Research › Search › Judgment

Calcutta High Court · body

2024 DIGILAW 1159 (CAL)

Santosh Kumar Das v. State of West Bengal

2024-06-18

AMRITA SINHA

body2024
JUDGMENT : (Amrita Sinha, J.) : The issues to be decided herein are: a) Whether disciplinary proceeding can be initiated against an employee of the Gram Panchayat after he retired from service upon attaining his normal age of superannuation? b) Whether a Gram Panchayat employee can be treated as a government employee? c) Whether a Gram Panchayat employee will be guided by the West Bengal Services (Classification, Control and Appeal) Rules, 1971? d) Whether the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980 will apply to a Gram Panchayat employee? e) Whether a Gram Panchayat employee will be covered by the West Bengal Services (Death-cum-Retirement Benefit Rules), 1971 or the Death-cum-Retirement Benefit Scheme, 1985 modified vide memorandum dated 31st May, 2019? 2. The facts pleaded by the petitioner are as follows: The petitioner was serving as Secretary in Dharampur Gram Panchayat on and from his date of joining on 26th June, 1995. He was transferred to Humaipur Gram Panchayat in May, 2000. He was promoted to the post of Executive Assistant of the Gram Panchayat in February, 2007 and was thereafter transferred to Kedarchandpur Gram Panchayat-I in August, 2017. He attained his normal age of superannuation on 31st July, 2023. 3. In September, 2021 the petitioner was requested to attend an ‘Open Examination’ before the enquiry officer in the anti-corruption/vigilance office, which he duly attended. In November, 2021 the petitioner was intimated and directed to remain present for ‘Technical Assessment’ before the technical experts of the State Vigilance Commission for evaluation of the double storied building owned by him, which he duly complied. No further intimation was given to the petitioner with regard to the vigilance enquiry. 4. The petitioner filed his comprehensive e-pension application on 22nd August, 2022. As Pension Payment Order was not issued in his favour after his retirement, he filed a writ petition being WPA 28932 of 2023 and served copy of the writ petition upon the respondent authorities. On receiving the copy of the writ petition, the disciplinary authority and the District Magistrate and Collector issued a communication dated 9th January, 2024 intimating the petitioner that an inquiry over article of charges framed under Rule 52 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004, as amended in 2006, read with the West Bengal Services (Classification, Control and Appeal) Rules, 1971, would be held against him. The petitioner was directed to submit written statement in his defence to the inquiry authority. The article of charges with the signature of the disciplinary authority was forwarded to the State Vigilance Commission on the self-same date i.e. 9th January, 2024. Submissions of the petitioner: 5. Specific submission of the petitioner is that the disciplinary proceeding initiated against him after his retirement is mala fide, motivated and bad in law. After retirement from service the employer-employee relationship ceases to exist and, as such, disciplinary proceeding could not have been initiated. 6. It has been submitted that the post of Executive Assistant of the Gram Panchayat is not a government post in terms of Rule 35 of the West Bengal Panchayat Act, 1973. The service condition of the petitioner was governed by the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004, as amended in the year 2006. The petitioner was appointed to the post by the panchayat authority and not by the order of the Governor as required under the West Bengal Services (Classification, Control and Appeal) Rules, 1971. 7. The pensionary benefit of the petitioner is governed by the West Bengal Death-cum-Retirement Benefit Scheme, 1985 as amended/modified. The e-pension paper of the petitioner authenticated by the Block Development Officer was submitted in the month of August, 2022, i.e. long prior to his retirement. The show cause notice along with article of charges was issued on 9th January, 2024, long after his retirement on 31st July, 2023. 8. The petitioner, not being a government employee, will neither be guided by the West Bengal Services (Classification, Control and Appeal) Rules, 1971 or the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980. He will also not be governed by The Departmental Proceeding (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1973 or the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. Prayers of the petitioner: 9. The petitioner prays for a direction upon the respondent authorities for releasing his terminal benefits with interest upon setting aside the disciplinary proceeding initiated against him. Precedents relied upon by the petitioner: 10. Prayers of the petitioner: 9. The petitioner prays for a direction upon the respondent authorities for releasing his terminal benefits with interest upon setting aside the disciplinary proceeding initiated against him. Precedents relied upon by the petitioner: 10. In support of his submission the petitioner relies upon the following precedents: (i) Unreported order dated 13.07.2023 passed by a coordinate Bench of this Court in WPA 12155 of 2011 with IA No. CAN 2 of 2019 (Old No. 3942 of 2019) in the matter of Mantu Chandra Mondal –Vs- State of West Bengal & Ors. (ii) Order