JUDGMENT

VENKATARAMIAH, J. : — This appeal by certificate is filed against the judgment of the High Court of Patna in Civil Writ Jurisdiction Case No. 444 of 1967 delivered on April 3, 1969 : (reported in 1970 Lab IC 950).

2. 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. During the enquiry he has been kept under suspension. The Inquiring Officer however found only six of them established and accordingly a report was submitted by him on November 9, 1960. 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 not be removed from service. The appellant submitted his reply to the said notice on November 1, 1961 showing cause against the proposed action. 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 could not discharge his duties properly in that state of health. 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. Thus he ceased to be a Government employee. 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 communication read thus :

"I am to invite a reference to this department memo No. 869 dated 31-1-62 with which the order of the Excise Commissioner was conveyed 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 Pension Rules."

"The said order has been re-examined by Govt. 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. Govt. have, therefore, decided to revoke the order of the Excise Commr. contained in his memo No. 869 dated 31-1-62. As a result the Excise Clerk should be deemed to be continuing 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."

3. Thereafter the Excise Commissioner passed an order on November 1, 1963 dismissing the appellant from service. The appellant questioned the order of dismissal in the Writ Petition before the High Court out of which this appeal arises.

4. In the High Court the appellant contended that after he had been retired from service by the order dated January 31, 1962 with effect from July 19, 1961 it was not 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. On behalf of the State Government it was contended 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, The High Court accepting the contention urged on behalf of the State Government dismissed the Writ Petition.

5. In this appeal the. appellant has questioned the correctness of the judgment of the High Court. In this case the facts are not in dispute. By January 31, 1962, the reply to the show cause notice had already been submitted by the appellant. The Excise Commissioner had also before him the medical certificate of the Civil Surgeon. At that stage two courses were open to the Excise Commissioner. He could have either dismissed the