Calcutta High Court (Appellete Side)
Dilip Kumar Banerjee @ Dilip Banerjee vs State Of West Bengal & Ors on 1 October, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 23
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Gaurang Kanth
M. A. T. 725 of 2024
(CAN 2 of 2024)
Dilip Kumar Banerjee @ Dilip Banerjee
-Vs-
State of West Bengal & Ors.
For the Appellant : Mr. Subir Sanyal, Adv.
Mr. Sutirtha Das, Adv.
Mr. Sourojit Mukherjee, Adv.
For the Municipality : Dr. Chapales Bandyopadhyay, Adv.
[Rajpur-Sonarpur Municipality] Ms. Anandamayee Dutta, Adv.
Ms. Gargy Basu, Adv.
Mr. Mir Anuruzzaman, Adv.
For the State : Mr. Suman Ghosh, Sr. Govt. Adv.
Mr. Gourav Das, Adv.
Heard on : 30.09.2024 & 01.10.2024
Judgment on : 01.10.2024
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Joymalya Bagchi, J. :-
1. Judgment and order dated 16.08.2022 passed by the Hon‟ble
Single Judge directing the appellant to challenge the order of punishment
as well as charge sheet and enquiry proceedings in an appropriate
proceeding is the subject matter of challenge.
2. Salient facts giving rise to the appeal are as follows :-
3. Appellant was working as an Upper Division Assistant (UDA) at
Rajpur-Sonarpur local office under Rajpur-Sonarpur Municipality. He
superannuated on 31.12.2015. On 02.01.2016 a charge sheet dated
31.12.2015 proposing to initiate enquiry under Rule 7 of the West Bengal
Municipal Employees‟ (Classification, Control, Appeal and Conduct)
Rules, 2010 (hereinafter referred to as „Appeal & Conduct Rules, 2010‟)
and Rules 78(f) and 81(2) of the West Bengal Municipal (Employees‟
Service) Rules, 2010 (hereinafter referred to as „Employees‟ Service Rules
of 2010‟) was served upon him. On 04.01.2016 Enquiry Officer was
appointed and the disciplinary proceeding commenced. Appellant
participated in the disciplinary proceeding and denied and disputed the
imputations levelled against him. Enquiry Officer submitted his report
dated 17.04.2016 holding appellant guilty of the charges levelled against
him and proposing withholding of pension under Rule 21 of the West
Bengal Municipal (Employee‟s Death-cum-Retirement Benefits) Rules,
2003 (hereinafter referred to as „Rules of 2003‟).
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4. At this stage appellant approached this court and challenged the
charge sheet and the enquiry proceeding including issuance of show
cause notice for withholding pension under the Rules of 2003 on the
ground the disciplinary authority had no jurisdiction to continue the
proceeding after his superannuation. During pendency of the writ
petition, pension of the appellant was stopped. He took out an
interlocutory application praying for release of pension. At that stage,
order of punishment dated 02.08.2022 came to be passed permanently
withholding 50% of his pension.
5. The order was placed before the Hon‟ble Single Judge and the
Hon‟ble Judge disposed of the writ petition giving liberty to the appellant
to assail the charge sheet, findings of the Enquiry Officer as well as the
order of punishment in accordance with law.
6. Mr. Subir Sanyal for the appellant argues the Appeal & Conduct
Rules, 2010 do not permit continuation of the disciplinary proceeding
against a superannuated employee. In absence of any enabling provision
to continue disciplinary proceeding, continuation of the enquiry and all
consequential steps including the order of punishment was void ab initio.
Hon‟ble Single Judge incorrectly declined to decide the issue involving
patent lack of jurisdiction of the disciplinary authority to conduct the
enquiry and impose punishment on the appellant.
7. Per contra, Dr. Chapales Bandyopadhyay for Rajpur-Sonarpur
Municipality contends the impugned order does not suffer from any
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illegality which would require interference in an intra-court appeal.
Appellant did not challenge the order of punishment before the Hon‟ble
Single Judge. On the other hand, taking note of the subsequent
development he was granted leave to challenge the same in a separate
proceeding.
8. The moot issues which arise for decision are as follows :-
(i) Was the respondent-Municipality entitled to continue the
disciplinary proceeding against the appellant after his
superannuation?
(ii) If the answer to issue (i) is in the negative, was the Hon‟ble
Single Judge correct in refusing to decide the issue of patent
lack of jurisdiction of the disciplinary authority and dispose
of the case by giving liberty to the appellant to challenge the
order of punishment in a subsequent proceeding?
