G.N.RAY, J. - (1.) THIS Rule is directed against an order of suspension dated June 22, 1973 passed by the Additional Director of Agriculture (Marketing), Government of West Bengal under the West Bengal Services (Classification, Control and Appeal) Rules, 1971 and initiation of the departmental proceeding against the petitioner under the said Rules by submitting a charge -sheet and continuance of the same under Rule 10 of the West Bengal Services (Death -cum Retirement Benefit; Rules, 1970. It appears that the petitioner was appointed as a Marketing Reporter in 1941 in the Marketing Department of the then Government of Bengal. He was subsequently promoted to the lower division clerk and thereafter as an Accountant in 1951 He was further promoted as upper division clerk and also as a head clerk in the Marketing Branch of the Directorate of Agriculture, Government of West Bengal. It appears that for some time, the petitioner was entrusted to deal with accounts of the Marketing Branch of the Directorate but thereafter the petitioner was absolved from the duties and responsibilities of maintaining cash and the petitioner had handed over the said charge as directed. It further appears that the petitioner was placed under suspension by an order dated 22nd June. 1973 presumably on the contemplation of starting a departmental proceeding against him. It also appears that both against the petitioner and another Government Servant who had to deal with the cash, complaints were lodged to the Police on the allegation of misappropriation of Government fund alleged to have been found on verification of the accounts when the petitioner and the said employee used to deal with the account. It also appears that the petitioner made representations on a number of occasions to the concerned authorities explaining the facts and circumstances of the case and also stating that he had handed over the charge with all papers and cash to the satisfaction of the authorities and it was not proper to place the petitioner on suspension or to proceed against the petitioner later on mere surmise and conjecture. The petitioner complained that he was kept completely in the dark as regards the total amount alleged to have been found short. The petitioner was, however, informed by the respondent No. 2 that there was total shortage of Rs. 6,960.83 p. The petitioner contends that he had to make statement explaining the circumstances as dictated by the respondent No. 2. It appears that by letter dated 16th December, 1974 written by the Deputy Commissioner of Police, Detective Department, Calcutta, the respondent No. 2 was informed that the investigation of the case on the said allegation of misappropriation of Government fund was completed and closed but no prima facie case could be established - It was pointed out in the said letter that accordingly the Police did not submit any charge -sheet against the petitioner. The Police also requested by a letter dated 3rd March. 1975 -that as the Bowbazar P.S. Case No. 302 dated 16th July, 1973 was closed as aforesaid the respondent No. 2 should take back the papers from the police. The petitioner after coming to know that the said Police investigation had been closed in favour of the petitioner, made a request to the respondent No. 2 that the order of suspension should be revoked against the petitioner and the petitioner should be held to have been exonerated from the allegations made against him. It further appears that by a Memorandum dated 17th March, 1975, the respondent No. 2 informed the petitioner that the matter had been referred to the Government and as such no action could be taken on the application of the petitioner for revoking the order of suspension and to exonerate the petitioner from the said allegations.
