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1992 DIGILAW 288 (CAL)

Ramesh Chandra Sen v. Secretary, Food & Supplies

1992-07-21

Shyamal Kumar Sen

body1992
Order: In this writ petition the petitioner has challenged the report of the enquiring authority and the impugned proceedings before said authority. It is the contention of the writ petitioner that he was an employee of the Government of West Bengal and was appointed at the office of Assistant Director, Civil Supply procurement Office at Burdwan on February 2, 1946. Subsequently the petitioner was assigned the post of Chief Inspector Food & Supplies and was transferred to the office of Sub divisional Controller at Asansol. The petitioner worked there till the date of his retirement i.e. June 30, 1980. It has been submitted that the employees under the Government of West Bengal are required to submit declaration of assts of moveables and immoveables under the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules 1980. The petitioner submitted the last of such declaration on 9.6.80 just few months before his retirement from service and in the said declaration the petitioner mentioned the fact of construction of 1st floor of the building on Christian Bros Survey Plot No. 3 of Block No. 1 of S. B. Gorai, Asansol. The building stands in the name of the petitioner's wife Mrs. Mira Sen. The amount of money which is admitted by the petitioner to have been spent in the said construction was shown in the declaration as Rs. 25,364/- (approximately). The authority suspected the figure spent in construction and shown in the said declaration to be not genuine and a preliminary enquiry was conducted by the vigilance commission. The respondent No. 6 was directed to make assessment of the total amount spent for the said construction. The respondent No. 6 with the assistance of respondent No.7 visited the building during May 1982 to August 1982 on different dates for the said purpose. The petitioner came to know that the said officer of the vigilance commission assessed the cost of construction around Rs. 48,081/- showing a difference of Rs. 22,717/-. This amount of money the respondent claims remain unaccounted for. On the basis of the allegation that the difference of amount of Rs. The petitioner came to know that the said officer of the vigilance commission assessed the cost of construction around Rs. 48,081/- showing a difference of Rs. 22,717/-. This amount of money the respondent claims remain unaccounted for. On the basis of the allegation that the difference of amount of Rs. 22.717/- was unaccounted for and the same appeared disproportionate to the known sources of income of the petitioner, a departmental enquiry was contemplated against your petitioner and a memorandum vide Memo No. 139/CON/FS/5A-13/82 F.S. dated 28.2.83 containing the detail of the Article of charges was issued by the Secret ray to the Government of West Bengal, Food and Supplies Department, the respondent No. 1 herein. Therefore, the petitioner was faced with the charge of lack of integrity and conduct improper and unbecoming of a public servant as per Rule 3 & 4 of the West Bengal Servants Conduct Rules 1959 read with Rule 8(2) of the West Bengal Services (Duties Rights and Obligations of the Government Employees) Rules 1980. A departmental proceeding under Rule 10 (b) (i) of the West Bengal (Classification Control and Appeal) Rules 1971 was initiated by the said respondent No. 1 against the petitioner and Sri S. K. Guin. The respondent No. 5 was appointed as Inquiring Authority to enquire into the charges framed against the petitioner. The petitioner however submitted his reply to the memorandum of charges and countered the allegation giving in detail the actual state of things. The petitioner put in detail the actual cost of construction of the first floor of the building after completion which was Rs. 50,512,20/and which differed from the assessment made by the respondent No. 6 herein who after visiting the building assessed the cost of construction at Rs. 48,081/- while the petitioner's actual cost figured at Rs. 50,512,20/-. The amount of cost which was shown in the declaration of assets submitted to the authority by the petitioner on June 9, 1980 was only the expenditure incurred by the petitioner in constructing the 1st floor complete with roof being unfinished and the amount shown was Rs. 25,364/-. It has been submitted that the difference amount i.e., Rs. 50,512.20P/- Rs. 25,364.00/-=Rs. 25,148.20/- was clearly accounted for, by the petitioner in the reply. Inspite of that the respondent No. 1 proceeded with the departmental enquiry without considering the reply of the petitioner. 2. 25,364/-. It has been submitted that the difference amount i.e., Rs. 50,512.20P/- Rs. 25,364.00/-=Rs. 25,148.20/- was clearly accounted for, by the petitioner in the reply. Inspite of that the respondent No. 1 proceeded with the departmental enquiry without considering the reply of the petitioner. 2. It has been alleged that in the impugned enquiry the petitioner was not allowed to cross-examine witnesses and to produce relevant witness because of the fact that the petitioner was not afforded opportunity to receive assistance to present the petitioner's case before the Departmental Enquiry. It would also be evident that the Inquiring Authority failed to conduct the enquiry in a just and fair way and failed to weigh the evidence produced. According to the petitioner the impugned enquiry was biased and motivated. It has also been alleged that the petitioner was entitled to get the assistance of a co-employee to defend or to present his case before the Departmental Enquiry but such facility was not allowed to the petitioner. 