Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Sri Asim Kumar Bhattacharyya on 28 August, 2023
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WP.ST 116 of 2022
The State of West Bengal & Ors.
Vs.
Sri Asim Kumar Bhattacharyya
For the State-Petitioners : Mr. T.M. Siddique,
Ld. Sr. Advocate & Ld. AGP
Mr. Avisek Prasad
For the Respondent : Mr. D.N. Ray
Mr. S. Ghosh
Mr. M.N. Roy
Mr. B. Nandy
Mr. R.K. Shah
Heard on : August 28, 2023
Judgment on : August 28, 2023
DEBANGSU BASAK, J.:-
1. The writ petition is at the behest of the State.
2. State assails an order dated July 12, 2022 passed by the
West Bengal Administrative Tribunal in OA-259 of 2018.
3. By the impugned order, the Tribunal arrived at a finding
that, withholding of the entire amount of gratuity
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permanently and imposition of 34 per cent cut in pension
permanently with regard to the retiral benefits of the
respondent, on a proved charge of bigamy in a disciplinary
proceeding was shocking to the conscience of the Court.
Tribunal, therefore, remanded the matter to the disciplinary
authority for fresh consideration of the quantum of
punishment.
4. Aggrieved, the State is before us complaining that, the
Tribunal misconstrued and misapplied the doctrine of
proportionality.
5. Learned Advocate appearing for the petitioners submits that,
the respondent was an employee of the State Government.
The respondent was governed under the provisions of the
West Bengal Services (Duties, Rights and Obligations of the
Government Employees) Rules, 1980, West Bengal Services
(Death-cum-Retirement Benefit) Rules, 1971 and West
Bengal Services (Classification, Control and Appeal) Rules,
1971 amongst others. He submits that, a charge of bigamy
was levelled as against the respondent in a disciplinary
proceeding which was proved. The disciplinary authority
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passed a final order of punishment dated June 9, 2017
which was assailed before the Tribunal resulting in the
impugned order.
6. Learned Advocate appearing for the petitioners submits that,
the respondent assailed the second show-cause notice before
the Tribunal by way of O.A. 699 of 2015. The Tribunal
granted liberty to the State to continue with the disciplinary
enquiry subsequent to the superannuation of the
respondent. Such order was assailed by way of a writ
petition being WP.ST 223 of 2016 which was disposed of by
an order dated January 25, 2017.
7. Learned Advocate appearing for the State referring to the
order dated January 25, 2017 passed in WP.ST 223 of 2016
submits that, the High Court returned a finding that, the
charges as against the respondent were grave in nature and
that the disciplinary proceeding should be concluded at the
earliest.
8. Learned Advocate appearing for the State draws the
attention of the Court to the provisions of Section 17 of the
Hindu Marriage, Act, 1955 and contends that, bigamy is a
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punishable offence. He refers to Rule 5 (4) and Rule 9 of the
Rules of 1980 as well as Rule 8 and Rule 10 of the West
Bengal Services (Death-cum-Retirement Benefit) Rules, 1971
and submits that, a punishment of withholding of gratuity
permanently as also reduction of the pension as done by the
order of the disciplinary authority dated June 9, 2017 was
permissible. He submits that, Rule 8 of the West Bengal
Services (Classification, Control and Appeal) Rules, 1971
should also be considered in such context.
9. Relying upon (1994) 2 Supreme Court Cases 37 (State of W.B.
and Others vs. Prasenjit Dutta), (2015) 8 Supreme Court Cass
439 ( Khursheed Ahmad Khan vs. State of Uttar Pradesh and
Others), (2020) 18 Supreme Court Cases 71 ( Chairman-cum-
Managing Director, Mahanadi Coalfields Limited vs.
Rabindranath Choubey) and (2022) 7 Supreme Court Cases
475 ( Union of India and Others vs. M. Duraisamy), learned
Advocate appearing for the State submits that, withholding
of Gratuity and reduction in the pension was permissible
after a government employee superannuates from his
service. He contends that, the Tribunal misplaced and
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misconstrued the doctrine of proportionality in the facts and
circumstances of present case.