(2.) IT further appears that having failed in his representations to get the order of suspension revoked and having suffered the order of suspension since 1973 despite the fact that the Police investigation had ended in favour of the petitioner, the petitioner moved a writ petition before this Court challenging the order of suspension in contemplation of a disciplinary proceeding when no disciplinary proceeding was initiated against the petitioner for years together. On the said application of the petitioner, a Rule being Civil Rule No. 8564 (W) of 1975 was issued by this Court. The petitioner also made an application for an interim order in the said Rule for staying the operation of the said order of suspension passed against the petitioner in 1973. The said application for interim order was directed to be heard along with main Rule and direction for filing affidavits were given by this Court for an expeditious hearing. The hearing of the said Rub was finally concluded on 23rd December, 1975 and it is contended by the petitioner that the learned Counsel for the State had expressed regret for keeping the petitioner in suspension for years together without initiating any disciplinary proceeding in contemplation of which the petitioner was suspended and the learned Counsel for the State asked for leave to issue charge -sheet against the petitioner and to serve the same either to the petitioner or to his learned Counsel and it appears that this Court disposed of the Rule by directing that the State Government would be at liberty to draw up charge sheet against the petitioner and to serve the same on the petitioner or to his learned Counsel appearing in the said Civil Rule within a fortnight. It, however, appears from the order passed by the Court on 23rd December, 1975 disposing of the said Rule that the said order was passed without prejudice to the rights and contentions of the parties and the petitioner contends that the said direction was made on the prayer of the learned Counsel appearing for the State and not on consent of the parties - It further appears that this Court did not go into the merits of the case and disposed of the case by giving the said direction as prayed for by the learned Counsel for the State. It is contended by the petitioner that on 29th December, 1975 an envelope was delivered to Mr. Amalendu Mitra, the learned advocate who appeared for the petitioner in the said Civil Rule and the said envelope was also addressed to the said learned advocate, It transpires that the said envelope contained a charge -sheet framed against the petitioner along with a Memo dated 27th December, 1975 appointing one Sri H. Chakraborty, Departmental Enquiry Officer, Vigilance Commission to enquire into the said charges framed against the petitioner. The learned advocate of the petitioner having received the said envelope, granted a receipt mentioning therein that the said receipt was granted without prejudice to the rights and contentions of the petitioner. It appears that the petitioner had retired from service after attaining the age of superannuation, 4 days thereafter, namely, on 2nd January, 1976. The petitioner contends in the instant writ petition that the said disciplinary proceeding was initiated against the petitioner by framing the said charges against the petitioner and appointing the said Sri Chakraborty as enquiring officer on 27th December, 1975 not with any intention to complete the disciplinary proceeding and to punish the petitioner during his tenure of service but to cause pecuniary losses to the petitioner by withholding or forfeiting the pension and other benefits on superannuation by taking recourse to the provisions of West Bengal Services (Death -cum -Retirement Benefit) Rules 1971. The petitioner challenges the initiation of the said disciplinary proceeding by framing the aforesaid charges on the ground that the said action was taken mala fide without any just cause. It is contended by the petitioner that the disciplinary proceeding which was initiated against the petitioner by framing the charge -sheet was done only when the petitioner in the earlier Rule had challenged the bona fide of the Government to keep the petitioner under suspension for years together and had also prayed for interim order. The petitioner also contends that the said disciplinary proceeding was initiated obviously with no intention to impose any punishment on the petitioner because the enquiring officer was appointed only on 27th December, 1975 and the charge -sheet was served on the learned advocate for the petitioner in the manner aforesaid on 29th December, 1975 and not on the petitioner before retirement and the petitioner was asked to show cause within 15 days thereafter knowing fully well that the petitioner would retire on superannuation on 2nd January, 1976. The petitioner contends that the purpose of initiation of a departmental proceeding is to cause enquiry against the delinquent officer as to whether charges levelled against him are established or not and to impose suitable punishment on the delinquent officer if the charges are established and/or to exonerate the delinquent officer if the same are not proved. The petitioner submits that as the petitioner had retired from service on and from 2nd January, 1976 and the relationship of master and servant had, therefore, come to an end, there was and could not be any occasion for imposing any punishment for the alleged lapses on the part of the petitioner even assuming that on proper enquiry, the charges against the petitioner would have been established. The petitioner submits that by the provisions of Rule 10 of the West Bengal Services (Death