T. Chatterjee, J. - (1.) This writ petition is directed against a judgment and/or order dated 15th September. 1999 passed by the West Bengal State Administrative Tribunal (In short "the Tribunal") where by the Tribunal held that the writ petitioners had acted illegally and without jurisdiction in reducing the pension payable to the respondent on the basis of an order dated 25th of November, 1995 and hence the order of reduction of pension was illegal, arbitrary and without jurisdiction. The Tribunal also held that the pension amount deducted be restored to the private respondent and all amounts due with other relief as was admissible under the Rules be paid to the private respondent within three months from the date of communication of the order of the Tribunal by the writ petitioners. The case of the private respondent in the petition filed before the Tribunal, inter alia, was that the private respondent was superannuated from service as Deputy Superintendent of Police, C.I.D., West Bengal on 1st of March, 1982. By a Memorandum of the Home Department, Govt. of West Bengal, dated 30th January, 1984 a disciplinary proceeding was drawn against the private respondent on the following Articles of Charges: Article of Charge -I. The said Shri Gobinda Chandra Mukherjee, Dy. Supdt. of Police, Criminal Investigation Department, W.B. (since retired) while functioning as the Chief Law Instructor -I, Police Training College, Barrackpore during the period from 16 -5 -71 (forenoon) to 2 -6 -81 demanded on 9 -10 -80 in the evening at his official quarters from Cadet Sub -Inspector, Shri Subrata Baran Sen a sum of Rs. 6000/ - on a false plea that the said amount would be necessary to placate the Dy. Inspector General of Police (Training) and for making necessary arrangements for his passing and also for the passing of Cadet Sub -Inspector, Mr. Rahim and Cadet Sergeant Shri Swapan Roy in the Department Examination and for getting them released from the detention and that pursuant thereto accepted from the said Shri Subrata Baran Sen a sum of Rs. 6000/ - on 13 -10 -80 in the evening at his quarters (official quarters of Chief Law Inspector -I, Police Training College, Barrackpore). Such conduct of Shri Gobinda Chandra Mukherjee prima facie shows lack of integrity and devotion to duty and is improper and unbecoming of a public servant and as such is violative of Rules 3 and 4 of the West Bengal Government Servants Conduct Rules, 1959 read with Rule 8(2) of the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980. Article of Charge. Shir Gobinda Chandra Mukherjee, Dy. Superintendent of Police, Criminal Investigation Department, West Bengal (since retired) while functioning as the Chief Law Inspector -I during the period from 16 -5 -71 (fornoon) to 2 -6 -81 further attempted to obtain by way of demanding a sum of Rs. 4,000/ - as legal (sic) gratification from Cadet Sub -Inspector, Shri Subrata Baran Sen on the date on condolence meeting of Late P.K. Bose, the then Dy. Inspector General of Police (Training) held at Police Training College soon after re -opening of the College after the Pooja holidays in the year 1980, on the pretext that the said amount would be necessary to please the succeeding Dy. Inspector General of Police (Training). Such conduct of Shri Gobinda Chandra Mukherjee prima facie shows lack of integrity and devotion to duty and is improper and unbecoming of a public servant and as such is violative of Rules 3 and 4 of the West Bengal Government Servants Conduct Rules, 1959 read with Rule 8(2) of the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980. An enquiry was made by the Commissioner of Departmental Enquiries, Vigilance Commission, West Bengal into the aforesaid charges framed against the private respondent after complying with all formalities. After conclusion of the enquiry the private respondent was found guilty of both the charges. In accordance with the Rules, a copy of the report of the enquiry authority was supplied to the private respondent and he was asked to submit within 15 days from the date of receipt of the order of his representation against the proposed punishment of 50% reduction of his pension amount under Rule 10(1) of the West Bengal Services (Death -cum -Retirement Benefits) Rules, 1971 (in short "the Rules"). Ultimately by an order dated 23rd November, 1995 the Governor was pleased to order that 50% of the pension admissible to the private respondent be withheld permanently with retrospective effect from 1st March, 1982 i.e. the date from which the pension was admissible. The private respondent made a review application before the Governor of West Bengal under Rule 22 of the West Bengal Services (Classification, Control & Appeal) Rules. 1971 but there was no response from the Governor of West Bengal. Finding no other alternative the private respondent moved the Tribunal for the following amongst other reliefs: (a) A direction upon the respondents and others to forthwith revoke. cancel, withdraw and/or rescind the purported departmental proceeding including the chargesheet and the final order dated 23rd November, 1995 and the order of the writ petitioner No. 4 dated 6th of March, 1996 and to act in accordance with law; (b) An appropriate order be passed directing the authorities to pay the amount to the private respondent which was deducted from pension and relief money on the basis of the order dated 23rd November, 1995 and further order be made to pay the money to the private respondent if any deduction is made during the pendency of this application so that the private respondent will get all pensionary benefit; (c) A direction upon the respondent Nos. 1, 2, 4 and 6 to send up all the relevant records and papers to the Tribunal so that conscionable justice may be done to the applicant; and (d) Such other order and/or further order or orders and/or direction or directions as the Tribunal may deem fit and proper.