3. In any event at the hearing of this writ application the learned Advocate for the State Government was asked to produce the relevant Rules whereupon the State Government can issue show cause notice and charge-sheet against a retired employee. The matter was adjourned for that purpose. The learned Advocate for the State Government thereafter on instruction submitted that there is no such Rule on the basis of which the retired employee can be proceeded with by issuing show cause notice. Admittedly in the instant case the petitioner has retired in June 30, 1980 and the show cause notice was issued on February 28, 1983. 4. The learned Advocate for the petitioner relied upon two decisions of this Court. 1). Unreported decision of this Court in C.O. No. 9309 (W) of 1990 with C.O. No. 13224 (W) of 1989 (Amar Kumar Mukherjee vs. Union of India and others) and the case reported in 91 C.W.N. 716=1987 (1) CHN, 48 (Ram Copal Bhattacharyya vs. State of West Bengal and Ors.). 5. In the aforesaid unreported decision in C.O. No. 9309(W) of 1990 with C.O. No. 13224 (W) of 1989 (Amar Kumar Mukherjee vs. Union of India and Others) it was held that a disciplinary proceeding should not be initiated after an employee retires from service. 5. In the aforesaid unreported decision in C.O. No. 9309(W) of 1990 with C.O. No. 13224 (W) of 1989 (Amar Kumar Mukherjee vs. Union of India and Others) it was held that a disciplinary proceeding should not be initiated after an employee retires from service. The said decision was based on rules and/or the scheme as applicable to employees of Coal India Ltd. which do not provide for such initiation of proceeding after the employees retire, although there is provision for continuance of enquiry proceeding after retirement if such proceeding commences prior to the retirement. In the instant petition the Learned Advocate for the State could not produce any rule under West Bengal Service Rules which provides for initiation of the proceeding after retirement of the Government employee. 6. In the case of Ram Copal Bhattacharya vs. State of West Bengal & Ors. (supra) Bhagabati Prasad Banerjee, J. referred to Kerala High Court Judgment in the case of P. Nair vs. Kerala State Electricity Board reported in AIR 1979 Ker. 135 wherein the Full Bench of the Kerala High Court considered a provision which was in pari materia with that of the provisions of Rule 10 of the said Retirement Benefit Rules and the Full Bench of the Kerala High Court on interpretation of the Kerala Rules held inter alia ''The Rule does not authorise continuance of disciplinary proceeding as such against a Government servant after his retirement. Both on principle and on authority such a position cannot be easily countenanced. It allows only a limited type of enquiry to be proceeded with, namely an enquiry in regard to withholding or withdrawing• pension or of ordering recovery from pension by reason of any misconduct or negligence during the period in service of the employee, under Clause (a) of the proviso to the Rule, the departmental proceedings, if instituted, during the service of the employee is to be deemed to be a proceeding under the Rule and may be continued and completed even after his retirement. To this limited extent alone is provision made under the Rule for continuance of a disciplinary enquiry beyond retirement. That too is by transmiting it by fiction to be an enquiry under the Rule. Beyond this, we cannot understand the rule as in any way permitting the authorities either to launch or to continue disciplinary proceeding after the retirement of the employee. That too is by transmiting it by fiction to be an enquiry under the Rule. Beyond this, we cannot understand the rule as in any way permitting the authorities either to launch or to continue disciplinary proceeding after the retirement of the employee. That would be destructive of the concept of relationship of the employer and employee which has come to an end, by reason of retirement of the employee, beyond which, disciplinary control cannot extend." 7. In my opinion, the said Rule could at best be invoked for the purpose of recovery of the pecuniary loss caused to the Government by the pensioner because of gross misconduct or negligence during the period of service. 8. In the instant case, there is no allegation that the petitioner has caused any pecuniary loss to the Government because of gross misconduct or negligence while he was in service nor any proceeding has been initiated during the period of service which may continue after retirement so that pensioner's benefits could be withheld. 9. .As mentioned hereinbefore there is no provision under the West Bengal Service (Duties, Rights and Obligations of the Government Employees) Rules 1980 or under the West Bengal Servants Conduct Rules, 1959 which enables the authority concerned to initiate disciplinary proceeding after retirement. Under such circumstances the impugned proceeding was initiated without jurisdiction and the Order dated October 9, 1986 being Annexure 'X' to the Supplementary Affidavit is set aside and the proceeding is quashed. The writ petitioner accordingly succeeds in this Writ Petition. The petitioner will be entitled to the retiral benefits in accordance with law. Such benefits be given to the writ petitioner within three months from date. 10. The writ petition is accordingly disposed of. There will be no order as to costs. Let Xerox copy of this order be given to the learned Advocates for the parties on compliance of their usual formalities for obtaining such Xerox copies.