REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3410 OF 2009 (Arising out of SLP(C) NO. 20691 of 2005)

The Secretary,                                                         ……..  Appellants Forest Department & Ors.  

Versus

Abdur Rasul Chowdhury            ……..Respondent

O R D E R

H.L. DATTU, J:       

                 Leave granted.

2) Challenging  the  judgment  and  order  passed  by  the  High  Court  in  

W.P.S.T.  No.  1010 of  2003 dated  13.6.2005,  the  Secretary,  Forest  

Department and others, have filed this appeal.  

3) The facts in nutshell are, the respondent while he was working in wild  

life  Division  –  II  at  Jalpaiguri  was  served  with  a  memo  dated  

10.3.1987, inter alia directing him to show cause,  why disciplinary  

action  should  not  be  taken  against  him  by  the  Divisional  Forest  

Officer  for  gross  financial  irregularities  in  respect  of  measurement  

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taken and payment made thereof for some of the works undertaken by  

him as Care Taker, Tourist Lodge, Jaldapara, as detected during the  

course  of  checking  by  the  Divisional  Forest  Officers,  Wild  Life  

Division – II.  Since the  explanation offered by the respondent was  

not satisfactory, he was kept under suspension,  pending departmental  

enquiry proceedings by the  Divisional  Forest  Officer,  Cooch Bihar  

Division vide his order dated 13.8.1987. Thereafter, a charge memo  

dated  13.8.1987  was  served  on  the  respondent  by  the  disciplinary  

authority.   The  Articles  of  charges  against  respondent  were  two,  

namely :-

(i) The  respondent  while  functioning  as  Care  Taker,  Tourist  

Lodge, Jaldapara under Cooch Bihar Division from October  

1985 to January 1987,   deliberately  neglected his  duty in  

execution of works entrusted on him as care taker of the said  

Tourist  Lodge and made excess payments  against  inflated  

measurements to the contractors for malafide personal gain,  

causing  financial  loss  to  the  government  to  the  tune  of  

Rs.1,25,293.34 paisa.   

(ii) While  functioning  as  care  taker  of  the  tourist  lodge,  

Jaldapara, the respondent intentionally falsified government  

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documents and tempered with the same with ulterior motive  

of personal gain.  

4) After initiation of departmental proceedings nothing seems to have  

been done by the disciplinary authority.  

5) The respondent retired from service on 31st day of March, 1995, on  

attaining the age of superannuation.  

6) As  the  authorities  neither  completed  the  departmental  enquiry  

proceedings, nor released the retirement benefits to the respondent,  

he  was  constrained  to  file  original  application  before  the  West  

Bengal Administrative Tribunal in O.A. No. 5963 of 1999, inter  

alia,  requesting  the  tribunal  to  direct  the  respondents  therein  to  

pass  an order  dropping the  disciplinary  proceedings,  in view of  

inordinate  delay  in  completing  the  disciplinary  enquiry  

proceedings though it was initiated by issuing the charge memo  

dated  13.8.1987;  to  revoke  the  order  of  suspension  dated  

13.8.1987; to direct the respondents to pass an order declaring that  

the  entire  service  period  of  the  applicant  from  13.8.1987  to  

31.3.1995 as the period spent on duty and the applicant is entitled  

to salaries and the other emoluments for the said period; and lastly  

to  pass  an  order  computing  the  retiral  benefits,  including  

pensionary benefits.  

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7) The Administrative Tribunal vide its order dated 1st day of August,  

2003,  disposed  of  the  original  application  by  directing  the  

respondents/petitioners  to  conclude  the  departmental  enquiry  

proceedings initiated against the applicant within a period of six  

months  in  accordance  with  Rule  10(1)  of  West  Bengal  Service  

(Death-cum-Retirement  Benefits)  Rules,  1971,  with  a  further  

direction to settle the entire subsistence allowance payable to the  

applicant.  

8) The applicant being aggrieved by the aforesaid order passed by the  

Administrative  Tribunal,  had filed a  Writ  Petition under Article  

227 of the Constitution of India, inter alia, requesting the court to  

set  aside the orders  passed by the tribunal  and to grant   reliefs  

sought for by the applicant in the original application.  

9) The High Court has allowed the writ petition,  inter alia, holding  

that during the pendency of departmental enquiry proceedings, the  

delinquent employee has retired from service on attaining the age  

of  superannuation  and  there  is  no  provision/Rule  which  would  

permit the employer from continuing with the enquiry proceedings.  

Secondly,  Rule  10  of  West  Bengal  Services  (Death-cum-

Retirement) Benefits Rules,  1971, cannot be resorted to  by the  

employer, since the said rule has been declared as ultra-vires by the  

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courts and, lastly, that the charge sheet having been issued on 13th  

August,  1987, the disciplinary authority had not proceeded with  

the enquiry till  the delinquent employee retired from service on  

attaining the age of superannuation and, therefore,  the employer  

now cannot proceed with the domestic enquiry proceedings.  

