Decided on April 27,1983



- (1.) THE petitioner was a Sub-Inspector of Police attached to Brigade Ancillary, Calcutta Armed Police. On 22nd June 1979 the Commissioner of Police, Calcutta initiated against him Proceeding No. 42 dated 22nd June, 1979 in respect of six charges. The Commissioner of Police, Calcutta required the petitioner to put his written statement of defence before Sri H. Pramanick, Deputy Commissioner for Departmental Enquiries, Vigilance Commission, West Bengal who had been appointed as the Enquiring Officer to hold enquiry into the charges framed against him. On 30th June, 1979 the petitioner had attained age of 58 years and retired from service with effect from the said date. On 19th December, 1979 the petitioner obtained the Present Rule challenging the maintainability of the said departmental proceeding after his retirement from service.
(2.) THE petitioner's claim to pension is regulated by the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. While it is now settled law that the right of a retired Government servant to receive pension is no longer a matter of grace and pension is not a bounty payable on the sweet-will and pleasure of the Government. The right to receive pension is a valuable right vesting in a Government servant. A right to receive pension flows from the rules (vide deokinandan Prasad vs. The State of bihar and others A. I. R. 1971 S. C. 1409 ). In the instant case, the obligation of the government to pay pension and the petitioner's right to receive the same are regulated by the West Bengal Services; (Death-cum-Retirement Benefit) Rules, 1971. Rules 8 to 10 of the said Rules provide for withholding of pension in different cases. Such withholding of pension affects the pensioner's right to receive pension which has been described as property. And the Rules have embodied provision for giving opportunity of hearing to the pensioner. The Governor under the sub-rule (1) of Rule 10 of the said Rule has reserved to himself the right of withholding or withdrawing a pension or any part thereof whether permanently or for a specified period. The Governor under the said Rule 10 (1)has also the right of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government by the pensioner. But the said rights of the Governor under Rule 10 (1)to withhold pension or to order recovery from pension can be exercised only in case the pensioner is found in a departmental or judicial proceeding to have been guilty of grave mis-conduct or negligence during the period of his service including service rendered on reemployment after retirement. In other words, the right to withhold pension under Rule 10 (1) is a qualified one. Only in case the pensioner is found in a departmental or judicial proceeding to be guilty of grave misconduct or negligence during the period of his service, the governor may withhold or withdraw his pension or any part or order recovery from pension of the whole or any part of the pecuniary loss caused to the Government. Rule 10 (1) contemplates two kinds of departmental proceedings:- 1) "a departmental proceeding which was instituted while the officer was in service (vide clause (a)to the proviso to Rule 10 (1) of the rules) and 2) a departmental proceeding instituted after retirement with the sanction of the Governor in respect of any event which took place not more than three years before such institution (vide clause (b) of the proviso to Rule 10 (1) of the Rules ). According to the Explanation (a) a departmental proceeding under Rule 10 (1)of the Rules shall be deemed to have been instituted on the date on which the statement of charges is issued or if the delinquent had been placed under suspension from an earlier date or such date. "
(3.) IN the instant case, undisputedly the Commissioner of Police had issued the charges on 22nd June, 1979 and therefore the departmental proceeding in question was instituted while the petitioner was still in service. In view of clause (a) of the proviso to Rule 10 (1)the said departmental proceeding would be deemed to be a proceeding under the said Rule 10 (1) and could be lawfully continued and concluded by the authority by which it was commenced in the same manner as if the petitioner had continued in service. The expressions "deemed to be" and "as if" in the said clause (a) of the proviso to Rule 10 (1)have been used clearly for the purpose of creating a statutory fiction. The said proviso (a) provides for keeping alive and continuance of departmental proceeding against a Government servant who attains age of superannuation during the pendency of the said proceeding. For the purpose of the said proceeding the Government servant shall be treated to be still in service and the departmental proceeding started during the period of his service shall be continued and concluded.;

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