RATHIN GHOSH versus WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY LTD. & ORS. on 29 July 2019

[2019] 9 S.C.R. 1175

RATHIN GHOSH

v.

WEST BENGAL STATE ELECTRICITY DISTRIBUTIONCOMPANY LTD. & ORS.

(Civil Appeal No.5633 of 2019)

JULY 29, 2019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Service Law – West Bengal State Electricity Board Employees’Service Regulations – Regns. 61 and 62– Appellant wasSuperintending Engineer in the respondent-Company – On09.01.2008, tender was issued by the Company for procurement of10 lakh meters – Various bids received by the Company on08.02.2008 –On 26.03.2008, the appellant received personalinvitation from an organization to attend a presentation organisedin New Delhi – Bids were opened and the successful bidder wasdeclared – Appellant got his to and fro air tickets booked from thetravel agents of the successful bidder – Disciplinary proceedingsinitiated against the appellant – Appellant was dismissed fromservice – Challenged – Dismissed – Writ Petition filed by theappellant – Allowed – Appeal before the Division Bench – Allowed– Held: Charges against the appellant were twofold (i) attendingthe seminar without any permission from higher authorities (ii)availing the hospitality of the successful bidder, as appellant’s airfare was borne by them, while he was officially dealing with them inthe pending tender process – Appellant attended the presentationon 17.04.2008 with prior information to his superior officer – Casualleave application of the appellant having been sanctioned by hissuperior officer by order dated 24.04.2008, ex post facto, the stingof first charge goes away – Further, there is no material on recordshowing that the successful bidder made any payment for theappellant’s air tickets – It was the appellant who made the paymentof Rs.12,350/- against the bill raised by the travel agent – Moneyreceipt was filed in the proceedings, which was not disbelieved –Also, the tender in question was ultimately cancelled, hence it is nota case of any benefit obtained from the successful bidder out of thetender –Further, imposition of punishment of withholding of pension

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Ain proceedings under Service Regulations are illegal and withoutjurisdiction, as for withholding of pension, there has to be separateproceeding under the 1985 Regulations – Punishment imposed inthe present case is disproportionate to the charge, shocking theconscience of the Court – Dismissal order set aside – Appellant’sresignation letter dated 13.05.2008 be treated as voluntary retirementB– Appellant entitled to all benefits accruing to him on retirement ason that date – Further directions issued – West Bengal StateElectricity Board Employees’(Death-Cum-Retirement Benefit)Regulations, 1985 – Regns. 11-A and 6(i).

Service Law – Disciplinary proceedings – Interference byCCourt – Scope of – Discussed.

Allowing the appeal, the Court

Conclusion

HELD: l.1 The casual leave application for 17.04.2008having been sanctioned by Additional Chief Engineering (Distt.DTesting) by order dated 24.04.2008 ex post facto, the sting ofcharge goes away. Further, it is on the record that the appellanthad informed his superior, Additional Chief Engineer (Distt.Testing) on 16.04.2008 itself about his programme to attend thepresentation at New Delhi. The Additional Chief Engineer (Distt.Testing) was produced by employer as PW4 in support of theEcharges, who in his statement has clearly mentioned about theinvitation by the appellant having been placed before him andappellant having intimated in the evening of 16[th] April, 2008 priorto leaving for New Delhi that he was going to New Delhi forattending the meeting. It is further stated by the witness that theFappellant informed him regarding his intention to attend themeeting on 17.04.2008. Thus, the appellant attended thepresentation at New Delhi with the prior information to hissuperior officer and also shown his invitation. The invitation wasnot any official invitation but was in the personal name of theappellant. Even if it is assumed that appellant was required toGobtain prior written permission from the Company to go to attendthe meeting, he having informed his superior officer in advancebefore going to attend the presentation, the charge of any suchmisconduct is not made out, which may warrant extremepunishment of dismissal. ‘M/s. SM’ has not made any paymentHfor the air tickets nor is there any material on the record to show that such payment was made. The appellant has made the paymenton 28.04.2008 for an amount of Rs.12,350/- against the bill raisedby the Travel Agency dated 18.04.2008, money receipt dated28.04.2008 was filed in the proceedings, which has not beendisbelieved, thus, it was the appellant, who made the paymentfor the journey from Delhi-Calcutta and Calcutta-Delhi. InquiryOfficer was not right in his conclusion that getting ticket bookedthrough the Travel Agent by ‘M/s. SM’ is equivalent to borrowingmoney by the appellant from ‘M/s. SM’. The conclusion of theInquiry Officer is perverse and not supported by the material onrecord. [Paras 14-16] [1186-F-H; 1187-A-H; 1188-A]

