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2018 DIGILAW 563 (CAL)

Kamal Kanati Ghosh v. State of West Bengal

2018-08-10

SUBRATA TALUKDAR

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JUDGMENT : SUBRATA TALUKDAR, J. 1. The short point in issue in this writ petition arises out of the claim of the petitioner for disbursement of full pensionary benefits with effect from his superannuation on 1st September, 2004, including other terminal benefits such as gratuity. 2. The petitioner was in service as Lecturer in Zoology at a Non-Government Women's College affiliated to the University of Burdwan (for short hereinafter referred to only as the College and the University respectively). The petitioner claims to have joined service in 1972 and, during service, was in receipt of revised University Grants Commission (UGC) scales of pay which came into effect from 1st of January 1986. 3. On the 3rd of January 1988, the petitioner was implicated in a criminal case under Sections 498 A and 302 of the Indian Penal Code. In view of such implication the pension disbursing authority, viz. the State respondents, invoked Rule 14 of the West Bengal Services (Death Cum Retirement Benefit) Rules, 1971 (for short the 1971 Rules) which, inter alia, reads as follows: "14. Criminal proceedings- A Government servant who retires from service but against whom criminal proceeding involving moral turpitude are pending in a court of law, shall not be sanctioned any pension until the termination of the criminal proceedings. An interim allowance not exceeding two-thirds of the pension that granted during the pendency of such proceedings in cases of hardship. If he is convicted on a criminal charge involving moral turpitude he shall not be entitled to any pension; compassionate allowance may be granted subject to the same terms and conditions as laid down in rule 12." 4. On the pillar of Rule 14 the pension disbursing authority has now taken the stand that since the petitioner retired from service with a conviction under Section 498A IPC in a criminal trial presently pending under appeal and, the conviction is one arising out of "moral turpitude", pension cannot be sanctioned applying Rule 14 . 5. Thus the petitioner has only become eligible during the interregnum pending conclusion of the criminal proceeding to an interim allowance following Rules 14 and 12 of the 1971 Rules to obviate any hardship. 6. Reiterating the legal principle underscored by Rule 14 , Mr. Bhattacharjee, Learned Counsel appearing for the Respondent Nos. 4 and 5/the Office of the Accountant General, West Bengal and Mr. 6. Reiterating the legal principle underscored by Rule 14 , Mr. Bhattacharjee, Learned Counsel appearing for the Respondent Nos. 4 and 5/the Office of the Accountant General, West Bengal and Mr. Vaisy, Learned State Counsel, submit that the right to receive pension is not unfettered. Arguing that the intention of Rule 14 is clear, that is to deny pension in respect of persons convicted on a charge involving moral turpitude, in the facts of the present case it is evident that the petitioner stood convicted with two years rigorous imprisonment and a fine under Section 498A IPC. The gravity of the charges stands underpinned by the judgement of the Learned Trial Court holding the petitioner as a contributor to the death of his wife by torture. 7. Learned Counsel for the Respondents submits that from the lengthy discussion by the Learned Trial Court it can be found that Sessions Trial No.15 of 1991 which was originally started under Sections 498A/302/306/34 IPC resulted in the sentencing of the petitioner under Section 498A although acquitted under Section 302 in the absence of proof of charge beyond reasonable doubt. The petitioner has preferred an appeal before this Hon'ble Court which was filed in 1998 and, has taken no steps in the appeal for the past two decades instead preferring to remain enlarged on bail. Learned Counsel for the Respondents therefore submit that the petitioner is not yet free of the stain of moral turpitude arising out of the conviction. In such view of the matter, the rigour imposed by Rule 14 of the 1971 Rules binds the petitioner still. 8. Mr. Bhattacharjee, Learned Counsel, further emphasises on the authority AIR 1963 SC 1313 (at paragraphs 7 and 8 thereof), that the application of statutory Rules in a given factual matrix by the State cannot be read down on hyper technicalities. 9. Learned Counsel submits that it would be quite in order to argue that the moral depravity of the petitioner percolates even to his conduct of deliberately avoiding taking steps in his appeal now pending for a good twenty odd years. 