10) The  State  being  aggrieved  by  the  aforesaid  order  of  the  High  

Court, has presented this Special Leave Petition.  

11) The learned counsel Shri Tara Chandra Sharma would submit Rule  

10(1)  of  West  Bengal  Services  (Death-cum-Retirement  Benefit)  

Rules,  1971,  would  permit  the  employer  to  reduce  or  withhold  

pension  by  initiating  proceedings  against  a  government  servant  

even after his retirement from service and the vires of the said rule  

has been upheld by this court in the case of State of West Bengal  

vs. Haresh C. Banerjee and Others, (2006) 7 SCC 651.  It is further  

contended that departmental proceedings though initiated in 1987,  

the  same  could  not  be  completed  before  the  respondent  retired  

from service on attaining the age of superannuation in view of non-

cooperation of the respondent and, if any body has to be blamed, it  

is the respondent and not the employer for the delay in completing  

the proceedings.  

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12) The learned counsel Shri D.N. Ray, appearing for the respondent  

justifies the judgment of the High Court.  

13) Two  issues  would  arise  for  our  consideration  and  consequent  

decision.  They are :-

(i) Whether the employer could continue with the departmental  

enquiry  proceedings  initiated  prior  to  the  retirement  of  

government  servant  by  virtue  of  Rule  10(1)  of  the  West  

Bengal  Services  (Death-cum-Retirement  Benefit)  Rules,  

1971?

(ii) Whether  the  delay  in  completing  the  domestic  enquiry  

proceedings would be fatal to the proceedings?  

14) To  answer  the  first  issue  which  we  have  framed  for  our  

consideration, Rule 10(1) of the Rules, 1971, requires to be noticed  

and, therefore, it is extracted :-

“10.  Right  of  the  Governor  to  withhold  pension  in  certain cases.—(1) The Governor reserves to himself the  right of withholding of withdrawing a pension or any part  of it whether permanently or for a specified period, and  the right of ordering the recovery from a pension of the  whole  or  part  of  any  pecuniary  loss  caused  to  the  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  re-employment  after retirement:

Provided that—

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(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 article 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,  whether  before  his  retirement or during his re-employment—

(i) shall not be instituted save with the sanction of the  Governor;

(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 Governor may direct and in accordance with  the procedure applicable to 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 a cause of action which arose on an event which took  place more than four years before such institution; and

(d) the Public Service Commission, West Bengal, shall  be consulted before final orders are passed.

Explanation.—For the purpose of this article—

(a)  a  departmental  proceeding shall  be deemed to  have been instituted on the date on which the statement  of charges is issued to the officer or pensioner, or if the  officer has been placed under suspension from an earlier  date, on such date; and

(b)  a  judicial  proceeding  shall  be  deemed  to  have  been instituted—

(i) in the case of criminal proceeding, on the date on  which the complaint or report of police officer, on which  the Magistrate takes cognizance, is made, and

(ii) in the case of a civil proceeding, on the date on  which the plaint is presented or, as the case may be, an  application is made to a civil court.”

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15) Rule 10 of the rules speaks of the right of the Governor to withhold  

pension in certain cases.  Sub-Rule 10(1) says that the Governor  

reserves himself the right of withholding or withdrawing pension  

or any part of it whether permanently or for a specified period and  

the right of ordering the recovery from pension or the whole or the  

part  of  any  pecuniary  loss  caused  to  the  government,  if  the  

pensioner  is  found in  a  departmental  or  judicial  proceedings  to  

have  been guilty  of  grave  misconduct  or  negligence  during  the  

period  of  service,  including  service  rendered  on  re-employment  

after  retirement.   Proviso  appended  to  the  rules  specifically  

provides that the resort to sub-Rule (1) to Rule 10 can be made  

only apart from others, that the departmental proceedings had been  

instituted  while  the  officer  in  service.   This  rule  came  up  for  

interpretation  before  this  court  in  Haresh  C.  Banerjee’s  case  

(supra)  and this  court  after  considering  the  object,  purpose  and  

purport of the rule has stated :  

“7. Various State rules or regulations vest power of  withholding or reduction of pension on compliance with  the  principles  of  natural  justice.  The  question  of  an  order withholding or reducing pension being invalid and  bad in law on a legally permissible ground is one thing  but to hold the rule  ultra vires is another. In  State of  U.P. v. Brahm Datt Sharma2 this Court observed that if  the  Government  incurs  pecuniary  loss  on  account  of  

