Pranab Kanti De vs West Bengal State Electricity Distribution Company Ltd. & Ors.

The writ petitioner was an employee of West Bengal State Electricity Distribution Company Limited. He was charged with proposing to accept a

bribe and / or illegal gratification from the consumer for reducing the actual consumption to be paid. A trap was laid and the writ petitioner was caught

red handed. Both the consumer as well as the writ petitioner were arrested and a criminal proceeding was started. The criminal proceeding resulted in

an acquittal inter alia on the ground that sanction to prosecute the petitioner under Section 197 of Code of Criminal Procedure was not obtained. It

was also held that the charges were not conclusively proved beyond reasonable doubt.

A departmental proceeding was initiated against the petitioner during the pendency of the criminal proceedings. The said proceedings were continued

on the basis of orders passed in another writ petition filed by the petitioner. A final order came to be passed by the Disciplinary Authority, that was

interfered with by this Court in the other writ petition. The Disciplinary Authority was directed to give the writ petitioner a personal hearing before

deciding on the charges against him and consequently the first final order was set aside.

The writ petitioner was thereafter given a personal hearing by the Disciplinary Authority and an order was passed holding the petitioner guilty of

charges. A punishment of 50 % of forfeiture of pension was imposed. The period spent on suspension was ordered to be treated not on service and

that the petitioner would not receive anything other than subsistence allowance already paid to him. Since the writ petitioner was proceeded against

departmentally during the pendency of his service the above punishment was passed.

An appeal came to be preferred by the writ petitioner against the said order dated 27th April, 2015, the Appellate Authority in its order dated 19th

February, 2016 confirmed the penalty imposed by the Disciplinary Authority. Hence the instant writ application The writ petitioner contended before

me that documents asked for by him from the Disciplinary Authority were not supplied to him. The writ petitioner however has not been able to

demonstrate the relevance of the said documents and how they were material for his defence. In any event the petitioner not to choose to participate

in the inquiry except on one occasion. Repeated adjournments were granted to the writ petitioner by the Inquiry Officer. The writ petitioner was also

given a further opportunity to cross-examine the management witnesses. On the adjourned date however, the writ petitioner did not appear before the

inquiry to so cross-examine the witnesses.

In those circumstances I do not agree that non- supply of documents to the writ petitioner in the facts and circumstances of this case has caused

prejudice to the petitioner. The writ petitioner next argued that in terms of a judgement of the Hon’ble Supreme Court in the case of Capt. M.

Paul Anthony vs. Bharat Gold Mines Ltd. and Another reported in (1999) 3 SCC 679, the writ petitioner could not have been proceeded parallelly in

departmental proceeding during the pendency of the criminal proceeding. A plain reading of the entirety of the judgement would indicate that no hard

and fast rule was laid down by the Supreme Court in Capt. M. Paul Anthony’s Case (Supra) that such parallel proceeding cannot continue. The

crucial factor to be noticed is as to whether the writ petitioner would be forced to disclose his defence relevant to the criminal proceeding, in advance

in the departmental proceeding. Such plea has neither been taken nor has there in fact been any disclosure of such defence. On the contrary the

petitioner has been acquitted in the criminal proceeding.

The writ petitioner, further argues that once he has been acquitted in criminal proceedings, he could not be proceeded within any departmental

proceeding by the employer. In the Capt. M. Paul Anthony’s Case (Supra) I find that Supreme Court has not stated that acquittal in a criminal

proceeding would nullify or negate departmental proceeding. On the contrary the said decision was rendered on the presumption that two proceedings

can either co-exist together or be continued one after the other depending the facts and circumstances of the case. The argument of the petitioner

therefore cannot be sustained. The petitioner thereafter relied upon Regulation 62 of the West Bengal State Electricity Employees Service Regulation.

Regulations 62 (5) stated as follows ;-

“62 (5) â€" 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.â€​

Based on Sub Regulation 5 of Regulation 62 set out herein above the writ petitioner would argue before me that by reason of imposition of punishment

of 50 % of pension the respondents in fact have sought to recover a loss purportedly suffered by the Board on account of the writ petitioner is acts

and omissions. There being no evidence of any loss and in fact no such loss having been caused to the Board, the punishment of 50% of recovery of

pension is in violation of Sub-Regulation 5 of Regulation 62.

