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2011 Supreme(Cal) 223
HIGH COURT OF CALCUTTA
PRATAP KUMAR RAY AND MRINAL KANTI CHAUDHURI, JJ.
Dilip Kumar Sahu - Appellants
Vs
State Of West Bengal - Respondents
Constitutional Writ Jurisdiction W.P.S.T. 526 of 2009
Decided on: Feb 17, 2011
Pradip Kumar Rai, Sujit Mitra, Subrata Banerji
The record of proceedings should be considered as the real state of affairs and parties will not be allowed to controvert the findings by any affidavit before a Superior Court.
Headnote:
DEPARTMENTAL PROCEEDING - TERMINATION - PENSION - REVISED PENSION - TERMINAL BENEFITS - PENDING DEPARTMENTAL PROCEEDING - JURISDICTION OF TRIBUNAL - PRAYER RELATING TO DISBURSEMENT OF REVISED PENSION, BALANCE AMOUNT OF GRATUITY, COMMUTED VALUE OF PENSION AND OTHER TERMINAL BENEFITS - WHETHER CAN BE CONSIDERED WHEN DEPARTMENTAL PROCEEDING IS UNDER CHALLENGE - WEST BENGAL SERVICES (CLASSIFICATION CONTROL AND APPEAL) RULES, 1971 - RULE 10 - WEST BENGAL SERVICES (DEATH-CUM-RETIREMENT BENEFIT) RULES, 1971 - RULE 10(I)(A).
Fact of the Case:
The petitioner, a retired Sub-Assistant Engineer, challenged the continuation of departmental proceedings against him and sought disbursement of revised pension, balance amount of Gratuity, commuted value of pension, and other terminal benefits. The West Bengal Administrative Tribunal directed the respondents to complete the proceedings and pass a final order. The petitioner was found guilty and a penalty was imposed by withholding 20% of his pension for three years.
Finding of the Court:
The Court held that the departmental proceedings had reached their finality and there was no merit in disturbing the order passed by the Tribunal. The Court also held that the Tribunal did not consider the prayer relating to the disbursement of revised pension and other terminal benefits as it was not raised before the Tribunal.
Issues: 1. Whether the departmental proceedings had reached their finality and there was any merit in disturbing the order passed by the Tribunal? 2. Whether the Tribunal considered the prayer relating to the disbursement of revised pension and other terminal benefits?
Ratio Decidendi: 1. The Court relied on the settled legal position that the record of proceedings should be considered as the real state of affairs and parties will not be allowed to controvert the findings by any affidavit before a Superior Court. 2. The Court also relied on the judgments of the Supreme Court in Mount Carmel School Society v. Delhi Development Authority, Madhusudan v. Chandrabati, Soma Suridaram v. Subramanian, Sarat Chandra v. Bibhabati Devi, State of Maharashtra v. Ramdas Srinivas Nayak, Daman Singh and Ors. v. State of Punjab and Ors., Bhabnagar University v. Palitana Sugar Mills Pvt. Ltd., Sankar Kumar Mondal v. State of Bihar, Central Bank of India v. Vrqjlal Kapur Chand Gandhi, Guruvayoor Devaswom Managing Committee v. C.K. Rajan, and D.P. Chadha v. Triyugi Naratn Mishra.
Final Decision: The Court dismissed the writ petition as it had no merit.
Pratap Kumar Ray, J.
1. THE Judgment of the Court was delivered by Heard the learned Advocates appearing for the parties.
2. ASSAILING the order dated 8th May, 2009 passed by the West Bengal Administrative Tribunal in O.A. No. 719 of 2005, this writ application has been filed. The impugned order reads such. Case No. OA-719 of 2005 Order No.08 Dtd: 08-05-09. We have heard both Mr. Banerjee and Mr. Karim, representing the respective parties in connection with this application filed by one Dilip Kr. Sahu. The petitioner filed this application after receipt of second show cause notice which was served on him on receipt of the enquiry report by the disciplinary authority and we further get from the file that petitioner already replied to the said second show cause notice. The petitioner faced the departmental proceeding on a number of charges related to the allegation of acquisition of asset disproportionate to his known source of income. We find from record and papers, produced by the petitioner himself, that petitioner participated in the proceeding and the enquiring officer, after considering both oral and documentary evidence, submitted a report holding inter alia that all the three charges, framed against the petitioner, were proved. The disciplinary authority, after considering the report of the enquiring officer, decided to impose a punishment to the form of reduction of pension at the rate of 20% for a period of three years without effecting other allowances of the petitioner and, to comply with mandatory provision of rule, the authority served a second show cause notice before imposition of final order. We find from record that petitioner sent his reply to the second show cause and, only thereafter, he came before this Tribunal by filing the present application, challenging the departmental proceeding itself along with the report of the enquiring officer. We find that petitioner has already taken all these points in his reply to the second show cause and we do not know, at this stage, what is the present status of the departmental proceeding. Now, on hearing both Mr. Banerjee and Mr. Karim, we are of the view that, when petitioner participated in the proceeding and he also sent reply to the second show cause noticed and when this Tribunal did not consider the question of granting of any interim relief to the petitioner, it will be appropriate to permit the disciplinary authority to record the final order, if not done already. We make it clear that, if final order has not been recorded as yet, the disciplinary authority, after considering all the points taken by the petitioner in reply to show cause, shall record such final order and intimate the same to the petitioner immediately, preferably, within a fortnight. The petitioner is granted the liberty to exhaust all available remedies against the final order. With this, we dispose of this application at this stage. Plain copy to both sides.
Sd/- A.K. Patnaik
Sd/- A.K. Basu
Member(A)
Member(J)"
In the Original Application moved before the learned Tribunal, the writ petitioner assailed the continuation of departmental proceeding which reached up to the stage of second show cause notice and also raised grievance on disbursement of revised pension, payments of balance amount of Gratuity, commuted value of pension and other terminal benefits, as per the revised scale of pay in terms of Career Advancement Scheme. So far as departmental proceeding is concerned, learned Tribunal below directed the respondents to complete the proceeding and to pass a final order. In pursuance thereof, on 16th October, 2009 an order has been passed by the Hon'ble Governor, imposing penalty by way of withholding 20% of his pension without affecting other allowances. This order of the Hon'ble Governor was communicated by Joint secretary to the Government of West Bengal.
3. THE order dated 16th October, 2009 as produced by the writ petitioner reads such. Government of West Bengal P.W. (Roads) Departme