dated 18.03.2024 passed by an Hon’ble single judge of the Allahabad High Court in WRIT-A No. 19256 of 2023 in the matter of Prem Kumar Tripathi -Vs- The State of Uttar Pradesh and another; Neutral Citation no. 2024 AHC 47778. (iii) Dev Prakash Tewari Vs. U.P. Cooperative Institutional Service Board, Lucknow & Ors. reported in (2014) 7 SCC 260 . (iv) Unreported order dated 10.05.2022 passed by this Bench in WPA 6171 of 2022 in the matter of Sri. Sukdeb Haldar –VsState of West Bengal & Ors. (v) Unreported order dated 22.12.2010 passed in WPST 497 of 2010 by the Hon’ble Division Bench in the matter of Pronab Chakraborty vs. State of West Bengal & Ors. (vi) Kanailal Majhi Vs. State of West Bengal reported in (1995) 1 Cal LT (HC) 297. (vii) Judgment dated 21.03.2024 passed by the Hon’ble Division Bench of this Court in WPCT 154 of 2023 in the matter of Md. Farid Vs. Union of India & Ors. Submissions of the State respondents: 11. Learned advocate representing the respondent authorities opposes the prayers of the petitioner. He submits, upon instruction, that the Block Development Officer, Nowda Development Block being the ex-officio Executive Officer, Nowda Panchayat Samity directly lodged complaint against the petitioner in June, 2021 before the Anti Corruption/ Vigilance Inspector, Anti Corruption Unit, Berhampore, Murshidabad. On the basis of the said allegation the State Vigilance Commission, West Bengal recommended disciplinary proceeding against the petitioner. The disciplinary authority framed the article of charges and issued show cause letters to the petitioner. Inquiry Officer and Presiding Officer have already been appointed. 12. It has been submitted that the allegation against the petitioner relates to acquiring assets in his name without submission of the annual declaration of assets statements which is obligatory for every government servant. The disciplinary authority framed the article of charges and issued show cause letters to the petitioner. Inquiry Officer and Presiding Officer have already been appointed. 12. It has been submitted that the allegation against the petitioner relates to acquiring assets in his name without submission of the annual declaration of assets statements which is obligatory for every government servant. The petitioner purchased homestead plot of land without obtaining legal permission from the department. The conduct of the petitioner is irregular, amounting to misconduct. 13. It has been submitted that for initiating and conducting disciplinary proceeding against Gram Panchayat employees in ‘matters and manners’ not provided by the West Bengal (Gram Panchayat Administration) Rules, 2004 and the West Bengal Panchayat Act, 1973, the provision of the West Bengal (Classification, Control and Appeal) Rules, 1971 has been made applicable mutatis mutandis as laid down in the third proviso to sub Rule 9 of Rule 52 of the West Bengal (Gram Panchayat Administration) Rules, 2004, as amended in 2006. 14. In view of the aforesaid legal provision, the expression ‘Government Employee’ in the West Bengal (Classification, Control and Appeal) Rules, 1971 has to take in its fold ‘Gram Panchayat Employees’ in case of disciplinary proceeding initiated against any employee of the Gram Panchayat under the West Bengal (Gram Panchayat Administration) Rules, 2004, as amended in 2006, read with the West Bengal (Classification, Control and Appeal) Rules, 1971. 15. It has been submitted that the petitioner has not challenged the third proviso of Rule 52 (9) of the Administration Rules, 2004, as amended in 2006, as to whether the said provision will or will not be applicable to the Gram Panchayat employees. 15. According to the respondent authorities the District Magistrate, being the Executive Officer of the Zilla Parishad, is empowered under the West Bengal (Gram Panchayat Administration) Rules, 2004, amended in 2006, at any time, to suo motu initiate proceeding against the Gram Panchayat karmee or any other employee of the Gram Panchayat. 17. As in the instant case vigilance enquiry was initiated in the year 2021, long prior to superannuation of the petitioner in 2023, and the State Vigilance Commission forwarded the proposed article of charges to the District Magistrate on 7th June, 2023, i.e, prior to the retirement of the petitioner, accordingly, the District Magistrate was well within his jurisdiction to initiate the disciplinary proceeding against him. 18. 18. It has been argued that the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980 may not be strictly applicable to a Gram Panchayat employee but the principles laid down therein will squarely apply in terms of the first proviso to sub Rule 9 of Rule 52 of the West Bengal (Gram Panchayat Administration) Rules, 2004, as amended in 2006, inasmuch as it provides for initiating proceeding against a Gram Panchayat employee for ‘wrongful act or any other omission or commission which the Gram Panchayat employee should not have done’. 