- (1.) THE Court : The petitioner in this WP under art.226 of the Constitution of India dated April 30, 2013 is questioning a decision of the Municipal Commissioner of Kolkata Municipal Corporation ( in short KMC) dated March 5, 2013 (WP p.70). On reaching the age of superannuation the petitioner retired from the KMC services on November 30, 2012. He was not paid retirement benefits. This Court directed his employer to decide his entitlement. Accordingly, the Municipal Commissioner has given the decision that since there are reasons to institute departmental proceedings, though the petitioner should be paid provident fund, leave encashment and group insurance benefits, he should not be paid provisional pension and gratuity.
(2.) NO provision of the rules and regulations which were and are applicable to the petitioner empowered his employer to withhold retirement benefits in contemplation of institution of departmental proceedings. Hence it is evident that the order of the Municipal Commissioner is illegal. But then the departmental proceedings were initiated by issuing a charge-sheet dated April 6, 2013 (WP p.54). The petitioner brought this WP on April 30, 2013. Regulation 45 of the Corporation of Calcutta Employees (Death-cum- Retirement Benefit) Regulations, 1982 provides that where any departmental or judicial proceedings are instituted or where departmental proceedings are continued against an employee who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid, during pendency of the proceedings, provisional pension, but not gratuity or death-cum-retiring gratuity. Mr Dey appearing for KMC has submitted that the provisions of reg.45 of the regulations empowered the petitioner's employer to institute the departmental proceedings in question even after the petitioner's retirement from the services of KMC. He has, however, conceded that the Municipal Commissioner had or has no power to withhold provisional pension during pendency of the departmental proceedings.
(3.) PROVISIONS of reg.45 do not empower the petitioner's employer to withhold any benefit other than gratuity or death-cum-retiring gratuity during pendency of the departmental proceedings instituted against him by issuing the charge-sheet dated April 6, 2013. I am, therefore, of the view that the petitioner's employer have been wrongfully withholding all benefits, except gratuity, to which the petitioner became entitled on November 30, 2012. In the charge-sheet the disciplinary authority mentioned that the proceedings were initiated under reg.48 of the regulations. Referring to reg.48 and reg.10 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, Mr Chatterjee appearing for the petitioner has argued that nothing in the regulations empowered the petitioner's disciplinary authority to institute the departmental proceedings after the petitioner's retirement from the services.;