10. Learned Advocate appearing for the respondent draws the
attention of the Court to the contents of the impugned order.
He submits that, the Tribunal considered the charge of
bigamy and proceeded to find that, imposition and the
quantum of penalty was shocking to the conscience of the
Court. He submits that, withholding the entirety of gratuity
benefits and the payment of the pensionary benefits was in
excess of the charge established. He refers to the conduct of
the respondent during his service period. He submits that,
the respondent despite the disciplinary proceedings obtained
a promotion which was granted by the authorities. The
respondent rendered gratuitous service to the authorities
and was, therefore, entitled to gratuity. Moreover, the
Tribunal merely remanded the portion of the quantum of
punishment to be decided by the disciplinary authority.
Therefore, the Writ Court should not interfere.
11. Learned Advocate appearing for the respondent relies upon
(2016) 6 Supreme Court Cases 303 (Delhi Police, Through
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Commissioner of Police and Others vs. Sat Narayan Kaushik)
for the proposition that, a Court can intervene with regard to
the quantum of punishment imposed.
12. A charge sheet dated March 2, 1991 was issued as against
the respondent while he was in service. At that material
point of time, the respondent had rendered about 13 years of
service. The primary charge was one of bigamy as against
the respondent. The enquiry officer found the respondent
guilty of such charge. The disciplinary authority issued a
second show-cause notice to the respondent on February 11,
1992 calling upon the respondent to reply to the proposed
punishment of dismissal from service.
13. The respondent challenged the second show-cause notice by
way of a writ petition which was registered as C.O. No.3704
of 1992. An interim order was passed in such writ petition
on April 27, 1992 directing that though further proceedings
could be continued, no final order can be passed without the
leave of the Court. The writ petition was dismissed for
default in 2002. It was restored on September 15, 2006.
Thereafter, the writ petition was transferred to the West
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Bengal Administrative Tribunal and was renumbered as T.A.
4 of 2007.
14. Tribunal disposed of T.A. 4 of 2007 on March 4, 2010
recording that, the writ petition became infructuous.
15. The respondent superannuated from service on January 31,
2015. His retiral benefits were not disbursed to him. He
approached the Tribunal by way of O.A. 503 of 2015. At that
stage, State initiated further proceedings in the pending
departmental proceedings in accordance with the provisions
of Rule 10(1a) of the West Bengal (Death-cum-Retirement
Benefit) Rules, 1971. An order dated June 25, 2015 was
issued recording that, the departmental enquiry would
continue as against the respondent as if he was still in
service.
16. Tribunal did not grant any relief to the respondent in O.A.
503 of 2015.
17. The respondent approached the High Court by filing a writ
petition. Such writ petition was also disposed of as the
departmental enquiry was still pending.
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18. On receipt of the order dated June 25, 2015 for revival of the
disciplinary proceedings, the respondent approached the
Tribunal again by way of O.A. 699 of 2015. The respondent
contended that, the departmental proceedings cannot be
continued in view of his superannuation.
19. Tribunal, disposed of O.A. 699 of 2015 by holding that, the
departmental proceedings can continue despite the
superannuation of the respondent.
20. Assailing such order, respondent filed a writ petition before
the High Court by way of WP.ST 223 of 2016. Such writ
petition was disposed of by an order dated January 25, 2017
which required the State to complete the disciplinary
proceedings within June 9, 2017.
21. The disciplinary authority passed an order dated June 9,
2017 as against the respondent. By such order, the
disciplinary authority imposed a penalty of pension cut of 34
per cent of basic pension permanently and withholding of
entire amount of admissible gratuity permanently.
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22. The respondent assailed the order of the disciplinary
authority dated June 9, 2017 by way of OA-259 of 2018
which was disposed of by the impugned order.
23. The respondent was proceeded against departmentally for
bigamy. The charge of bigamy was established beyond
reasonable doubt. It is not the contention of the respondent
that, the charge of bigamy was not proved in the disciplinary
proceedings.
