Ashoke Kumar Ganguli vs Union Of India & Ors
2022 Latest Caselaw 2425 Cal

   119
28.04.2022
 Ct. No.23
     pg.
                       IN THE HIGH COURT AT CALCUTTA
                      CONSTITUTIONAL WRIT JURISDICTION
                               APPELLATE SIDE

                                 WPA 18066 of 2017
                                       with
                                   CAN 3 of 2020

                                Ashoke Kumar Ganguli
                                          Vs.
                                 Union of India & Ors.


                    Mr. Amal Kumar Mukhopadhyay
                    Mr. Debashis Kundu
                    Ms. Tithi Mazumder
                                ... For the petitioner

                    Mr. Jagannath Ganguly
                               ... For the respondents

The petitioner was appointed in the year 1984 as an

Attendant in Bureau of Indian Standards (in short "BIS") at

its Eastern Regional Office. On 19th November, 2008, the

petitioner was served with a charge sheet. The

departmental proceedings initiated in terms of the said

charge sheet ended in a punishment order dated 29th

August, 2016. The petitioner preferred a statutory appeal

as against the said order before the departmental Appellate

Authority. The said appeal filed on 3rd October, 2016

remained pending for considerable period of time. As a

result whereof, the petitioner was compelled to file a writ

petition, being WP No.10978 (W) of 2017. The said writ

petition was disposed of by an order dated 29th June, 2017,

directing the statutory appeal be heard and disposed of

within a time frame. Before the statutory appeal was

disposed of, an order of premature retirement was passed

against the petitioner purportedly under the provisions of

Rule 48 of the Central Civil Service (Pension) Rules 1972 by

the Director General of BIS on 30th June, 2017. The

petitioner immediately challenged the said order dated 30th

June, 2017 by filing of the instant writ petition.

In the instant writ petition on 13th July, 2017, an

interim order of stay was granted. Challenging the said

interim order for stay, the respondents preferred an appeal,

being MAT 1350 of 2017. The statutory appeal was

disposed of by an order dated 24th July, 2017 exonerating

the petitioner from the charges levelled against him by

setting aside the order passed by the Disciplinary Authority

on 29th August, 2016. The appeal preferred by the

respondents was dismissed by an order dated 22nd

December, 2017.

In the instant writ petition on 6th February, 2018, a

further order was passed directing the respondents to pay

the salary and emoluments along with the arrears to the

petitioner. It is an admitted position that the petitioner was

paid the salary and emoluments, including arrears, in

terms of the order dated 6th February, 2018.

The petitioner, during the pendency of the instant

writ petition, has retired from service on attaining the age

of superannuation on 31st December, 2021. The petitioner

says that on his retirement, the petitioner has been paid

the retiral benefits but not at the proper rate. Certain

benefits, which had accrued to the petitioner during his

service career, including the benefits of Career

Advancement Scheme, were not taken into account while

computing the retiral benefits of the petitioner.

The writ petition as it stands is the challenge to the

order of premature retirement dated 30th June, 2017. In

the event this order is sustained, the consequences will be

different than those if the order dated 30th June, 2017 is

set aside and/or quashed. Keeping in mind this factual

position, the hearing of the writ petition commenced as to

whether the order dated 30th June, 2017 is sustainable or

not.

The petitioner has referred to the order dated 30th

June, 2017 appearing at page 41 of the writ petition, the

Central Civil Service (Pension) Rules 1972 and a judgment

of the Hon'ble Supreme Court delivered on 27th February,

2001 in Appeal (Civil) 1561 of 2001 (State of Gujarat v.

Umedbhai M. Patel). The petitioner says that the order

dated 30th June, 2017 is not sustainable as during the

pendency of the statutory appeal which is actually

continuation of the disciplinary proceedings, the petitioner

could not have been prematurely retired from the service as

the same amounts to punitive measure against the

petitioner which attracts the ratio laid down by Umedbhai

M. Patel (supra) and is, therefor, impermissible in law.

The petitioner has also referred to the Annual

Performance Assessment Report for the period 1st April,

2017 to 31st March, 2018. It is annexed to an application,

being CAN 3 of 2020, filed by the petitioner on 17th

December, 2020. By referring to the said report, the

petitioner says that between 1st April, 2017 and 31st March,

2018, the petitioner's performance was satisfactory and

behaviour was good. His working performance and conduct

was satisfactory and he obtained eight out of ten marks on

an analysis by the authorised officer of BIS. The petitioner's

integrity was also found to be 'beyond doubt'. The

petitioner further says that having such an Annual

Performance Assessment Report, the employer could not

have any grievances as against the petitioner to pass an

order for his premature retirement.

On behalf of the respondents, it is submitted that

the application, being CAN 3 of 2020, has not been served

upon the respondents and, as such, the learned advocate

representing the respondents needs an adjournment to

look into the said document.

This non-service of the application, being CAN 3 of

2020, is, however, disputed by the petitioner.

Without going into the dispute as to service, I

adjourn this matter till 5th May, 2022 to enable the learned

advocate for the respondents to take necessary instruction

relating to the document relied upon by the petitioner

forming part of the application, being CAN 3 of 2020.

(Arindam Mukherjee, J.)