Calcutta High Court (Appellete Side)
Pronay Kumar Indra vs The State Of West Bengal & Ors on 28 November, 2023
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
THE HON'BLE JUSTICE RAJA BASU CHOWDHURY
WPA 25130 of 2010
With
CAN 1 of 2016 (Old No. CAN 375 of 2016)
With
CAN 2 of 2018 (Old No. CAN 5710 of 2018)
Pronay Kumar Indra
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Bikash Shaw
For the NBSTC : Mr. Amal Kumar Sen
Mr. Sabyasachi Mondal
Heard on : 28.11.2023
Judgment on : 28.11.2023
Raja Basu Chowdhury, J:
1. The present writ petition has been filed, inter alia, not only calling
upon the respondents to release the pensionary benefits but also
challenging the orders dated 29th August, 2009 and 24th June,
2010, whereby, pursuant to a domestic enquiry conducted by the
respondents, the petitioner was only directed to be disbursed certain
limited benefits consequent upon his superannuation.
2. Shorn of unnecessary details, the facts are that the petitioner was
engaged with the North Bengal State Transport Corporation
(hereinafter referred to as the "Corporation") as a conductor. While
on duty, a surprise check was conducted by checking personnel at
tinbatti more on 20th April, 1994 and it was alleged by the checking
personnel that the petitioner had not issued tickets to three several
passengers even after receiving money from them. This led to
initiation of a domestic enquiry by issuance of a charge sheet dated
8th June, 1994. Simultaneously, with the issuance of the charge
sheet, the petitioner was placed under suspension. After the
aforesaid enquiry was conducted, the Managing Director of the
Corporation by an order dated 19th December, 1994, dismissed the
petitioner from service with effect from the date of the said order.
Although, the petitioner had preferred a statutory appeal against the
aforesaid order, the Appellate Authority while rejecting the
petitioner's appeal had affirmed the order of punishment by passing
its order dated 24th January, 1996.
3. Challenging the aforesaid orders, the petitioner had filed a writ
petition before this Court which was registered as CO no. 7213 (W)
of 1996. On contest, the said writ petition was dismissed by
judgment and order dated 7th February, 2002.
4. Being aggrieved, the petitioner had preferred an appeal which
registered as FMA 1833 of 2003. By a judgment and order dated 3rd
February, 2009 which was later corrected by an order dated 27th
February, 2009, the Division Bench of this Court was, inter alia,
pleased to set aside the order of punishment by granting liberty to
the Corporation to proceed further on the basis of the charge sheet
under reference and to conclude the same within a period of two
months from the date of communication of such order. As a sequel,
the aforesaid orders passed by the Appellate Authority and the
Hon'ble Single Judge were also set aside.
5. In terms of the order passed by the Hon'ble Division Bench of this
Court, by an order dated 27th February, 2009, the petitioner was
reinstated in service of the Corporation with immediate effect and
was allowed to resume his duties.
6. Admittedly, on 28th February, 2009, the petitioner stood
superannuated. Notwithstanding the aforesaid, by a communication
in writing dated 11th August, 2009, the petitioner was directed to
appear before the Managing Director of the Corporation for personal
hearing in connection with the disciplinary case no. 156 of 1994
which had been initiated against him. Immediately upon receipt of
the aforesaid communication the petitioner, in response of the above
by letter dated 19th August, 2009, while calling the respondents to
release his retiral benefits, reminded them that he had already been
superannuated from service of the Corporation on 28th February,
2009 and as such he prayed that he may be exonerated from the
charges leveled against him in connection with the aforesaid
disciplinary case.
7. Records reveal that on 29th August, 2009, the Managing Director of
the Corporation taking note of the representation made by the
petitioner was, inter alia, pleased to dispose of the disciplinary
proceeding by providing that the petitioner shall not get anything
other than subsistence allowance during the period of suspension
and that the entire period i.e. from the date of dismissal to the
previous date of his joining vide interim order will be treated as
E.O.D. and that his retiremental benefits shall be released
accordingly.