19. The allegation against the petitioner is of ‘lack of integrity’ and the case made out against him is of ‘disproportionate assets’. Mention of the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980 in the charge sheet is a mere technicality and/or an irregularity which can always be cured. The charges against the petitioner are very serious in nature and ought not to be quashed merely on technical grounds. Precedents relied upon by the respondent State: 20. The respondents rely upon the following precedents in support of the submission that disciplinary action may be initiated against a Gram Panchayat employee even after his retirement: (i) State of Uttar Pradesh -Vs- Brahm Datt Sharma & Anr. reported in (1987) 2 SCC 179 – Para 6. (ii) State of Maharashtra -Vs- M.H. Mazumdar reported in (1988) 2 SCC 52 – Para 5. (iii) Brajendra Singh Yamben -Vs- Union of India & Ors. reported in (2016) 9 SCC 20 . 21. As regards withholding of terminal benefits, the respondents rely upon Clause 49 of the Death-cum-Retirement Benefit Scheme, 1985 which is applicable to the employees of the panchayat who are facing disciplinary proceeding for misconduct. 22. Prayer has been made for dismissal of the writ petition. Deliberation by the Court: 23. I have considered the rival submissions made on behalf of both the parties and have perused the materials placed before the Court. 24. The case at hand relates to an employee of a Gram Panchayat who was initially appointed as Secretary of the Gram Panchayat and retired as Executive Assistant on attaining normal age of superannuation on 31st July 2023. 25. 24. The case at hand relates to an employee of a Gram Panchayat who was initially appointed as Secretary of the Gram Panchayat and retired as Executive Assistant on attaining normal age of superannuation on 31st July 2023. 25. According to Section 35(1) of the West Bengal Panchayat Act, 1973 every Gram Panchayat shall have such number of Gram Panchayat Karmees as may be determined by general or special order, by the State Government and such Gram Panchayat Karmees shall be appointed by the Executive Officer of the Panchayat Samiti having jurisdiction. 26. Section 35(2) of the Act, 1973 lays down that subject to such rules made by the State Government in this behalf, and such orders as may be issued by the State Government, a Gram panchayat shall have such other employees in its establishment as may be prescribed and they shall be appointed by the Executive Officer of the Zilla Parishad having jurisdiction. 27. As per Section 35 (3) of the Act, 1973 the State Government makes rules relating to the method of recruitment and the terms and condition of service including the pay and allowances, superannuation, provident fund and gratuity of all Gram Panchayat Karmees appointed under sub-section (1) and all other employees of the Gram Panchayat appointed under subsection (2). 28. Section 35 (4) of the Act, 1973 specifies that, apart from the Gram Panchayat Karmees and other employees, the State Government may place at the disposal of the Gram Panchayat, the services of such officers or employees serving under it on such terms and conditions as it may think fit and the State Government has disciplinary control over such officers and employees. 29. From the various provisions of the aforesaid Section it is clear that the legislature has created two distinct set of staff in the Gram Panchayat; one is the Gram Panchayat Karmee and other employees and the other is the officer or employee of the State Government who may be placed at the disposal of the Gram Panchayat. The conditions of service of the two sets of staff are completely different. The conditions of service of the two sets of staff are completely different. Gram Panchayat Karmee is appointed by the Executive Officer of the Panchayat Samiti, the other employee of the Gram Panchayat is appointed by the Executive Officer of the Zilla Parishad whereas, an officer or employee of the State is appointed by the competent authority under the Government or the Governor, as the case may be. 30. Section 36 of the Panchayat Act, 1973 lays down the provision for control and punishment of staff of the Gram Panchayat. It mentions that subject to rules as may be made by the State Government with regard to discipline and control, the Pradhan shall exercise general control over all employees of the Gram Panchayat and the Gram Panchayat may recommend, in such manner as may be prescribed, punishment of an employee to the Executive Officer of the Panchayat Samiti having jurisdiction. On receipt of recommendation, the Executive Officer of the Panchayat Samiti may award any punishment to a Gram Panchayat Karmee or other employee of the Gram Panchayat appointed under Section 35 (1) or 35 (2) of the Act, 1973, as the case may be. 31. The Pradhan cannot recommend punishment to any employee appointed under Section 35 (4) only because of the reason that the employee appointed under Section 35 (4) is not an employee of the Gram Panchayat but is an employee of the State Government who has been placed under the disposal of the Gram Panchayat. 32. Disciplinary proceeding has been initiated against the petitioner by treating him as a government employee and his act has been found to be in violation of the provision of the West Bengal Services (Duties, Rights and Obligations of Government Employees) Rules, 1980. The aforesaid Rules apply to all employees of the Government of West Bengal. According to Rule 2(a) the “appointing authority” of a government employee means the authority empowered to make appointment to the service or post held by him for the time being. Rule 2 (c) mentions that “Government employee” means a person appointed to a service or post in connection with the affairs of the State. According to Rule 2(a) the “appointing authority” of a government employee means the authority empowered to make appointment to the service or post held by him for the time being. Rule 2 (c) mentions that “Government employee” means a person appointed to a service or post in connection with the affairs of the State. The petitioner was never appointed to any service or post in connection with any affair(s) of the State Government and, as such, cannot be treated as a Government employee of the State Government and, thus, cannot fall within the rigours of the West Bengal Services (Duties, Rights and Obligations of Government Employees) Rules, 1980. 