(2.) The petition filed by the respondent before the Tribunal was opposed by the State/writ petitioners. The allegations and contentions made by the private respondent in the said petition were denied save and except the matters which appeared from' the records. According to the writ petitioner, the application filed by the private respondent was not maintainable in law before the Tribunal as it was barred by limitation. It was also contended by the State/writ petitioners that the private respondent submitted numerous applications for adjournment of hearing of the case whenever he was called upon to attend the hearing by enquiring authority on the pretext of his ill health. Since the private respondent by one reason or the other sought to adjourn the hearing of the proceedings before the enquiring authority, the enquiring authority found no other alternative but to close the hearing ex parte and submitted its report framed. The Disciplinary Authority considered the report of the enquiring authority and then a final order was passed on 23rd November, 1995. The Public Service Commission, West Bengal was consulted before taking the final decision which was communicated to the private respondent. According to the State/writ petitioners, by imposing penalty of reduction of pension on the private respondent, the State/writ petitioners had not committed any wrong or error as alleged by the respondent. As noted hereinearlier, the application filed before the Tribunal was allowed by it and against which the present writ application has been moved by the State Authorities.
(3.) We have heard Mr. Nigam Kumar Chakraborty, the learned Senior Counsel appearing on behalf of the State/writ petitioners and Mr. Somen Bose, learned Senior Counsel with Mr. Murari Mohan Das and Mr. Jagat Chandra Basu appearing on behalf of the private respondent. At the first instance, Mr. Chakraborty contended that the Tribunal erred in holding that since Rule 10 of the Rules was already held to be unconstitutional in a single bench decision of this court in the case of Ram Gopal vs. State of West Bengal,, 1987(1) CHN 48 affirmed by a Division Bench of this Court in FMAT No. 413/91 (Ram Mohan. Sinha vs. State of West Bengal), the State had no authority to initiate any proceeding or pass any order on the basis of Rule 10 of the Rules. Mr. Chakraborty thereafter contended that even assuming that the decision rendered on the question of vires of Rule 10 of the Rules as made in the aforesaid Single Bench decision was a correct exposition, then from the single bench decision itself, it would be evident that the learned Single Judge after observing that Rule 10 of the Rules as ultra vires the Constitution of India had proceeded to consider the said case on merit and finally found that Rule 10 of the Rules was not applicable to the facts and circumstances of that case as the learned Judge was of the view that the said Rule could at best be invoked for the purpose of recovery of pecuniary loss caused to the Government by the pensioner because of gross misconduct or negligence during the period of service of the employee. Accordingly, Mr. Chakraborty contended that the Tribunal had wrongly relied on the Single Bench decision of this Court on a misapprehension that Rule 10 of the Rules would only be applicable to a case where the pecuniary loss caused to the Government was involved. Mr. Chakraborty then submitted that the Single Bench decision of this Court reported in, 1987(1) CHN 48 (supra) could not be taken to be a decision for the proposition that Rule 10 of the Rules having been declared ultra vires the Constitution of India in the said decision, the State Authority had no authority to proceed against the private respondent on the basis of such a rule in view of the fact that even in that Single Bench decision while making the rule absolute the Learned Single Judge in that decision however, did not declare Rule 10 of the Rules as ultra vires the Constitution of India. Even on merits, Mr. Chakraborty contended that Rule 10 of the Rules would be applicable in the facts and circumstances of the case even where financial loss of the Government was not involved against the private respondent.;