cum -Retirement Benefit) Rules, 1971, the disciplinary proceeding which was initiated against the petitioner only 4 or 5 days before his superannuation can be continued for the purpose of confiscating the pensionary and other benefits due on retirement. The petitioner contends that the said provisions of the West Bengal Service (Death -cum -Retirement Benefit) Rules, 1971 allowing a disciplinary proceeding to be kept alive even after the retirement of a Government servant are ultra vires and as such, the same should be struck down and the disciplinary proceeding initiated against the petitioner should be quashed. The petitioner has also contended that in any event the charges levelled against the petitioner were framed with a definite bias and a closed mind and concerned authorities had completely made up their minds against the petitioner and the said departmental proceeding was nothing but a formality to be observed for imposing the intended punishment on the petitioner The learned Counsel for the petitioner, therefore, submits that if the said contention of the petitioner is accepted by this Court and the charge -sheet is quashed, then there will be no valid disciplinary proceeding pending before the superannuation of the petitioner and as such there may not be any occasion for this Court to go into the other question being agitated by the petitioner, namely, that the provisions of the (Death -cum -Retirement Benefit) Rules, 1971, in so far as the same intend to keep a disciplinary proceeding pending against a retired Government Officer alive are ultra vires. It is contended by the learned Counsel for the petitioner that proviso to Rule 10 of the (Death -cum -Retirement Benefit) Rules is ultra vires because by deeming provision the relationship of master and servant is sought to be continued. It is also contended that power to frame Rule under Article 309 of the Constitution does not authorise the Governor to frame such a Rule by which a person though not a Government servant on a particular date will be treated to be a Government servant. These contentions are seriously disputed by the learned Counsel for the State and it is contended that the said provisions are quite legal and intra vires. In my view, there is substance in the contention of the learned Counsel for the petitioner that the validity of the charge -sheet should be examined first and if on the ground of invalidity of the charge -sheet the disciplinary proceeding initiated against the petitioner fails, the decision on the other contention may not be necessary at all It appears from the Article of Charge No. 1 that a firm opinion had been expressed on the complicity of the petitioner and it was held that the petitioner had failed to account for a sum of Rs. 8,329.72 and had suppressed the fact of receipt of the amount and thereby caused a financial loss to the State Government. It was also observed in the Article of Charge No. II that the petitioner had failed to discharge his official duties and suppressed material facts thereby giving undue scope to a contractor to draw an extra amount of Rs. 1,588.71 thereby causing a financial loss to the State Government to that extent. The learned Counsel for the petitioner submits that after scrutinising the records by the department and thereafter by the Vigilance Commission it was firmly held that the petitioner was guilty of the said misconduct and the said charge -sheet clearly depicts a closed mind and definite and firm finding against the petitioner. The learned Counsel for the petitioner submits that it does not appear from any of the imputations of charge that such charges were framed only tentatively. The learned Counsel, therefore, submit that such charge -sheet must be held to be illegal and invalid. For this contention, the learned Counsel refers to a Bench decision of this Court made in the case of Sunil Kumar Mukherjee v. State of West Bengal reported in 1977 Calcutta High Court Notes page 1014. In the said decision, various other decisions were considered and the charge -sheet issued in the said case was held to be invalid on the ground that the same was issued with it closed mind. In the said charge -sheet, it was observed that the delinquent officer was found to be in possession of some specific amount after accounting, The learned Counsel submits that the language of the charge -sheet in the instant case is equally offensive and following the said Bench decision of this Court the said charge -sheet should be quashed.
(3.) IT is, however, contended by the learned Counsel for the State that although in the charge -sheet some definite opinion has been expressed about the complicity of the petitioner in respect of charges levelled against him, it must be held that the same is really intended to be a tentative finding and not a firm finding otherwise there cannot be any sense in starting a disciplinary proceeding against the petitioner on the basis of the said charge -sheet and giving the petitioner all opportunities to defend himself in the said disciplinary proceeding. The learned Counsel for the State also submits that for starting a disciplinary proceeding against a delinquent officer, the charges to be framed must be quite clear and must not suffer from any ambiguity or vagueness. If the charge -sheet is not expressed in clear and certain terms, then the delinquent officer is likely to be misled and suffer prejudice for the vagueness in the charge -sheet. If, on the score of expressing definite opinion in the charge -sheet, the same is quashed on the footing that the same was issued with a closed mind, then it may not be possible to issue a proper and definite charge -sheet.;