9. Learned Counsel submits that it would be quite in order to argue that the moral depravity of the petitioner percolates even to his conduct of deliberately avoiding taking steps in his appeal now pending for a good twenty odd years. Arguing that the West Bengal College Teachers (Death Cum Retirement Benefit) Scheme, 1974 (for short the 1974 Scheme), which came into effect from 1st April, 1974 provides, inter alia, at Chapter XII, Rule 52 thereof that in matters for which provision has not been made in the 1974 Scheme, the 1971 Rules shall apply mutatis mutandis, the petitioner shall therefore stand governed by Rule 14 of the 1971 Rules since, in respect of steps to be taken qua a charge of moral turpitude, the1974 Scheme is silent. 10. Mr. Mondal, Learned Counsel appearing for the petitioner, at the very outset places reliance upon the reported decision of the Court in In Re: Gunamay Mahato vs. The State of West Bengal & Ors, (2016) 3 WbLR 714 (Cal). Arguing that the above noted decision has been delivered on pari materia facts, Learned Counsel submits that the ratio of the West Bengal Recognized NonGovernment Educational Institution Employees (Death Cum Retirement Benefit) Scheme, 1981 (for short the 1981 Scheme) as interpreted In Re: Gunamay Mahato shall apply to the present case. 11. It is submitted that the 1981 Scheme has been held to extend all pensionary cum retirement benefits to an employee subject to satisfactory completion of service and, notwithstanding pendency of any criminal proceeding qua such retired employee provided such criminal proceeding does not bear any nexus to the satisfactory discharge of his service. 12. Next, Mr. Mondal relies upon the authority of In Re: A.I. Amin vs. Life Insurance Corporation of India (LICI), (2016) 13 SCC 797 in support of the contention that disbursement of pension is deemed to be automatic following the retirement of an employee after his qualifying service. Arguing that Pension is Property, Ld. Counsel relies on the pronouncement of the Hon'ble Apex Court in 2013 (12) SCC 210 in support of the above proposition. 13. On the question of what is moral turpitude, Mr. Arguing that Pension is Property, Ld. Counsel relies on the pronouncement of the Hon'ble Apex Court in 2013 (12) SCC 210 in support of the above proposition. 13. On the question of what is moral turpitude, Mr. Mondal relies upon the authority of In Re: Pawan Kumar vs. State of Haryana & Ors., (1996) 4 SCC 17 and In Re: Sushil Kumar Singhal vs. Regional Manager, Punjab National Bank, (2010) 8 SCC 573 to emphasise the point that acts of moral turpitude do not mean that the credibility of an employee in his service stand automatically impeached. 14. It is, therefore, asserted that the conviction of the petitioner by the Learned Trial Court Under Section 498A IPC cannot ipso facto result in formulation of opinion vide Rule 14 of the 1971 Rules of an act of moral delinquency. 15. Having heard the parties and considering the materials placed, this Court arrives at the following findings; (A) That the 1981 Scheme is applicable to whole-time teachers in Government schools. (B) The petitioner, not being a teacher in a Government school, cannot be treated to be within the purview of the 1981 Scheme as well as a beneficiary of the ratio laid down In Re: Gunamoy Mahato, who was a primary school teacher. (C) However, the petitioner being a Non Government College teacher, stands governed by the 1974 Scheme which came into effect from the 1st of April, 1974. The attention of this Court is drawn to Clause 8 under Chapter IV determining the eligibility of retired teachers to receive pension on satisfactory completion of service. This Court takes this occasion to remind the petitioner that it is acutely conscious of the fact that none of the conditions under Clauses 8 (i) to (iv) can be held to be not applicable to the petitioner. (D) However, the attention of this Court is also drawn to Clause 52 which, inter alia, provides that in respect of matters for which provision has not been made in the 1974 Scheme, the 1971 Rules shall apply mutatis mutandis. (D) However, the attention of this Court is also drawn to Clause 52 which, inter alia, provides that in respect of matters for which provision has not been made in the 1974 Scheme, the 1971 Rules shall apply mutatis mutandis. (E) This Court does not find on a plain reading of the 1974 Scheme that there is a provision similar to Rule 14 of the 1971 Rules Therefore, this Court is persuaded to hold that on the aspect of moral turpitude Rule 14 of the 1971 Rules governs the service condition of the