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

2. The appellant was appointed as Graduate Engineer (Training) in the year 1985 in the West Bengal State Electricity Board, which subsequently was restructured and reorganized to form the West Bengal State Electricity Distribution Company Ltd. (hereinafter referred to as ‘Company?). The appellant on account of his work and conduct was promoted to different posts and in the year 2007, he was holding the post of Superintending Engineer. In February, 2007 he was asked to prepare a draft specification of single-phase static meters. The draft specification submitted by the appellant was approved by the competent authority, which technical specifications were to be provided to all bidders and was an open document. Tender No.P-2/2007-08/(P-II) was published for purchase of 20 lakh meters which tender was cancelled for technical reasons. Fresh specifications drafted by Advisor (Security and Vigilance) and settled by Additional Chief Engineer (District Testing) was approved by all Technical Directors of the Board of Directors and the Chairman-cum-Managing Director. The Tender No.P-28/2007-08 was issued by the Company for procurement of 10 lakh meters on 09.01.2008. Nineteen bids along with their respective sample meters were received by the Company on 08.02.2008. The samples of the meters were sent to the Additional Chief Engineer (Testing) for evaluation. On 13.03.2008 the said meters were tested by a team of officers and technicians which included the appellant. On 26.03.2008, the appellant received the personal invitation from an organization IEEMA to attend a presentation organised in New Delhi. On testing of sample meters by the team of officers, only four bidders were found technically qualified which also included one bidder-M/s. Secure Meters. The Chairman of the Company on 31.03.2008 approved the opening of the price bids of the three technically suitable bidders, bids were opened and M/s. Secure Meters was declared the successful bidder to the highest rate. Other two bidders were also successful bidders having offered rates lower than M/s. Secure Meters. On 16.04.2008, the appellant informed his immediate superior Officer, Additional Chief Engineer (Distt. Testing) about his going to New Delhi to attend IEEMA?s Conference. The appellant got his Air Tickets booked from Globe Travel Agents, who were the travel agents of M/s. Secure Meters for to and fro visit to Delhi. On 17.04.2008, the appellant attended the IEEMA Conference at New Delhi and returned on 17.04.2008 to Calcutta itself. On 18.04.2008, the Globe Travel Agency raised an invoice of Rs. 12,350/- for the return air ticket of the appellant upon M/s. Secure Meters as the booking was done through them. On 24.04.2008, on an enquiry by the Corporate Vigilance Department of the Company to Globe Travel Agency about the appellant?s ticket, which informed that the payment towards the aforesaid invoice was still due. On 28.04.2008, the appellant paid the entire amount of Rs.12,350/- to M/s. Secure Meters for payment of the aforesaid invoice raised by Globe Travel Agency. On 29.04.2008, the respondentCompany suspended the appellant and initiated disciplinary proceedings. The appellant was suspended alleging gross misconduct tarnishing the image of the Company.The appellant, who had 22 years unblemished service to his credit, felt hurt by the act of the Company suspending him. The appellant on 13.05.2008 submitted his resignation to the Company. The appellant in his resignation letter mentioned that his order of suspension is an act of vengeance instigated by the parties whose personal agenda had been disturbed by his honest intentions. The appellant also expressed his willingness to pay the Company three months salary in lieu of notice. A charge-sheet dated 28.05.2008 was submitted. The charge-sheet was served on the appellant on 28.05.2008 for proposed enquiry to be held under Regulations 61 and 63 of WBSEB Employees? Service Regulations. The appellant submitted his reply. The charge-sheet also listed several documentary evidences including invitation from IEEMA dated 17.04.2008, the attendance sheet of participants in the presentation held on 17.04.2008 at New Delhi.The charge-sheet also enlisted the list of witnesses who were proposed to be examined in support of the charge-sheet. On 10.06.2008, the appellant received communication that his resignation had not been accepted due to the non-completion of the disciplinary proceedings. On 20.06.2008, the appellant submitted a detailed reply to show-cause. The reply did not find favour with the Company and disciplinary enquiry was initiated. Witnesses were cross-examined by the appellant. Inquiry Officer submitted his findings on 26.12.2008. The findings were forwarded to the appellant by letter dated 30.12.2008 by the respondent. The Inquiry Report found charges proved against the appellant. The appellant submitted his representation on 24.01.2009 to the findings in the enquiry. The Company issued a second show-cause notice dated 28.03.2009. Second show-cause notice was issued to the appellant which also mentioned the proposed punishment of dismissal from service, permanent withholding of pension for life time, forfeiture of entire gratuity and nonpayment beyond the subsistence allowances during the suspension period. Reply to the second show-cause notice was also submitted by the appellant. The disciplinary authority passed an order on 02.06.2009 by which following punishments werehave considered the gravity of the misconduct and the circumstances under which the misconduct was committed. Considering all aspects in open mind including the past service records, I finally impose the following punishment upon Sri Rathin Ghosh, Superintending Engineer (E) (underDismissal from service.Permanent withholding of pension for lifetime.forfeiture of entire gratuity.The period of suspension in respect of Sri Rathin Ghosh, S.E.