RATHIN GHOSH versus WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY LTD. & ORS.
[2019] 9 S.C.R. 1175, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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   RATHIN GHOSH
v.
WEST BENGAL STATE ELECTRICITY  DISTRIBUTION
COMPANY LTD. & ORS.
(Civil Appeal No.5633 of 2019)
JULY 29, 2019
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Service Law – West Bengal State Electricity Board Employees’
Service Regulations – Regns. 61 and 62– Appellant was
Superintending Engineer in the respondent-Company – On
09.01.2008, tender was issued by the Company for procurement of
10 lakh meters – Various bids received by the Company on
08.02.2008 –On 26.03.2008, the appellant received personal
invitation from an organization to attend a presentation organised
in New Delhi – Bids were opened and the successful bidder was
declared – Appellant got his to and fro air tickets booked from the
travel agents of the successful bidder – Disciplinary proceedings
initiated against the appellant – Appellant was dismissed from
service – Challenged – Dismissed – Writ Petition filed by the
appellant – Allowed – Appeal before the Division Bench – Allowed
– Held: Charges against the appellant were twofold (i) attending
the seminar without any permission from higher authorities (ii)
availing the hospitality of the successful bidder, as appellant’s air
fare was borne by them, while he was officially dealing with them in
the pending tender process – Appellant attended the presentation
on 17.04.2008 with prior information to his superior officer – Casual
leave application of the appellant having been sanctioned by his
superior officer by order dated
24.04.2008, ex post facto, the sting
of first charge goes away – Further, there is no material on record
showing that the successful bidder made any payment for the
appellant’s air tickets – It was the appellant who made the payment
of Rs.12,350/- against the bill raised by the travel agent – Money
receipt was filed in the proceedings, which was not disbelieved –
Also, the tender in question was ultimately cancelled, hence it is not
a case of any benefit obtained from the successful bidder out of the
tender –Further, imposition of punishment of withholding of pension
[2019]  9 S.C.R. 1175
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[2019] 9 S.C.R.
in proceedings under Service Regulations are illegal and without
jurisdiction, as for withholding of pension, there has to be separate
proceeding under the 1985 Regulations – Punishment imposed in
the present case is disproportionate to the charge, shocking the
conscience of the Court – Dismissal order set aside – Appellant’s
resignation letter dated 13.05.2008 be treated as voluntary retirement
– Appellant entitled to all benefits accruing to him on retirement as
on that date – Further directions issued – West Bengal State
Electricity Board Employees’(Death-Cum-Retirement Benefit)
Regulations, 1985 – Regns. 11-A and 6(i).
Service Law – Disciplinary proceedings – Interference by
Court – Scope of – Discussed.
Allowing the appeal, the Court
HELD: l.1 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) was produced by employer as PW4 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. Thus, the appellant attended the
presentation at New Delhi with the prior information to his
superior officer and also shown his invitation. The invitation was
not any official invitation but was in the personal name of the
appellant. 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. ‘M/s. SM’ has not made any payment
for the air tickets nor is there any material on the record to show
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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. SM’ is equivalent to borrowing
money by the appellant from ‘M/s. SM’. The conclusion of the
Inquiry Officer is perverse and not supported by the material on
record.  [Paras 14-16] [1186-F-H; 1187-A-H; 1188-A]
1.2  Insofar as the appellant’s role in providing for technical
specifications for tender and his role in selection of ‘M/s. SM’ 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 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.
The appellant was not involved in any manner. Furthermore,
neither any allegation nor any
material regarding appellant having
got any kind of benefit from ‘M/s. SM’ 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. SM’ out of the tenders.  [Paras
17, 18] [1188-B-C; 1188-G-H; 1189-A-C]
1.3 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 High Court and Supreme 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
   RATHIN GHOSH  v.  WEST BENGAL STATE ELECTRICITY
DISTRIBUTION COMPANY LTD.