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misconduct or negligence of a government servant and  if  he  retires  from  service  before  any  departmental  proceedings  are taken against  him,  it  is  open to  the  State Government to initiate departmental proceedings,  and  if  in  those  proceedings,  he  is  found  guilty  of  misconduct,  negligence  or  any  other  such  act  or  omission as a result of which the Government is put to  pecuniary  loss,  the  State  Government  is  entitled  to  withhold, reduce or recover the loss suffered by it by  forfeiture or reduction of pension. In State of Punjab v.  K.R. Erry3 it was held that the State Government could  not  direct  cut  in  pension  of  officers  without  giving  a  reasonable  opportunity  of  hearing.  In  State  of  Maharashtra v.  M.H. Mazumdar4 it  was observed that  the  State  Government’s  power  to  reduce  or  withhold  pension  by  taking  proceedings  against  a  government  servant,  even  after  his  retirement  is  expressly  preserved by the Rules.

8. Rule 10(1) is the authority of law under which the  pension  could  be  withheld  on  compliance  with  stipulations  of  the  rule.  We are  unable  to  appreciate  how such a rule could be held ultra vires even at a point  of time when pension was a property to which Article  19(1)(f) was applicable.”

16) In the present case, while the delinquent employee was in service,  

the departmental enquiry proceedings had been instituted by the  

employer by issuing the charge memo and the proceedings could  

not  be  completed  before  the  government  servant  retired  from  

service on attaining the age of superannuation  and in view of Rule  

10(1)  of  the  Rules,  1971,  the  employer  can  proceed  with  the  

departmental enquiry proceedings though the government servant  

has  retired  from  service  for  imposing  only  punishment  

contemplated under the Rules.  

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17) The next issue is with regard to delay in concluding disciplinary  

proceedings.  In our view that the delay in concluding the domestic  

enquiry proceedings is not fatal to the proceedings.  It depends on  

the  facts  and  circumstances  of  each  case.   The  un-explained  

protracted delay on the part of the employer may be one of the  

circumstance in not permitting the employer to continue with the  

disciplinary enquiry proceedings. At the same time, if the delay is  

explained satisfactorily then the proceedings should be permitted  

to  continue.   This  court  in  the  case  of  Deputy  Registrar,  Co-

operative Societies vs. Sachindra Nath Pandey, (1995) 3 SCC 134,  

has  explained  the  various  circumstances  when  the  departmental  

proceedings can be directed to be closed, it is worthwhile to refer  

to the observation made by this court in this regard :-

“5. The learned counsel for the appellant submits that  in this case the first respondent adopted a course of total  non-cooperation and procrastination and that in spite of  repeated opportunities being given he did not respond or  participate  in  the inquiry.  The first  respondent  did  not  even care to file an explanation or reply to the memo of  charges.  In  the  circumstances,  the  authorities  had  no  option  but  to  hold  that  the  charges  are  proved.  Even  after the report of the Inquiry Officer was submitted, a  number of opportunities were given which he again failed  to avail of. It is submitted that though the whole history  of the case has been set out in the counter-affidavit filed  in the High Court, the learned Judge did not notice any of  those  facts  and  yet  allowed  the  writ  petition  on  an  untenable ground. It is further contended that according  to  Regulation  68  of  the  Cooperative  Federal  Authority  (Business) Regulations, 1976, it was not obligatory upon  

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the  Inquiry  Officer  to  record  the  evidence  of  the  witnesses where the first respondent did neither submit a  reply nor an explanation to the memo of charges. Though  he was apprised of the inquiry, he did not care to attend  in spite of repeated opportunities. In such a situation, he  cannot  complain  of  not  recording  the  evidence  of  witnesses and other evidence.”

18) In the present case the Administrative Tribunal after going through  

the entire  record from the date  of  initiation of  the departmental  

proceedings till the government employee retired from service on  

attaining the age of  superannuation,  has observed that  since the  

government  employee  had  left  the  head  quarters  without  

permission of the competent  authority, so the proceedings could  

not be completed.  This finding on facts need not be disturbed by  

us, since the said finding cannot be said a perverse finding.  

19) In view of the above discussion,  the appeal is allowed  and the  

judgment and the order passed by the High Court is set aside. The  

disciplinary authority is directed to complete the domestic enquiry  

proceedings from the stage it was interdicted by the High Court  

and complete the same as expeditiously as possible and at any rate  

within three months from the date of receipt of this court’s order.  

The  respondent  herein  is  directed  to  participate  in  the  enquiry  

without  unnecessarily  seeking  adjournment  in  the  enquiry  

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proceedings.  In the facts and circumstances of the case,  parties  

are directed to bear their own costs.  Ordered accordingly.

                                                                                     …………………………………J.                                                                                        [ TARUN CHATTERJEE ]

                                                                                     …………………………………J.                                                                                        [ H.L. DATTU ]

New Delhi, May 08, 2009.

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