JUDGMENT
Aloke Chakrabarti, J.
1. Petitioner being appointed on temporary basis as Sub-Inspector, Food and Supplies under the Government of West Bengal, was transferred to Food Corporation of India where he served till the year 1987. Petitioner was promoted to the rank of Inspector in the year 1983.
2. On May 6,1989, petitioner was placed under suspension as he was arrested in connection with a criminal case by the Bishnupur Police Station. Said police case ended in a final report.
3. On 30th January, 2001, petitioner was served with a memorandum dated 30th January, 2001 issued by the respondent No. 2 levelling a charge against the petitioner alleging certain lapses during the period from 1968 to 1978. In this connection, petitioner was scheduled to retire on 31st January, 2001 attaining the age of superannuation.
4. Petitioner filed a representation dated 6th February, 2001 requesting cancellation of said disciplinary proceeding and release of all retirement benefits as the charges were stale charges and proceeding was initiated only a day before superannuation.
5. Accordingly, petitioner filed an original application before West Bengal Administrative Tribunal being O.A. No. 320 of 2001 challenging initiation of said disciplinary proceeding and the chargesheet.
6. An interim order was passed by the Id. Tribunal that departmental proceeding may continue but no final order shall be passed without the leave of the Id. Tribunal and the respondents were directed to release provident fund accumulations.
7. In spite of prayer made by petitioner only provident fund accumulations and provisional pension at the rate of Rs. 3725/- up to December, 2003 were paid and that too without dearness allowance.
8. On the date of hearing fixed in April, 2001, as petitioner could not appear because of his illness, he made a prayer for stay of proceeding which was rejected. Next date was fixed on 17th May, 2001 when petitioner again could not appear.
9. Ld. Tribunal ultimately heard the proceeding and by its judgment and order dated 18th December, 2003 dismissed the original application. Challenging the same, present writ petition was filed.
10. Heard Mr. Sundarananda Pal, learned advocate for the petitioner and Mr. Rabilal Moitra, Id. Government Pleader, representing the state authorities.
11. Mr. Pal, Id. advocate for the petitioner raised a contention that after superannuation of petitioner, disciplinary proceeding cannot continue as there is no law permitting continuation of such a proceeding. Only provision contained in Rule 10 of the West Bengal Services (Death-cum-Retirement Benefits) Rules, 1971 has been declared ultra vires by a Id. Single Judge of this Court and therefore, there being no provision for continuation of the proceeding, the same is required to be quashed. In support of his contention, Mr. Pal has relied on the judgment in the case of Ram Gopal Bhattacharyya, v. State of West Bengal reported in 1987 Lab.IC 1617, Arun Kumar Biswas v. Superintendent of Police, Burdwan reported in 1992 (1) CHN 354, State of Maharashtra v. M.H. Mazumdar , Chairman, Railway Board v. C.R. Rangadhamaiah , State of West Bengal v. Haresh C. Banerjee, and Sushila Bhatnagar v. State of U.P. reported in 1999 Lab IC 1706.
12. Mr. Moitra, Id. Government Pleader, representing the State respondents contended that continuance of such disciplinary proceeding against a retired person has been allowed by various Benches of the Court and in support of such contention, Mr. Moitra, relied on the judgment in the case of Dr. Dilip Kumar Chakraborty v. State of West Bengal, 2002 (2) WBLR (Cal) 588 and State of West Bengal v. Gobinda Chandra Mukherjee reported in 2001 (3) CHN 740. Reference was also made to the judgments cited on behalf of the petitioner.
13. Considering the respective contentions of the parties contesting, it appears that only legal aspect required to be decided is whether disciplinary proceeding can continue even after superannuation of the concerned employee pending the said proceeding. The contention of the Id. advocate for the petitioner is that unless law permits such proceeding cannot continue after superannuation of the concerned employee and only provision of law applicable in respect of the present employee, which could have permitted continuation of the proceeding being Rule 10 of the West Bengal Services (Death-cum-Retirement Benefits) Rules, 1971 has been ultra vires in the case of Ram Gopal Bhattacharyya (supra) by a Id. Single Judge followed by two Division Benches in the case of Arun Kumar Biswas (supra) and Haresh C. Banerjee (supra). Therefore the proceeding has to be dropped against the present petitioner. On behalf of the respondents continuation of such proceeding under Rule 10 was supported relying on the judgment in the case of Gobinda Chandra Mukherjee( supra) and Dr. Dilip Kumar Chakraborty (supra).
14. We find that said Rule 10 was first considered in the case of S.R. Choivdhury (supra) by a Id. Single Judge where though validity of the rule was not decided but the scope of the said rule was considered in the following language:
“I have already observed that State’s obligation to pay pension and the right of the Government servant to receive pension are both regulated by statutory rules which form part of the terms and conditions of his employment. After his employment comes to an end by reason of the retirement of the employee, a Government servant’s right to pension could be regulated by rules or any special contract of his employment, as the case may be. The West Bengal Services (Death-cum-Retirement Benefits) Rules, 1971 which confers a right upon a Government servant to receive pension also empowers the Government to withhold ordinary pension in the case mentioned in Chapter III of the said rules. I have already observed that in case a Government servant had retired from the service during pendency of a departmental proceeding is found to be guilty of grave misconduct or negligence during the period of his service, the Governor under Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefits) Rules, 1971, may withhold or withdraw pension, any part thereof either permanently or in specified period or order recovery from a pension of the whole or any part of the pecuniary loss caused to the Government.”
15. In the case of Ram Gopal Bhattacharyya (supra) a Id. Single Judge considered the validity of the said rule in view of the law laid down by the Supreme Court in the case of Deoki Nandan Prasad (supra) but held that in view of the said law decided in the case of Deoki Nandan Prasad (supra) Rule 10 does not have sanction of law in creating a right in favour of the employer for withholding pension of a Government employee. In the other two cases of Arun Kumar Biswas (supra) and Haresh C. Banerjee (supra) two Division Benches followed the same principle as was decided in the case of Ram Gopal Bhattacharyya (supra).
16. In the case of Deokinandan Prasad (supra) the relevant findings as regards power of the employer to withhold pension has been considered in the following language :
’30. We are not inclined to accept the contention of the Id. counsel for the respondents. By a reference to the material provisions in the pension rules, we have already indicated that grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes for quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the rules. The rules, we have already pointed out clearly recognises the right of persons like the petitioner to receive pension under the circumstance mentioned therein.’
17. Law in this connection was also considered as decided in the case of Bhagwant Singh v. Union of India, reported in AIR 1962 Punjab 503 wherein it was held that such a right constitutes ‘property’ and any interference will be a breach of Article 31(1) of the Constitution of India and that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension.
18. The ultimate conclusion recorded in the judgment in the case of Deokinandan Prasad (supra) is as follows:
“34. Having due regard to the above decisions, we are of the opinion that right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same.”
19. But it seems that judgments in the case of Ram Gopal Bhattacharyya (supra) and he other two Division Benches were decided holding that statutory rule being Rule 10 of the West Bengal Services (Death-cum-Retirement Benefits) Rules, 1971 does not stand the test of validity in view of the above findings in the case of Deoki Nandan Prasad (supra). It was not noticed that Apex Court decided in no uncertain term that by a mere executive order State had no power to withhold the same. It was not the finding of the Supreme Court in the said case that by statutory rule such right Jo receive pension cannot be curtailed. On the contrary in paragraph 30 quoted hereinabove it was held that right to receive pension flows to an officer not because of the order of the authority but by virtue of the rules. In the said paragraph it was also noticed that rules recognised the right of pensioners. Therefore, we are of the opinion that by a valid statutory rule the right of a Government servant to receive pension can be curtailed or withheld.
20. We find that long after the said judgments were passed in respect of said Rule 10, upon a reference to the case of Ram Gopal Bhattacharya (supra) the said question came up for consideration before another Division Bench in the case of Gobinda Chandra Mukherjee (supra) wherein with regard to the said question of declaring the said Rule 10 ultra vires it was held that “we are unable to hold at this stage that Rule 10 of the rules must be held to be unconstitutional.”
21. In the case of Dr. Dilip Kumar Chakraborty (supra) another Division Bench considered the earlier Division Bench judgments in the cases of Arun Kumar Biswas (supra) and Gobinda Chandra Mukherjee (supra) and held as follows:
“Although, there may be two view points on the said rule, as far as this Court is concerned, the decision of the Hon’ble Supreme Court is clear and accordingly we are bound to follow the same particularly when the disciplinary proceeding against the petitioner was initiated while he was in service.”
22. A perusal of the said judgment shows that Their Lordships in the said Division Bench considered the Supreme Court’s judgment in the case of State of Maharashtra v. M.H. Majumdar, holding that “the concerned rules contemplated withholding or withdrawing pension or any part thereof if the pensioner was found guilty of grave misconciuct while he was in service or after the completion of his service.”
23. In the case of Chandra Singh v. State of Rajasthan it was held as follows:
“A departmental proceeding can continue so long as the employee is in service. In the event, the disciplinary proceeding is kept pending by the employer the employee cannot be made to retire. There must exist specific provision in the pension rules in terms whereof, whole or part of the pension can be withheld or withdrawn where for a proceeding has to be initiated.”
24. In above view of the discussion as we find that right of a Government servant to receive pension when flows from a statutory rule cannot be taken away or curtailed by mere executive order and only by a statutory rule such curtailment or withholding of pension or any part of it is permissible. Rule 10 of the West Bengal Services (Death-cum-Retirement Benefits) Rules, 1971 admittedly is a statutory rule and curtailment or withholding of pension by such rule has not been deprecated in the case of Deokinandan Prasad (supra) by the Apex Court. In such circumstances, respectfully agreeing with the view expressed by later Division Bench judgments in the case of Gobinda Chandra Mukherjee (supra) and Dr. Dilip Kumar Chakraborty (supra) following the law decided by the Apex Court as indicated hereinabove we hold that Rule 10 is valid and the proceeding can go on in terms thereof.
25. Contention of the petitioner that judgment, in the case of Haresh C. Banerjee (supra) has been referred to a larger Bench in the Apex Court, does not help us in deciding the present question as until the decision is taken by the Apex Court deciding the same, the law as it stands and discussed herein-above compels us to take the decision as recorded hereinabove.
26. The above being the only contention and also the ground of challenge in the petition as argued by the Id. advocate for the petitioner, no interference can be made in view of our finding indicated above.
27. The writ petition is dismissed.
S.P. Talukdar, J.
28. I agree.