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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.
SM’ 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. SM’ were on the record, there
was no occasion of awarding extreme punishment. [Para 20]
[1189-G-H; 1190-A-C]
1.4 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. Single Judge has
dealt with the issue and 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-Cum-Retirement Benefit) Regulations,
1985 (hereinafter referred to as “Regulations, 1985”, which
contain provisions as Regulation 11A dealing with withholding of
pension. The 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…”.  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
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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. The judgment of the Division Bench is not
sustainable. The judgment of the Single Judge is upheld to the
extent it has set aside the dismissal order. 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, Supreme Court 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
ends of justice be served in setting aside the dismissal order by
directing that resignation letter of the appellant be treated as
voluntary retirement with further direction to treat the appellant
as voluntarily retired on that date and to compute all benefits
accruing to the appellant including gratuity and pension as
admissible on that date. The
respondents to compute the entire
benefits of the appellant and make the payment within a period of
two months from today. In event, the payment is not made within
two months of this order, such payment shall carry interest at the
rate of 6% per annum. [Paras 23-27] [1191-D-H; 1192-A-H; 1193-
A-H; 1194-A-D]
B.C. Chaturvedi v. Union of India and Others
(1995) 6 SCC 749 : [1995] 4 Suppl. SCR 644
– relied on.
 Case Law Reference
[1995] 4 Suppl. SCR 644      relied on
Para 1 9
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5633
of 2019
   RATHIN GHOSH  v.  WEST BENGAL STATE ELECTRICITY
DISTRIBUTION COMPANY LTD.
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From the Judgment and Order dated 20.09.2017 of the High Court
at Calcutta in FMA No. 3536 of 2015
Shyam Divan, Sr. Adv., Udayaditya Banerjee, Swarnendu
Chatterjee, Advs. for the Appellant.
Yasobant Das, Sr. Adv., Saurabh Mishra, Abhishek Singh,
Ms. Samridhi Pal,   Ms. Aashna Bhatia, Onkar Singh, Arun Verma,
Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This appeal has been filed challenging the judgment of the
Calcutta High Court dated 20.09.2017 allowing the writ appeal filed by
the respondent. The respondent has filed appeal before the Division
Bench of the Calcutta High Court questioning the judgment of learned
Single Judge passed in Writ Petition No.2712(W) of 2010 – Rathin Ghosh
vs. West Bengal State Electricity Distribution Company Limited, whereby
the writ petition was allowed setting aside the dismissal order of the
appellant with all consequential benefits.
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
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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 respondent-Company suspended the appellant and
initiated disciplinary proceedings. The appellant was suspended alleging
gross misconduct tarnishing the image of the Company.
3. 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
   RATHIN GHOSH  v.  WEST BENGAL STATE ELECTRICITY
DISTRIBUTION COMPANY LTD.  [ASHOK BHUSHAN, J.]
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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.
4. 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 non-
payment 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 were awarded:
“I have 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) (under suspension):-
“(i) Dismissal from service.
(ii)  Permanent withholding of pension for
lifetime.
(iii)forfeiture of entire gratuity.
(iv)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 of suspension.
This order takes immediate effect.”
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5. 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
following order:
“For the 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.
The 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.
With such observations and directions, the writ application is
disposed of.”
6. 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.
7. 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:
   RATHIN GHOSH  v.  WEST BENGAL STATE ELECTRICITY
DISTRIBUTION COMPANY LTD.  [ASHOK BHUSHAN, J.]
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“Learned counsel for the petitioner had submitted a letter of
resignation on 13.05.2008.
       By 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.
    This 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.
         Learned 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.
       List the matter after three weeks.”
8. 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.
9. 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
following words:
“23  The 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 under SML.”
