Calcutta High Court (Appellete Side)
Gour Chandra Sarkar vs The State Of West Bengal & Others on 6 May, 2010
Author: Pranab Kumar Deb
Bench: Pranab Kumar Chattopadhyay, Pranab Kumar Deb
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Pranab Kumar Deb
W.P.S.T. 185 of 2010
Gour Chandra Sarkar
Versus
The State of West Bengal & Others
For the Petitioner : Mr. Alok Banerjee
Mr. Partha Ghosh
For the State : Mr. Subroto Mukhopadhyay
Mr. Bhaskar Ghosh
Heard On: 03.05.2010
Judgment On: 06.05.2010
PRANAB KUMAR DEB, J.
This writ petition has been filed challenging the order dated 24th March, 2010 passed by the learned West Bengal Administrative 2 Tribunal in Case No. O.A. 107 of 2010 whereby and whereunder the said learned Tribunal refused to pass any interim order staying the disciplinary proceedings initiated against the petitioner herein.
It has been urged on behalf of the petitioner before us that the disciplinary proceedings cannot continue against the said petitioner after retirement.
Going through the records, we find that the petitioner was allowed to retire from service on attaining the age of super- annuation by the respondent authorities without raising any objection. After retirement, the relationship of master and servant between the petitioner and the employer had ceased to exist.
The learned Counsel representing the State-respondents, however, submitted that even after retirement disciplinary proceedings can continue specially when the same was initiated while the petitioner was in service. Mr. Subroto Mukhopadhyay, learned Standing Counsel representing the State-respondents, submitted that in view of the financial involvement, departmental proceedings can continue in the facts of the present case. 3
Mr. Mukhopadhyay further submitted that Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 empowers the authorities to continue the disciplinary proceedings even after retirement.
On examination of the charge levelled against the petitioner, we find that there was no charge of causing pecuniary loss to the Government. Furthermore, on examination of the charge-sheet issued to the petitioner, we find that the said petitioner was charged with dereliction of duty and gross misconduct unbecoming of member of Police Force.
Main allegation levelled against the petitioner in the said charge-sheet is that on 21st January, 2008 under the direction of the said petitioner, one Sub-Inspector of Police arrested Sri Mahendra Suralia, Proprietor of Shree Hanuman Steel Traders and allegedly detained him in Police Station for the entire day with malafide intention and booked him on flimsy grounds of violation of the provisions of Motor Vehicles Act.
The other charge mentioned in the said charge-sheet against the petitioner is that on 23rd June, 2008, said petitioner arrested and restrained said Sri Mahendra Suralia again from attending the Government auction.
4Rule 10 (1) of West Bengal Services (Death-cum-Retirement Benefit) Rules 1971 provides :-
"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 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;....................."
The application of Rule 10 (1) of West Bengal (Death-cum- Retirement Benefit) Rules 1971 was considered by the Division Bench of this Court in the case of Arun Kumar Biswas vs. 5 Superintendent of Police, Burdwan & Ors. reported in 1992 (1) CHN
354. The relevant extracts from Paragraph 4 of the said judgment are set out hereunder:
"4........................So unless there was a definite charge against a pensioner that he had caused loss to the government while he was in service by committing grave misconduct or negligence, in that event, the proceeding could not be continued so that if he is ultimately found guilty of the same in that event, the loss actually caused to the government might be recovered from the pension payable by the Government to the pensioner. Save and except for this specific purpose, Rule 10(1) of the said Rules had no manner of application whatsoever. Looking to the charges framed against the petitioner, I find that there was not a single charge against the petitioner for causing any pecuniary loss to the Government and as such the question of invoking the provisions of Rule 10 of the said Rules for recovery of the loss caused to the Government did not and could not arise at all. Disciplinary proceeding on the basis of the charges as framed, in my view, could not be continued or concluded against the petitioner after the petitioner had retired from service. I respectfully agree with the above decision of the Full Bench of the Kerala High Court in the case mentioned above and hold that the departmental proceeding on the basis of the charges framed against the petitioner could not be continued and concluded after the retirement of the petitioner as there was no charge for causing any pecuniary loss to the Government while the petitioner was in service and as such, the proceeding could not be continued against the petitioner in the instant case. I am constrained to take this view in the interest of social justice and as the retired employees had no social security excepting the retiremental benefits..............."