9. Employees of the respondent-Municipality are governed by the
Appeal & Conduct Rules, 2010. Rule 6(1) of the Rules states the
Chairman of the Municipality shall be the disciplinary authority.
Procedure for enquiry is laid down in Rule 7 and the penalties which may
be imposed on an employee for good and sufficient reasons i.e.
(i) censure,
(ii) withholding of increment or promotions,
(iii) recovery from pay of the whole or part of any pecuniary loss
caused to the Local Body by negligence or breach of orders,
(iv) reduction to a lower stage in the time-scale of pay for a
specified period,
(v) compulsory retirement,
(vi) removal from service and,
(vii) dismissal from service,
are set out in Rule 5 of the said Rules. Rules 11 & 12 of the Rules provide
for appeals against orders of suspension and imposition of penalty
respectively. None of the rules provide for continuation of disciplinary
proceedings in the event a delinquent retires during the pendency of the
proceeding.
10. In a catena of decisions1, the Apex Court has consistently held in
the event the service Rules do not provide for continuation of disciplinary
proceeding against a superannuated employee, the disciplinary
proceeding cannot continue.
11. However, it would be argued such power may be traced to Rule 21
sub-rule (3) and Rule 25 of the Rules of 2003.
12. Rules 21 & 23 of the Rules of 2023 read as follows :-
"R.21. (1) Future good conduct shall be an implied condition
of every grant of pension. The pension sanctioning authority
may, by order of writing, withhold or withdraw a pension or
part thereof whether permanently or for a specified period, if
the pensioner is convicted of a serious crime or is found guilty
of grave misconduct.
State Bank of India v. A.N. Gupta, (1997) 8 SCC 60; Bhagirathi Jena v. Board of Directors, O.S.F.C.,
(1999) 3 SCC 666; Chandra Singh v. State of Rajasthan, (2003) 6 SCC 545; UCO Bank v. Rajinder Lal
Capoor, (2007) 6 SCC 694; Dev Prakash Tewari v. U.P. Coop. Institutional Service Board, (2014) 7 SCC
260; Mahanadi Coalfields Ltd. v. Rabindranath Choubey, (2020) 18 SCC 71 (paras 44 and 68)
(2) Where a Pensioner is convicted of a serious crime by 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 considers that the pensioner is prima
facie guilty of grave misconduct, it shall before passing an
order under sub-rule (1) -
(a) serve upon the pensioner a notice specifying the action
proposed to be taken and call 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."
R.25. (1) Where any departmental or judicial proceedings are
instituted or where a departmental proceeding is continued
against an employee who has retired on attaining the age of
compulsory retirement or otherwise, he may be granted, by
the pension sanctioning authority during the period
commencing from the date of his retirement to the date on
which, upon conclusion of such proceedings, final orders are
passed, a provisional pension not exceeding 50% of the
pension which would have been admissible on the basis of
qualifying service up to the date of retirement or if he were
under suspension, on the date of retirement up to the date
immediately preceding the date on which he was placed
under suspension, but no gratuity or death-cum-retirement
gratuity shall be paid to him until the conclusion of such
proceedings and the issue of final orders thereon. The
sanction of such pension by the pension sanctioning authority
will be communicated to the Director of Pension, Provident
Fund and Group Insurance and the Pensioner.
(2) Payment of provisional pension under sub-rule (1), shall
be adjusted against the final retirement benefits sanctioned
to such employee upon conclusion of the aforesaid
proceedings, 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 of rule 9 when final pension is sanctioned upon
conclusion of the proceedings."
13. Rule 21 sub-rule (3), inter alia, empowers the pension sanctioning
authority to pass an order withholding pension after giving an
opportunity of hearing to the superannuated employee in the event it
considers „the pensioner is prima facie guilty of grave misconduct‟.
14. Rule 25 sub-rule (1) provides for release of provisional pension in
the event departmental or disciplinary proceedings are instituted or where
departmental proceedings are continued against the employee who had
superannuated.
15. These rules envisage situations where the disciplinary authority is
vested with the power to initiate or continue disciplinary proceedings after
superannuation of an employee. They cannot be construed as sources
vesting power to the disciplinary authority to continue the disciplinary
enquiry under the service rules. That is to say, only if the service rules
provide for continuation of a disciplinary enquiry after superannuation
then the pension sanctioning authority may on the basis of finding
recorded by the disciplinary authority initiate proceeding under Rule 21(3)
of the Rules of 2023 and pass order withholding pension. But if the
service rules do not empower the continuance of the disciplinary enquiry,
Rule 21 sub-rule (3) of the Rules of 2003 cannot be deemed to be the
source of authority to continue the proceeding.
