The Draft Regulation, which was deemed to have come into force with effect from June 1, 1998, has yet not been approved by the Government. Therefore, it could not have any application for deciding the fate of the writ petitioner. The applicable regulation for deciding the case was the Service Regulations. The Special Court honourably acquitted the writ petitioner, and the order of the Special Municipal Commissioner (P) lacked statutory sanction and could not be sustained in law. The court upheld the order in favor of the writ petitioner. The appellants were not entitled to any relief.

JUDGMENT :

DIPANKAR DATTA, J.

1. The Municipal Commissioner of Kolkata Municipal Corporation (hereafter KMC) and 3 (three) of its officers are the appellants before us, in this intra- court writ appeal. They are aggrieved by the order dated August 6, 2018, whereby a learned Judge of this Court disposed of WP 24373 (W) of 2017 presented by the respondent no.1 (hereafter the writ petitioner) with directions as follows:

"It appears from the records that the petitioner was placed under suspension on May 3, 2003 and retired from service on February 29, 2016. No disciplinary proceeding was initiated against him, in the interregnum. At least the same did not culminated into order of punishment. The petitioner was acquitted from criminal charges on August 25, 2017. In view of this, since the petitioner did not suffer any punishment in connection with any disciplinary proceeding relating to his service, the KMC authorities are obliged to pay the petitioner retirement benefits treating him to be in service and by discounting the fact that the petitioner was placed under suspension on May 3, 2003.

Therefore, the KMC authorities shall calculate and disburse the retirement benefits of the petitioner by treating him to be in service for the period from May 3, 2003 till February 29, 2016. The authorities shall also disburse the emoluments pay and allowance that the petitioner was entitled to as if the petitioner was not placed under suspension for the period from May 3, 2003 to February 29, 2016. The entire disbursement shall take place within a period of six weeks from the date of communication of this order. Needless to say that the KMC authorities will be entitled to adjust the payment already made in such period."

2. The appellants have applied for stay of operation of the order impugned. While hearing the application for stay, we necessarily had to consider various issues based on the arguments advanced by the parties. We also had to obtain information from the State on a particular point, which shall be referred to at a later part of this judgment. Since we were of the view that the decision on the application for stay would leave nothing substantial for being decided in the appeal, we called upon the parties to address us on the merits of the appeal. They obliged and we now propose to dispose of the stay application as well as the appeal by this common judgment and order.

3. The facts as pleaded in the writ petition and the relief claimed call for being noticed first. The writ petitioner had retired from the service of KMC, while under suspension, on attaining the age of superannuation on February 29, 2016. Prior to being placed under suspension, he was posted as the Personal Assistant to the Assessor Collector (South).

Despite superannuation, the writ petitioner's retiral benefits had not been released.

The cause for suspension of the writ petitioner was the outcome of his involvement as an accused in connection with Bhawanipur P.S. FIR No. 206/2006 dated June 5, 2006 under sections 417/420/468/471/34 of the Indian Penal Code (hereafter the IPC) and section 13 of the Prevention of Corruption Act, 1988 (hereafter the PC Act) and detention in custody for more than 48 hours in connection with investigation of the said FIR.

Suspension was ordered on July 23, 2006, with effect from May 3, 2006.

The writ petitioner was, however, released on bail by an order dated June 25, 2006, after being in custody for 46 days. Since subsistence allowance was not being paid to him in accordance with the revised pay scale, the writ petitioner had the occasion to invoke the writ jurisdiction of this Court earlier in 2011. Despite disposal of such writ petition by a learned Judge by an order dated January 6, 2012 directing the Joint Municipal Commissioner, KMC to consider payment of subsistence allowance in terms of the rules, the prayer was declined because the said authority found that the writ petitioner had no "valid ground to receive subsistence allowance on the