1.2 Insofar as the appellant’s role in providing for technicalspecifications for tender and his role in selection of ‘M/s. SM’ inacceptance of technical bid or in decision regarding acceptanceof tenders, the appellant had no role to play. PW4, the AdditionalChief Engineer (Distt. Testing), who was produced on behalf ofthe employer in support of the charges, himself in his statementhas clearly stated about the role of the appellant. The statementof PW4, who was produced on behalf of the employer, clearlyindicates that the appellant was neither a member of thecommittee nor he was present during the discussion of the corecommittee, 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 havinggot any kind of benefit from ‘M/s. SM’ in any manner wasproduced. The tender specification by specification notice NO.P-28/2007-08 was ultimately cancelled, hence it is not a case ofany benefit obtained from ‘M/s. SM’ out of the tenders. [Paras17, 18] [1188-B-C; 1188-G-H; 1189-A-C]

1.3 Disciplinary authority has exclusive power to imposeappropriate punishment keeping in view the magnitude andgravity of misconduct. The punishment to be imposed on adelinquent employee has to be proportionate to the charge andin event punishment is disproportionate, the delinquent has tobe held to be given discriminatory treatment violating Article14. The High Court and Supreme Court can interfere with thepunishment imposed by the disciplinary authority when it shocksconscience of the Court. The present is a case where the A

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Apunishment is so disproportionate to the charge that it clearlyshocks the conscience of the Court. The charges which wereheld to be proved were not any such charges on which punishmentof dismissal could have been imposed. Further, when the paymentof air ticket which was got prepared by Travel Agent of ‘M/s.SM’ was ultimately made by the appellant, which was notBdisbelieved in the proceedings and no other material or evidenceextending any benefit to ‘M/s. SM’ were on the record, therewas no occasion of awarding extreme punishment. [Para 20][1189-G-H; 1190-A-C]

1.4 Regulation 62 does not contain any punishment ofCpermanent withholding of pension for life time or forfeiture ofgratuity. In the proceedings drawn against the appellant underWest Bengal State Electricity Board Employees’ ServiceRegulations, which have been adopted by the Company, nopunishment could have been awarded as permanent withholding Dof pension for life time or forfeiture of gratuity. Single Judge hasdealt with the issue and rightly concluded that the disciplinaryauthority committed jurisdictional error in imposing the abovepunishments. The Division Bench in the impugned judgment hassought to justify the punishment of withholding the pension andforfeiture of gratuity by referring to West Bengal State ElectricityEBoard Employees’(Death-Cum-Retirement Benefit) Regulations,1985 (hereinafter referred to as “Regulations, 1985”, whichcontain provisions as Regulation 11A dealing with withholding ofpension. The Board has right to withhold pension in certain cases in the circumstances as mentioned in Regulation 11A(2). TheFpre-condition for withholding pension as enumerated inRegulation 11A(2):- “…if the pensioner is found in a departmentalor judicial proceeding to have been guilty of grave misconduct ornegligence during the period of his service…”. The scheme ofthe Regulation indicates that the power to withhold the pensionhas to be exercised when proceedings are drawn underGRegulations, 1985. Further, what is contemplated is withholdingof pension of pensioner, which power has to be exercised qua apensioner, the appellant having never retired from service norwas a pensioner, there was no occasion for exercising of powerunder Regulation 11A of Regulations, 1985. Even for argument,Hit is assumed if before retirement of a person power under

Regulation 11A can be exercised, there has to be separateproceeding under Regulations, 1985 for withholding of pensionwith notice under Regulations, 1985 for proposed action. Presentis a case where disciplinary authority has drawn proceeding againstthe appellant under the West Bengal State Electricity BoardEmployees’ Service Regulations and not any proceeding is drawnunder Regulations, 1985. The imposition of punishment ofwithholding of pension while in proceeding under WBSEBESRegulations are illegal and without jurisdiction. The order passedby the disciplinary authority, thus, suffered from the abovejurisdictional error. The judgment of the Division Bench is notsustainable. The judgment of the Single Judge is upheld to theextent it has set aside the dismissal order. The appellant hasalready submitted his resignation on 13.05.2008, which was notaccepted by the respondent. As recorded in the order dated09.10.2018, Supreme Court proposed that the resignation letterbe treated as a voluntary retirement and the appellant be entitledto all benefits accruing to him on retirement as on that date. Theends of justice be served in setting aside the dismissal order bydirecting that resignation letter of the appellant be treated asvoluntary retirement with further direction to treat the appellantas voluntarily retired on that date and to compute all benefitsaccruing to the appellant including gratuity and pension asadmissible on that date. The respondents to compute the entirebenefits of the appellant and make the payment within a period oftwo months from today. In event, the payment is not made withintwo months of this order, such payment shall carry interest at therate of 6% per annum. [Paras 23-27] [1191-D-H; 1192-A-H; 1193-A-H; 1194-A-D]

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

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

– relied on.

