Service Law; State of West Bengal Vs. Aswini Kumar Mahato [23-06-2016] SC

Service Law – West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 – Rule 10(1) – Whether an order of cut in pension was permissible after a person reached the age of superannuation?

# Service Law


IN THE SUPREME COURT OF INDIA

Adarsh Kumar Goel and A.M. Khanwilkar, JJ.

June 23, 2016

Civil Appeal No. 4689 of 2011

State of West Bengal & Ors. – Appellants

Versus

Aswini Kumar Mahato – Respondents

With

Civil Appeal No. 5363 of 2016 (@ SLP (C) No. 5842 of 2011).

For the Appellants :- Soumik Ghosal, Parijat Sinha, Advocates.

For the Respondents :- Rameshwar Prasad Goyal, Bijan Kumar Ghosh, Advocates.

ORDER

Leave granted in SLP (C) NO.5842/2011.

2. This order will dispose of Civil Appeal No.4689/2011 and the civil appeal arising out of SLP (C) NO.5842/2011.

3. Common question of law involved in both the appeals is whether an order of cut in pension was permissible after a person reached the age of superannuation. Referring to the relevant rule i.e.

# Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971

(for Short ‘the Rules’), it was held by the High Court that once an employee is allowed to retire on attaining the age of superannuation, the concerned authority has no jurisdiction to pass an order in a disciplinary proceeding since the master-servant relationship cannot exist after retirement. For taking this view, the High Court has referred to judgments in the case of

# Arun Kumar Biswas v. Superintendent of Police, Burdwan & Ors, 1992 (1) CHN 354

# State of Punjab v. Khemi Ram, AIR 1970 SC 214

# State of U.P. & Ors. v. Harihar Bholenath, (2006) 13 SCC 460

and

# State of West Bengal v. Harish C. Banerjee & Ors., (2006) 7 SCC 651

4. Learned counsel for the appellants points out that the view taken by the High Court is erroneous and contrary to the plain language of the Rules. Under the Rules, pension can be withheld if either any pecuniary loss was caused by the concerned employee or the employee is found to be guilty of misconduct or negligence while in service. This, of course, is subject to the conditions contained in the proviso to Rule 10(1) of the Rules that the departmental proceeding is instituted while the employee is in service. In case such departmental proceedings were not initiated when the employee was in service, the conditions mentioned in Proviso (b) require sanction of the Governor. The alleged event should have taken place within four years of institution of the proceedings and the proceedings are to be conducted by such authority as may be directed by the Governor in accordance with the Rules. For further details, the Rule in question is extracted as follows:

# 10. Right of the Governor to withhold pension in certain cases

(1) The Governor reserves to himself the right of withholding or 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 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 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;………………”

5. In C.A. No. 4689/2011, the charge sheet was given on 12.03.2005, while the respondent attained the age of superannuation on 20.04.2005. On the date of charge sheet, he had not reached the age of superannuation. The order of punishment was passed on 19.06.2005, which was modified on 09.02.2010. Factual position in the connected matter is also similar. Thus, under Rule 10 of the Rules, order of punishment could have been passed under Proviso (a) of the Rule. The view taken by the High Court cannot be sustained as the decisions referred to in the order of the High Court have not been properly considered. There was no bar to the impugned order being passed after superannuation as the inquiry had already been initiated before retirement which could have been continued even after the retirement.

6. It is also pointed out that in a recent decision of this Court in the case of

# State of West Bengal & Ors. v. Pronab Chakraborty, (2015) 2 SCC 496

in similar fact situation, this Court held that even after superannuation departmental proceedings could continue not only in case where pecuniary loss is caused but also in other cases referred to in the Rules i.e. “grave misconduct or negligence”.

The observations of this Court are extracted below:

“A perusal of Rule 10(1) extracted hereinabove reveals, that two different kinds of punishments are contemplated thereunder. Firstly, “… the right of withholding or withdrawing a pension …” which the delinquent employee is entitled to, permanently or for a specified period. And secondly, “… the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government …”. The above two punishments can be inflicted on a delinquent, even after he retires on attaining the age of superannuation, provided he is found guilty of “… grave misconduct or negligence …” during the period of his service.

5. It is therefore apparent, that it is not only for pecuniary loss caused to the Government that proceedings can continue after the date of superannuation. An employee can be proceeded against, after the date of his retirement, on account of “… grave misconduct or negligence …”. Therefore, even in the absence of any pecuniary loss caused to the Government, it is open to the employer to continue the departmental proceedings after the employee has retired from service. Obviously, if such grave misconduct or negligence, entails pecuniary loss to the Government, the loss can also be ordered to be recovered from the employee concerned. It was therefore not right for the High Court, while interpreting Rule 10(1) of the 1971 Rules to conclude that proceedings after the date of superannuation could continue only when the charges entailed pecuniary loss to the Government.”

7. The above observations are clearly applicable to the cases in hand.

8. Accordingly, we allow the appeals, set aside the impugned order and restore the order of punishment.

Comments