8. Pursuant to the aforesaid, the respondents by an order dated 24th
June, 2010 had determined the retiral benefits payable to the
petitioner and had disbursed the same in terms of the recordings
made in the aforesaid order.
9. Being aggrieved with not only reinitiation of disciplinary proceeding
beyond the date of superannuation but also in passing the orders
impugned, the present writ petition has been filed.
10. Mr. Shaw, learned advocate appearing for the petitioner at the
very outset, submits that once the Division Bench of this Court had
provided for a time frame within which the disciplinary proceeding
was to be disposed of, it was the duty of the respondents to adhere
to such time line. Admittedly, in this case, such time line had not
been followed. The reinitiation of proceeding by the respondents had
been made not only much beyond the time prescribed by the
Division Bench of this Court but also after the petitioner had been
superannuated. He submits that the rules of the Corporation do not
permit continuance of disciplinary proceeding beyond the date of
superannuation. The petitioner, therefore, had become entitled to
receive his retiral benefits, inter alia, including his arrear salary
which had fallen due.
11. By placing reliance on page 18 of the affidavit-in-opposition filed
by the respondents, it is submitted that the respondents have even
wrongfully deducted the gratuity payable to the petitioner. He
submits that 14 years 11 months and 24 days have been deducted
from the service career while computing his gratuity and such fact
would corroborate from the document being annexure R-3 of the
affidavit-in-opposition filed on behalf of the Corporation. By referring
to paragraph 14 of the affidavit-in-opposition it is submitted that the
Corporation had framed a regulation, namely, North Bengal State
Transport Corporation Employees' Pension Regulation, 1990 which
had only been published in the Official Gazette on 29 th August,
2000.
12. Admittedly, when the aforesaid notification was published, the
petitioner was under wrongful termination which later came to be
set aside, as such the time line (6 months) provided in the aforesaid
notification, for exercise of option from Contributory Provident Fund
(CPF) to General Provident Fund (GPF), may not be strictly
applicable insofar as the petitioner is concerned.
13. By referring to page 63 of the writ petition, he submits that
although, the petitioner had opted for pension, his option form was
not processed by the respondents. In support of his contention that
once, an option is exercised the respondents are bound to
adhere to the same, notwithstanding the expiry of the original period
for exercise of such option, reliance has been placed on a judgment
delivered by the Division Bench of this Court in the case of Lila
Sarangi v. State of West Bengal 1 and the judgment delivered by
the Hon'ble Supreme Court in the case of Calcutta State
Transport Corporation & Ors. v. Ashit Chakraborty & Ors2. It is
submitted that since, the enquiry was not completed on account of
jurisdictional error, the respondents are bound to compensate the
petitioner and are bound to make payment of backwages, which the
petitioner is legitimately entitled to. In support of his aforesaid
contention, he has placed reliance on the following judgments:
Deepali Gundu Surwase versus Kranti Junior
Adhyapak Mahavidyalaya (D.ED) & Others.3
Jayantibhai Raojibhai Patel versus Municpal
Council, Narkhed & Ors. 4
14. Mr. Sen, learned advocate appearing for the Corporation submits
that the original enquiry had been set aside on technical grounds.
He, however, candidly submits that the timeline provided by the
Division Bench of this Court for concluding the enquiry could not be
followed in this case. He also could not identify any service rule
which authorised continuance of Disciplinary Proceeding beyond the
date of superannuation.
2008 SCC OnLine Cal 329
2023 live law SC 419
(2013) 10 SCC 324
(2019) 17 SCC 184
15. Having regard to the aforesaid, he submits that even if this
Hon'ble Court is of the view that the enquiry stands vitiated, the
same does not permit the petitioner to be entitled to backwages as a
matter of course. The petitioner has not disclosed the period for
which backwages have been claimed. There is also no averment in
the petition that when the petitioner was suffering the order of
dismissal, he was otherwise not gainfully employed. Since, the
petitioner has not even pleaded that he was not otherwise gainfully
employed when he was suffering the order of dismissal, no relief in
the form of backwages should be granted in his favour.
