Rathin Ghosh vs West Bengal State Electricity Distribution Company Ltd. and Others

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5633 OF 2019 (@ SLP(CIVIL) NO.31374 OF 2017) RATHIN GHOSH ...APPELLANT(S)

VERSUS

WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY LTD. & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

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.

Signature Not Verified Digitally signed by ARJUN BISHT Date: 2019.07.29 13:23:22 IST Reason:

2. The appellant was appointed as Graduate Engineer

(Training) in the year 1985 in the West Bengal State 2

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 3

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, 4

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 5

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.

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 6

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.

7 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.”

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, 8

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 9

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:

“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 10

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 11

appellant contends that 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 12

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 13

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

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, 14

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. 15

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 16

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 17

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 18

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.

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 19

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

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 20

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: 21

“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 held to

be given discriminatory treatment violating Article

14. The test as has been approved by this Court is 22

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 23

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.

(1) Censure (2) Withholding of increment or Promotion (3) Suspension 24

(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 25

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.

(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 26

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 27

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 28

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. 29

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. 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 30

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.

......................J. ( ASHOK BHUSHAN )

......................J. ( NAVIN SINHA ) New Delhi, July 29, 2019.