Calcutta High Court (Appellete Side)
Gour Kanti Samanta vs State Of West Bengal & Ors on 22 March, 2013
Author: Indira Banerjee
Bench: Indira Banerjee, Anindita Roy Saraswati
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
W.P.S.T. No. 69 of 2012
GOUR KANTI SAMANTA
VS.
STATE OF WEST BENGAL & ORS.
BEFORE:
The Hon'ble Justice INDIRA BANERJEE
AND
The Hon'ble Justice ANINDITA ROY SARASWATI
For the Petitioner : Mr. R.K. Majumder, Advocate.
Mr. Bhaskar Chandra Manna, Advocate.
For the State : Mr. Aninda Mitra, Learned Advocate General.
Mr. Joytosh Majumder, Advocate.
Mr. Arindam Mondal, Advocate.
Heard on : 05.03.2012, 22.03.2012, 26.04.2012,
11.05.2012, 15.05.2012, 17.05.2012
Judgment on : 22.03.2013
Indira Banerjee, J. : The short question involved in this writ application
is, whether pension and pensionary benefits of a retired Assistant Sub-Inspector
of Police can be withheld on the purported ground of false declaration of age,
without initiation of any departmental or judicial proceedings against him.
This writ application is directed against a final order dated 8th November,
2011 passed by the West Bengal Administrative Tribunal in an application under
Section 19 of the Administrative Tribunals Act, 1985 filed by the petitioner, being
O.A. No.320 of 2010, whereby the learned Tribunal declined the prayer of the
petitioner for an order on the respondents to release pension and other
pensionary benefits of the petitioner.
The learned Tribunal, in effect, held that since a criminal case started against the petitioner, for submitting a false age certificate, was pending, no pensionary benefits could be sanctioned to the petitioner, not even pension. In the Affidavit-in-Opposition the respondents have admitted that no criminal proceedings have yet been initiated. The finding of the learned Tribunal that criminal proceedings were pending against the petitioner, is factually incorrect.
The application was disposed of with a direction on the Superintendent of Police, Purba Medinipur to release the General Provident Fund, Interim Allowance, Group Insurance dues of the petitioner within five months from the date of communication of the said order.
The petitioner was appointed as a Constable of the West Bengal Police in 1972. At the time of his appointment, the petitioner declared that his date of birth was 22nd October, 1949. After the petitioner was appointed, the petitioner was posted in the 6th Battalion of the West Bengal Armed Police at Barackpur. The petitioner served the West Bengal Police in various capacities and was ultimately promoted as Assistant Sub-Inspector and posted in Purba Medinipur district. The petitioner duly retired from service on 31st October, 2009, on attaining the age of retirement, as per the date of birth declared by the petitioner at the time of his appointment.
The Superintendent of Police, Purba Medinipur, received a letter dated 29th October, 2009 from one Anadi Mondal of Village and Post Office Debipur under Nandigram Police Station in Purba Medinipur district, alleging that the petitioner had got appointment by using a Birth Certificate with a false date of birth.
The letter of complaint of Sri Anadi Mondal is extracted below for convenience:-
"The undersigned would like to inform you as follows:-
1. That Sri Gourhari Samanta, a resident of Vill. Ratanpur, P.O. Debipur, P.S. Nandigram, Dist-Purba Medinipur working in the above post, has misled police Deptt by using a false date of birth in his school certificate.
2. That Sri Samanta, a primary student of Ratanpur Dhaneswarpur Pry. School situated at Ratanpu, P.O. Debipur, P.S. Nandigram, Dist-Purba Medinipur got admission into Class-
V at Debipur Milan Vidyapith situated Vill & P.O. Debipur, P.S. Nandigram, Dist-Purba Medinipur on 11.01.1955 as per Sl. No.22 of the High School Register by showing the certificate vide no.47 of dated 10.01.1955 of the above mentioned Pry. School.
3. That as per the said Admission Register of the High School the date of birth of Sri Gourhari Samanta is 22.10.1945.
4. That as per School Register the date of retirement from service would be 30.10.2005.
5. That Sri Samanta is in service till to day.
In the above facts & circumstances, Sri Samanta, being a member of disciplinary force, has cheated and misled his Deptt. Just to continue extra four years' service.
Therefore, Sir, you are requested to please make a high-level enquiry into the matter to find out the truth and take appropriate steps as stipulated in the act kindly.