16. In support of his aforesaid contention, he has placed reliance on
a judgment of the Hon'ble Supreme Court in the case of Rajasthan
State Road Transport Corporation, Jaipur v. Phool Chand5. It is
still further submitted that at no point of time, the petitioner sought
to exercise the option. The claim made by the petitioner that he had
exercised the option is absurd and no reasonable person of ordinary
prudence would accept the same. The judgments relied on by the
petitioner with regard to grant of backwages as also claim for GPF is
distinguishable from the facts of this case. Admittedly, it was not in
dispute that the option had been exercised in the case cited by the
petitioner unlike the present case. In the facts as noted above, no
relief should be granted to the petitioner.
(2018) 18 SCC 299
17. Heard the learned advocates appearing for the respective parties
and considered the materials on record. In this case it is noticed
that pursuant to a charge sheet issued on 8th June, 1994, a
domestic enquiry was initiated against the petitioner.
Simultaneously, the petitioner was also suspended. On conclusion
of the domestic enquiry, the Disciplinary Authority by an order
dated 19th December, 1994 had awarded an order of dismissal.
Although, the petitioner had challenged the same by filing a
statutory appeal, the Appellate Authority did not accede to the
petitioner's prayer and on the contrary affirmed the same.
Challenging the aforesaid order of punishment, a writ petition was
filed before this Hon'ble Court. Although, the petitioner did not
succeed before the Hon'ble Single Bench of this Court, however, on
an appeal being preferred by the petitioner, the Division Bench of
this Hon'ble Court by an order dated 3rd February, 2009 later
corrected on 27th February, 2009, while setting aside the order of
dismissal granted liberty to the Corporation to proceed further on
the basis of the charge sheet already issued on the petitioner.
18. Pursuant to the aforesaid direction passed by the Hon'ble
Division Bench, the Corporation by an order dated 27th February,
2009 reinstated the petitioner by reserving liberty to proceed against
him in the disciplinary proceeding. Unfortunately, the Corporation
despite being afforded with an opportunity to proceed against the
petitioner in terms of the direction issued by the Hon'ble Division
Bench did not do so, within the time specified. It was only on 11th
August, 2009 that a notice of hearing was given. In response to the
same, the petitioner appears to have called upon the authorities
while reminding them of his superannuation to release the retiral
benefits and expressing therein that he does not have anything to
add.
19. Records reveal that by an order dated 29th August, 2009, the
Managing Director of the Corporation while continuing to assume
jurisdiction of the Disciplinary Authority had observed and directed
as follows:-
"1. He will not get anything other than S.A. during
the period of suspension.
2. The entire period i.e. from the date of dismissal to
the previous date of his joining vide Interim Order will
be treated as E.O.L. His retiral benefits be released
accordingly."
20. The primary question that falls for consideration in the instant
case is whether the Managing Director of the Corporation who was
the Disciplinary Authority of the petitioner can continue to exercise
the jurisdiction of a Disciplinary Authority of the petitioner beyond
the date of superannuation of the petitioner. It is well-settled that in
absence of a master-servant relationship and in absence of any rule
prescribing continuance of any departmental proceeding or
conclusion thereof, beyond the date of superannuation no such
jurisdiction can be exercised by the Disciplinary Authority. In the
present case, there is, however, another difficulty. Notwithstanding
the Division Bench of this Hon'ble Court permitting the respondents
to continue and complete the departmental proceeding against the
petitioner within the time prescribed, the same had not been done.
Although, the petitioner was reinstated pursuant to the direction
issued by the Hon'ble Division Bench, no enquiry as directed by the
Hon'ble Division Bench was re-initiated or concluded within the time
specified in the order passed by the Hon'ble Division Bench.