24. The respondent is governed by the Rules of 1980, West
Bengal Services (Death-cum Retirement Benefits) Rules,
1971 and West Bengal Services (Classification, Control and
Appeal) Rules 1971.
25. Rule 5 (4) and Rule 9 of the Rules of 1980 are as follows:
"..........
(4) no Government employee who has a wife/husband
living shall contract another marriage without obtaining
previously the dissolution of the first marriage in accordance
with any law for the time being in force notwithstanding such
second marriage is permissible under any personal law of the
community to which he or she belongs;
.....................
9. Any violation or infringement of these rules shall be
deemed, to be a good and sufficient reason within the
meaning of rule 8 of the West Bengal Services (Classification,
Control and Appeal) Rules, 1971, for imposing penalties."
26. Rule 8 and 10 of the West Bengal Services (Death-cum-
Retirement Benefit) Rules of 1971 are as follows:
"8. Withholding of pension in cases of conviction and
misconduct-
(1) Future good conduct shall be an implied condition of
every grant of pension. The pension sanctioning
authority may, by order in writing, withhold or
withdraw, either in full or in part, a pension or
gratuity or both either permanently or for a specified
period, if the pensioner is convicted of a serious crime
or is found guilty of grave misconduct where a part of
the pension is withheld or withdrawn, the amount of
such shall not be reduced below rupees four hundred
per mensem:
Provided that no order shall be passed under this
clause by an authority subordinate to the authority
compehent to make an appointment to the post held
by the pensioner immediately before his retirement
from service.
(2) Where the pensioner is convicted of a serious crime
by a court of law, action under sub-rule (1) shall be
taken in the light of the judgment of the court relating
to such conviction.
(3) In a case not falling under sub-rule (2) if the
pension sanctioning authority under sub-rule (1)
considers that the pensioner is prima facie guilty of
grave misconduct, it shall, be fore passing an order
under sub-rule (1)
(a) serve upon the pensioner a notice specifying
the action proposed to be taken and calling upon
him to submit within fifteen days of the receipt of
the notice or such further time not exceeding fifteen
days as may be allowed by the pension
sanctioning authority, such representation as he
may wish to make against the proposal and
(b) take the representation, if any, submitted by the
pensioner under clause (a) into consideration.
(4) Where the authority competent to pass an order
under clause (1) is the Governor, the Public Service
Commission, West Bengal, Shall be consulted before
passing the order.
(5) An appeal against an order under clause (1)
passed by any authority other than the Governor
shall lie to the Governor and the Governor shall, in
consultation with the Public Service Commission, West
Bengal, pass such order on the appeal as he deems
fit.
.................
(10) Right of the Governor to withhold pension in certain
cases.
(1) The Governor reserves to himself the right of
withholding or withdrawing a pension or any part of it
whether permanently or for a specified period, and the
right of ordering the recovery from a pension of the whole
or part of any pecuniary loss caused to Government, if
the pensioner is found in a departmental or judicial
proceeding to have been guilty of grave misconduct or
negligence, during the period of his service, including
service rendered on re-employment after retirement:
Provided that---
(a) such departmental proceeding if instituted while the
officer was in service, whether before his retirement or
during his re-employment, shall after the final
retirement of the office, be deemed to be a proceeding
during this article and shall be continued and
concluded by the authority by which it was
commenced in the same manner as if the officer had
continued in service;
(b) Such departmental proceedings, if not instituted
while the office was in service, whether before his
retirement or during his re-employment---
(i) shall not be instituted save with the sanction of the
Governor;
(ii) shall not be in respect of any event which took
place more than [four years] before such
institution; and
(iii) shall be conducted by such authority and in
such place as the Governor may direct and in
accordance with the procedure applicable to
departmental proceedings in which an order of
dismissal from service could be made in relation
to officer during his service;
(c) no such judicial proceeding, if not instituted while the
officer was in service, whether before his retirement or
during his re-employment shall be instituted in respect
of a cause of action which arose or an event which
took place more than [four years] before such
institution; and
(d) the Public Service Commission, West Bengal shall be
consulted before final order are passed.
