Case: RATHIN GHOSH Vs. WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY LTD. &amp; ORS

debar future employment (7) Dismissal from service which ordinarily debars future employment.? 23. It is relevant to notice that Regulation 62 does not contain any punishment of permanent withholding of pension for life time or forfeiture of gratuity. In the proceedings drawn against the appellant under West Bengal State Electricity Board Employees? Service Regulations, which have been adopted by the Company, no punishment could have been awarded as permanent withholding of pension for life time or forfeiture of gratuity. Learned Single Judge has dealt with the issue and has rightly concluded that the disciplinary authority committed jurisdictional error in imposing the above punishments. The Division Bench in the impugned judgment has sought to justify the punishment of withholding the pension and forfeiture of gratuity by referring to West Bengal State Electricity Board Employees?(Death-CumRetirement Benefit) Regulations, 1985 (hereinafter referred to as ?Regulations, 1985?, which contain provisions as Regulation 11A dealing with withholding of pension. Pension has been defined in Regulation 6(i) as: ?Pension? except when the term pension is used in contradistinction to gratuity, includes gratuity. Regulation 11A which is relevant for the present case is as follows: ?11A : (1) The pension of an officer may be withheld in whole or in part under an order of the Board passed not later than three years after the date of retirement to meet any sum due under the liability incurred by such officer to the Board. (2) Right of the Board to withhold pension in certain cases : The Board reserves to itself the right of withholding or withdrawing the pension or any part of it whether permanently or for specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Board, 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 the 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 Regulation 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 before his retirement or during his reemployment— (i) Shall not be instituted save with the sanction of the Board; (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 Board may direct and in accordance with the procedure applicable to the 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 the cause of action which arose or an event which took place more than four years before such institution. [Ref: Office Order No.4232 dtd.23.11.1987] Provided further that the pension of an employee may be released in rarest of the rare cases by the Chairman of the Board even during pendency of the criminal proceedings against the employee where the Chairman of the Board is entirely satisfied that the following conditions are fulfilled:- (i) There is a reasonable possibility of acquittal from all charges leveled against the employee in the pending criminal proceedings. (ii) The conduct of the employee during his tenure in service was otherwise satisfactory in all respects. (iii) The criminal proceeding arises out of due discharge of the official duties by the employee. [Ref: Office Order No.5676 dated 21.01.1999]? 24. There is no doubt that Board has right to withhold pension in certain cases in the circumstances as mentioned in Regulation 11A(2). The pre-condition for withholding pension as enumerated in Regulation 11A(2):- ?…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…? 25. The scheme of the Regulation indicates that the power to withhold the pension has to be exercised when proceedings are drawn under Regulations, 1985. Further, what is contemplated is withholding of pension of pensioner, which power has to be exercised qua a pensioner, the appellant having never retired from service nor was a pensioner, there was no occasion for exercising of power under Regulation 11A of Regulations, 1985. Even for argument, it is assumed if before retirement of a person power under Regulation 11A can be exercised, there has to be separate proceeding under Regulations, 1985 for withholding of pension with notice under Regulations, 1985 for proposed action. Present is a case where disciplinary authority has drawn proceeding against the appellant under the West Bengal State Electricity Board Employees? Service Regulations and not any proceeding is drawn under Regulations, 1985. The imposition of punishment of withholding of pension while in proceeding under WBSEBES Regulations are illegal and without jurisdiction. The order passed by the disciplinary authority, thus, suffered from the above jurisdictional error. 26. In view of the foregoing discussions, we are unable to sustain the judgment of the Division Bench. We upheld the judgment of the learned Single Judge to the extent it has set aside the dismissal order. 27. Now, we come to the question of relief which the appellant may be entitled in the facts of the present case. As noticed above, the appellant has already submitted his resignation on 13.05.2008, which was not accepted by the respondent. As recorded in the order dated 09.10.2018, this Court has proposed that the resignation letter be treated as a voluntary retirement and the appellant be entitled to all benefits accruing to him on retirement as on that date.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. The substance of the charges against the appellant as noted in the impugned judgment dated 20.09.2017 and extracted above were twofold. Insofar as charge of attending the seminar on 17.04.2008 without having any permission from higher authorities, suffice it to say that the casual leave application for 17.04.2008 having been sanctioned by Additional Chief Engineering (Distt. Testing) by order dated 24.04.2008 ex post facto the sting of charge goes away. Further, it is on the record that the appellant had informed his superior, Additional Chief Engineer (Distt. Testing) on 16.04.2008 itself about his programme to attend the presentation at New Delhi. The Additional Chief Engineer (Distt. Testing), Shri Subrata Kumar Das was produced by employer as PW.4 in support of the charges, who in his statement has clearly mentioned about the invitation by the appellant having been placed before him and appellant having intimated in the evening of 16th April, 2008 prior to leaving for New Delhi that he was going to New Delhi for attending the meeting. It is further stated by the witness that the appellant informed him regarding his intention to attend the meeting on 17.04.2008. Following was stated by PW4 in hisCO had shown me the letter (Ex.13) received from IEEMA by himself. Sri Ghosh, CO informed me regarding his intention to attend meeting on 17.04.2008. The CO had intimated me on 16.04.2008 in the evening prior to leaving New Delhi that he was going to New Delhi for attending the said meeting I never restrained or forbidden the CO from going to New Delhi.Thus, the appellant attended the presentation at New Delhi with the prior information to his superior officer and also shown his invitation. The presentation organized by IEEMA was a programme organised by a private organisation on the subject of presentation MIOS (Meter Inter Operative System), which subject was relevant and beneficial