33. In the instant case the Executive Officer of the Zilla Parishad, who is also the District Magistrate of the district, is the appointing authority of the petitioner. The petitioner reports to the Pradhan of the Gram Panchayat. The State Government does not have any manner of control or say over appointment or any act or action of the Executive Assistant of the Gram Panchayat. The pension document submitted by the petitioner clearly mentions that he would be entitled to superannuation pension in accordance with the West Bengal Non-Government 3-Tier Panchayat Bodies Employees’ (DCRB) Scheme, 1985. The application of the petitioner seeking pension was accepted and duly forwarded to the Director, Directorate of Pension, Provident Fund and Group Insurance by the Block Development Officer. 34. The West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 modified in 2006 has been notified in exercise of power under Section 224 of the Act, 1973 for carrying out the purposes of the Act. Rule 2(c) of the aforesaid Rules defines ‘employee’ which means all categories of officials or staff of a Gram Panchayat. 35. Rule 44 prescribes the powers, function and duties of Pradhan and Upa-Pradhan of a Gram Panchayat. Rule 44(1)(c) lays down that the Pradhan shall exercise general control over all employees of Gram Panchayat and if resolution is taken by the Gram Panchayat, in a meeting recommending punishment against an employee of the Gram Panchayat, he shall forward copy of the resolution to the Executive Officer of the Panchayat Samiti having jurisdiction within seven days of taking such resolution. 36. Rule 52 thereof deals with the conditions of service including leave, transfer, discipline and control of the employees of the Gram Panchayat. 36. Rule 52 thereof deals with the conditions of service including leave, transfer, discipline and control of the employees of the Gram Panchayat. Rule 52(9) mentions that on receipt of recommendation of a Gram Panchayat in terms of Rule 44(1)(c), the Executive Officer of a Panchayat Samiti having jurisdiction may start proceedings against an employee of a Gram Panchayat for imposing any of the penalties mentioned therein. The expression used in the aforesaid Rule is ‘an employee’. 37. The petitioner, on superannuation, ceased to be an employee of the Gram Panchayat. After retirement, the petitioner acquired the status of a ‘retired employee’. Had the disciplinary proceeding been initiated when the petitioner was in service, then the aforesaid Rule could have been invoked. 38. The aforesaid Rule does not specify that the same can be applied in respect of a retired employee of the Gram Panchayat. 39. To permit the employer to apply the said Rule on a retired employee would result in an anomalous situation, inasmuch as, in such case, even after retirement the employer may tend to exercise control over an employee, which is absolutely not permissible in law. On superannuation there is absolute cessation of the employer – employee relationship and law which is applicable in respect of an employee in service cannot be imposed upon or made applicable to a retired employee. 40. An employee while he is in service is entitled to several benefits which are not applicable or are not extended to the retired employees. If the benefits of the employees cannot be made available to the retired employees, then there is no reason as to why control will be permitted to be imposed upon them. 41. The provisions of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 have also been invoked for initiating the disciplinary proceeding against the petitioner. 42. The Classification, Control and Appeal Rules of 1971 has been made in exercise of the power conferred under Article 309 of the Constitution of India. The same clearly lays down that the said Rules shall apply to all the Government employees. ‘Government employees’ defined in Rule 3 (VI) of Classification, Control and Appeal Rules of 1971 means a person who is a member of any of the service specified in Rule 4 and includes any such person who has been temporarily placed at the disposal of a local authority. ‘Government employees’ defined in Rule 3 (VI) of Classification, Control and Appeal Rules of 1971 means a person who is a member of any of the service specified in Rule 4 and includes any such person who has been temporarily placed at the disposal of a local authority. Rule 4 of the aforesaid Rules are classified under four groups and the appointment of the employees of all the four groups are made either by the Governor, as in case of posts belonging to Group A or by the authority specified in that behalf by a general or a special order of the Governor or where no such order has been made, by the authorities specified in the schedule. 