10. Shri Shyam Divan, learned senior counsel assisted by Shri
Udayaditya Banerjee, learned counsel for the appellant contends that
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the appellant had unblemished service of 22 years and the charges which
were levelled against the appellant were not correct. Learned counsel
for the appellant submits that with regard to Charge No.1 of his attending
a presentation at New Delhi invited by IEEMA, he had already informed
his immediate superior Officer before leaving for Delhi with regard to
his absence on 17.04.2008. His application for casual leave was also
allowed on 24.04.2008. Hence, no misconduct was committed by the
appellant inviting any punishment. With regard to charge No.2, learned
counsel submits that with regard to tender Notice No.P-28/2007-08(PC-
II) the appellant was merely involved in preparation of specifications
and the technical report was submitted by the Additional Chief
Engineer(Distt. Testing), which was sent to separate committee
comprising higher official to take decision. The appellant was neither a
member of the core committee nor he was present during the discussion
of core committee where decision was taken. Neither there is any
allegation nor any kind of benefit or favour has been accepted by the
appellant from M/s. Secure Meters nor the appellant has caused any
loss to the Company. Tender Notice No.P-28/2007-08 was subsequently
cancelled.  Insofar as booking of air tickets by Globe Travel Agency is
concerned, no payment of bill was paid by M/s. Secure Meters rather
payment was made by the appellant of the bill amount of Rs.12,345/- to
M/s. Secure Meters,
receipt of which was filed during the inquiry. The
Inquiry Officer without adverting to relevant aspects proceeded and
submitted the report in premeditated manner and proceeded to hold
charges proved. The appellant in his representation against the findings
of the Inquiry Officer has given all facts and material to prove that
findings are perverse but disciplinary authority without adverting to those
material and facts held the charges proved. In any view of the matter,
charge of attending IEEMA presentation on 17.04.2018 without previous
permission of employer was not such a charge on which punishment of
dismissal could have been awarded. Further, insofar as air tickets obtained
from Travel Agent of M/s. Secure Meters are concerned, the payment
of air tickets was never made by M/s. Secure Meters but was made by
the appellant, receipt of which was filed in the inquiry proceedings which
having not been disbelieved, there is no other material or evidence of
any kind of obtaining pecuniary benefit from M/s. Secure Meters by the
appellant. Further, there being no material or charge for any kind of
favour or benefit extended by the appellant to M/s. Secure Meters, present
was not a case of awarding punishment of dismissal.  Awarding
   RATHIN GHOSH  v.  WEST BENGAL STATE ELECTRICITY
DISTRIBUTION COMPANY LTD.  [ASHOK BHUSHAN, J.]
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punishment of dismissal of the appellant is disproportionate and deserves
to be set aside. It is further submitted that punishment of permanent
withholding of pension for life time and forfeiture of entire gratuity by
the order of the disciplinary authority is without jurisdiction, which
punishment could not have been imposed in the disciplinary proceedings
which were initiated under the West Bengal State Electricity Board
Employees’ Service Regulations adopted by WBSBCL.
11. Shri Yasobant Das, learned senior counsel, appearing for the
respondent refuting the submissions of the appellant contends that the
charges having been proved in the inquiry proceedings, learned Single
Judge committed error in interfering with the punishment. The appellant
had official dealing with M/s. Secure Meters and it was not expected
from such officer in obtaining any benefit from such bidder, the appellant
obtained air tickets from M/s. Secure Meters and utilized its hospitality,
which is a misconduct inviting punishment under Service Rules and
Service Regulations.
12. Learned counsel for the respondents has supported the
impugned judgment of the Division bench of Calcutta High Court. It is
further submitted that Company has lost confidence in the appellant and
the direction of the learned Single Judge to reinstate the appellant with
back wages was uncalled for. It is submitted that Company cannot
reinstate a person who has lost
confidence of the Company.
13. We have considered submissions of the learned counsel for
the parties and perused the records.
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
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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 his cross-examination:
“The CO 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.”
15. 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.
