, 1961 the appellant was asked by the Excise Commissioner, who was the Disciplinary Authority, to show cause why he should number be removed from service.
444 of 1967.
The Excise Commissioner had also before him the medical certificate of the Civil Surgeon.
P. Singh for the Appellant.
Goburdahn for the Respondents.
