Rathin Ghosh vs West Bengal State Electricity Distribution Company Ltd. & Ors.

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 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 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 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 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; 1193A-H; 1194-A-D]

B.C. Chaturvedi v. Union of India and Others

(1995) 6 SCC 749 : [1995] 4 Suppl. SCR 644

– relied on.