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1992 Supreme(Cal) 78
HIGH COURT OF CALCUTTA
Bhagapati Prasad Banerjee & Amal Kanti Bhattacharjee, JJ.
Arun Kumar Biswas
Vs
Superintendent of Police, Burdwan & Ors.
WRIT APPEAL T. No. 2096 of 1991
Decided on : February 18, 1992
Pratap Roy for the appellant;
Arun Kumar Mitra for the respondent.
Rule 10(1) of the West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971, has a limited and narrow application and can only be invoked for the purpose of recovering pecuniary loss caused to the Government by the pensioner because of gross misconduct or negligence during the period of service.
Headnote:
MISCONDUCT - DISCIPLINARY PROCEEDING - RETIREMENT - RULE 10 OF WEST BENGAL SERVICE (DEATH-CUM-RETIREMENT BENEFIT) RULES 1971 - SCOPE AND APPLICABILITY - CONDUCT OF DISCIPLINARY PROCEEDING AGAINST RETIRED EMPLOYEE - CONDITIONS AND LIMITATIONS - INTERPRETATION OF RULE 10 - RIGHT TO PENSION AS PROPERTY UNDER ARTICLE 19(1)(F) AND 31(1) OF THE CONSTITUTION - PROTECTION FROM ARBITRARY WITHDRAWAL OR WITHHOLDING.
Fact of the Case:
The appellant, a retired government employee, was served with a fresh chargesheet after his retirement, alleging misconduct during his service. The appellant challenged the continuation of the disciplinary proceeding against him after his retirement, arguing that Rule 10(1) of the West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971, did not authorize such proceedings.
Finding of the Court:
The Court held that Rule 10(1) of the West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971, had a limited and narrow application and could only be invoked for the purpose of recovering pecuniary loss caused to the Government by the pensioner because of gross misconduct or negligence during the period of service. In the absence of a charge against the appellant for causing any pecuniary loss to the Government, the disciplinary proceeding could not be continued or concluded against him after his retirement.
Issues: 1. Whether disciplinary proceeding against a retired government employee can be continued under Rule 10(1) of the West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971. 2. Whether Rule 10(1) authorizes the continuation of disciplinary proceedings as such against a Government servant after his retirement. 3. Whether the right to pension is a property under Article 19(1)(f) and 31(1) of the Constitution and whether it can be taken away without authority of law.
Ratio Decidendi: 1. Rule 10(1) of the West Bengal Service (Death-cum-Retirement Benefit) Rules, 1971, allows for the continuation of disciplinary proceedings against a retired government employee only for the purpose of recovering pecuniary loss caused to the Government by the pensioner because of gross misconduct or negligence during the period of service. 2. The continuation of disciplinary proceedings as such against a Government servant after his retirement is not authorized by Rule 10(1). 3. The right to pension is a property under Article 19(1)(f) and 31(1) of the Constitution and cannot be taken away without authority of law.
Final Decision: The Court allowed the appeal and set aside the chargesheet issued against the appellant after his retirement. The Court also directed the respondents to pay the appellant all retirement benefits, including arrear salaries, within four months.
B. P. Banerjee, J.: This is an appeal against the judgment and order dated 21st June, 1991 passed by the learned trial Judge in Civil Order no. 946 (W) of 1988 whereby, the learned trial Judge after quashing the charge sheet granted liberty to the respondents to proceed afresh by issuing a chargesheet in accordance with law. The scope of the appeal has become very much limited in view of the fact that the writ petitioner appellant herein has retired from service on 31st August, 1991 and that the only question that is involved in this appeal is whether disciplinary proceeding of this nature could be continued under the provisions of Rule 10 (1) of the West Bengal Service (Death-cum-Retirement Benefit) Rules 1971. It is not necessary to go into the other questions. Pursuant to the order of the learned trial Judge a fresh chargesheet has been issued wherein it has been stated as follows:
"On 12.1.84 S. I. N. L. Sikdar, the then O. C. Durgapure P.S. endorsed you the investigation of Durgapur P.S. Case No. 16 dt. 12.1.84 under s. 461/379 I.P.C. changed to s. 395 I.P.C. while you were attached to Faridpur I.C. under Durgapur P.S. But till 3.2.84 you failed to submit any case diary in connection with this case as a result action taken by you being an investigating officer of this case are not known to the Superior officers.
Now therefore, in pursuance of clause II of Article No. 311 of the Constitution of India and Regulation 861 of P.R.B. Vol. I, 1943 the undersigned is pleased to hereby require you to put in before Sri M. Malaviya IPS, Addl. S. P. Durgapur who has been appointed as an enquiring officer to enquire into the aforesaid charges against you. You are hereby directed to state in writing whether you plead guilty to the charges or you desire to be heard in person or call any witnesses or produce any documents in favour of your defence within 7 days from the dale of receipt of charges.
The statement of allegations on which the aforesaid charges are based is enclosed.
Sd/- P. N. Saha
Superintendent of Police, Burdwan."
2. Rule 10 of the W. B. Services (Death-cum-Retirement Benefit) Rules 1971, provides as follows:
"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 specific 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."
3. It was submitted on behalf of the appellant that the charges against him was that he failed to submit any case diary in connection with the case being an Investigating Officer and did not arrest the accused. The word "misconduct" has its definite meaning and the Supreme Court in the case of Union of India v. J. Ahmed, A.I.R. 1979 S.C. 1022 observed that all omissions or commissions will not make out a case of misconduct but there must be some mens rea or motive along with such omission or commission. Applying the principle laid down by the Supreme Court it does not appear that the charges on the face of it discloses the case of misconduct inasmuch as no imputation has been attracted for non-submission of the case diary. The Supreme Court in the case of A. L. Kalra v. Project and Equipment Corporation of India Ltd. A.I.R. 1984 S.C. 1361. It was held "Rule 4 bears the heading "general". Rule 5 bears the heading "misconduct". It was held that a general expectation of certain decent behaviour in respect of employees keeping in view corporation culture may be moral or ethical expectation. Failure to keep such high standard of moral, ethical or the decorous behaviour befitting an officer of the company by itself cannot in any of the enumerated misconduct in Rule 5. Any attempt
