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IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
Md. Abdul Hannan Kabiraj – Petitioner
Versus
Union of India and Ors. – Respondents
W.P. No. 8522 (W) of 2011 and C.A.N. No. 4137 of 2014
Decided On : 19-12-2014
For the Petitioner:Achin Kumar Majumder, Advocate.
For the Respondent:L.N. Chatterjee, Aparna Ghosh and Aparna Banerjee, Advocates.
A departmental proceeding initiated during the service tenure of an employee can be continued even after the employee attains superannuation, provided that the proceeding is initiated under sub-rule (1) of Rule 9 of the Pension Rules.
Headnote:
PENSION - CONTINUANCE OF DEPARTMENTAL PROCEEDINGS - AFTER RETIREMENT - INTERPRETATION OF RULE 9 OF THE RAILWAYS SERVICES (PENSION RULES), 1993 - HELD, SUB-RULE (1) OF RULE 9 OF THE PENSION RULES PERMITS CONTINUANCE OF THE DEPARTMENTAL PROCEEDING EVEN AFTER THE DELINQUENT RETIRES.
Fact of the Case:
The petitioner, an employee of the Railway Protection Force, was served with a charge sheet and suspended during his service. The disciplinary proceeding was initiated under Rule 153 of the Railway Protection Force Rules, 1987. After the petitioner's retirement, the disciplinary authority concluded the proceeding and sought leave from the court to communicate the decision to the petitioner.
Finding of the Court:
The court held that sub-rule (1) of Rule 9 of the Pension Rules permits the continuance of the departmental proceeding even after the delinquent retires. The court further held that the departmental proceeding contemplated under sub-rule (1) of Rule 9 of the Pension Rules speaks of a different departmental proceeding than the proceeding initiated under Rule 153 of the Railway Protection Force Rules, 1987.
Issues: 1. Whether a disciplinary proceeding initiated during the service tenure of an employee automatically vanishes and/or terminates after the employee attains superannuation? 2. Whether the departmental proceeding contemplated under sub-rule (1) of Rule 9 of the Pension Rules speaks of a different departmental proceeding than the proceeding initiated under Rule 153 of the Railway Protection Force Rules, 1987?
Ratio Decidendi: 1. The court interpreted sub-rule (1) of Rule 9 of the Pension Rules to mean that a departmental proceeding initiated during the period of service can be continued even after the delinquent retires. 2. The court held that the expression "in any departmental or judicial proceeding" and "during the period of his service" are of great significance and cannot be divorced from each other. 3. The court further held that the conjoint reading of sub-rules (1) and (2) of Rule 9 of the Pension Rules indicates that the legislative intent is to allow any departmental and/or judicial proceeding initiated against the delinquent while in service to be continued in the same manner as if the delinquent is in service.
Final Decision: 1. The court dismissed the petitioner's application seeking a direction to release the retiral benefits. 2. The court allowed the employer's application seeking leave to communicate the decision taken by the disciplinary authority to the petitioner.
Harish Tandon, J.
1. A legal point has been raised in the writ petition whether a disciplinary proceeding initiated during the service tenure of an employee automatically vanishes and/or terminates after the employee attains superannuation.
2. The order of suspension and charge-sheet is challenged in this writ petition and this Court passed an interim order permitting the authorities to proceed with the disciplinary proceeding but restrained the authorities to pass the final order without the leave of this Court.
3. After conclusion of the disciplinary proceeding, the respondent authorities took out an application filed under C.A.N. 11572 of 2011 seeking leave to publish the order passed by the disciplinary authority. Instead of disposing of the said application, the Court directed the same to be listed along with the writ petition.
4. By a subsequent application (C.A.N. 4137 of 2014), the petitioner prays for an order directing the respondents to release the retiral benefits with all admissible allowance as the disciplinary proceeding cannot be allowed to continue beyond the date of superannuation of the petitioner.
5. While contending that the disciplinary proceeding was initiated under Rule 153 of the Railway Protection Force Rules, 1987 (hereinafter referred to as "said Rules") and having not culminated into an order, the departmental proceeding shall be deemed to expire its natural death and cannot survive and/or resurrect after date of retirement.
6. When confronted to Rule 9 of the Railways Services (Pension Rules), 1993 (hereinafter referred to as "Pension Rules"), the learned advocate for the petitioner submits that the departmental proceeding contemplated under sub-rule (1) thereof, speaks of a different departmental proceeding than the proceeding initiated under Rule 153 of the said Rules and, therefore, the authorities cannot continue with the departmental proceeding. In other words what is sought to be said is that the departmental proceeding must originate under sub-rule (1) of Rule 9 of the Pension Rules and cannot be equated with the departmental proceeding initiated under Rule 153 of the said Rules. To buttress the aforesaid submission, the petitioner has relied upon a judgment of the Coordinate Bench rendered in the case of Jnanadhir Mohan Sen Sharma v. Union of India and others, (W.P. 8093 (W) of 2003) decided on 16th June, 2004.
7. It is further submitted by the petitioner that the pension and the gratuity being a statutory right, that cannot be taken away by initiating a departmental proceeding except where the delinquent is found guilty of grave misconduct or negligence or where the employer suffered a pecuniary loss. In support of the aforesaid contention, the petitioner relies upon a judgment of the Honble Supreme Court rendered in the case Shri D.V. Kapoor v. Union of India and others, reported in 1990 (3) SLR 5.
8. The respondents, however, refutes the aforesaid contention of the petitioner in saying that sub-rule (1) of Rule 9 of the Pension Rules permits continuance of the departmental proceeding even after the delinquent retires. It is further submitted that sub-rule (1) of Rule 9 of the Pension Rules does not only provide an independent departmental proceeding but mean such departmental proceeding, which is initiated against the employee and the power of the President is reserved to withhold the pension or gratuity, either fully or in part, if the pensioner is found guilty of grave misconduct or negligence during the period of service.
9. Upon reading the unreported judgment rendered by the Co-ordinate Bench, it appears that the Co-ordinate Bench has proceeded to hold that the provisions contained in Rule 9 of the Pension Rules applied to a departmental proceeding initiated in terms of the provision contend in sub-rule (1) of Rule 9 and does not include the departmental proceeding initiated against the employee under any other Rules than the Pension Rules.
10. Admittedly, the pension can be paid i