Explanation- For the purpose of this article
(a) a departmental proceeding shall be deemed to have
been instituted on the date on which the statement
of charges is issued to the officer or pensioner, or it
the or if the officer has been placed under
suspension from an earlier date, on such date; and
(b) a judicial proceeding shall be deemed to have been
instituted-
(i) in the case of criminal proceeding, on the date
on which the complaint or report of police
officer, on which the Magistrate take
cognizance, is made, and
(ii) in the case of a civil proceeding, on the date
on which the plant is presented or, as the
case may be, an application is made to a civil
court.
(2) Where any departmental or judicial proceeding is
instituted under sub-rule (1) or where a
departmental proceedings is continued under clause
(a) of the proviso thereto against an officer who has
retired on attaining the age of compulsory retirement
or otherwise, he shall be paid during the period
commencing from the date of his retirement to the
date on which, upon conclusion of such proceeding,
final orders are passed, a provisional pension not
exceeding the maximum pension which would have
been admissible on the basis of his qualifying
service up to the date of retirement, or if he was
under suspension on the date of retirement upto the
date immediately preceding the date on which he
was placed under suspension; but no gratuity of
death-cum-retirement gratuity shall be paid to him
until the conclusion of such proceeding and the issue
of final orders thereon.
(3) Payment of provisional pension made under
clause (2) shall be adjusted against the final
retirement benefits sanctioned to such officer upon
conclusion of the aforesaid proceeding but no
recovery shall be made where the pension finally
sanctioned is less than the provisional pension or the
pension is reduced or withheld either permanently or
for a specified period.
Note- The grant of pension under this rule shall not
prejudice the operation rule 65 when final pension is
sanctioned upon conclusion of the proceeding."
27. Rule 8 of the West Bengal Services (Classification, Control
and Appeal) Rules, 1971 is as follows:
"8. Penalties.- the following penalties may, for
good and sufficient reasons and as hereinafter
provided, be imposed on Government servant,
namely:-
(i) censure;
(ii) withholding of increments or promotions;
(iii) recovery from pay of the whole or part of any
pecuniary loss-caused to the Government by
negligence or breach of order.
(iv) reduction to lower stage in the time-scale of
pay for a specified period with further
direction as to whether or not the
Government-servant will earn increments of
pay during the period of such reduction mid
whether on the expiry of such period the
reduction will or will not have the effect of
postponing the future increments of his pay;
(v) reduction to a lower time scale of pay grade,
post or service which shall ordinarily be a
bar to the promotion of the Government."
28. Rule 5(4) of the Rules 1980 imposes an obligation upon a
government employee such as the respondent not to contract
another marriage during the subsistence of the first
marriage without obtaining the dissolution of the first
marriage in accordance with law.
29. Rule 9 of the Rules 1980 prescribes that any violation or
infringement of the Rules 1980 shall be deemed to be a good
and sufficient reason within the meaning of Rule 8 of the
West Bengal Services (Classification, Control and Appeal)
Rules, 1971 for imposing penalties.
30. Rule 8 of the West Bengal Services (Death-cum-Retirement
benefit) Rules, 1971 allows withholding of pension in cases
of conviction and misconduct. Rule 8(1) allows the pension
sanctioning authority to withhold the gratuity permanently.
Rule 10 of the West Bengal Services (Death-cum-Retirement
Benefit) Rules, 1971 allows the Governor the right to
withhold pension if the pensioner in a departmental
proceeding is held to be guilty of grave misconduct.
31. Rule 8 of the West Bengal Services (Classification, Control
and Appeal) Rules, 1971 prescribes the penalty which can be
imposed on a government servant in a disciplinary
proceeding.
32. Prasenjit Dutta (supra) considered Rule 5(4) of the Rules of
1980 and a charge of bigamy. It observed that, the
departmental authorities are not precluded from examining
the question of second marriage for the limited purpose of
departmental action. In the facts of the present case in the
departmental proceedings the charge of bigamy stood
established.
33. Khursheed Ahmed Khan (supra) considered the issue of
proportionality of the punishment of dismissal on a charge of
bigamy being established. It observed that, the penalty of
removal from service cannot be held to be shockingly
disproportionate on the charge of bigamy being established
on judicial parameters.