I find that there is in fact no loss either claimed by the Board or evidenced from the inquiry proceedings. However, what is relevant is that the

proceedings had in fact commenced during the regular service of the writ petitioner. Such proceedings continued after the writ petitioner

superannuated from service upon attaining the age of sixty years. The punishment would, therefore, date back to the date on which the writ petitioner

came to be suspended either by reason of arrest and/or subsequent order of suspension imposed by the authorities.

After superannuation there could have been no punishment imposed for reduction of any salary and emoluments to the writ petitioner. The Direction

for forfeiting of 50% pension, therefore, must been deemed to be consequent upon the writ petitioner being denied, 50% of his salary and emoluments

while on service the same would have obvious consequence of reducing his normal pension by 50%. Therefore, it cannot be said that any recovery

has been made by the respondents. The question of proof of any loss in Sub Regulation 5 of Regulation 62, therefore, does not and cannot arise. The

writ petitioner next relied upon Regulation 68 of the aforesaid Regulation. Regulation 68 is set out herein;-

“68. Subject to Regulation 114, if an employee of the Board is prosecuted for a criminal offence or forced to remain absent from duty by reason of

being committed to police or jail custody on a criminal charge or by reason of his being committed to prison under the Preventive Detention Act for

activities other than ones connected with an illegal strike or for a debt, he shall not be allowed to draw any pay or leave salary for the period of such

prosecution or absence until the termination of the Criminal case against him or his release from detention or civil prison, and he shall be deemed to be

under suspension from the date of his prosecution or absence from duty; but he will be eligible for the benefit of subsistence grant as provided in

Regulation 65 together with other allowances admissible to such employees for the entire period of suspension and in the event of the employee being

acquitted of the charge or being discharged from the criminal case or the Preventive Detention of the Civil Prison, as the case may be, the period of

his absence from duty will be treated as a period spent on duty or on leave or partly on duty and partly on leave at the discretion of the superior

authority and his pay for the period of absence from duty will be adjusted accordingly.

A plain reading of Regulation 68 indicates that the same comes into operation subject to Regulation 114. Regulation 114 defines extra-ordinary leave,

which is not relevant to the instant case. Regulation 68 in my understanding speaks and conceives of a situation were an employee is being prosecuted

for a criminal offence and by reason thereof has to remain away from duties. By operation of Regulation 68, once an employee comes back onto duty

upon an acquittal or retention or imprisonment, the period during which he has spent away from duty must abide by an overt order from the authorities

either treating the period as on duty or on leave or partly on duty or partly on leave.

Such a situation is not available in the instant case. On the contrary the writ petitioner was suspended from service under a provision, either for

automatic suspension or by a specific order of suspension. In the final order it was stated that except for what the petitioner received as subsistence

allowance during the period of suspension, the employee concerned was not allowed any other benefit. I am, therefore, of the view that Regulation 68

has no manner of the application to the writ petitioner in the facts and circumstances of the case. The writ petitioner lastly relied upon the case of the

State of West Bengal vs. Haresh C. Banerjee and Others reported in (2006) 7 SCC 651. In the said decision the Hon’ble Supreme Court had

reiterated an age old settled principle that pension cannot be wrongfully withheld.

In the instant case I find that the pension in question has not been withheld. No recovery has also been made from pension. What has been done in

fact his application of a punishment of reduction of 50% of pension as a punishment pursuant to departmental inquiry. The facts in the instant case,

therefore, are quite different from that of a case of withholding of pension. After superannuation the writ petitioner has been paid a provisional

pension, and the actual pensionary benefits payable to the writ petitioner must abide by a final order in a departmental proceedings.

The decision of the Supreme Court in the case of State of West Bengal vs. Haresh C. Banerjee and Others (supra) has no manner of the application

in the facts of the case. For the reasons stated above W.P. 14603(W) of 2016 must fail and the same is hereby dismissed without any order as to

costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon completion of requisite formalities.