Point of Law: Employment and Service - Misconduct - Discharge from service - Claiming Retiral Benefits - Society failed to perform its statutory duty by not releasing retiral benefits to appellant.

JUDGMENT :

Hiranmay Bhattacharyya, J.

1. The writ petitioner has preferred the instant appeal challenging the order dated December 24, 2020 passed by a learned Single Judge in WPA 10484 of 2020.

2. The appellant herein was appointed as a driver of the Midnapore Co-operative Milk Producer’s Union Limited (for short “the Co-operative Society”). While the appellant was discharging his duties as a driver, two written complaints were made by the employees of the co-operative society before the police alleging misappropriation of money from their provident fund account by the appellant herein. On the basis of the said written complaints, the Investigating Officers submitted charge sheets. The Chief Judicial Magistrate after taking cognizance transferred the case to the concerned Judicial Magistrates. A GR Case No. 871 of 2005 was registered for offences under Section 467/468/471/420 of the Indian Penal Code arising out of Kotawali PS Case No.131 of 2005 on the basis of one of such complaint. On the basis of the other complaint, GR Case No. 1193 of 2005 was registered for offences under Sections 420/467/468/471/34 of the Indian Penal Code.

3. The appellant was placed under suspension and the co-operative society issued the memorandum of charge sheet on December 16, 2008. In the memorandum of charge sheet it was alleged that the appellant herein withdrew substantial amounts from the provident fund accounts of several employees of the society by making false applications, by forging the signature of applicants, by obtaining the cheques by misrepresentation, by encashing the cheques by false impersonation and false representation which constitutes misconduct on the part of the appellant herein. The appellant duly replied to the charge sheet.

4. In the meantime, the appellant attained the age of superannuation and retired from service on superannuation on January 31, 2009.

5. The trial of the criminal cases were concluded after the appellant retired form service. The concerned Judicial Magistrates held that the appellant was not guilty of the offence and acquitted the appellant. Appellant communicated the order passed by the criminal court to the respondent society and requested them to release his retiral benefits but the respondent society did not pay his retiral benefits. Since the respondent society did not release the retiral benefits, the writ petitioner filed the instant writ petition praying for a mandamus directing the respondent authorities to release the retiral benefits in his favour.

6. The appellant claims to have received an order dated December 17, 2020 wherefrom he came to know that an enquiry officer has been appointed to conduct the disciplinary enquiry afresh with reference to the charges already framed against him.

7. By the order impugned, the Hon’ble Single Judge directed the respondent society to complete the enquiry within a period of three months from the date of communication of the order and further directed the appellant to participate in the enquiry without seeking any unnecessary adjournment.

8. Since a fresh point emerged as to the applicability of the West Bengal Services Death Cum Retirement Benefit Rules, 1971 (for short the “DCRB Rules, 1971)) and particularly Rule 10 thereof, to a co-operative society this Court permitted the parties to exchange affidavits on such limited issue and the respondent nos. 5 and 6 filed an affidavit-in-opposition and the appellant also filed an affidavit-in-reply to such affidavit-in-opposition.

9. Mr. Chakraborty, the learned advocate for the appellant contended that once the writ petitioner/ appellant herein has been acquitted in the criminal cases, the departmental proceedings cannot continue any further. He contended that in the meantime the appellant herein retired from his service on superannuation resulting in cessation of the employer-employee relationship and the departmental enquiry cannot continue any further as no punishment can be imposed upon a retired employee. He als