43. In the instant case, the appointing authority of the petitioner is the Executive Officer of the Panchayat Samity. The service of the petitioner is also not under any group as classified in Rule 4 above. 44. The State respondents contend that in the absence of a specific provision in the Gram Panchayat Administration Rules, 2004 to initiate disciplinary proceeding against a Gram Panchayat employee after his retirement, the provisions of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 shall apply mutatis mutandis as per the third proviso to the said Rule, 2004. 45. Reliance has been placed upon the third proviso to sub-rule 9 of Rule 52 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 which mentions that for initiating and conducting disciplinary proceedings against employees of Gram Panchayat in matters and in manners not provided in the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 or in the West Bengal Panchayat Act, 1973 the provisions of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 shall apply mutatis mutandis. 46. Rule 55 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 clearly lays down the duties of the Executive Assistant of a Gram Panchayat. Rule 55(1) provides that the Executive Assistant of the Gram Panchayat shall be in charge of the office of a Gram Panchayat. He shall act under the direct supervision of the Pradhan or the Upa-Pradhan and shall be responsible to the Gram Panchayat through the Pradhan or the Upa-Pradhan, as the case may be. Rule 55(1) provides that the Executive Assistant of the Gram Panchayat shall be in charge of the office of a Gram Panchayat. He shall act under the direct supervision of the Pradhan or the Upa-Pradhan and shall be responsible to the Gram Panchayat through the Pradhan or the Upa-Pradhan, as the case may be. Rule 55(2) specifies that notwithstanding anything contained in any other rules, order or notification, the Executive Assistant shall, subject to the direction and control of the Gram Panchayat and the Pradhan perform such duties and functions as mentioned in the said Rule. 47. Admittedly in the instant case, the petitioner was serving as the Executive Assistant of the Gram Panchayat from January 2007. He was transferred from one Gram Panchayat to the other and ultimately retired from service as Executive Assistant on 31st July, 2023. The conduct of the petitioner came under the scanner in the year 2021. There are specific provisions in the Gram Panchayat Administration Rules, 2004 to deal with the discipline and control of the staff of the Gram Panchayat but, for reasons best known to the employer, no proceeding was initiated against the petitioner as long as he was in service. The petitioner was directed to attend an open examination before the enquiry officer of the anti corruption/vigilance office in September, 2021 and further directed to remain present in his house for technical assessment of his house in December, 2021. Since thereafter, till the retirement of the petitioner in July, 2023, no proceeding was initiated against him. Only after a copy of the writ petition filed by the petitioner seeking direction upon the employer for disbursing his terminal dues was served, the authority suddenly woke up from their deep slumber and in hot haste issued the notice for initiation of disciplinary proceeding against him in an absolute mechanical manner, without proper application of mind, under such provision of law which is not applicable to him. When there is a specific law under which an errant employee of a Gram Panchayat can be dealt with, then there is no reason to invoke a separate law for proceeding against him after his retirement. 48. At this stage it will be profitable to mention that under the Classification, Control and Appeal Rules, 1971 there is no provision to initiate disciplinary proceeding against a retired employee. 48. At this stage it will be profitable to mention that under the Classification, Control and Appeal Rules, 1971 there is no provision to initiate disciplinary proceeding against a retired employee. All along the expression used in the said rules is ‘Government employee’ and not ‘retired Government employee’. With the view to somehow rope in the petitioner in the disciplinary proceeding, the respondent authority is falling back upon The West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 where there is provision for withholding of pension in cases of conviction and misconduct. 49. The Death-cum-Retirement Benefit Rules, 1971 distinctly mention that the same applies to Government servants, which the petitioner is not. Rule 8(1) thereof lays down that the pension sanctioning authority may, by order in writing, withhold or withdraw, either in full or in part, pension or gratuity or both either permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. Here, the petitioner has neither been convicted of any crime nor found guilty of any misconduct, as of now. The authority is trying to initiate a disciplinary proceeding against him long after he retired from service. 50. Rule 10 thereof prescribes the right of the Governor to withhold pension in certain cases. Here, the petitioner has neither been convicted of any crime nor found guilty of any misconduct, as of now. The authority is trying to initiate a disciplinary proceeding against him long after he retired from service. 