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1977 Supreme(Cal) 38
IN THE HIGH COURT AT CALCUTTA
Chittatosh Mookerjee, J.
Shri Surendra Kumar Ray Chowdhury - Petitioner
Versus
The Collector of Calcutta & Ors. - Respondents
Civil Rule No. 18827 (W) of 1975
Decided on : January 31, 1977
In C. R. No. 20443 (W) of 1975
Mr. Saktinath Mukherjee and Madhusudan Banerjee .....for the Petitioner
Mr. D.P. Chowdhury and S.N. Mukherjee ......for the Respondent Nos. 1 to 3 and 5
Mr. P.K. Sengupta (G. P.) and Samares Kumar Nandi ......for the Respondent No.4
In C. R. No. 18827 (W) of 1975
Mr. Saktinath Mukherjee and Modhusudan Banerjee ...for the Petitioner
Mr. D. P. Chowdhury and S. N. Mukherjee ......for the Respondent Nos. 1, 2, 3, 4, 6, 7 and 8
Mr. P.K. Sengupta, (G. P.) and Samares Kumar Nandi ......for the Respondent Nos. 5 and 9
The Government cannot act as a judge in its own cause and determine the liability of a party without a judicial determination, and Rule 8(i) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, applies to cases of conviction for a serious crime or finding of grave misconduct after retirement, not to acts or omissions during service.
Headnote:
WEST BENGAL SERVICES (DEATH-CUM-RETIREMENT BENEFIT) RULES, 1971 - RULE 8(I) - WITHHOLDING OF PENSION - GRAVE MISCONDUCT - INTERPRETATION.
Fact of the Case:
The petitioner, a former Treasurer of the Calcutta Collectorate, challenged the deduction of alleged loss of stamps from his security deposit and the withholding of his pension and gratuity under Rule 8(i) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971.
Finding of the Court:
1. The indemnity bond executed by the petitioner did not confer upon the Government the authority to adjudicate whether any loss or damage occurred during his tenure as Treasurer. 2. The Government could not act as a judge in its own cause and determine the liability of the petitioner without a judicial determination. 3. Rule 8(i) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, applies to cases of conviction for a serious crime or finding of grave misconduct after retirement, not to acts or omissions during service. 4. The Collector's order withholding the petitioner's pension was not preceded by a finding of guilt of grave misconduct as required by Rule 8(3). 5. The Collector was disqualified from passing the impugned orders due to reasonable apprehension of bias.
Issues: 1. Whether the Government had the authority to deduct the alleged loss of stamps from the petitioner's security deposit without a judicial determination of liability. 2. Whether Rule 8(i) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, could be invoked to withhold the petitioner's pension for acts or omissions during his service. 3. Whether the Collector's order withholding the petitioner's pension was valid in the absence of a finding of guilt of grave misconduct. 4. Whether the Collector was disqualified from passing the impugned orders due to reasonable apprehension of bias.
Ratio Decidendi: 1. The indemnity bond did not empower the Government to adjudicate the petitioner's liability for the alleged loss of stamps. 2. Rule 8(i) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, applies to cases of conviction for a serious crime or finding of grave misconduct after retirement, not to acts or omissions during service. 3. The Collector's order withholding the petitioner's pension was not preceded by a finding of guilt of grave misconduct as required by Rule 8(3). 4. The Collector was disqualified from passing the impugned orders due to reasonable apprehension of bias.
Final Decision: The Court quashed the impugned orders for deducting the alleged loss of stamps from the petitioner's security deposit and withholding his pension and gratuity. It also issued a writ of mandamus commanding the respondents to forbear from giving effect to the impugned orders and to forbear from adjusting the sale proceeds of Government Promissory Notes sold without a decree or order of a competent court.
In the year 1939 the petitioner was appointed as a Treasurer of the Calcutta Collectorate. On 8th September, 1939 the petitioner, his father, Sahsi Bhusan Ray Chowdhury and his mother Sm. Naresh Kumari Ray Chowdhury jointly executed a bond in favour of the Governor of the then Province of Bengal binding themselves and their heirs and successors for due performance and fulfillment of the duties of the petitioner as the Treasurer. They had delivered to, deposited with and endorsed over to the Collector Government Promissory Notes to the extent of Rs. 1,06,000/- for the purpose of security and indemnifying the Governor of the province of Bengal against the losses and damage which may be suffered. In September, 1973 the petitioner had strained the age of superannuation but he was re-appointed as the Treasurer of the Calcutta Collectorate. He was due to finally retire on 30th April, 1975. According to the petitioner on 30th April, 1975, in the presence of the Collector, Calcutta.
2. And the Treasury Officer he had made over charge to Sri S. Sadhukhan who was then the Special Treasurer of the Collectorate. On 2nd May, 1975 the petitioner had drawn his salary for the month of April, 1975. On 30th June, 1975 he was submitted papers for drawing up his pension and gratuity. On 1st July, 1975 the office of the Collector of Calcutta, forwarded the pension and gratuity papers of the petitioner to the office of the Accountant General, West Bengal. On 22nd July, 1975 the Accountant General, West Bengal bas submitted a final report for payment of pension and gratuity to the petitioner.
3. The respondents have disclosed that on 27th June, 1975 the Commissioner. Presidency Division had written a letter to Shri N. Ganguli. who was then the Collector, Calcutta standing that the Chief Secretary bad been informed that the new Treasurer had found cash balance at the treasury short by a considerable amount after taking charge. But no report on this point had been submitted by the Collector. The Commissioner informed the collector that he had asked his Personal Assistant, Shri B. Barman to look into the matter. The cash book etc. should be shown to him. On 28th June, 1975 Shri M. Ganguli, the then Collector of Calcutta wrote a D.O. letter to the Commissioner, Presidency Division stating that the Treasury, officer in a note had informed him only day before yesterday the fact stated in the said D.O. letter. On 30th April, 1975 certain deficit had been found in the cash balance of the treasury. It had been now estimated that Rs. 545/- was to be paid by the Ex-treasurer, Shri Surendra Kumar Ray Chowdhury. The Collector further stated that the present treasurer had taken over charge from Shri Surendra Kumar Ray Chowdhury on 30th April, 1975 in the afternoon with full responsibility as regards cash and stamp etc. The Collector further stated that it was also apprehended that there might be certain shortages left by the ex-treasurer in stamps and the Treasury Officer and the Treasurer had been asked to enquire into the matter and send a report. The Collector stated that he would shortly come up with the proposal to realise the amounts involved from Shri Surendra Kumar Ray Chowdhury's security of Rs. 1,05,000/- in Government promissory notes now being held in terms o the agreement dated 8th September, 1939. Sri B. Barman, personnel Assistant of the Commissioner, Presidency Division after holding an enquiry into the allegations regarding the alleged shortages of stamps and cash in the Treasury double lock and defalcation of sale proceeds of stamps by the senior salaried stamp vendor submitted a report on 19th July, 1975 Sri Barman adversely commented about the responsibility of and then Treasury Officer regarding the alleged shortages in cash and stamps. The Commissioner, Presidency Division by his memorandum dated 24/25th July, 1975, had forwarded the said report of B. Barman together with his own comments and observations. The Commissioner also made