16. 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
   RATHIN GHOSH  v.  WEST BENGAL STATE ELECTRICITY
DISTRIBUTION COMPANY LTD.  [ASHOK BHUSHAN, J.]
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appellant from M/s. Secure Meters. The conclusion of the Inquiry Officer
is perverse and not supported by the material on record.
17. 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. In the
above reference with regard to notice No.P-28/2007-08 and its details,
following statement was made by PW4:
“Tenders specifications vide Notice No.P-28/2007-08 (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.”
18. 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
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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. The immediate
officer under whom appellant was working himself spoke about the tender
and further spoke that:- “….I can depose that the CO never lacking in
his sincerity and integrity towards his work.”
19.  We are conscious of the scope of judicial review by the High
court and this Court in reference to disciplinary proceedings. A three
Judge Bench of this Court in B.C. Chaturvedi vs. Union of India and
others, (1995) 6 SCC 749, in paragraph 18 has laid down parameters
of judicial review in the disciplinary proceedings to the following effect:
“18. A review of the above legal position would establish that the
disciplinary authority, and on appeal the appellate authority, being
fact-finding authorities have exclusive power to consider the
evidence with a view to maintain
discipline. They are invested
with the discretion to impose appropriate punishment keeping in
view the magnitude or gravity of the misconduct. The High Court/
Tribunal, while exercising the power of judicial review, cannot
normally substitute its own conclusion on penalty and impose some
other penalty. If the punishment imposed by the disciplinary
authority or the appellate authority shocks the conscience of the
High Court/Tribunal, it would appropriately mould the relief, either
directing the disciplinary/appellate authority to reconsider the
penalty imposed, or to shorten the litigation, it may itself, in
exceptional and rare cases, impose appropriate punishment with
cogent reasons in support thereof.”
20. 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
   RATHIN GHOSH  v.  WEST BENGAL STATE ELECTRICITY
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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.
21. 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’ Service
Regulations, which is clear from following statement in the charge-sheet:
“The undersigned proposes to hold an enquiry under Regulation
61 & 63 of WBSEB Employees’ Service Regulations since
adopted by WBSEDCL, against Sri Rathin Ghosh,
Superintending
Engineer (E) (Under suspension) attached to Distribution Testing
Department.”
22. The West Bengal State Electricity Board Employees’ Service
Regulations are on record. Regulation 61 deals with act of misconduct.
Regulation 62 which deals with punishment is as follows:
“Regulation 62. Without prejudice to the provisions of any law for
the time being in force, an employee who is found to be guilty of
any act of misconduct or of any breach of discipline is punishable
as indicated below, according to the gravity of the breach or
misconduct. The punishment will not only depend on the findings
in the case under review, but also on his record. The imposition of
penalties may be ordered by the Secretary or by the respective
appointing authorities or any other officers of the Board
empowered in this behalf.
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(1)    Censure
(2)    Withholding of increment or Promotion
(3)    Suspension
(4)    Reduction to a lower post or time-scale or to a lower stage
in the time-scale
(5)   Recovery from pay of any sum as a measure of punishment
forming part of any pecuniary loss caused to the Board by
wilful negligence or breach of orders
(6)  Removal from service which does not 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-Cum-Retirement 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.
   RATHIN GHOSH  v.  WEST BENGAL STATE ELECTRICITY
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(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 re-employment—
(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:-
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(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.
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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.  We are of the view that
the ends of justice be served in allowing this appeal setting aside the
dismissal order by directing that resignation letter of the appellant dated
13.05.2008 be treated as voluntary retirement with further direction to
treat the appellant as voluntarily retired on that date and to compute all
benefits accruing to the appellant including gratuity and pension as
admissible on that date. The respondents are directed to compute the
entire benefits of the appellant and make the payment within a period of
two months from today. In event, the payment is not made within two
months of this order, such payment shall carry interest at the rate of 6%
per annum. The appeal is allowed to the above extent.
Divya Pandey
                                Appeal allowed.