16. Similar issue fell for decision in Durgadas Mukhopadhyay v.
State of West Bengal,2 In the said case, a Hon‟ble Division Bench was
called upon to decide in absence of specific provisions in the service rules
whether the disciplinary authority may continue enquiry against a
2005 SCC OnLine Cal 552
superannuated employee by reason of provisions in the pension scheme.
Negating the proposition, the Bench held as follows :-
"10. Now the question arises as to whether by reason of
paragraph 19(5) of the Pension Scheme the disciplinary
proceeding could be continued. Admittedly, unlike Rule 10 of the
West Bengal Service (Death-cum-Retirement) Benefit Rules, no
authority has been conferred to continue a disciplinary
proceeding after retirement specifically neither any authority
has been recognized as to who has been empowered to continue
with the disciplinary proceedings after retirement of an
employee. Therefore, in a case where Rule 28(8) and (8a) of the
1969 rules did not provide for continuation of disciplinary
proceedings after retirement, we are of the view that without
any specific authorization or creation of a disciplinary authority
or recognition of a disciplinary authority, it is very difficult to
accede to the contention of Mr. Ghosh that by reason of
paragraph 19(5) of the Pension Scheme, a disciplinary
proceeding could be continued. Unless an authority is conferred
the jurisdiction, and an authority is created or recognized by the
Pension Scheme, no disciplinary proceeding could be continued
for the purpose of inflicting any kind of punishment in terms of
Rule 28(8) and (8a) of the 1969 rules."
17. In light of the aforesaid discussion, we are of the view the
continuation of disciplinary proceeding against the appellant at the
behest of the respondent-Municipality was de hors the service rules and
therefore, without authority of law.
18. This leads us to the second issue. When a question of patent lack
of jurisdiction of the disciplinary authority is raised in a lis, was it not
incumbent on the Hon‟ble Single Judge to adjudicate the issue after
taking into consideration the subsequent event namely, passing of the
order of punishment and decide whether the entire proceeding including
the order of punishment was without authority of law?
19. It may not be out of place to reiterate there is ample power in
constitutional courts to take into consideration subsequent events and
mould relief to the exigencies of the situation for the ends of justice.
20. Dr. Bandyopadhyay would argue the order of punishment had not
been formerly challenged before the Hon‟ble Single Judge. He contends in
absence of appropriate pleadings challenging the order of punishment,
Hon‟ble Single Judge‟s order cannot be said to be illegal or perverse.
21. We find little substance in the submission. In the writ petition
appellant had assailed the continuation of the disciplinary proceeding
after superannuation including the second show cause notice calling
upon him to show cause why his pensionary benefits would not be
withheld. Order of punishment was merely a consequence of the
impugned notice whose legitimacy was already under challenge.
22. It is nobody‟s case the consequential decision namely, order of
punishment gave rise to a wholly alien cause of action with reference to
the subject matter of the writ petition itself. Given this situation, it would
amount to unnecessary prolixity and multiplicity of proceedings if the
appellant is called upon to assail the entire disciplinary proceeding
including the order of punishment afresh in a subsequent proceeding.
23. Ordinarily discretionary orders ought not be interdicted in an
intra-court appeal. However, if the impugned order runs contrary to well
established principles of law and practice, it is the duty of the appellate
court to correct the error. Moulding reliefs by taking note of subsequent
events is based on the time tested wholesome principle of avoiding
unnecessary prolixity and delay and thereby secure the ends of justice.
This was lost sight of when the Hon‟ble Single Judge chose not to decide
the issue of validity of the disciplinary enquiry and the consequential
order of punishment which came to be passed during pendency of the
writ petition and directed the appellant to start afresh.
24. For the following reasons we are of the opinion continuation of the
disciplinary proceedings against the appellant and the consequential
order of punishment being de hors the disciplinary rules is without
authority of law and the same are quashed.
25. Respondent no.3 i.e. Chairman, Rajpur-Sonarpur Municipality is
directed to send all papers pertaining to pension, provident fund, group
insurance and other retiral benefits of the appellant to the Directorate of
Pension, Provident Fund and Group Insurance (respondent no.6) within
two months from date. Respondent no.6 upon receipt of papers shall
issue the Pension Payment Order (PPO) in favour of the appellant within
one month thereof for release of pension and other retiral dues after
complying with necessary formalities and the respondent-Municipality
shall release the pensional and other retiral benefits forthwith.
26. With these directions, appeal is allowed.
27. In view of disposal of the appeal, connected application being CAN
2 of 2024 is also disposed of.
28. There shall be no order as to costs.
29. Photostat certified copy of this judgment, if applied for, be given to
the parties on compliance of all formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
akd