In the case of State of Punjab vs. Khemi Ram reported in AIR 1970 SC 214, Hon'ble Supreme Court held:
"11. There can be no doubt that if disciplinary action is sought to be taken against a Government 6 servant it must be done before he retires as provided by the said Rule................................."
In State of U.P. & Ors. Vs. Harihar Bholenath reported in (2006)13 SCC 460, Hon'ble Supreme Court held that a departmental proceeding can be initiated for recovery of amount suffered by the State exchequer owing to the acts or omission or commission of a delinquent employee in three different situations.
i) when a disciplinary proceeding is initiated and concluded against a delinquent employee before he reaches his age of superannuation.
ii) When a proceeding is initiated before the delinquent officer reached his age of superannuation but the same has not been concluded and despite the superannuation of the employee, an order of recovery of the amount from the pension and gratuity passed ; and
iii) An enquiry is initiated after the delinquent employee reaches his age of superannuation.
In State of West Bengal Vs. Harish C Banerjee & Ors., reported in (2006) 7 SCC 651, it has been held that if the government incurs pecuniary loss on account of misconduct or negligence of a government servant and he retires from service 7 before any departmental proceeding is taken against him, it is open to the state government to initiate departmental proceedings.
With the retirement of an employee, the employer employee relationship snaps. Therefore, unless there is allegation of Government suffering financial loss on account of the misconduct or negligence of the retired employee, the departmental proceedings after his retirement cannot continue.
The learned Standing Counsel representing the State- respondents desperately argued before this court that the petitioner herein has waived his right to raise the objection regarding continuation of the disciplinary proceedings after participation in the said disciplinary proceedings.
We fail to understand how the aforesaid objection can be raised at the instance of the State-respondents since there cannot be any waiver of statutory right. We would like to point out that the petitioner challenged the continuation of the departmental proceeding at the very outset. We cannot subscribe to the view that there has been waiver of the statutory right either. 8
The respondent authorities are not entitled to proceed against the employee concerned after retirement due to the operation of law. Mere participation at any stage cannot debar the said employee from challenging the decision of the respondent authorities to proceed with the disciplinary proceedings even after retirement from service.
The learned Tribunal refused to grant any interim order as a result whereof the petitioner was directed to participate in the disciplinary proceedings, although it is well settled that the relationship of master and servant ceases to exist after retirement and, therefore, no disciplinary proceedings can continue against a retired employee unless there is a specific charge of causing pecuniary loss to the Government.
It is contended by Mr. Subrata Mukhopadhyay, learned standing counsel, that auction date is an important aspect of revenue earnings and all interested persons are encouraged to participate in it in a free and fair manner so as to ensure that the government gets highest bidding price. It is contended by Mr. Mukhopadhyay that had Mahendra Suralia not been detained before auction, the railways might have received a higher offer. We are afraid such hypothetical assessment of imaginary loss of revenue can never be accepted. Recovery of pecuniary loss from the pension 9 can be made only in the event of government sustaining pecuniary loss on account of the alleged misconduct or negligence of the concerned employee. Here no such allegation has been levelled against the petitioner. It has not even been claimed that the railway has suffered any financial loss because of non- participation of any bidder. No financial loss having been sustained by the Government because of the alleged conduct of the petitioner, the departmental proceeding after his retirement is not permissible.
In the present case, even in absence of any charge of causing pecuniary loss to the Government, continuation of the disciplinary proceedings after retirement is not at all permissible.
For the aforementioned reasons, we hold that the disciplinary proceedings initiated against the petitioner cannot be allowed to continue after retirement and the same is, therefore, quashed.
In the aforesaid circumstances, the impugned order passed by the learned Tribunal cannot be sustained and the same is accordingly set aside.
This application thus stands allowed.
10In the facts of the present case, there will be, however, no order as to costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR DEB, J.] PRANAB KUMAR CHATTOPADHYAY, J.
I agree.
[PRANAB KUMAR CHATTOPADHYAY, J.] 11 LATER :
After pronouncement of the judgment, Mr. Bhaskar Ghosh, learned Counsel representing the State-respondents prays for stay of the operation of the said judgment and order. We find no reason to grant such stay.
Accordingly, the prayer for stay is refused.
[PRANAB KUMAR CHATTOPADHYAY, J.] [PRANAB KUMAR DEB, J.]