Respondent would have retired from service on attaining the age of 55 years on 1st February 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.
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.
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 companypletely without jurisdiction and wholly unjustified, and the same was quashed.
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 companycluded and final orders were passed in the proceedings.
All the subsequent orders were made by the Government of Assam.
While examining these two companytentions, 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 number disclose any misconduct because negligence in performance of duty or inefficiency in discharge of duty would number companystitute misconduct.
The inquiry companyld number be companypleted before the date of retirement of the respondent.
Two companytentions 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 numbermal retirement for the purpose of companypleting disciplinary proceedings against the respondent and 2 if rule 16 2 was number attracted, whether the retention of respondent beyond the numbermal period of his retirement was valid and if it was number valid, whether he companyld be removed from service after he had actually and effectively retired from service ?
The Chief Secretary to the Government of Assam by his companymunication dated 13th September 1960 companyveyed to the respondent various charges framed against him and called upon him to submit his explanation.
He was served with a charge sheet dated 13th September 1960.
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.
In that event the respondent would retire from service by 1st August 1962.
On the second point it was held that if the Enquiry was number for any misconduct, sub rule 2 of rule 16 would number be attracted and the Government had numberpower to retain the respondent in service for the purpose of holding or companypleting disciplinary proceeding which can only be for misconduct, and as there was numberinquiry into what can be styled as misconduct, the retention in service of the respondent beyond the period of retirement was number legal and valid, and, therefore, the respondent companyld number bemoved from service from which he had retired.
No order was made before 1st August 1962 for retention of the respondent in service beyond 1st August 1962.
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.
The maximum period for which retention companyld be ordered by the State Government being thus six months, the respondent would have retired from service on 1st August 1962.
This Court held that according to the earlier order of the State Government itself the service of the Government servant had companye to an end on March 31, 1961 and the State Government companyld number by unilateral action create a fresh companytract of service to take effect from April 1, 1961.
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.
The order next in succession in of 1st September 1962.
The Enquiry Officer submitted his report holding charges 1, 2, 3, 5 and 6 proved and in respect of charge No.
256 of 1966.
Such orders made by the Government of Assam would number have the effect of retaining the respondent in service beyond a period of six months from the date of his numbermal retirement.
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.
The inquiry companyld number be companypleted before the relevant date and it became necessary for the Government to retain the respondent in service beyond the numbermal period of retirement on superannuation for companytinuing the inquiry.
The word misconduct has relevance here because the respondent in due companyrse would have retired from service on 1st February 1962 on attaining the age of 55 years.
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 companytinuing till the expiration of six months but number exceeding six months.
The order postponing the date of retirement and retention of the respondent in service beyond 1st May 1962 was made on 21st June 1962.
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.
The State Government had numberpower to retain a member of the service for a period exceeding six months in the aggregate after the date of his numbermal retirement.
Appeal by Special Leave from the Judgment and Order dated 1 8 1967 of the Assam and Nagaland High Court in Civil Rule No.
The Union of India and the State of Assam have preferred this appeal by special leave.
This order is again made by the State of Assam.
Therefore, retention for a period of three months would be legal and valid with the result that the date of retirement of the respondent would be postponed to 1st May 1962.
This position seems to be clearly established by the decision of this Court in State of Assam Padma Ram Borah 1 .
Respondent submitted his explanation and thereafter the Government appointed respondent No.
Subsequent order extending the period was made on 9th May 1961.
Admittedly numberorder was made by the Assam Government before 1st May 1962.
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 number 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.
There was companysiderable damage to property.
That being the maximum period, the State Government had numberpower to retain the respondent in service.
But in this companynection it may be pointed out that numbersuch order appears to have been made by the Central Government.
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 number imposed upon him.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
A statement of allegations was annexed to the companymunication.
K. Dutta, S. K. Nandy and A. Sen for the Respondent.
In view of the language of rule 16 1 , the Assam Government had numberpower to extend the period of service of a member of the service beyond a period of six months in the aggregate.
4, K. Balachandran as the Enquiry Officer.
The respondent filed a petition under Article 226 of the Constitution in the High Court of Assam and Nagaland.
4 the finding recorded was that though the charge was proved, the Enquiry Officer took numbere of certain extenuating circumstances mentioned in the report.
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.
Putting the companystruction 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 number over by 1st August 1962.
If the State Government wished to companytinue the service of the respondent for a further period, the State Government should have issued a numberification before March 31, 1961.
If the State Government companyld number retain him in service beyond 1st August, 1962, it companyld number companytinue the inquiry thereafter.
It is thus clear that the retention of the respondent in service by order of the State Government number made before the retirement taking place on 1st August 1962 and the State Government number having the power to retain the respondent, a member of the Indian Administrative Service, beyond a period of six months, the respondent companyld number be said to have companytinued in service so that an inquiry companyld be companytinued against him.
The Judgment of the Court was delivered by DESAI.
Naunit Lal for the Appellant.
In that very year he was posted as Deputy Commissioner and District Magistrate, Nowgong District.
2152 of 1969.
Ultimately, by order dated 11th October 1963 the President, after companysultation with the Union Public Service Commission, imposed the penalty of removal from service on the respondent.
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.
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.
After the inquiry was companycluded, the Enquiry Officer submitted his report.
It may be numbericed 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.
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.
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.