to all who were concerned with the subject. The invitation was not any official invitation but was in the personal name of the appellant. The appellant has never been nominated nor has been sent by the Co. for the presentation. Even if it is assumed that appellant was required to obtain prior written permission from the Company to go to attend the meeting, he having informed his superior officer in advance before going to attend the presentation, the charge of any such misconduct is not made out, which may warrant extreme punishment of dismissal.Now, coming to the second charge as noted above i.e. appellant availed the hospitality of M/s. Secure Meters as his air-fare from Calcutta to Delhi on 16.04.2008 and return journey on 17.04.2008 was paid by M/s. Secure Meters when he was officially dealing with M/s. Secure Meters, one of the tenderers. Suffice it to say that M/s. Secure Meters has not made any payment for the air tickets nor is there any material on the record to show that such payment was made. The appellant has made the payment on 28.04.2008 for an amount of Rs.12,350/- against the bill raised by the Travel Agency dated 18.04.2008, money receipt dated 28.04.2008 was filed in the proceedings, which has not been disbelieved, thus, it was the appellant, who made the payment for the journey from Delhi-Calcutta and Calcutta-Delhi. Inquiry Officer was not right in his conclusion that getting ticket booked through the Travel Agent by M/s. Secure Meters is equivalent to borrowing money by the appellant from M/s. Secure Meters. The conclusion of the Inquiry Officer is perverse and not supported by the material on record.It is further relevant to notice that insofar as the appellant?s role in providing for technical specifications for tender and his role in selection of M/s. Secure Meters in acceptance of technical bid or in decision regarding acceptance of tenders, the appellant had no role to play. PW4, the Additional Chief Engineer (Distt. Testing), who was produced on behalf of the employer in support of the charges, himself in his statement has clearly stated about the role of the appellant.The above statement of PW4, who was produced on behalf of the employer, clearly indicates that the appellant was neither a member of the committee nor he was present during the discussion of the core committee, who was authority competent to accept the tenders. Further, insofar as specification regarding Notice No.P-28/2007-08, it was clearly stated that specification was prepared by the Adviser (S&V) and finally decided by the Adviser (S&V) himself, i.e., Additional Chief Engineer (Distt. Testing). The appellant was not involved in any such manner. Furthermore, neither any allegation nor any material regarding appellant having got any kind of benefit from M/s. Secure Meters in any manner was produced. The tender specification by specification notice NO. P-28/2007-08 was ultimately cancelled, hence it is not a case of any benefit obtained from M/s. Secure Meters out of the tenders.There cannot be any dispute to the proposition that disciplinary authority has exclusive power to impose appropriate punishment keeping in view the magnitude and gravity of misconduct. The punishment to be imposed on a delinquent employee has to be proportionate to the charge and in event punishment is disproportionate, the delinquent has to be held to be given discriminatory treatment violating Article 14. The test as has been approved by this Court is that the High Court and this Court can interfere with the punishment imposed by the disciplinary authority when it shocks conscience of the Court. The present is a case where the punishment is so disproportionate to the charge that it clearly shocks the conscience of the Court. The charges which were held to be proved were not any such charges on which punishment of dismissal could have been imposed. Further, when the payment of air ticket which was got prepared by Travel Agent of M/s. Secure Meters was ultimately made by the appellant, which was not disbelieved in the proceedings and no other material or evidence extending any benefit to M/s. Secure Meters were on the record, there was no occasion of awarding extreme punishment.Another aspect, which needs to be noticed is that disciplinary authority while imposing the punishment of dismissal from service has also awarded (a)permanently withhold of pension for life time; (b) forfeiture of his entire gratuity. The proceedings were initiated against the appellant under Regulations 61 and 63 of WBSEB Employees? ServiceIt is relevant to notice that Regulation 62 does not contain any punishment of permanent withholding of pension for life time or forfeiture of gratuity. In the proceedings drawn against the appellant under West Bengal State Electricity Board Employees? Service Regulations, which have been adopted by the Company, no punishment could have been awarded as permanent withholding of pension for life time or forfeiture of gratuity. Learned Single Judge has dealt with the issue and has rightly concluded that the disciplinary authority committed jurisdictional error in imposing the above punishments. The Division Bench in the impugned judgment has sought to justify the punishment of withholding the pension and forfeiture of gratuity by referring to West Bengal State Electricity Board Employees?(Death-CumRetirement Benefit) Regulations, 1985 (hereinafter referred to as ?Regulations, 1985?, which contain provisions as Regulation 11A dealing with withholding of pension.In view of the foregoing discussions, we are unable to sustain the judgment of the Division Bench. We upheld the judgment of the learned Single Judge to the extent it has set aside the dismissal order.noticed above, the appellant has already submitted his resignation on 13.05.2008, which was not accepted by the respondent. As recorded in the order dated 09.10.2018, this Court has proposed that the resignation letter be treated as a voluntary retirement and the appellant be entitled to all benefits accruing to him on retirement as on that date.The scheme of the Regulation indicates that the power to withhold the pension has to be exercised when proceedings are drawn under Regulations, 1985. Further, what is contemplated is withholding of pension of pensioner, which power has to be exercised qua a pensioner, the appellant having never retired from service nor was a pensioner, there was no occasion for exercising of power under Regulation 11A of Regulations, 1985. Even for argument, it is assumed if before retirement of a person power under Regulation 11A can be exercised, there has to be separate proceeding under Regulations, 1985 for withholding of pension with notice under Regulations, 1985 for proposed action. Present is a case where disciplinary authority has drawn proceeding against the appellant under the West Bengal State Electricity Board Employees? Service Regulations and not any proceeding is drawn under Regulations, 1985. The imposition of punishment of withholding of pension while in proceeding under WBSEBES Regulations are illegal and without jurisdiction. The order passed by the disciplinary authority, thus, suffered from the above jurisdictional error.