Judgement

HIDAYATULLAH, J. : This is an appeal by the State of West Bengal and its Chief Secretary against the judgment of the Calcutta High Court, dated July 1, 1960 by which the order dismissing N. N. Bagchi (the respondent) from service was quashed. The High Court certified the case as fit for appeal to this Court under Arts. 132 (1) and 133 (1) (c) of the Constitution.

2. N. N. Bagchi was appointed a Munsif on November 10, 1927. After promotions he became an Additional District and Sessions Judge and officiated at several stations as District and Sessions Judge but he was never confirmed as such. He last acted as a District and Sessions Judge at Birbhum in March 1953. In April of the same year he was transferred to Alipore as an Additional District and Sessions Judge. In the ordinary course Bagchi was due to superannuate and retire on July 31, 1953. On April 17, 1953 he applied for leave from April 27, 1953 to July 31, 1953 preparatory to retirement. The leave was held inadmissible. He was, however, granted leave from July 17, 1953 to the end of his service. Bagchi however, reported on April 27, 1953 that he had gone to Puri on April 25, 1953 because his son was ill and asked for one month s leave from April 27, 1953. Leave for 3 weeks was granted which at his request, was extended to June 5, 1953.

3. By an order, dated July 14, 1963 Government ordered that Bagehi be retained in service for a period of two months commencing from August 1, 1953. The order reads :

"I am directed to state that Government have been pleased to sanction under R. 75(a) of the West Bengal Service Rules, Part I, the retention in service of Nripendra Nath Bagehi, Additional District and Sessions Judge, 24-Parganas for a period of two months with effect from Ist August, 1953, the date of his compulsory retirement, in the interest of the public service".

Rule 75 (a) which was invoked reads as follows :-

Rule - "75 (a), Except as otherwise provided in this rule the date of compulsory retirement of a Government servant other than a member of the clerical staff or a servant in inferior service is the date on which he attains the age of 55 years. He may however, be retained in service beyond that date with the sanction of Government on public grounds which should be recorded in writing; but he shall not be retained after attaining the age of 60 years except in very special circumstances."

By another order, dated July 20, 1953 Bagchi was placed under suspension and on the following day he was served with 11 charges and was asked to file a written reply within 15 days. An enquiry into these charged followed and it was entrusted to Mr. B. Sarkar, I.C.S. Commissioner (later Member, Board of Revenue) by the Government of West Bengal. The enquiry continued for a long time and Bagchi was retained in service, though kept under suspension, by repeated orders of different duration s under R. 75 (a). Mr. Sarkar made his report to the Government on December 21, 1953 holding that some of the charges were proved. He did not recommend any punishment as he thought that punishment would depend upon Bagchi s record of service. On March 18, 1954 Bagchi was asked to show cause why he should not be dismissed from service and after he had shown cause he was dismissed on May 27, 1954. The Public Service Commission was consulted but not the High Court. He appealed to the Governor unsuccessfully. On February 15, 1955 he applied to the High Court at Calcutta under Arts, 226 and 227 of the Constitution against his dismissal and a rule was issued. On the recommendation of Mr. Justice D. N. Sinha, the case was placed before a Full Bench, as important questions of constitutional law were involved. The Full Bench by its judgment, dated July 1, 1960 made the rule absolute and quashed the order of dismissal as well as the enquiry. On the application of the Government of West Bengal the High Court certified the case as fit for appeal to this Court and the present appeal was filed. At an earlier