34. Rabindranath Choubey (supra) considered the issue of
withholding of gratuity after superannuation. The majority
view observed that, both major and minor punishment
including dismissal from service can be imposed besides
recovery of pecuniary loss caused by the delinquent even
after superannuation. The minority view observed that,
punishment of forfeiture of gratuity commensurate with the
nature of guilt may be imposed as against a delinquent
subsequent to his superannuation from service.
35. M. Duraisamy (supra) considered a question of judicial review
of punishment imposed by the disciplinary authority. It
observed that, unblemished service of the delinquent apart
from the charge proved, is not a criteria so as to render a
punishment imposed by the disciplinary authority as
disproportionate to the charge established. It observed that,
the jurisdiction of a Court in questioning the proportionality
of an order of departmental authority is limited. A Court
cannot set aside a well-reasoned order only on the ground of
sympathy and sentiments. Once the Court finds that all
procedural requirements were complied with, it should not
ordinarily interfere with the quantum of punishment
imposed. If the decision of an employer is found within the
legal parameters, the doctrine of proportionality should not
ordinarily be invoked when the misconduct stood proved.
36. In Sat Narayan Kaushik (supra), the Supreme Court
observed that, the High Court in its exercise of the writ
jurisdiction is empowered to interfere with the quantum of
punishment imposed and in particular cases, the High Court
should take into consideration the totality of the facts and
circumstances of the case such as nature of charges levelled
against the employee, its gravity, seriousness, whether
proved and if so, to what extent, entire service record, work
done in the past, remaining tenure of the delinquent left, if
any and other parameters.
37. In the facts of the present case, as adumbrated above, the
charge of bigamy stood established. The respondent
approached the High Court against the second show-cause
notice and stalled the departmental proceedings successfully
over a period of time. It was ultimately directed to be
disposed of by the High Court. It was disposed of within the
time period stipulated. No procedural irregularity in the
departmental proceedings is brought to the notice of the
Court by the respondent. Legal parameters in arriving at the
final decision were satisfied. In the event, the departmental
proceeding was allowed to be completed within the service
tenure of the respondent, there was every possibility of a
punishment of dismissal from service being imposed. In
such an eventuality, the entire pensionary benefits and
gratuity would stood forfeited.
38. The Tribunal proceeded on the basis of "bigamy not involved
with the service conditions". The Tribunal also took into
consideration that before his superannuation the respondent
was granted promotion. On these two grounds the Tribunal
came to the finding that the quantum of punishment was
shocking to the conscience of the Court.
39. With respect, the Tribunal misunderstood the issue of
bigamy as provided under the Rules governing the service
conditions of the respondent.
40. Bigamy was a serious offence and it was prohibited under
the service conditions of the respondent. That bigamy was a
serious offence was noted by the High Court in its order
dated January 25, 2017.
41. Grant of a promotion or the gratuitous service that the
respondent rendered was not of much consequence in the
teeth of the charge established in view of the ratio laid down
in M. Duraisamy (supra). It observed that what was required
to be considered is the gravity of the misconduct.
42. In the facts of the present case, the gravity of the misconduct
is such that, the delinquent was liable to be dismissed from
service if the proceedings was concluded prior to his
superannuation. Dismissal from service would obviously
entail forfeiture of the pension as well the gratuity.
43. In such circumstances, therefore, quantum of punishment
by withholding of 34 per cent of pension and the entirety of
the gratuity benefits permanently, was not of such a nature
so as to be classified as shocking to the conscience of the
Court. It was certainly not disproportionate to the charge
established. The final order of punishment was arrived at
after compliance of all legal parameters.
44. In such circumstances, we set aside the impugned order of
the Tribunal dated July 12, 2022 passed in OA-259 of 2018.
We restore the order of the disciplinary authority dated June
9, 2017.
45. WP.ST 116 of 2022 is allowed without any order as to costs.
(Debangsu Basak,J.)
46. I Agree.
(Md. Shabbar Rashidi, J.)
(AD)
