Arun Kumar Biswas vs Superintendent of Police

B.P. Banerjee, J.—This is an appeal against the judgment and order dated June 21, 1991, passed by the learned trial Judge in Civil Order No. 946(W) of 1988 whereby the learned trial Judge after quashing the charge-sheet granted liberty to the Respondents to proceed afresh by issuing a charge-sheet in accordance with law. The scope of the appeal has become very much limited in view of the fact that the writ Petitioner Appellant herein has retired from service on August 31, 1991, and that the only question that is involved in this appeal is whether disciplinary proceeding of this nature could be continued under the provisions of Rule 10(1) of the West Bengal Service (Death-cum-Retirement) Rules, 1971. It is not necessary to go into the other questions.

Pursuant to the order of the learned trial Judge a fresh charge-sheet has been issued wherein it has been stated as follows:

On 12.1.84 S.I. M.L. Sikdar, the then O.C. Durgapur P.S. endorsed you the investigation of Durgapur P.S. Case No. 16 dt. 12.1.84 u/s 461/379 I.P.C. changed to Section 395 I.P.C. while you were attached to Faridpur I.C. under Durgapur P.S. But till 3.2.84 you failed to submit any case diary in connection with this case as a result actions taken by you being an Investigating Officer of this case are not known to the Superior Officers.

Now, therefore, in pursuance of clause II of Article No. 311 of the Constitution of India and Regulation 861 of P.R.B. Vol. I, 1943, the undersigned is pleased to hereby require you to put in before Sri M. Malaviya I.P.S., Addl. S.P. Durgapur who has been appointed as an enquiring officer to enquire into the aforesaid charges against you. You are hereby directed to state in writing whether you plead guilty to the charges or you desire to be heard in person or call any witnesses or produce any documents in favor of your defense within 7 days from the date of receipt of charges.

The statement of allegations on which the aforesaid charges are based is enclosed.

Sd/- P.N. Saha. Superintendent of Police, Burdwan.

Rule 10 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, provides as follows:

Right of the Governor to withhold pension in certain cases -- (1) The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it whether permanently or for a specific period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence, during the period of his service, including service rendered on reemployment after requirement.

It was submitted on behalf of the Appellant that the charges against him were that he failed to submit any case diary in connection with the case being an Investigating Officer and did not arrest the accused. The word ''misconduct'' has its definite meaning and the Supreme Court in the case of Union of India (UOI) and Others Vs. J. Ahmed, observed that all omissions or commissions will not make out a case of misconduct but there must be some means rea or motive along with such omission or commission. Applying the principle laid down by the Supreme Court it does not appear that the charges on the face of it discloses the case of misconduct inasmuch as no imputation has been attracted for non-submission of the case diary. The Supreme Court in the case of A.L. Kalra Vs. Project and Equipment Corporation of India Ltd., It was held, Rule 4 bears the heading ''general''. Rule 5 bears the heading ''misconduct''. It was held that a general exception of certain decent behavior in respect of employees keeping in view corporation culture may be moral or ethical expectation. Failure to keep such high standard of moral, ethical or the decorous behavior benefiting an officer of the company by itself cannot in any of the enumerated misconduct in Rule 5. Any attempt to telescope Rule 4 under Rule 5 must be looked upon with apprehension because Rule 4 is vague and of general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and, if necessary, to define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. The relevant Police Regulation of Bengal did not enumerate the acts which would be construed as ''misconduct''. The question is whether in the facts and circumstances of the case the disciplinary proceeding should be continued even after the retirement. In this connection reference may be made to the case of Deokinandan Prasad Vs. The State of Bihar and Others, where the Supreme Court held that-

Pension is not a bounty payable at the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a Government servant.

Having regard to the above decision, we are of the opinion that the right of the Petitioner to receive pension was property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also properly under Article 19(1)(g) and it is not saved by sub-Article (5) of Article 19. Therefore, it follows the order dated June 12, 1986. denying the Petitioner''s right to pension affects the fundamental right of the Petitioner under Articles 19(1)(f) and 31(1) of the Constitution and not saved by Clause (5) of Article 19. It was clearly established that the pension which is a property could not be denied and/or deprived save by authority of law and that right to hold such property as guaranteed under Article 19(1)(f) of the Constitution of India would not be interfered with and/or curtailed by imposing any reasonable restriction as provided under Article 19(5) of the Constitution of India. If the citizen''s fundamental right to hold, acquire and dispose of property was held to be an absolute right and no restriction whatsoever could be imposed under Article 19(5) of the Constitution of India, in that event, the impugned Rule 10(1) of the Retirement Benefit Rules was volatile of the provision of Article 19(1)(f) of the Constitution of India. Of course, by the 44th Amendment of the Constitution, Article 31(1) of the Constitution of India along with Article 19(1)(f) of the Constitution of India had been deleted altogether and Article 300A of the Constitution have been incorporated by which the right of property which is a fundamental right has now been converted into a mere constitutional right. But Articles 19(1)(f) as well as 31(1) of the Constitution of India were there when the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, was made and, as such, it was contended that the said Rule was still-born piece of subordinate legislation and as under the provisions of Article 19(1)(f) of the Constitution as interpreted by the Supreme Court in Deokinandan Prasad''s case (3) such a law could not be made taking away the right to get pension, which was a property. In our view, since pension was held to be a property under Article 19(1)(f) of the Constitution of India and since it was not saved by Sub-clause (5) of Article 19 of the Constitution of India, the State had no jurisdiction or authority to make any rule imposing any restriction on such right to acquire, hold and dispose of such property.