Case Law Reference

[1995] 4 Suppl. SCR 644 relied onPara 1 9

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5633of 2019

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AFrom the Judgment and Order dated 20.09.2017 of the High Courtat Calcutta in FMA No. 3536 of 2015

Shyam Divan, Sr. Adv., Udayaditya Banerjee, SwarnenduChatterjee, Advs. for the Appellant.

Yasobant Das, Sr. Adv., Saurabh Mishra, Abhishek Singh,Ms. Samridhi Pal, Ms. Aashna Bhatia, Onkar Singh, Arun Verma,Advs. for the Respondents.

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The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

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1. This appeal has been filed challenging the judgment of theCalcutta High Court dated 20.09.2017 allowing the writ appeal filed bythe respondent. The respondent has filed appeal before the DivisionBench of the Calcutta High Court questioning the judgment of learnedSingle Judge passed in Writ Petition No.2712(W) of 2010 – Rathin GhoshDvs. West Bengal State Electricity Distribution Company Limited, wherebythe writ petition was allowed setting aside the dismissal order of theappellant with all consequential benefits.

2. The appellant was appointed as Graduate Engineer (Training)in the year 1985 in the West Bengal State Electricity Board, whichsubsequently was restructured and reorganized to form the West BengalEState Electricity Distribution Company Ltd. (hereinafter referred to as‘Company’). The appellant on account of his work and conduct waspromoted to different posts and in the year 2007, he was holding the postof Superintending Engineer. In February, 2007 he was asked to preparea draft specification of single-phase static meters. The draft specificationFsubmitted by the appellant was approved by the competent authority,which technical specifications were to be provided to all bidders andwas an open document. Tender No.P-2/2007-08/(P-II) was publishedfor purchase of 20 lakh meters which tender was cancelled for technicalreasons. Fresh specifications drafted by Advisor (Security and Vigilance)and settled by Additional Chief Engineer (District Testing) was approvedGby all Technical Directors of the Board of Directors and the Chairman-cum-Managing Director. The Tender No.P-28/2007-08 was issued bythe Company for procurement of 10 lakh meters on 09.01.2008. Nineteenbids along with their respective sample meters were received by theCompany on 08.02.2008. The samples of the meters were sent to the H

Additional Chief Engineer (Testing) for evaluation. On 13.03.2008 thesaid meters were tested by a team of officers and technicians whichincluded the appellant. On 26.03.2008, the appellant received the personalinvitation from an organization IEEMA to attend a presentation organisedin New Delhi. On testing of sample meters by the team of officers, onlyfour bidders were found technically qualified which also included onebidder-M/s. Secure Meters. The Chairman of the Company on31.03.2008 approved the opening of the price bids of the three technicallysuitable bidders, bids were opened and M/s. Secure Meters was declaredthe successful bidder to the highest rate. Other two bidders were alsosuccessful 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 Delhito attend IEEMA’s Conference. The appellant got his Air Tickets bookedfrom Globe Travel Agents, who were the travel agents of M/s. SecureMeters for to and fro visit to Delhi. On 17.04.2008, the appellant attendedthe IEEMA Conference at New Delhi and returned on 17.04.2008 toCalcutta itself. On 18.04.2008, the Globe Travel Agency raised an invoiceof Rs. 12,350/- for the return air ticket of the appellant upon M/s. SecureMeters as the booking was done through them. On 24.04.2008, on anenquiry by the Corporate Vigilance Department of the Company to GlobeTravel Agency about the appellant’s ticket, which informed that thepayment towards the aforesaid invoice was still due. On 28.04.2008, theappellant paid the entire amount of Rs.12,350/- to M/s. Secure Metersfor payment of the aforesaid invoice raised by Globe Travel Agency. On29.04.2008, the respondent-Company suspended the appellant andinitiated disciplinary proceedings. The appellant was suspended alleginggross misconduct tarnishing the image of the Company.

3. The appellant, who had 22 years unblemished service to hiscredit, felt hurt by the act of the Company suspending him. The appellanton 13.05.2008 submitted his resignation to the Company. The appellantin his resignation letter mentioned that his order of suspension is an actof vengeance instigated by the parties whose personal agenda had beendisturbed by his honest intentions. The appellant also expressed hiswillingness to pay the Company three months salary in lieu of notice. Acharge-sheet dated 28.05.2008 was submitted. The charge-sheet wasserved on the appellant on 28.05.2008 for proposed enquiry to be heldunder Regulations 61 and 63 of WBSEB Employees’ Service AB

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[2019] 9 S.C.R.