50. Rule 10 thereof prescribes the right of the Governor to withhold pension in certain cases. According to Rule 10 (1) the Governor reserves to himself the right of withholding or withdrawing pension or any part of it whether permanently or for a specified period, and the right of ordering the recovery from pension of any pecuniary loss caused to the Government, if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence, during the period of his service, including service rendered on re-employment after retirement:-provided that (a) such departmental proceeding was instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the office, be deemed to be a procedure under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; (b) such departmental proceedings, if not instituted while the officer was in service, whether before his retirement or during his re-employment- (i) shall not be instituted save with the sanction of the Governor, (ii) shall not be in respect of an event which took place more than four years before such institution; and, (iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service. 51. In the case at hand the service of the petitioner is in no manner related or connected to the Governor. Service of only State Government employees may be related to the Governor. The appointing or the disciplinary authority of Group A employees of the State Government is the Governor. The petitioner is a retired staff of a Gram Panchayat and does not enjoy the status of a Government employee. Service of only State Government employees may be related to the Governor. The appointing or the disciplinary authority of Group A employees of the State Government is the Governor. The petitioner is a retired staff of a Gram Panchayat and does not enjoy the status of a Government employee. Assuming, but not admitting, that the petitioner is a Government employee and the instant Rule will apply to him, even then, there is a bar to initiate departmental proceeding against a retired officer without the sanction of the Governor. The disciplinary authority of the petitioner has not obtained any sanction from the Governor presumably because of the reason that the authority is aware that the petitioner does not fall within the control of the Governor. Therefore, by any stretch of reasoning put forth by the respondent authority, the petitioner cannot be brought within the fold of the Death-cum-Retirement Benefit Rules, 1971. 52. The respondents rely upon Clause 49 of the Death-cum-Retirement Benefit Scheme, 1985 applicable to the employees of the Panchayat which permits withholding of pension in cases of conviction and misconduct. It has been argued that as the petitioner is facing disciplinary proceeding with charge of misconduct, accordingly, his pension is liable to be withheld. The said submission of the respondent authority is grossly misconceived. This is not a case where the petitioner has either been found guilty of grave misconduct or convicted of a serious crime. The disciplinary proceeding had not commenced as long as the petitioner was in service, as such, the question of holding him guilty of misconduct or convicted of any crime does not arise at all. 53. The memorandum no. 3812/PN/O/1/2P-01/2017 dated 31st May, 2017 prescribes the procedure for application process and disposal of pension cases of the employees of three tier Panchayat Bodies through e-pension portal. By the said memorandum the procedure of application, examination, scrutiny, processing and sanction of pension cases and issue of Pension Payment Order under the Death-cum-Retirement Benefit Scheme, 1985 applicable to the employees of Panchayat Bodies stood modified. The petitioner duly applied for the benefits under the Scheme in accordance with the modified procedure long before his date of retirement and the same was accepted by the employer without any demur. After retirement, the employer cannot turn around and deny grant of retirement benefit to the petitioner allegedly on the ground of initiation of a disciplinary proceeding against him. After retirement, the employer cannot turn around and deny grant of retirement benefit to the petitioner allegedly on the ground of initiation of a disciplinary proceeding against him. 54. Disciplinary proceeding is initiated against an employee to control and regulate his activities and actions while he is in service. On conclusion of the disciplinary proceeding there is provision for imposition of penalties. The penalties as prescribed in the West Bengal Services (Classification, Control and Appeal) Rules, 1971 and in Rule 52(9) of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 are such that the same cannot be imposed upon a retired employee. The same is particularly for the reason that the disciplinary proceeding is required to be conducted only in respect of employees who are still in employment. The very purpose of conducting a disciplinary proceeding will be completely frustrated as none of the penalties prescribed in the Rules, 1971 and the Rules, 2004 can be imposed upon the petitioner as he is no longer in service. 55. Learned advocate for the petitioner has relied upon various judgments in support of the contention that initiation of disciplinary proceeding after retirement of an employee is bad in law. 56. In Dev Prakash Tiwari (supra) the Hon’ble Supreme Court laid down that once the employee retired from service there was no authority vested with the employer for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefit payable to the employee. In the absence of such authority, it must be held that the enquiry had lapsed and the employee was entitled to get full retiral benefits. 