It was next contended that after the retirement of the Petitioner from service, the relationship between the Petitioner and the State as employee and employer had come to an end by reason of retirement of the employee and that employee was beyond the disciplinary control of the employer and in connection with this proposition reference was made to the Full Bench judgment of the Kerala High Court in the case of R.P. Nair and Another Vs. Kerala State Electricity Board and Others, where the Full Bench of the Kerala High Court considered a provision which was in pari materia with that of the provision of Rule 10 of the said Retirement Benefit Rules and the Full Bench of the Kerala High Court on interpretation of the Kerala Rules which was in the same terms as that of the impugned Rule held at p. 137 that the Rule does not authorize continuance of disciplinary proceeding as such against a Government servant after his retirement. Both on principle and on authority such a position cannot be easily countermanded. It allows only a limited type of enquiry to be proceeded with, namely, an enquiry in regard to withholding or withdrawing pension or of ordering recovery from pension by reason of any misconduct or negligence during the period in service of the employee. Under Clause (a) of the proviso to the Rule, the departmental proceedings, if instituted, during the service of the employee is to be deemed to be a proceeding under the Rule, and may be continued and completed even after his retirement. To this limited extent alone is provision made under the Rule, for continuance of a disciplinary enquiry beyond retirement. That too is by transmuting it by friction to be an enquiry under the Rule. Beyond this, we cannot understand the Rule as in any way permitting the authorities either to launch or to continue disciplinary proceeding after the retirement of the employee. That would be destructive of the concept of relationship of the employer and employee which has come to end by reason of retirement of the employee beyond which, disciplinary control cannot extend. In order to establish this proposition, the Full Bench of the Kerala High Court considered the principles laid down by the Supreme Court in 5. S. Pratap Singh Vs. The State of Punjab, , The State of Bihar Vs. Abdul Majid, , The State of West Bengal Vs. Nripendra Nath Bagchi, , B.J. Shelat v. State of Gujarat AIR 1978 S.C 1109 , State of Punjab Vs. Khemi Ram, and V.P. Gidroniya Vs. The State of Madhya Pradesh and Another, It is not necessary to discuss in detail the principles laid down by the Supreme Court in those cases inasmuch as the Full Bench of the Kerala High Court in the said judgment had duly considered all these cases and came to the above conclusion. Relying upon the principles laid down by the Supreme Court which was summarized by the Full Bench of the Kerala High Court we arc of the view that Rule 10(1) had a very limited and narrow application. The said Rule could be at best be invoked for the purpose of recovery of the pecuniary loss caused to the Government by the pensioner because of gross misconduct or negligence during the period of service. In other words, if a Government servant had caused pecuniary loss to the Government while he was in service because of his gross misconduct or negligence, under Rule 10(1) of the said Rules the disciplinary proceeding could be continued and conducted only for the purpose of recovery of such a loss from the withholding or withdrawing the whole pension or a part of it whether permanently or for a specified period. So unless there was a definite charge against a pensioner that he had caused loss to the Government while he was in service by committing grave misconduct or negligence, in that event the proceeding could be continued so that if he is ultimately found guilty of the same in that event the loss actually caused to the Government might be recovered from the pension payable by the Government to the pensioner. Save and except for this specific purpose, Rule 10(1) of the said Rules had no manner of application whatsoever looking to the charges framed against the Petitioner, I find that there was not a single charge against the Petitioner for causing any pecuniary loss to the Government and, as such the question of invoking the provisions of Rule 10 of the said Rules for recovery of the loss caused to the Government did not and could not arise at all Disciplinary proceeding on the basis of the charges as framed, in my view, could not be continued or concluded against the Petitioner after the Petitioner had retired from service. I respectfully agree with the above decision of the Full Bench of the Kerala High Court in the case mentioned above and hold that the departmental proceeding on the basis of the charges framed against the Petitioner could not be continued and concluded after the retirement of the Petitioner as there was no charge for causing any pecuniary loss to the Government while the Petitioner was in service and, as such, the proceeding could not be continued against the Petitioner in the instant case. I am constrained to take this view in the interest of social justice and as the retired employees had no social security excepting the retire mental benefits.