ARegulations. The appellant submitted his reply. The charge-sheet alsolisted several documentary evidences including invitation from IEEMAdated 17.04.2008, the attendance sheet of participants in the presentationheld on 17.04.2008 at New Delhi.

4. The charge-sheet also enlisted the list of witnesses who wereBproposed to be examined in support of the charge-sheet. On 10.06.2008,the appellant received communication that his resignation had not beenaccepted due to the non-completion of the disciplinary proceedings. On20.06.2008, the appellant submitted a detailed reply to show-cause. Thereply did not find favour with the Company and disciplinary enquiry wasinitiated. Witnesses were cross-examined by the appellant. Inquiry OfficerCsubmitted his findings on 26.12.2008. The findings were forwarded tothe appellant by letter dated 30.12.2008 by the respondent. The InquiryReport found charges proved against the appellant. The appellantsubmitted his representation on 24.01.2009 to the findings in the enquiry.The Company issued a second show-cause notice dated 28.03.2009.

DSecond show-cause notice was issued to the appellant which alsomentioned the proposed punishment of dismissal from service, permanentwithholding 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 theappellant. The disciplinary authority passed an order on 02.06.2009 byEwhich following punishments were awarded:

“I have considered the gravity of the misconduct and thecircumstances under which the misconduct was committed.Considering all aspects in open mind including the past servicerecords, I finally impose the following punishment upon Sri RathinFGhosh, Superintending Engineer (E) (under suspension):- “(i) Dismissal from service.

(ii) Permanent withholding of pension forlifetime.

G(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 anythingbeyond the subsistence allowances payable to him during theperiod of suspension.

This order takes immediate effect.”H

5. The appeal filed by the appellant against the order of punishmentwas also dismissed. It was communicated to the appellant on 10.11.2009.Aggrieved against the punishment order as well as order dismissing theappeal Writ Petition No.2712(W) of 2010 was filed by the appellant.The writ petition was heard by the learned Single Judge and by judgmentdated 29.06.2015 learned Single Judge allowed the writ petition byfollowing order:

“For the reasons discussed above, the entire disciplinary proceedingincluding the order of suspension dated 29[th] April, 2008, the chargesheet dated 25[th] May, 2008, the enquiry report dated 26[th]December, 2008, the order of punishment dated 2[nd] June, 2009and the appellate authority order dated 10[th] November, 2009 areset aside and quashed. The respondents are directed to reinstatethe petitioner within 6 weeks from the date of communication ofthis order and to start payment of the petitioner’s monthly salariesand other allowances, month by month.

The respondents are also directed to treat the petitioner in servicewithout any break as if no order of dismissal was ever issued tothe petitioner. The petitioner will also be entitled to receive fullback wages for the period he was not paid the salaries in view ofissuance of the order of dismissal which has been quashed in thewrit application. The respondents are further directed to calculatethe back wages payable to the petitioner in terms of this orderand to disburse the same through 4 equal monthly instalments, thefirst of which should be paid within a period of 6 weeks from thedate of communication of this order.

With such observations and directions, the writ application isdisposed of.”

With such observations and directions, the writ application isdisposed of.”

6. The respondent aggrieved by the judgment of learned SingleJudge has filed the appeal before the Division Bench of the CalcuttaHigh Court. The Division Bench by its judgment dated 20.09.2017 allowedthe appeal and set aside the judgment of the learned Single Judge.Aggrieved by the judgment of the Division Bench, this appeal has beenfiled by the appellant.

7. Notice was issued by this Court on 24.11.2017. The respondentappeared and the matter was heard by this Court on 09.10.2018. ThisCourt on 09.10.2008 passed following order:

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A“Learned counsel for the petitioner had submitted a letter ofresignation on 13.05.2008.

By way of settlement, it is proposed that the resignation letterbe treated as a voluntary retirement and the petitioner will beentitled to all benefits accruing to him on retirement as on thatBdate.

This will also necessarily mean that the departmentalproceedings against the petitioner initiated by the respondents willstand quashed without going into the merits of the case.

Learned counsel for the petitioner says that this is acceptableCto him. However, learned counsel for the respondent says that hewould 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,Dlearned counsel for the respondents submitted that the proposal recordedin the order of this Court on 09.10.2018 is not acceptable to therespondents and the matter be heard on merits. Consequently, the appealwas heard on 16.07.2019.