petitioner and, having regard to Clause 52 of the 1974 Scheme, in the absence of specific provisions connected to pendency of criminal proceedings connected to acts of moral turpitude, the State is within its rights to invoke Rule 14 of the 1971 Rules. (F) Next, this Court is required to consider the point raised on behalf of the petitioner whether the charge and the subsequent conviction would result in a conclusion of moral turpitude. Admittedly, the petitioner stands convicted under Section 498A IPC. The conviction on the ground of sustained cruelty and torture resulting in the death of his wife has been held by the Learned Trial Court on a detailed assessment of the evidence on record. Therefore, although noticing the educational qualifications and academic standing of the petitioner, the Learned Trial Court imposed the rigours of an imprisonment and a fine. (G) This Court must be also conscious of the fact that the petitioner has kept his Criminal Appeal pending for the last 20 years. No evidence has been brought to the notice of this Court that the petitioner, as the appellant, has expedited the hearing of the appeal, assuming but not admitting, that he lays claim to innocence. (H) Upon a conjoint consideration of all the above facts this Court must now notice the observations of the Hon'ble Apex Court on the meaning, scope and content of moral turpitude as illustratively explained in 1996(4) SCC 17 (at Paragraph 12) and 2010(8) SCC 573 (at Paragraph 25) which read as follows:- 1996 (4) SCC 17 "12. Moral turpitude is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, de4praved of having any connection showing depravity. Moral turpitude is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, de4praved of having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on 2-2-1973 ( annexure E in the Paper-book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not however be taken in government service. A list of offences which were considere4d involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294 IPC is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the government of Haryana on 17/26-3-1975 explained the policy decision of 2-2-1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows: "The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not; (1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general. (2) Whether the motive which led to the act was a base one. (3) Whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the above-mentioned principal. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude". Section 294 IPC still remains out of the list. Thus the conviction of the appellant under Section 294 IPC on its own would not involve moral turpitude depriving him of the opportunity to serve the state unless the facts and circumstances, which led to the conviction, met the requirements of the policy decision above-quoted." 2010 (8) SCC 573 "25. In view of the above, it is evident that moral turpitude means anything contrary to honesty modesty or good morals. It means vileness and depravity. In view of the above, it is evident that moral turpitude means anything contrary to honesty modesty or good morals. It means vileness and depravity. In fact, the conviction of a person in a crime involving moral turpitude impeaches his credibility as he has been found to have indulged in shameful, wicked and base activities." (I) It is not the case of the petitioner that Rule 14 of the 1971 Rules calls for its declaration as ultra vires. The petitioner only calls upon this Court to examine whether Rule 14 can be invoked in the facts of his case. On a considered view of the present facts and the law this Court answers the issue in the affirmative. (J) However, before parting with this discussion, this Court must notice the judgment of the Hon'ble Single Bench In Re: Surajit Roy vs. Registrar General, High Court at Calcutta, (2014) 4 CalHN 702 (Cal). This Court is ad idem with the view taken by His Lordship that the expression any pension within Rule 14 does not include gratuity. This Court is in concurrence with the view expressed by His Lordship In Re: Surajit Roy that the four classes of pension as defined under Rule 37 of the DCRB do not include gratuity. (K) The petitioner shall be therefore entitled to receive his entire gratuity account from the concerned respondent authorities not later than a period of four weeks from the date of communication of this order. 16. For the foregoing reasons, WP No. 27426(W) of 2016 stands dismissed, except to the above extent. 17. There will be no order as to costs. 18. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.