We respectfully agree with the view taken by the Full Bench of the Kerala High Court in the case of R.P. Nayar v. Kerala Slate Electricity Board (Supra) Under Rule 10 a disciplinary proceeding could be continued even after retirement only for the purpose of withdrawing or withholding pension wholly or partly from the retirement benefits of an employee if the employee concerned is found in departmental proceeding guilty of a grave misconduct or negligence during the period of service. In the instant case, admittedly the charge as it does not disclose of any financial loss caused to the State Government and for which there is any question of recovery from the retirement benefits of the Appellant. For a retired Government employee pension is the only source of livelihood and that such a right could not be taken away without authority of law and that in the facts and circumstances of the case Rule 10 has to be construed strictly according to its letter and that only in case it is found that a pensioner has caused any loss because of misconduct or negligence while in service, a disciplinary proceeding should be continued after retirement for the purpose of realization of public money by withholding wholly or partly the pension which he is eligible after retirement. The provisions of Rule 10 of the said Rules should not be interpreted in such a manner so that the authorities could be allowed to continue the disciplinary proceeding unless there is a clear case of causing pecuniary loss to the Government due to misconduct and negligence. It cannot be contended that for any negligence of whatever magnitude unless it has resulted loss to the Government the provisions of Rule 10 could not be stretched too far to include all cases of negligence or misconduct having no connection with causing loss to the Government. It is only for the purpose of compensating the loss caused to the Government pension should be withheld partly or fully Rule 10 could be invoked. The provisions of Rule 10(1) of the said Rule could not be extended beyond the scope and ambit of the said Rule. This Rule did not provide any matching for initiating or continuing with any departmental enquiry. The West Bengal Civil Services (Classification, Control and Appeal) Rules, 1971, provides the proceeding. The penalization provided therein could only be imposed if one remains in service. These two Rules operates in two different fields. From the language used in Rule 10(1) of the said Rule it is clear that the power in this Rule is intended to be used cither to withhold the pension wholly or partly for the purpose of recovering the pecuniary loss caused to the Government the recovery from pension can be made only for compensating the loss caused to the Government.

The golden rule is that the words of a statute must prima facie be given the ordinary meaning. It is well-settled principles of interpretation that Court seeks to cut down technicalities attended upon a statutory procedure where these cannot be shown to be necessary to the fulfillment of the purpose of the Rule. The intention of the rule-making authority is clear that the departmental proceeding initiated during the period when a person is in service could only be continued for some purpose and any of the construction would result in violence to the words used in the Rule Plain words are necessary to establish they intention to interfere with the right to receive pension which is a property Persons should not be subjected by law to any sort of detriment unless this is imposed by clear words. Brett J. said in Dickenson v. Fletcher (1873) L.R. 9. Chap. I. 7.

Those who contend that a penalty may be inflicted must show that the words of the Act distinctly enact that it shall be incurred under the present circumstances. They must fail if the words are merely equally capable of a construction that would and one that would not, inflict the penalty. The principle against doubtful penalization is an aspect of legal policy. A person is not to be put in peril upon ambiguity. The scope of this Rule has to be construed keeping in mind the concept of social and economical justice enshrined in the Constitution. After retirement from service a person had no means of livelihood except the retirement benefits which he had earned by rendering 30/40 years of service and such an old age security cannot be allowed to be denied by allowing a departmental proceeding initiated for the misconduct which had not resulted any pecuniary loss caused to the Government. If any other contrary interpretation is made to Rule 10(1) of the said Rule that would result in a disproportionate counter-mischief and it is not the rule that in order to suppress one mischief the Legislature intends to visit a disproportionate counter-mischief.

Lord Reid said in Coutts v. I.R.C. (1953) A.C 267 that-

In general if it is alleged that a statutory provision brings about a result which is so startling, one looks for some other possible meaning of the Statute which will avoid such a result because there is some presumption that Parliament does not intend its legislation to produce highly inequitable results

There is another aspect of the matter which is required to be considered by it is that under the Death-cum-Retirement Benefit Rules there is no provision of withholding wholly or partly the gratuity payable to the employee. Rule 10 is only limited in its application for withholding the pension wholly or partly in the instances stated above. But, there is no provision under the Rule which may authorize the Government to withhold wholly or partly the gratuity which is payable under the Rules.

Considering the facts and circumstances of the case we set aside that portion of the judgment by which the learned trial Judge has given liberty to the Respondent to issue fresh charge and we also set aside the charge-sheet which has already been issued pursuant to the said order under proceeding No. 37/91, dated June 25, 1991, and Stale-Respondents are directed to pay to the Appellant all retirement benefits including arrear salaries as per relevant ROPA Rules of 1990. The Respondents shall pay the retirement benefits and other benefits to the Appellant in terms of this order within four months from to-day.

The appeal and application are allowed to the extent indicated above.

There will be, however, no order as to costs.

Let a Xerox copy of the above judgment be given to the parties on usual terms and conditions.

A.K. Bhattacharjee, J.

I agree.