Amiya Rumor Mookerji, J. - (1.) This Rule is directed against a second show cause notice dated 8.9.77 issued by the Collector of Calcutta proposing to impose upon the petitioner the penalty for withholding 25% of his pension permanently with effect from the date of his retirement on superannuation in terms of rule 10 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971.
(2.) The petitioner was the office superintendent of the Calcutta Collectorate. He has retired on and from 1.2.74. After his retirement on 19 12.73 a charge sheet was served upon him. The allegation against the petitioner was that, his assets including his house at Jadavpur Park was suspected to be disproportionate to his known sources of income and the declaration of assets submitted by the petitioner on the basis of his own estimate was false and misleading. An enquiry was made by the depart mental enquiring officer who submitted report on 26.4.77. The enquiring officer found the petitioner guilty of the charges, Thereafter on 8.9.77 the impugned second show cause notice was issued. The petitioner being aggrieved, moved this Court under Article 226 of the Constitution and obtained the present Rule.
(3.) Mr Banerjee, appearing on behalf of the petitioner contended that under rule 10 of the West Bengal Services (Death-cum-Retirement Benefit) 1971, the power to withhold pension has been reserved by the Governor and that it is the Governor who himself has the right to withhold or withdraw pension or any part thereof whether permanently or for a specific period and the Collector of Calcutta had no jurisdiction and/or authority under rule 10 of the said Rule to withhold a part of the pension payable to the petitioner and as such the purported second show cause notice proposing penalty of withholding 25% of the pension was void, illegal and ulter vires the provisions of the said Rule. It is further contended that rule 3 allows only a limited type of enquiry to be proceeded with viz., an enquiry with regard to withholding or withdrawing pension or ordering recovery from pension by reason of any misconduct or negligence during the period of service of an employee. Under clause (a) of the proviso to rule 10 of the said Rules the departmental proceeding if instituted during the service of the employee is to be deemed to be proceeding under the rules and may be continued and completed even after his retirement. To this limited extent alone this provision was made under the Rule for continuance of a disciplinary enquiry beyond retirement. Reliance was placed upon a decision of the Full Bench of the Kerala High Court in R. P. Nair v. Kerala Stale Electricity Board (AIR 1979 Ker. 135). The Full Bench of the Kerala High Court held that except for reason of any misconduct or negligence during the period in service of the employees as provided in the said rule, that Rule does not in any way permit the authorities either to launch or continue the disciplinary proceeding after the retirement of the employee. That would be destructive of the concept of relationship of employer and employee which has come to an end by reason of the retirement of the employee The Full Bench of the Kerala High Court relied upon the decision of the Supreme Court in AIR 1964 SC 72, AIR 1966 SC 441 and AIR 1978 SC 1109.;