9. Before we notice the submissions of the learned counsel forthe parties, it is necessary to notice the substance of charges, whichEwere levelled against the appellant. The Division Bench of the HighCourt in the impugned judgment has itself noticed twofold charges in thefollowing words:

“23 The charges against the delinquent employee were two foldsi.e. (i) he gave a presentation in the seminar on 17.04.2008 atFNew Delhi hosted by IEEMA without having any permission fromhis higher authority (ii) he availed the hospitality of SML as his airfare from Kolkata to New Delhi on 16[th] April, 2008 and returnjourney from New Delhi to Kolkata on 17[th] April, 2008 was borneby SML when he was officially dealing with SML in the tenderGprocess, which was pending finalization for placement of ordersto the successful company of suppliers. He thus placed himselfunder pecuniary obligation under SML.”

10. Shri Shyam Divan, learned senior counsel assisted by ShriUdayaditya Banerjee, learned counsel for the appellant contends that H

the appellant had unblemished service of 22 years and the charges whichwere levelled against the appellant were not correct. Learned counselfor the appellant submits that with regard to Charge No.1 of his attendinga presentation at New Delhi invited by IEEMA, he had already informedhis immediate superior Officer before leaving for Delhi with regard tohis absence on 17.04.2008. His application for casual leave was alsoallowed on 24.04.2008. Hence, no misconduct was committed by theappellant inviting any punishment. With regard to charge No.2, learnedcounsel submits that with regard to tender Notice No.P-28/2007-08(PC-II) the appellant was merely involved in preparation of specificationsand the technical report was submitted by the Additional ChiefEngineer(Distt. Testing), which was sent to separate committeecomprising higher official to take decision. The appellant was neither amember of the core committee nor he was present during the discussionof core committee where decision was taken. Neither there is anyallegation nor any kind of benefit or favour has been accepted by theappellant from M/s. Secure Meters nor the appellant has caused anyloss to the Company. Tender Notice No.P-28/2007-08 was subsequentlycancelled. Insofar as booking of air tickets by Globe Travel Agency isconcerned, no payment of bill was paid by M/s. Secure Meters ratherpayment was made by the appellant of the bill amount of Rs.12,345/- toM/s. Secure Meters, receipt of which was filed during the inquiry. TheInquiry Officer without adverting to relevant aspects proceeded andsubmitted the report in premeditated manner and proceeded to holdcharges proved. The appellant in his representation against the findingsof the Inquiry Officer has given all facts and material to prove thatfindings are perverse but disciplinary authority without adverting to thosematerial and facts held the charges proved. In any view of the matter,charge of attending IEEMA presentation on 17.04.2018 without previouspermission of employer was not such a charge on which punishment ofdismissal could have been awarded. Further, insofar as air tickets obtainedfrom Travel Agent of M/s. Secure Meters are concerned, the paymentof air tickets was never made by M/s. Secure Meters but was made bythe appellant, receipt of which was filed in the inquiry proceedings whichhaving not been disbelieved, there is no other material or evidence ofany kind of obtaining pecuniary benefit from M/s. Secure Meters by theappellant. Further, there being no material or charge for any kind offavour or benefit extended by the appellant to M/s. Secure Meters, presentwas not a case of awarding punishment of dismissal. Awarding A

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Apunishment of dismissal of the appellant is disproportionate and deservesto be set aside. It is further submitted that punishment of permanentwithholding of pension for life time and forfeiture of entire gratuity bythe order of the disciplinary authority is without jurisdiction, whichpunishment could not have been imposed in the disciplinary proceedingswhich were initiated under the West Bengal State Electricity BoardBEmployees’ Service Regulations adopted by WBSBCL.

11. Shri Yasobant Das, learned senior counsel, appearing for therespondent refuting the submissions of the appellant contends that thecharges having been proved in the inquiry proceedings, learned SingleJudge committed error in interfering with the punishment. The appellantChad official dealing with M/s. Secure Meters and it was not expectedfrom such officer in obtaining any benefit from such bidder, the appellantobtained air tickets from M/s. Secure Meters and utilized its hospitality,which is a misconduct inviting punishment under Service Rules andService Regulations.D

12. Learned counsel for the respondents has supported theimpugned judgment of the Division bench of Calcutta High Court. It isfurther submitted that Company has lost confidence in the appellant andthe direction of the learned Single Judge to reinstate the appellant withback wages was uncalled for. It is submitted that Company cannotEreinstate a person who has lost confidence of the Company.