21. Having regard to the aforesaid it can safely be concluded, not
only did the Managing Director of the Corporation not have any
jurisdiction to proceed against the petitioner beyond the date of
superannuation of the petitioner, he was otherwise incapable of
continuing with the proceeding and awarding any punishment on
the petitioner, for having failed to comply with the direction passed
by the Division Bench of this Court. The same leads to a situation
where the enquiry proceeding though initiated validly stood abruptly
concluded consequent upon superannuation of the petitioner. Since,
the proceedings stood abruptly concluded, the charges levelled
against the petitioner could not be proved.
22. In this case, it is noticed that Mr. Sen, learned advocate
representing the Corporation by placing reliance on the judgment
delivered in the case of Rajasthan State Road Transport Corporation
(supra) has argued that in absence of any pleadings made by the
delinquent that he was not gainfully employed during the tenure
when he was suffering an order of dismissal, no back wages should
be awarded, I, however, find that the case at hand to be some what
different. While in the case of Rajasthan State Road Transport
Corporation, Jaipur (supra), a validly held domestic enquiry was
under challenge wherein the charges against the delinquent was
proved and the interference in the said case was limited to the
quantum of punishment inflicted, the present facts show a
completely different picture. In this case the enquiry had been
brought to an abrupt end. The charges therefor, could not be
proved. Consequential orders issued by the Managing Director of the
Corporation dated 29th August, 2009, in my view, is in excess of
jurisdiction and the same cannot be sustained and is accordingly set
aside.
23. As a sequel thereof, the order dated 24th June, 2010 cannot be
sustained, insofar as, the same seeks to curtail the benefits payable
to the petitioner. It is true that in the present case no averment has
been made by the petitioner that he was not gainfully employed
during the period when he was suffering the order of dismissal,
however, taking note of the fact that the respondents have chosen
not to conclude the proceeding, despite being afforded with an
opportunity to conclude the same, I am of the view, that denying the
petitioner the back wages in its entirety would be unjust, especially
when the petitioner had no role in the respondents' not concluding
the proceeding and was not responsible therefor. Taking into
consideration the entirety of the facts and non-involvement of the
petitioner in the abrupt termination of the enquiry proceeding, I am
of the view that the petitioner should be paid 75 per cent of the back
wages, less the subsistence allowance already paid in his favour.
24. It is also noticed that the respondents while computing gratuity
had unjustifiably denied the benefit of 14 years, 11 months and 24
days. Having regard to the aforesaid, the respondents are directed to
re-compute the retiral benefits payable to the petitioner, inter alia,
including gratuity. Insofar as the petitioner's claim on account of
conversion of CPF to GPF, I am of the view, that there is no material
on record to sustain the same. No documents have been placed
before this Court to demonstrate that the petitioner had made any
application before the authority for exercising his option. The
judgments cited by Mr. Shaw in support of his contention as regards
his claim of GPF, are otherwise distinguishable on facts. It is well-
settled that a judgment is an authority of what it decides, a slight
variation in facts may alter the final outcome. The same do not
assist the petitioner.
25. The respondents are, thus, directed to recompute the retiral
benefits payable to the petitioner on the basis of the observations
made hereinabove and disburse the same in the petitioner's favour
within a period of six weeks from the date of communication of this
order. The petitioner shall be entitled to interest at the rate of 10 per
cent per annum on the retiral benefits, to the extent the same was
withheld and not disbursed earlier.
26. With the above observations/directions, the writ petition is
disposed of. In view of disposal of the writ petition, the connected
applications being CAN 1 of 2016 (Old No. CAN 375 of 2016) and
CAN 2 of 2018 (Old No. CAN 5710 of 2018) seeking early disposal of
the writ petition having become infructuous also stands disposed of.
27. There shall, however, be no order as to costs.
28. Urgent photostat certified copy of this order, if applied for, be
given to the parties upon compliance of necessary formalities.
(Raja Basu Chowdhury, J.)
Saswata/Sanjib
Assistant Registrar (Court)
