STATE OF WEST BENGAL & ORS, Vs. ASWINI KUMAR MAHATO
SUPREME COURT OF INDIA
State Of West Bengal And Ors,
Aswini Kumar Mahato
Click here to view full judgement.
(1.) Leave granted in SLP (C) NO.5842/2011.
(2.) This order will dispose of Civil Appeal No.4689/2011 and the civil appeal arising out of SLP
Common question of law involved in both the
appeals is whether an order of cut in pension was
permissible after a person reached the age of
superannuation. Referring to the relevant rule i.e.
Rule 10(1) of the West Bengal Services
(Death -cum -Retirement Benefit) Rules, 1971 (for Short
'the Rules'), it was held by the High Court that once
an employee is allowed to retire on attaining the age
of superannuation, the concerned authority has no
jurisdiction to pass an order in a disciplinary
proceeding since the master -servant relationship
cannot exist after retirement. For taking this view,
the High Court has referred to judgments in the case
of Arun Kumar Biswas v. Superintendent of Police,
Burdwan & Ors, 1992 (1) CHN 354, State of Punjab v.
Khemi Ram, AIR 1970 SC 214, State of U.P. & Ors. v.
Harihar Bholenath, (2006) 13 SCC 460 and State of West
Bengal v. Harish C. Banerjee & Ors., (2006) 7 SCC 651.
(3.) Learned counsel for the appellants points out that the view taken by the High Court is erroneous and
contrary to the plain language of the Rules. Under
the Rules, pension can be withheld if either any
pecuniary loss was caused by the concerned employee or
the employee is found to be guilty of misconduct or
negligence while in service. This, of course, is
subject to the conditions contained in the proviso to
Rule 10(1) of the Rules that the departmental
proceeding is instituted while the employee is in
service. In case such departmental proceedings were
not initiated when the employee was in service, the
conditions mentioned in Proviso (b) require sanction
of the Governor. The alleged event should have taken
place within four years of institution of the
proceedings and the proceedings are to be conducted by
such authority as may be directed by the Governor in
accordance with the Rules. For further details, the
Rule in question is extracted as follows:
"10. 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 specified 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 re -employment after retirement:
Provided that -
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;....................." ;
Copyright © Regent Computronics Pvt.Ltd.