57. The aforesaid ratio laid down in the matter of Dev Prakash Tiwari (supra) was followed by the Allahabad High Court in the matter of Prem Kumar Tripathi (supra). The Court clearly held that in the absence of a specific provision in the Service Rule of the employee, after retirement, no show cause notice or departmental proceeding can be initiated against any employee. 58. In the matter of Sukhdev Halder (supra) the Court held that as there is no allegation of pecuniary loss of the Government by the act of the employee during his service tenure, the respondent authority cannot withhold the terminal benefits of the employee. Here also, there is no allegation of pecuniary loss caused to the Government by any act of the petitioner. 59. Here also, there is no allegation of pecuniary loss caused to the Government by any act of the petitioner. 59. In Kanailal Majhi (supra) the Hon’ble division Bench of this Court was considering the issue whether Secretary of the Gram Panchayat is a Government servant or not and the Court was of the opinion that Secretary of the Gram Panchayat is not a Government servant. In the case at hand the Court is considering the status of an Executive Assistant of the Gram panchayat. 60. In Mantu Chandra Mondal (supra) the Court held that in the absence of any provision empowering the authority to initiate disciplinary proceeding after retirement, the said proceeding is without jurisdiction and has, accordingly, been set aside. 51. In Mohammad Farid (supra) the Hon’ble Division Bench of this Court was deciding an issue as to whether gratuity can be withheld for no fault of the employee and whether the gratuity would be payable with interest on account of the delay in not paying the same in proper time. The Court relying upon various orders passed by the Hon’ble Supreme Court and this Court and upon perusal of the Payment of Gratuity Act, 1972, held that the provisions of the Payment of Gratuity Act would have overriding effect with reference to any inconsistency therewith in any other provision or instrument. The benefit of interest inuring to an employee under Section 7 (3A) of the said Act cannot be denied and the Court directed payment of gratuity along with interest. 62. In Pronab Chakraborty (supra) the Hon’ble Division Bench of this Court held that disciplinary proceeding cannot continue against the employee after his retirement. 63. In Brahm Datt Sharma (supra) the Hon’ble Supreme Court held that honest and devoted service rendered by a government servant ensures efficacy in public administration. The statutory rules therefore contained provisions for the forfeiture and deduction in the pension of government servants who have not rendered satisfactory service or who may have been found guilty of misconduct or negligence resulting in pecuniary loss to the government. Merely because the government servant retired from service on attaining the age of superannuation, he cannot escape the liability of misconduct and negligence or financial irregularities. 64. Merely because the government servant retired from service on attaining the age of superannuation, he cannot escape the liability of misconduct and negligence or financial irregularities. 64. The respondent authority contends that as there is an allegation of misconduct against the petitioner and preliminary enquiry was conducted while he was in service, accordingly, the authority ought to be permitted to proceed with the disciplinary proceeding. In the subject referred case there was a provision for withholding of pension on account of non-satisfactory service, misconduct or causing pecuniary loss to the Government. In the instant case none of the above grounds can be made applicable for not disbursing terminal dues to the retired employee. The ratio of the referred case, accordingly, cannot be made applicable in the facts and circumstances of the instant case. 65. In M.H. Majumdar (supra) the Hon’ble Supreme Court, relying upon the ratio laid down in Brahm Datt Sharma (supra), held that the State Government had power to reduce the pension payable to the employee. Learned advocate for the State submits that permission may be granted to the authority to conclude the disciplinary proceeding, and thereafter if the charge levelled against the petitioner is found to be true, then necessary consequential step may be permitted to be taken. Facts of the referred case being different from the facts of the case at hand, the ratio cannot be applied herein. 66. In Brajendra Singh Yamben (supra) the Hon’ble Supreme Court exercised power under Article 142 of the Constitution and directed the authority to continue with the disciplinary proceeding and conclude the same within a stipulated time period. 