Back
2006 Supreme(Cal) 400
High Court Of Calcutta
SOUMITRA SEN
MANOJ KANTI MAJUMDER - Appellant
Versus
KOLKATA MUNICIPAL CORPORATION - Respondent
CAN 6953 Of 2004
Decided On : 07/07/2006
ACHINTYA BANERJEE, ALOK KUMAR GHOSH, L.C.BEHANI, N.C.BIHANI
Delay in initiating proceedings against a retired employee under Regulation 40 of the Corporation of Calcutta Employees (Death-cum-Retirement Benefit) Regulations, 1982 cannot be condoned altogether and the latches on the part of the authority to detect the misconduct within a reasonable time cannot be condoned altogether.
Headnote:
MUNICIPAL CORPORATION - EMPLOYEES - WITHHOLDING OF PENSION - CHARGESHEET - DELAY IN INITIATION OF PROCEEDINGS - VALIDITY - Held, delay in initiating departmental proceeding in case of an employee in service should not be equated with delay in initiating proceeding under Regulation 40 in case of a retired employee.
Fact of the Case:
The petitioner, a Municipal Engineer-in-Chief, was issued a charge sheet and his pension was withheld on the ground of alleged irregularities in the acceptance of a tender. The petitioner challenged the impugned action of the respondent authority by filing a writ application.
Finding of the Court:
The Court held that the delay in initiating proceedings against the petitioner was not justified and that the petitioner could not be held guilty of grave misconduct on the basis of the allegations made against him. The Court also held that the Municipal Commissioner was not the appropriate authority to issue the charge sheet and that the proceedings initiated against the petitioner were mala fide in nature.
Issues: 1. Whether the delay in initiating proceedings against the petitioner was justified? 2. Whether the petitioner could be held guilty of grave misconduct on the basis of the allegations made against him? 3. Whether the Municipal Commissioner was the appropriate authority to issue the charge sheet? 4. Whether the proceedings initiated against the petitioner were mala fide in nature?
Ratio Decidendi: 1. The Court held that the delay in initiating proceedings against the petitioner was not justified as the allegations against him were based on a report filed by the Comptroller and Auditor General in the year 1999 which was completed in the year 1999, but however, the Show-Cause was issued by the municipal Commissioner on 20th May, 2003 long after the submission of the report by the Comptroller and Auditor General and retirement of the petitioner from service. 2. The Court held that the petitioner could not be held guilty of grave misconduct on the basis of the allegations made against him as the Comptroller and Auditor General had found certain defects in the matter of accepting the second lowest tenderer, but the comment of the Comptroller and auditor General indicates that it is the mayor-in-Council who had accepted the tender and there was no allegation against the petitioner on that score. 3. The Court held that the Municipal Commissioner was not the appropriate authority to issue the charge sheet as the pension sanctioning authority was the Mayor-in-Council. 4. The Court held that the proceedings initiated against the petitioner were mala fide in nature as the Municipal Commissioner was activated only when the Comptroller and Auditor general gave its opinion.
Final Decision: The Court allowed the writ petition, set aside the charge sheet issued against the petitioner, and directed the respondent authorities to pay the allowable pension to the petitioner within a period of two weeks from the date of communication of the order.
( 1 ) THE present writ application has been filed by the petitioner challenging the issuance of a charge sheet against him and for withholding or withdrawl of pension from the month of July, 2003.
( 2 ) THE petitioner was appointed in the post of Municipal Engineer-in-Chief by the Mayor-in-Council at a meeting held on 8th May, 1998. He attained the normal age of superannuation on 30th November, 1998, but, got an extension of the period of service for another six months, and therefore, remained in service till May, 1999. From December, 1998 the petitioner started receiving his pensionary benefits, but, according to the petitioner, the rate at which the pension was paid was much less than his actual entitlement. The petitioner has also alleged that though he was entitled to receive 2. 5 Lakhs Gratuity he was paid only a sum of Rs. 2 Lakhs and the remaining Rs. 50,000/- is yet to be paid.
( 3 ) VIDE Memo, dated 20th May, 2003 the petitioner was served with a show-Cause notice, wherein it was alleged that while working as engineer-in-Chief of the respondent authority, the petitioner had adopted unfair means in getting acceptance of tender of a contractor which is the second lowest tender instead of accepting the lowest tender submitted by another contractor, thereby subjecting the respondent authority to a heavy loss.
( 4 ) THE petitioner duly replied to the said Show-Cause notice by letter dated 16th June, 2003, wherein, it was, inter alia, contended that the exigency of the situation demanded acceptance of a te'nder within a time bound programme. It was further pointed out in the said reply to the Show-Cause notice that the credentials of the lowest tenderer was not very clear and that inspite of written request the lowest tenderer could not furnish proof of their credentials as per tender requirement. The petitioner in the Show-Cause notice clearly stated that the petitioner was a reporting authority who reported everything to the accepting authority i. e. the Mayor-in-Council who duly endorsed the acceptance of the tender submitted by the second lowest tenderer in accordance with the rules of the Kolkata Municipal Corporation.
( 5 ) BY another Memo, dated 18th July, 2003 issued by the Municipal commissioner, the petitioner was informed that an enquiry would be held against him under Regulation 9 of the Calcutta Municipal Corporation Service (Classification, Control and Appeal) Regulation, 1985 and a charge sheet was also issued along with the said Memo, containing an article of charge which is as follows: -Article of Charge-l it is revealed from the audit para No. 2. 18 of C. A. G. 's report for the year 1999-2000, Volume II (Civil) that the KMC suffered a loss of rs. 52 Lakhs in connection with execution of 7 M. G. semi underground reservoir at Tallah due to acceptance of the second lowest tenderer M/s. Rajpath Contractor and Engineers (P) Ltd. in lieu of the lowest officers M/s. Nap Construction (P) Ltd. Accordingly, sri Manoj Kanti Mazumdar was issued show-cause notice under memo No. Con/com/33/2003-4 dt. 20/05/03 u/r 40 (1) of the D. C. R. B. Regulation, 1982 of the KMC as to why his pension should not be withheld for his Involvement in the said irregularity. The reply of sri Mazumdar to the said show-cause notice is not satisfactory and can in no way counter the points raised by CAG. The actions of the then C. M. E. (Pandd) Sri Manoj Kanti Mazumdar and his department are not at all defendable. As such, Sri Mazumdar is hereby charged with adopting unfair means in getting acceptance of the tender of m/s. Rajpath Contractor (P) Ltd. which led to a huge financial loss to KMC. His action amounts to a gross misconduct which is improper and unbecoming of a Corporation employee and is violative of regulation 3 (3) of the Calcutta Mpl. Corporation Officers' and employees' (Conduct) Regulation, 1991.
( 6 ) IT appears from records that in the tender notice bearing No. Pand. D/ 60/96-97 which was for an estimated te