13. We have considered submissions of the learned counsel forthe parties and perused the records.

14. The substance of the charges against the appellant as noted inthe impugned judgment dated 20.09.2017 and extracted above wereFtwofold. Insofar as charge of attending the seminar on 17.04.2008 withouthaving any permission from higher authorities, suffice it to say that thecasual leave application for 17.04.2008 having been sanctioned byAdditional Chief Engineering (Distt. Testing) by order dated 24.04.2008ex post facto the sting of charge goes away. Further, it is on the recordGthat the appellant had informed his superior, Additional Chief Engineer(Distt. Testing) on 16.04.2008 itself about his programme to attend thepresentation at New Delhi. The Additional Chief Engineer (Distt. Testing),Shri Subrata Kumar Das was produced by employer as PW.4 in supportof the charges, who in his statement has clearly mentioned about theinvitation by the appellant having been placed before him and appellant H

having intimated in the evening of 16[th] April, 2008 prior to leaving forNew Delhi that he was going to New Delhi for attending the meeting. Itis further stated by the witness that the appellant informed him regardinghis intention to attend the meeting on 17.04.2008. Following was statedby PW4 in his cross-examination:

“The CO had shown me the letter (Ex.13) received from IEEMAby himself. Sri Ghosh, CO informed me regarding his intention toattend meeting on 17.04.2008. The CO had intimated me on16.04.2008 in the evening prior to leaving New Delhi that he wasgoing to New Delhi for attending the said meeting I neverrestrained or forbidden the CO from going to New Delhi.”

15. Thus, the appellant attended the presentation at New Delhiwith the prior information to his superior officer and also shown hisinvitation. The presentation organized by IEEMA was a programmeorganised by a private organisation on the subject of presentation MIOS(Meter Inter Operative System), which subject was relevant andbeneficial to all who were concerned with the subject. The invitationwas not any official invitation but was in the personal name of theappellant. The appellant has never been nominated nor has been sent bythe Co. for the presentation. Even if it is assumed that appellant wasrequired to obtain prior written permission from the Company to go toattend the meeting, he having informed his superior officer in advancebefore going to attend the presentation, the charge of any such misconductis not made out, which may warrant extreme punishment of dismissal.

16. Now, coming to the second charge as noted above i.e. appellantavailed the hospitality of M/s. Secure Meters as his air-fare from Calcuttato Delhi on 16.04.2008 and return journey on 17.04.2008 was paid byM/s. Secure Meters when he was officially dealing with M/s. SecureMeters, one of the tenderers. Suffice it to say that M/s. Secure Metershas not made any payment for the air tickets nor is there any material onthe record to show that such payment was made. The appellant hasmade the payment on 28.04.2008 for an amount of Rs.12,350/- againstthe bill raised by the Travel Agency dated 18.04.2008, money receiptdated 28.04.2008 was filed in the proceedings, which has not beendisbelieved, thus, it was the appellant, who made the payment for thejourney from Delhi-Calcutta and Calcutta-Delhi. Inquiry Officer wasnot right in his conclusion that getting ticket booked through the TravelAgent by M/s. Secure Meters is equivalent to borrowing money by the A

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Aappellant from M/s. Secure Meters. The conclusion of the Inquiry Officeris perverse and not supported by the material on record.

17. It is further relevant to notice that insofar as the appellant’srole in providing for technical specifications for tender and his role inselection of M/s. Secure Meters in acceptance of technical bid or inBdecision regarding acceptance of tenders, the appellant had no role toplay. PW4, the Additional Chief Engineer (Distt. Testing), who wasproduced on behalf of the employer in support of the charges, himself inhis statement has clearly stated about the role of the appellant. In theabove reference with regard to notice No.P-28/2007-08 and its details,following statement was made by PW4:

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“Tenders specifications vide Notice No.P-28/2007-08 (P-II) wasactually prepared by the Advisor(S&V) and finally settled by theAdviser (S&V) and myself. Sri.P.Biswas, SE and Sri Ghosh, COassited me in the process. The specification, which was referredabove, was presented by the Adviser (S&V) in a meeting whereall the Technical Directors were present. The Chairman andmyself were also present there. Sri Ghosh, CO was not present inthat meeting. I formed a team of engineers and technicians to testthe sample meters submitted by the bidders. The testing reportsas in Ext.7A, Ext.7B, Ext.7C respectively were prepared in anapproved format of the Company. The meter testing was madeas per pre-scheduled date and representative from S&LP Wingand other interested bidders were allowed to witness the testing.In the instant case the engineers of the S&LP Wing were presentduring testing. I have not received any complaint from any biddersregarding the testing of meters so far I remember. After completionof the testing by the respective officers and technical to whom itwas allotted, I personally made certain sample checking and beingfully satisfied I submitted technical evaluation report in this regard.After I send the technical evaluation report a separate corecommittee comprising higher officials take decision towards theacceptance of the technical evaluation report. The CO was neithera member of the core committee nor he was present during thediscussion of the core committee.”

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18. The above statement of PW4, who was produced on behalfof the employer, clearly indicates that the appellant was neither a memberHof 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 clearlystated that specification was prepared by the Adviser (S&V) and finallydecided 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 appellanthaving got any kind of benefit from M/s. Secure Meters in any mannerwas produced. The tender specification by specification notice NO. P-28/2007-08 was ultimately cancelled, hence it is not a case of any benefitobtained from M/s. Secure Meters out of the tenders. The immediateofficer under whom appellant was working himself spoke about the tenderand further spoke that:- “….I can depose that the CO never lacking inhis sincerity and integrity towards his work.”

19. We are conscious of the scope of judicial review by the Highcourt and this Court in reference to disciplinary proceedings. A threeJudge Bench of this Court in B.C. Chaturvedi vs. Union of India andothers, (1995) 6 SCC 749, in paragraph 18 has laid down parametersof judicial review in the disciplinary proceedings to the following effect:

“18. A review of the above legal position would establish that thedisciplinary authority, and on appeal the appellate authority, beingfact-finding authorities have exclusive power to consider theevidence with a view to maintain discipline. They are investedwith the discretion to impose appropriate punishment keeping inview the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannotnormally substitute its own conclusion on penalty and impose someother penalty. If the punishment imposed by the disciplinaryauthority or the appellate authority shocks the conscience of theHigh Court/Tribunal, it would appropriately mould the relief, eitherdirecting the disciplinary/appellate authority to reconsider thepenalty imposed, or to shorten the litigation, it may itself, inexceptional and rare cases, impose appropriate punishment withcogent reasons in support thereof.”

20. There cannot be any dispute to the proposition that disciplinaryauthority has exclusive power to impose appropriate punishment keepingin view the magnitude and gravity of misconduct. The punishment to beimposed on a delinquent employee has to be proportionate to the chargeand in event punishment is disproportionate, the delinquent has to be A

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Aheld to be given discriminatory treatment violating Article 14. The testas has been approved by this Court is that the High Court and this Courtcan interfere with the punishment imposed by the disciplinary authoritywhen it shocks conscience of the Court. The present is a case wherethe punishment is so disproportionate to the charge that it clearly shocksthe conscience of the Court. The charges which were held to be provedBwere not any such charges on which punishment of dismissal could havebeen imposed. Further, when the payment of air ticket which was gotprepared by Travel Agent of M/s. Secure Meters was ultimately madeby the appellant, which was not disbelieved in the proceedings and noother material or evidence extending any benefit to M/s. Secure MetersCwere on the record, there was no occasion of awarding extremepunishment.

21. Another aspect, which needs to be noticed is that disciplinaryauthority while imposing the punishment of dismissal from service hasalso awarded (a) permanently withhold of pension for life time; (b)Dforfeiture of his entire gratuity. The proceedings were initiated againstthe appellant under Regulations 61 and 63 of WBSEB Employees’ ServiceRegulations, which is clear from following statement in the charge-sheet:

“The undersigned proposes to hold an enquiry under Regulation61 & 63 of WBSEB Employees’ Service Regulations sinceEadopted by WBSEDCL, against Sri Rathin Ghosh, SuperintendingEngineer (E) (Under suspension) attached to Distribution TestingDepartment.”

22. The West Bengal State Electricity Board Employees’ ServiceRegulations are on record. Regulation 61 deals with act of misconduct.FRegulation 62 which deals with punishment is as follows:

“Regulation 62. Without prejudice to the provisions of any law forthe time being in force, an employee who is found to be guilty ofany act of misconduct or of any breach of discipline is punishableas indicated below, according to the gravity of the breach orGmisconduct. The punishment will not only depend on the findingsin the case under review, but also on his record. The imposition ofpenalties may be ordered by the Secretary or by the respectiveappointing authorities or any other officers of the Boardempowered in this behalf.

(1) Censure

(2) Withholding of increment or Promotion

(3) Suspension

(4) Reduction to a lower post or time-scale or to a lower stagein the time-scale

(5) Recovery from pay of any sum as a measure of punishmentforming part of any pecuniary loss caused to the Board bywilful negligence or breach of orders

(6) Removal from service which does not debar futureemployment

(7) Dismissal from service which ordinarily debars futureemployment.”

23. It is relevant to notice that Regulation 62 does not contain anypunishment of permanent withholding of pension for life time or forfeitureof gratuity. In the proceedings drawn against the appellant under WestBengal State Electricity Board Employees’ Service Regulations, whichhave been adopted by the Company, no punishment could have beenawarded as permanent withholding of pension for life time or forfeitureof gratuity. Learned Single Judge has dealt with the issue and has rightlyconcluded that the disciplinary authority committed jurisdictional error inimposing the above punishments. The Division Bench in the impugnedjudgment has sought to justify the punishment of withholding the pensionand forfeiture of gratuity by referring to West Bengal State ElectricityBoard Employees’(Death-Cum-Retirement Benefit) Regulations, 1985(hereinafter referred to as “Regulations, 1985”, which contain provisionsas Regulation 11A dealing with withholding of pension. Pension has beendefined in Regulation 6(i) as: “Pension” except when the term pension isused in contradistinction to gratuity, includes gratuity. Regulation 11Awhich is relevant for the present case is as follows:

“11A : (1) The pension of an officer may be withheld in whole orin part under an order of the Board passed not later than threeyears after the date of retirement to meet any sum due under theliability incurred by such officer to the Board.

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A(2) Right of the Board to withhold pension in certain cases : TheBoard reserves to itself the right of withholding or withdrawingthe pension or any part of it whether permanently or for specifiedperiod and the right of ordering the recovery from a pension ofthe whole or part of any pecuniary loss caused to the Board, if thepensioner is found in a departmental or judicial proceeding to haveBbeen guilty of grave misconduct or negligence during the periodof his service, including service rendered on re-employment afterthe retirement : Provided that- A

(a) Such departmental proceeding if instituted while the officerwas in service whether before his retirement or during his re-employment shall after the final retirement of the officer be deemedto be a proceeding under this Regulation and shall be continuedand concluded by the authority by which it was commenced inthe same manner as if the officer had continued in service.

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(b) Such departmental proceedings, if not instituted while the officerDwas 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 morethan four years before such institution and E

(iii) Shall be conducted by such authority and in such place asthe Board may direct and in accordance with the procedureapplicable to the departmental proceedings in which an orderof dismissal from service could be made in relation to theofficer during his service; F

(c) No such judicial proceeding, if not instituted while the officerwas in service whether before his retirement or during his re-employment shall be instituted in respect of the cause of actionwhich arose or an event which took place more than four yearsbefore such institution.

G[Ref: Office Order No.4232 dtd.23.11.1987]

Provided further that the pension of an employee may be releasedin rarest of the rare cases by the Chairman of the Board evenduring pendency of the criminal proceedings against the employeewhere the Chairman of the Board is entirely satisfied that theHfollowing conditions are fulfilled:-

(i) There is a reasonable possibility of acquittal from all chargesleveled against the employee in the pending criminalproceedings.

(ii) The conduct of the employee during his tenure in servicewas otherwise satisfactory in all respects.

(iii) The criminal proceeding arises out of due discharge of theofficial 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 incertain cases in the circumstances as mentioned in Regulation 11A(2).The pre-condition for withholding pension as enumerated in Regulation11A(2):- “…if the pensioner is found in a departmental or judicialproceeding to have been guilty of grave misconduct or negligence duringthe period of his service…”

25. The scheme of the Regulation indicates that the power towithhold the pension has to be exercised when proceedings are drawnunder Regulations, 1985. Further, what is contemplated is withholding ofpension 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 ofRegulations, 1985. Even for argument, it is assumed if before retirementof a person power under Regulation 11A can be exercised, there has tobe separate proceeding under Regulations, 1985 for withholding ofpension with notice under Regulations, 1985 for proposed action. Presentis a case where disciplinary authority has drawn proceeding against theappellant 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 inproceeding under WBSEBES Regulations are illegal and withoutjurisdiction. The order passed by the disciplinary authority, thus, sufferedfrom the above jurisdictional error.

26. In view of the foregoing discussions, we are unable to sustainthe judgment of the Division Bench. We upheld the judgment of thelearned Single Judge to the extent it has set aside thedismissal order.

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A27. Now, we come to the question of relief which the appellantmay be entitled in the facts of the present case. As noticed above, theappellant has already submitted his resignation on 13.05.2008, whichwas not accepted by the respondent. As recorded in the order dated09.10.2018, this Court has proposed that the resignation letter be treatedas a voluntary retirement and the appellant be entitled to all benefitsBaccruing to him on retirement as on that date. We are of the view thatthe ends of justice be served in allowing this appeal setting aside thedismissal order by directing that resignation letter of the appellant dated13.05.2008 be treated as voluntary retirement with further direction totreat the appellant as voluntarily retired on that date and to compute allCbenefits accruing to the appellant including gratuity and pension asadmissible on that date. The respondents are directed to compute theentire benefits of the appellant and make the payment within a period oftwo months from today. In event, the payment is not made within twomonths of this order, such payment shall carry interest at the rate of 6%per annum. The appeal is allowed to the above extent.D

Divya Pandey

Appeal allowed.

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