67. It has been submitted that this Court may permit the disciplinary proceeding against the petitioner to be continued till its conclusion by exercising discretion under Article 226 of the Constitution of India keeping in view the fact that the vigilance enquiry and approval to initiate proceedings were prior to the retirement of the petitioner. This is not a case where the delay in initiating the disciplinary proceeding was, in any manner, attributable to the petitioner. Had the employer been seriously interested to prosecute the petitioner for his wrongful act, then steps ought to have been taken in proper time. The employer cannot act in a whimsical manner and seek to implicate the petitioner in disciplinary proceeding at his own fanciful convenient time. Had the employer been seriously interested to prosecute the petitioner for his wrongful act, then steps ought to have been taken in proper time. The employer cannot act in a whimsical manner and seek to implicate the petitioner in disciplinary proceeding at his own fanciful convenient time. The Court is of the opinion that delay on the part of the employer to initiate disciplinary proceeding in proper time, and particularly after the retirement of an employee, is not liable to be condoned and the alleged pendency of the disciplinary proceeding ought not to be a ground to withhold the terminal benefit of a retired employee in the absence of a legal provision in this regard. Had there been a supporting law in favour of the employer, then things would have been otherwise. 68. It is time tested law that pension and other terminal benefits are not bounty but are valuable rights in the hand of a retired employee. The same cannot be withheld without a plausible reason. The cause, for not releasing the terminal benefits of the petitioner, cannot be treated to be a valid one. Answer to the issues: 69. In view of the discussions made herein above the following conclusions emerge: 1. That there is no legal provision to initiate disciplinary or departmental proceeding against an employee of the Gram Panchayat after his retirement. 2. A Gram Panchayat employee cannot be treated as a Government employee. Status of a Gram Panchayat employee is distinctly separate from that of a Government employee. 3. Service of a Gram Panchayat employee is not guided by the West Bengal Services (Classification, Control and Appeal) Rules, 1971 but is governed by the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 amended/modified in 2006. 4. A Gram Panchayat employee will not be covered by the West Bengal Services (Death-cum-Retirement Benefit Rules), 1971 but will be controlled by the Death-cum-Retirement Benefit Scheme, 1985 modified vide memorandum dated 31st May, 2019. 70. Consequent to the aforesaid conclusion, the prayer of the petitioner stands allowed. The disciplinary proceeding sought to be initiated or initiated against the petitioner is set aside and quashed. 70. Consequent to the aforesaid conclusion, the prayer of the petitioner stands allowed. The disciplinary proceeding sought to be initiated or initiated against the petitioner is set aside and quashed. The Block Development Officer shall take immediate steps to proceed with the pension application filed by the petitioner and do the needful to ensure that the retirement benefits of the petitioner are disbursed at the earliest, but positively within a period of four months from the date of communication of this judgment. 71. The judgment of the Court could have ended here, but the Court is left wondering whether the delay in taking prompt action against the petitioner, despite his alleged misconduct coming under the scanner nearly two years prior to his retirement, is deliberate or not. Should the inaction of the employer to take proper steps immediately upon noticing the alleged misconduct of the petitioner be not taken as a passive support to the petitioner to continue with the alleged illegal act? Isn’t the failure of the employer to proceed against an employee, despite noticing misconduct on his part, liable to be dealt with appropriately? Will it be incorrect to deduce that the employer tacitly supported the alleged illegal act of the employee and deliberately refused to act in proper time? Aren’t the allegations of ‘disproportionate asset’, ‘lack of integrity’ liable to be enquired and proceeded with as soon as the same comes to the knowledge of the employer? Can the controlling officer of an employee shrug of his responsibility and turn a blind eye to the dishonest conduct of an employee? 72. The Court is of the opinion that the controlling officer/employer ought to face the consequences in not acting in proper time to initiate proceeding against an errant employee despite noticing misconduct on his part. Public administration runs and depends upon efficient, honest and sincere government servants. Indolent act of an employee may cause sufferance to the institution /organisation. Government employees should be accountable for their act and action. Till the senior officers acts diligently they cannot set a good example for the juniors to follow. 73. Accordingly, let a copy of this judgment be served upon the District Magistrate to enquire whether there was any valid reason for not initiating disciplinary proceeding in proper time. Government employees should be accountable for their act and action. Till the senior officers acts diligently they cannot set a good example for the juniors to follow. 73. Accordingly, let a copy of this judgment be served upon the District Magistrate to enquire whether there was any valid reason for not initiating disciplinary proceeding in proper time. If no satisfactory answer is found for the delay in taking steps in proper time, then appropriate action in accordance with law be taken against the concerned officer. 74. The writ petitions stand disposed of. 75. No costs. 76. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities.