REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3410 OF 2009
(Arising out of SLP(C) NO. 20691 of 2005)
The Secretary, ........ Appellants
Forest Department & Ors.
Versus
Abdur Rasul Chowdhury ........Respondent
ORDER
H.L. DATTU, J:
Leave granted.
2) Challenging the judgment and order passed by the High Court in
W.P.S.T. No. 1010 of 2003 dated 13.6.2005, the Secretary, Forest
Department and others, have filed this appeal.
3) The facts in nutshell are, the respondent while he was working in wild
life Division – II at Jalpaiguri was served with a memo dated
10.3.1987, inter alia directing him to show cause, why disciplinary
action should not be taken against him by the Divisional Forest
Officer for gross financial irregularities in respect of measurement
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taken and payment made thereof for some of the works undertaken by
him as Care Taker, Tourist Lodge, Jaldapara, as detected during the
course of checking by the Divisional Forest Officers, Wild Life
Division – II. Since the explanation offered by the respondent was
not satisfactory, he was kept under suspension, pending departmental
enquiry proceedings by the Divisional Forest Officer, Cooch Bihar
Division vide his order dated 13.8.1987. Thereafter, a charge memo
dated 13.8.1987 was served on the respondent by the disciplinary
authority. The Articles of charges against respondent were two,
namely :-
(i) The respondent while functioning as Care Taker, Tourist
Lodge, Jaldapara under Cooch Bihar Division from October
1985 to January 1987, deliberately neglected his duty in
execution of works entrusted on him as care taker of the said
Tourist Lodge and made excess payments against inflated
measurements to the contractors for malafide personal gain,
causing financial loss to the government to the tune of
Rs.1,25,293.34 paisa.
(ii) While functioning as care taker of the tourist lodge,
Jaldapara, the respondent intentionally falsified government
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documents and tempered with the same with ulterior motive
of personal gain.
4) After initiation of departmental proceedings nothing seems to have
been done by the disciplinary authority.
5) The respondent retired from service on 31st day of March, 1995, on
attaining the age of superannuation.
6) As the authorities neither completed the departmental enquiry
proceedings, nor released the retirement benefits to the respondent,
he was constrained to file original application before the West
Bengal Administrative Tribunal in O.A. No. 5963 of 1999, inter
alia, requesting the tribunal to direct the respondents therein to
pass an order dropping the disciplinary proceedings, in view of
inordinate delay in completing the disciplinary enquiry
proceedings though it was initiated by issuing the charge memo
dated 13.8.1987; to revoke the order of suspension dated
13.8.1987; to direct the respondents to pass an order declaring that
the entire service period of the applicant from 13.8.1987 to
31.3.1995 as the period spent on duty and the applicant is entitled
to salaries and the other emoluments for the said period; and lastly
to pass an order computing the retiral benefits, including
pensionary benefits.
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7) The Administrative Tribunal vide its order dated 1st day of August,
2003, disposed of the original application by directing the
respondents/petitioners to conclude the departmental enquiry
proceedings initiated against the applicant within a period of six
months in accordance with Rule 10(1) of West Bengal Service
(Death-cum-Retirement Benefits) Rules, 1971, with a further
direction to settle the entire subsistence allowance payable to the
applicant.
8) The applicant being aggrieved by the aforesaid order passed by the
Administrative Tribunal, had filed a Writ Petition under Article
227 of the Constitution of India, inter alia, requesting the court to
set aside the orders passed by the tribunal and to grant reliefs
sought for by the applicant in the original application.
9) The High Court has allowed the writ petition, inter alia, holding
that during the pendency of departmental enquiry proceedings, the
delinquent employee has retired from service on attaining the age
of superannuation and there is no provision/Rule which would
permit the employer from continuing with the enquiry proceedings.
Secondly, Rule 10 of West Bengal Services (Death-cum-
Retirement) Benefits Rules, 1971, cannot be resorted to by the
employer, since the said rule has been declared as ultra-vires by the
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courts and, lastly, that the charge sheet having been issued on 13th
August, 1987, the disciplinary authority had not proceeded with
the enquiry till the delinquent employee retired from service on
attaining the age of superannuation and, therefore, the employer
now cannot proceed with the domestic enquiry proceedings.
10) The State being aggrieved by the aforesaid order of the High
Court, has presented this Special Leave Petition.
11) The learned counsel Shri Tara Chandra Sharma would submit Rule
10(1) of West Bengal Services (Death-cum-Retirement Benefit)
Rules, 1971, would permit the employer to reduce or withhold
pension by initiating proceedings against a government servant
even after his retirement from service and the vires of the said rule
has been upheld by this court in the case of State of West Bengal
vs. Haresh C. Banerjee and Others, (2006) 7 SCC 651. It is further
contended that departmental proceedings though initiated in 1987,
the same could not be completed before the respondent retired
from service on attaining the age of superannuation in view of non-
cooperation of the respondent and, if any body has to be blamed, it
is the respondent and not the employer for the delay in completing
the proceedings.
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12) The learned counsel Shri D.N. Ray, appearing for the respondent
justifies the judgment of the High Court.
13) Two issues would arise for our consideration and consequent
decision. They are :-
(i) Whether the employer could continue with the departmental
enquiry proceedings initiated prior to the retirement of
government servant by virtue of Rule 10(1) of the West
Bengal Services (Death-cum-Retirement Benefit) Rules,
1971?
(ii) Whether the delay in completing the domestic enquiry
proceedings would be fatal to the proceedings?
14) To answer the first issue which we have framed for our
consideration, Rule 10(1) of the Rules, 1971, requires to be noticed
and, therefore, it is extracted :-
“10. Right of the Governor to withhold pension in
certain cases.–(1) The Governor reserves to himself the
right of withholding of withdrawing a pension or any part
of it whether permanently or for a specified period, and
the right of ordering the recovery from a pension of the
whole or part 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–
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(a) such departmental proceeding if instituted while
the officer was in service, whether before his retirement
or during his re-employment, shall after the final
retirement of the officer, be deemed to be a proceeding
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 any 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;
(c) no such judicial proceeding, if not instituted while
the officer was in service, whether before his retirement
or during his re-employment shall be instituted in respect
of a cause of action which arose on an event which took
place more than four years before such institution; and
(d) the Public Service Commission, West Bengal, shall
be consulted before final orders are passed.
Explanation.–For the purpose of this article–
(a) a departmental proceeding shall be deemed to
have been instituted on the date on which the statement
of charges is issued to the officer or pensioner, or if the
officer has been placed under suspension from an earlier
date, on such date; and
(b) a judicial proceeding shall be deemed to have
been instituted–
(i) in the case of criminal proceeding, on the date on
which the complaint or report of police officer, on which
the Magistrate takes cognizance, is made, and
(ii) in the case of a civil proceeding, on the date on
which the plaint is presented or, as the case may be, an
application is made to a civil court.”
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15) Rule 10 of the rules speaks of the right of the Governor to withhold
pension in certain cases. Sub-Rule 10(1) says that the Governor
reserves 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 or the whole or the
part of any pecuniary loss caused to the government, if the
pensioner is found in a departmental or judicial proceedings to
have been guilty of grave misconduct or negligence during the
period of service, including service rendered on re-employment
after retirement. Proviso appended to the rules specifically
provides that the resort to sub-Rule (1) to Rule 10 can be made
only apart from others, that the departmental proceedings had been
instituted while the officer in service. This rule came up for
interpretation before this court in Haresh C. Banerjee’s case
(supra) and this court after considering the object, purpose and
purport of the rule has stated :
“7. Various State rules or regulations vest power of
withholding or reduction of pension on compliance with
the principles of natural justice. The question of an
order withholding or reducing pension being invalid and
bad in law on a legally permissible ground is one thing
but to hold the rule ultra vires is another. In State of
U.P. v. Brahm Datt Sharma2 this Court observed that if
the Government incurs pecuniary loss on account of
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misconduct or negligence of a government servant and
if he retires from service before any departmental
proceedings are taken against him, it is open to the
State Government to initiate departmental proceedings,
and if in those proceedings, he is found guilty of
misconduct, negligence or any other such act or
omission as a result of which the Government is put to
pecuniary loss, the State Government is entitled to
withhold, reduce or recover the loss suffered by it by
forfeiture or reduction of pension. In State of Punjab v.
K.R. Erry3 it was held that the State Government could
not direct cut in pension of officers without giving a
reasonable opportunity of hearing. In State of
Maharashtra v. M.H. Mazumdar4 it was observed that
the State Government’s power to reduce or withhold
pension by taking proceedings against a government
servant, even after his retirement is expressly
preserved by the Rules.
8. Rule 10(1) is the authority of law under which the
pension could be withheld on compliance with
stipulations of the rule. We are unable to appreciate
how such a rule could be held ultra vires even at a point
of time when pension was a property to which Article
19(1)(f) was applicable.”
16) In the present case, while the delinquent employee was in service,
the departmental enquiry proceedings had been instituted by the
employer by issuing the charge memo and the proceedings could
not be completed before the government servant retired from
service on attaining the age of superannuation and in view of Rule
10(1) of the Rules, 1971, the employer can proceed with the
departmental enquiry proceedings though the government servant
has retired from service for imposing only punishment
contemplated under the Rules.
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17) The next issue is with regard to delay in concluding disciplinary
proceedings. In our view that the delay in concluding the domestic
enquiry proceedings is not fatal to the proceedings. It depends on
the facts and circumstances of each case. The un-explained
protracted delay on the part of the employer may be one of the
circumstance in not permitting the employer to continue with the
disciplinary enquiry proceedings. At the same time, if the delay is
explained satisfactorily then the proceedings should be permitted
to continue. This court in the case of Deputy Registrar, Co-
operative Societies vs. Sachindra Nath Pandey, (1995) 3 SCC 134,
has explained the various circumstances when the departmental
proceedings can be directed to be closed, it is worthwhile to refer
to the observation made by this court in this regard :-
“5. The learned counsel for the appellant submits that
in this case the first respondent adopted a course of total
non-cooperation and procrastination and that in spite of
repeated opportunities being given he did not respond or
participate in the inquiry. The first respondent did not
even care to file an explanation or reply to the memo of
charges. In the circumstances, the authorities had no
option but to hold that the charges are proved. Even
after the report of the Inquiry Officer was submitted, a
number of opportunities were given which he again failed
to avail of. It is submitted that though the whole history
of the case has been set out in the counter-affidavit filed
in the High Court, the learned Judge did not notice any of
those facts and yet allowed the writ petition on an
untenable ground. It is further contended that according
to Regulation 68 of the Cooperative Federal Authority
(Business) Regulations, 1976, it was not obligatory upon
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the Inquiry Officer to record the evidence of the
witnesses where the first respondent did neither submit a
reply nor an explanation to the memo of charges. Though
he was apprised of the inquiry, he did not care to attend
in spite of repeated opportunities. In such a situation, he
cannot complain of not recording the evidence of
witnesses and other evidence.”
18) In the present case the Administrative Tribunal after going through
the entire record from the date of initiation of the departmental
proceedings till the government employee retired from service on
attaining the age of superannuation, has observed that since the
government employee had left the head quarters without
permission of the competent authority, so the proceedings could
not be completed. This finding on facts need not be disturbed by
us, since the said finding cannot be said a perverse finding.
19) In view of the above discussion, the appeal is allowed and the
judgment and the order passed by the High Court is set aside. The
disciplinary authority is directed to complete the domestic enquiry
proceedings from the stage it was interdicted by the High Court
and complete the same as expeditiously as possible and at any rate
within three months from the date of receipt of this court’s order.
The respondent herein is directed to participate in the enquiry
without unnecessarily seeking adjournment in the enquiry
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proceedings. In the facts and circumstances of the case, parties
are directed to bear their own costs. Ordered accordingly.
…………………………………J.
[ TARUN CHATTERJEE ]
…………………………………J.
[ H.L. DATTU ]
New Delhi,
May 08, 2009.
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