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2017 DIGILAW 117 (CAL)

ASIM KUMAR BHATTACHARYYA v. STATE OF WEST BENGAL

2017-01-25

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : 1. The petition is directed against the order of the West Bengal Administrative Tribunal in a.A 699 of 2015. The Tribunal has granted liberty to the West Bengal Government to continue a disciplinary enquiry against the petitioner, who retired from service on 31st January, 2015. 2. The brief facts in this case are as follows: 3. The petitioner was charge sheeted on 2nd March, 1991 after having completed about 13 years of service. The charge against the petitioner was that he had committed bigamy. The enquiry officer found him guilty of this charge. The disciplinary authority issued a second show cause notice to the petitioner on 11th February 1992 calling upon the petitioner to respond to the proposed punishment of dismissal from service. The petitioner preferred C.O No. 3704 of 1992 challenging the action of the Government. An interim order was passed by this Court on 27th April, 1992 directing that though further proceedings could continue in the enquiry no final order could be passed against the petitioner without the leave of this Court. It appears that the matter was dismissed for default in the year 2002. Thereafter, it was restored on 15th September, 2006. Later this Court transferred the proceedings to the West Bengal Administrative Tribunal and the application was renumbered as T.A 4 of 2007. That application was disposed of on 4th March, 2010 by the Tribunal, recording that the writ petition had become infructuous. The second show-cause notice had been issued to the petitioner on 11th March, 1992. However, no action was taken by the Government on the basis of that second show-cause notice though the petitioner failed to reply to the same. 4. On 31st January, 2015 the petitioner attained the age of superannuation and retired from service. However his retiral dues were not disbursed to him. He filed O.A 503 of 2015 to claim these dues. It was at this stage that he learnt that the Government sought to initiate further proceeding in accordance with the provisions of Rule 10(1a) of the West Bengal (Death-cum-Retirement Benefit) Rules, 1971 (hereinafter referred to as 'the DCRB Rules'. An order was issued on 25th June, 2015 recording that the departmental enquiry would continue against the petitioner as if he was still in service. . 5. No relief was granted by the Tribunal to him and, therefore, he approached this court by filing a writ petition. An order was issued on 25th June, 2015 recording that the departmental enquiry would continue against the petitioner as if he was still in service. . 5. No relief was granted by the Tribunal to him and, therefore, he approached this court by filing a writ petition. That writ petition was also disposed of as the departmental enquiry was still pending against the petitioner. 6. On receipt of the order dated 25th June, 2015 for revival of the departmental proceeding, the petitioner preferred O.A 699 of2015. The main contention raised by the petitioner before the Tribunal was that the departmental enquiry could not be continued after he had attained the age of superannuation. It was contended on his behalf that the Government could continue an enquiry even after the employee had retired only if the allegation against him was that he had caused monetary loss to the Government. Moreover the continuation of the enquiry was dependent on the sanction of the Governor of the State of West Bengal in terms of Rule 10 of the DCRB Rules. It was also contended that the sword of Damocles had been kept hanging on the petitioner for over 23 years as the enquiry had been kept pending from 1992 onwards. Reliance was placed on various judgments including P.V. Mahadeuan vs. M.D, T.N Housing Board, ( (2005)6 SCC 636 ) and Prem Nath Bali vs. Registrar, High Court of Delhi & Am., (Civil Appeal No. 958 of2010) disposed of on 16th December, 2015. 7. The Tribunal disposed of the Original Application having regard to the provisions of Sub-Rule (1) of Rule 10 of the DCRB Rules. It further directed that the disciplinary authority should continue the impugned proceeding in accordance with rules and that the final order should be passed within six months from the date of communication of its order. 8. Mr. Manujendra Narayan Roy, the learned counsel appearing for the petitioner has reiterated the same contentions which were raised before the Tribunal, namely, (i) a disciplinary enquiry cannot be continued indefinitely against a delinquent employee; (ii) the Government had every opportunity to complete the enquiry earlier but it did not do so for reasons best known to it; (iii) the Tribunal ought not to have granted any opportunity to the State to complete the enquiry as that is not permissible after retirement under the DCRB Rules. 9. Mr. 9. Mr. Joytosh Majumder, the learned counsel appearing for the State has brought to our notice the judgment of the Supreme Court in the case of State of West Bengal & Ors. vs. Pronab Chakraborty, reported in (2015)2 SCC 496 where the Supreme Court has interpreted Rule 10(1) of the DCRB Rules and has held that Departmental proceeding can be continued even after superannuation irrespective of whether there is pecuniary loss to Government. It can also be continued for grave acts of misconduct or negligence. If such acts of misconduct or negligence entail pecuniary loss to the Government, such loss can be recovered from the employee. 10. In view of the judgment of Pronab Chakraborty's (supra), there cannot be any doubt today that a departmental enquiry which had commenced prior to the retirement of an employee can be continued after his superannuation from service. Therefore, in the present case the petitioner who has been charged with the grave misconduct of having committed bigamy must face the departmental proceeding. The enquiry has already been completed and it is at the stage of filing of the reply to the second show-cause notice. The proceeding was stayed till the year 2010. The State ought to have proceeded with the departmental proceeding at that stage. However, it failed to do so despite the Supreme Court's observations in P.V. Mahadeuan (supra). Moreover, in Prem Nath Bali (supra), the Supreme Court has observed that a departmental enquiry, whether held by a private. employer or by the Government, should normally be completed within six months. When it is not possible to do so for unavoidable causes, the proceeding should reasonably be concluded within a maximum period of one year. 11. The Tribunal has directed that the enquiry should be completed within six months from the date of communication of the order. According to Mr. Majumder, the order was communicated on 9th December, 2016. Therefore, the disciplinary proceeding will have to be completed by 9th June, 2017. 12. We do not propose to interfere with the impugned order. However, we direct that in the event the State fails to complete the disciplinary proceeding within the period stipulated by the Tribunal for any reason whatsoever, the proceeding will lapse and no further action will be taken against the petitioner. The petitioner will then be paid all his retirement benefits. 13. However, we direct that in the event the State fails to complete the disciplinary proceeding within the period stipulated by the Tribunal for any reason whatsoever, the proceeding will lapse and no further action will be taken against the petitioner. The petitioner will then be paid all his retirement benefits. 13. The petitioner shall reply to the second show-cause notice within three weeks from today. The departmental proceeding will continue from that stage and shall be completed as directed by the Tribunal. During this period the petitioner will be paid provisional pension in terms of the order dated 25.06.2015. 14. With the aforesaid directions, the petition is disposed of.