(E) is hereby confirmed. He will not earn anything beyond the subsistence allowances payable to him during the period oforder takes immediate effect.?The appeal filed by the appellant against the order of punishment was also dismissed. It was communicated to the appellant on 10.11.2009. Aggrieved against the punishment order as well as order dismissing the appeal Writ Petition No.2712(W) of 2010 was filed by the appellant. The writ petition was heard by the learned Single Judge and by judgment dated 29.06.2015 learned Single Judge allowed the writ petition by followingthe reasons discussed above, the entire disciplinary proceeding including the order of suspension dated 29th April, 2008, the charge sheet dated 25th May, 2008, the enquiry report dated 26th December, 2008, the order of punishment dated 2nd June, 2009 and the appellate authority order dated 10th November, 2009 are set aside and quashed. The respondents are directed to reinstate the petitioner within 6 weeks from the date of communication of this order and to start payment of the petitioner?s monthly salaries and other allowances, month by month.respondents are also directed to treat the petitioner in service without any break as if no order of dismissal was ever issued to the petitioner. The petitioner will also be entitled to receive full back wages for the period he was not paid the salaries in view of issuance of the order of dismissal which has been quashed in the writ application. The respondents are further directed to calculate the back wages payable to the petitioner in terms of this order and to disburse the same through 4 equal monthly instalments, the first of which should be paid within a period of 6 weeks from the date of communication of this order.such observations and directions, the writ application is disposed of.The respondent aggrieved by the judgment of learned Single Judge has filed the appeal before the Division Bench of the Calcutta High Court. The Division Bench by its judgment dated 20.09.2017 allowed the appeal and set aside the judgment of the learned Single Judge. Aggrieved by the judgment of the Division Bench, this appeal has been filed by the appellant.Notice was issued by this Court on 24.11.2017. The respondent appeared and the matter was heard by this Court on 09.10.2018. This Court on 09.10.2008 passed following order:counsel for the petitioner had submitted a letter of resignation on 13.05.2008.way of settlement, it is proposed that the resignation letter be treated as a voluntary retirement and the petitioner will be entitled to all benefits accruing to him on retirement as on that date.will also necessarily mean that the departmental proceedings against the petitioner initiated by the respondents will stand quashed without going into the merits of the case.counsel for the petitioner says that this is acceptable to him. However, learned counsel for the respondent says that he would like to take instructions in this regard.the matter after three weeks.?When the matter was again taken by this Court on 09.04.2019, learned counsel for the respondents submitted that the proposal recorded in the order of this Court on 09.10.2018 is not acceptable to the respondents and the matter be heard on merits. Consequently, the appeal was heard on 16.07.2019.Before we notice the submissions of the learned counsel for the parties, it is necessary to notice the substance of charges, which were levelled against the appellant. The Division Bench of the High Court in the impugned judgment has itself noticed twofold charges in the followingThe charges against the delinquent employee were two folds i.e. (i) he gave a presentation in the seminar on 17.04.2008 at New Delhi hosted by IEEMA without having any permission from his higher authority (ii) he availed the hospitality of SML as his air fare from Kolkata to New Delhi on 16th April, 2008 and return journey from New Delhi to Kolkata on 17th April, 2008 was borne by SML when he was officially dealing with SML in the tender process, which was pending finalization for placement of orders to the successful company of suppliers. He thus placed himself under pecuniary obligation underthe above reference with regard to notice No.P-28/2007-08 and its details, following statement was made by PW4:specifications vide Notice No.P28/2007-08 (P-II) was actually prepared by the Advisor(S&V) and finally settled by the Adviser (S&V) and myself. Sri.P.Biswas, SE and Sri Ghosh, CO assited me in the process. The specification, which was referred above, was presented by the Adviser (S&V) in a meeting where all the Technical Directors were present. The Chairman and myself were also present there. Sri Ghosh, CO was not present in that meeting. I formed a team of engineers and technicians to test the sample meters submitted by the bidders. The testing reports as in Ext.7A, Ext.7B, Ext.7C respectively were prepared in an approved format of the Company. The meter testing was made as per pre-scheduled date and representative from S&LP Wing and other interested bidders were allowed to witness the testing. In the instant case the engineers of the S&LP Wing were present during testing. I have not received any complaint from any bidders regarding the testing of meters so far I remember. After completion of the testing by the respective officers and technical to whom it was allotted, I personally made certain sample checking and being fully satisfied I submitted technical evaluation report in this regard. After I send the technical evaluation report a separate core committee comprising higher officials take decision towards the acceptance of the technical evaluation report. The CO was neither a member of the core committee nor he was present during the discussion of the core committee.?

Reasoning:
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.