The Superintendent of Police directed the Deputy Superintendent of Police (Headquarters), Purba Medinipur to investigate the allegations contained in the said letter dated 29th October, 2009 of Anadi Mondal.
The Deputy Superintendent of Police (Headquarters), Purba Medinipur, conducted an investigation and submitted a report on 4th February, 2010. It is not in dispute that the investigation was conducted behind the back of the petitioner.
An enquiry was made from Debipur Milan Vidyapith. By a letter dated 11th January, 2010, the Deputy Superintendent of Police was informed by the school authorities that the date of birth of the petitioner had been recorded as 22nd October, 1945 in the school records. However, in a transfer certificate purportedly issued by the Headmaster of Milan Vidyapith, Debipur on 29th April, 1969 the date of birth of the petitioner was recorded as 22nd October, 1949.
It is alleged that during the investigation it was found that even though the date of birth of Sri Gour Kanti Samanta is 22nd October, 1945 as per school records, he had produced a fabricated transfer certificate being Serial No.33 dated 29th April, 1969 with the forged signature of the then Teacher-in-Charge, Sri Hrishikesh Jana, in which his date of birth was falsely recorded as 22nd October, 1949.
On the allegation that the petitioner fraudulently worked till 31st October, 2009, when in fact, he should have retired on 31st October, 2005, the retirement benefits of the petitioner were withheld and the matter was referred to the Deputy Inspector General of Police (P&W), West Bengal, by a Memo No.387- Wel/PN/Wel/PN 79/2010 dated 22nd March, 2010.
The Deputy Inspector General of Police (P&W), West Bengal, instructed the Superintendent of Police, Purba Medinipur, to seek the opinion of the learned Legal Remembrance, West Bengal. The Deputy Inspector General of Police further directed that release of the pensionary benefits of the petitioner might be withheld till it was decided whether the actual date of birth of the petitioner was 22nd October, 1945 or 22nd October, 1949.
By a Memo No. 145/RO(HC)/70-10 dated 1st April, 2010, the learned Legal Remembrancer opined that there was no legal bar to initiation of criminal proceedings against the petitioner, but since the petitioner had filed an application before the learned Tribunal, it would be better to wait for the judgment of the learned Tribunal.
The respondents have also referred to a photocopy of the Voter's Identity Card of the petitioner, which records his age as 40 as on 01.01.1995. Admittedly, however no departmental proceedings have yet been initiated. The age of the petitioner as recorded in the Voters Identity Card is patently incorrect. Even if the petitioner's date of birth were 22nd October, 1945, he would not complete 40 years of age as on 1st January, 1995.
The Respondent Authorities might have proceeded on the basis of the legal opinion given by the Government Pleader of the district and the learned Legal Remembrance. However, the pensionary benefits could not have been withheld, when admittedly no disciplinary proceedings had been initiated while the petitioner was in service and the petitioner had, in any case, not been convicted. From the affidavit affirmed on behalf of the respondents, it appears that no criminal proceedings have yet been initiated.
The complaint having been received on 29th October, 2009, two days before the petitioner actually retired from service, it was incumbent upon the respondent authorities to suspend the petitioner in contemplation of enquiry, continue the petitioner in service, initiate disciplinary proceedings against the petitioner and thereafter take appropriate action against him in accordance with law. In this case however the petitioner was allowed to retire. Without initiating any disciplinary departmental proceedings or initiating any criminal proceedings the retirement dues of the petitioner cannot be withheld.
It is not in dispute that the service of the petitioner was pensionable. When the terms and conditions of service of an employee provide for pension and other pensionary benefits, the concerned employee acquires a right to get pension and pensionary benefits on attaining the age of retirement. As held by the Supreme Court in State of West Bengal Vs. Haresh C. Banerjee reported in (2006) 7 SCC 651 cited by Mr. Majumder, pension is not a bounty payable at the sweet- will and the pleasure of the government. We are of the view that pension is a condition of service of the employee concerned. Pension and pensionary benefits, which are in the nature of deferred remuneration for service already rendered, have to be released and paid as per the rules.
Pension and other pensionary benefits due and payable to an employee are the property of the employee within the meaning of Article 300A of the Constitution of India. No person can be deprived of pension and/or pensionary benefits, which is his property, except by authority of law.
In State of U.P. v. Brahm Datt Sharma reported in (1987) 2 SCC 179 the Supreme Court observed that if the Government incurs pecuniary loss on account of misconduct or negligence of a government servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Governemnt to initiate departmental proceedings, and if in those proceedings, he is found guilty of misconduct, negligence or any other such act or omission as a result of which the Government is put to pecuniary loss, the State Government is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension. However, any departmental proceedings would necessarily have to be initiated in accordance with law and/or in other words in accordance with the relevant rules and regulations.
In Bhagirathi Jena Vs. Board of Directors, O.S.F.C. & Ors. reported in (1999) 3 SCC 66 the Supreme Court found that the Orissa State Financial Corporation could not, in the absence of specific provisions in the Regulations, continue disciplinary proceedings against a retired employee, even for the purpose of effecting recovery of loss caused by the employee while he was in service. The Supreme Court held that in the absence of authority to continue with departmental enquiry after retirement, the enquiry instituted prior to retirement must be held to have lapsed.
Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rues, 1971 confers power on the government to withhold pension subject to compliance with the requisites of the said Rule. Rule 10(1) is extracted hereinbelow for convenience:-
"10. Right of the Governor to withhold pension in certain cases.
- (1) The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence, during the period of his service, including service rendered on re-employment after retirement:
Provided that -
(a) such departmental proceeding if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service;
(b) such departmental proceedings, if not instituted while the officer was in service, whether before his retirement or during his re-employment-
(i) shall not be instituted save with the sanction of the Governor;
(ii) shall not be in respect of any event which took place more than four years before such institution; and
(iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service;
(c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose on an event which took place more than four years before such institution; and
(d) the Public Service Commission, West Bengal, shall be consulted before final orders are passed. Explanation. - For the purpose of this article-
(a) a departmental proceeding shall be deemed to have been instiuted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date; and
(b) a judicial proceeding shall be deemed to have been instituted-
(i) in the case of criminal proceeding, on the date on which the complaint or report of police officer, on which the Magistrate takes cognizance, is made, and
(ii) in the case of a civil proceeding, on the date on which the plaint is presented or, as the case may be, an application is made to a civil court."
The condition precedent for exercise of the power to withhold and/or withdraw pension is that the employee should be found to have been guilty of grave misconduct or negligence during the period of his service, including service rendered on re-employment after retirement, in a departmental or judicial proceeding. Departmental proceedings not initiated while an officer was in service, cannot be instituted except with the sanction of the Governor. In this case no sanction of the Governor has been obtained. The sanction of any other authority is of no consequence.
In any case, no departmental proceedings can be initiated after retirement in respect of an event which took place more than four years before the date of institution of the departmental proceedings. The incorrect date of birth was furnished at the time of appointment in 1972 i.e. about thirty years ago. In any case, it is reiterated at the cost of repetition that no departmental proceedings or judicial proceedings have yet been initiated.
In our view, no departmental proceedings or judicial proceedings having been initiated and in any case the petitioner not having been found guilty of suppression of age in any validly instituted regular departmental proceedings or in any judicial proceedings, the retirement benefits of the petitioner including pension could not have been withheld.
In Goutam K. Neogi Vs. Union of India reported in 2010 (4) CHN (CAL) 1023 cited by Mr. Majumder a Division Bench disapproved unilateral action on the part of the respondents in changing the date of birth of an employee.
In Bhagirathi Jena Vs. Board of Directors, O.S.F.C. & Ors. (supra) the Supreme Court held that where the enquiry against an employee of Orissa Financial State Corporation could not be completed till the date of its retirement and he was allowed to retire, the enquiry could not be continued nor any amount deducted from his retirement dues.
The learned Tribunal, in our view, erred in not passing appropriate orders for release of pension and other pensionary benefits of the petitioner. The impugned order of the learned Tribunal is thus set aside.
The respondent authorities are directed to release the pension and other pensionary benefits of the petitioner forthwith. However, if any criminal proceedings are instituted against the petitioner, and the petitioner is convicted in such proceedings, it will be open to the respondents to recover the difference between salary paid to the petitioner and the pension due to the petitioner from the date of his retirement as per his actual date of birth till the date of his actual retirement, by withholding of pension in full or in part, or otherwise in accordance with law.
Urgent Photostat certified copy of this judgment and/or order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
(Indira Banerjee, J.) (Anindita Roy Saraswati, J.)