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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5633 OF 2019 (@ SLP(CIVIL) NO.31374 OF 2017)

RATHIN GHOSH        ...APPELLANT(S)

VERSUS

WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY LTD. & ORS.     ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

This  appeal  has  been  filed  challenging  the

judgment of the Calcutta High Court dated 20.09.2017

allowing the writ appeal filed by the respondent. The

respondent has filed appeal before the Division Bench

of the Calcutta High Court questioning the judgment

of  learned  Single  Judge  passed  in  Writ  Petition

No.2712(W) of 2010 – Rathin Ghosh vs. West Bengal

State  Electricity  Distribution  Company  Limited,

whereby the writ petition was allowed setting aside

the  dismissal  order  of  the  appellant  with  all

consequential benefits.

2. The appellant was appointed as Graduate Engineer

(Training) in the year 1985 in the West Bengal State

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Electricity  Board,  which  subsequently  was

restructured and reorganized to form the West Bengal

State  Electricity  Distribution  Company  Ltd.

(hereinafter referred to as ‘Company’). The appellant

on account of his work and conduct was promoted to

different posts and in the year 2007, he was holding

the  post  of  Superintending  Engineer.  In  February,

2007 he was asked to prepare a draft specification of

single-phase static meters. The draft specification

submitted  by  the  appellant  was  approved  by  the

competent  authority,  which  technical  specifications

were to be provided to all bidders and was an open

document. Tender No.P-2/2007-08/(P-II) was published

for  purchase  of  20  lakh  meters  which  tender  was

cancelled for technical reasons. Fresh specifications

drafted  by  Advisor  (Security  and  Vigilance)  and

settled  by  Additional  Chief  Engineer  (District

Testing) was approved by all Technical Directors of

the Board of Directors and the Chairman-cum-Managing

Director.  The  Tender  No.P-28/2007-08  was  issued  by

the  Company  for  procurement  of  10  lakh  meters  on

09.01.2008. Nineteen bids along with their respective

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sample  meters  were  received  by  the  Company  on

08.02.2008. The samples of the meters were sent to

the  Additional  Chief  Engineer  (Testing)  for

evaluation. On 13.03.2008 the said meters were tested

by a team of officers and technicians which included

the appellant. On 26.03.2008, the appellant received

the personal invitation from an organization IEEMA to

attend  a  presentation  organised  in  New  Delhi.  On

testing of sample meters by the team of officers,

only  four  bidders  were  found  technically  qualified

which  also  included  one  bidder-M/s.  Secure  Meters.

The Chairman of the Company on 31.03.2008 approved

the  opening  of  the  price  bids  of  the  three

technically  suitable  bidders,  bids  were  opened  and

M/s. Secure Meters was declared the successful bidder

to  the  highest  rate.  Other  two  bidders  were  also

successful  bidders  having  offered  rates  lower  than

M/s.  Secure  Meters.  On  16.04.2008,  the  appellant

informed his immediate superior Officer, Additional

Chief Engineer (Distt. Testing) about his going to

New Delhi to attend IEEMA’s Conference. The appellant

got his Air Tickets booked from Globe Travel Agents,

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who were the travel agents of M/s. Secure Meters for

to  and  fro  visit  to  Delhi.  On  17.04.2008,  the

appellant attended the IEEMA Conference at New Delhi

and  returned  on  17.04.2008  to  Calcutta  itself.  On

18.04.2008, the Globe Travel Agency raised an invoice

of  Rs.  12,350/-  for  the  return  air  ticket  of  the

appellant upon M/s. Secure Meters as the booking was

done through them.  On 24.04.2008, on an enquiry by

the Corporate Vigilance Department of the Company to

Globe  Travel  Agency  about  the  appellant’s  ticket,

which informed that the payment towards the aforesaid

invoice was still due. On 28.04.2008, the appellant

paid the entire amount of Rs.12,350/- to M/s. Secure

Meters for payment of the aforesaid invoice raised by

Globe Travel Agency. On 29.04.2008, the respondent-

Company  suspended  the  appellant  and  initiated

disciplinary proceedings. The appellant was suspended

alleging gross misconduct tarnishing the image of the

Company.  

3. The  appellant,  who  had  22  years  unblemished

service to his credit, felt hurt by the act of the

Company suspending him. The appellant on 13.05.2008

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submitted  his  resignation  to  the  Company.  The

appellant  in  his  resignation  letter  mentioned  that

his  order  of  suspension  is  an  act  of  vengeance

instigated by the parties whose personal agenda had

been  disturbed  by  his  honest  intentions.  The

appellant also expressed his willingness to pay the

Company  three  months  salary  in  lieu  of  notice.  A

charge-sheet  dated  28.05.2008  was  submitted.  The

charge-sheet  was  served  on  the  appellant  on

28.05.2008  for  proposed  enquiry  to  be  held  under

Regulations  61  and  63  of  WBSEB  Employees’  Service

Regulations. The appellant submitted his reply.  The

charge-sheet  also  listed  several  documentary

evidences  including  invitation  from  IEEMA  dated

17.04.2008, the attendance sheet of participants in

the presentation held on 17.04.2008 at New Delhi.

4. The  charge-sheet  also  enlisted  the  list  of

witnesses who were proposed to be examined in support

of  the  charge-sheet.  On  10.06.2008,  the  appellant

received communication that his resignation had not

been  accepted  due  to  the  non-completion  of  the

disciplinary  proceedings.  On  20.06.2008,  the

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appellant submitted a detailed reply to show-cause.

The reply did not find favour with the Company and

disciplinary  enquiry  was  initiated.  Witnesses  were

cross-examined  by  the  appellant.  Inquiry  Officer

submitted  his  findings  on  26.12.2008.  The  findings

were  forwarded  to  the  appellant  by  letter  dated

30.12.2008  by  the  respondent.  The  Inquiry  Report

found  charges  proved  against  the  appellant.  The

appellant submitted his representation on 24.01.2009

to the findings in the enquiry. The Company issued a

second  show-cause  notice  dated  28.03.2009.  Second

show-cause notice was issued to the appellant which

also mentioned the proposed punishment of dismissal

from  service,  permanent  withholding  of  pension  for

life  time,  forfeiture  of  entire  gratuity  and  non-

payment beyond the subsistence allowances during the

suspension  period.  Reply  to  the  second  show-cause

notice  was  also  submitted  by  the  appellant.  The

disciplinary authority passed an order on 02.06.2009

by which following punishments were awarded:

“I have considered the gravity of the misconduct  and  the  circumstances  under which  the  misconduct  was  committed.

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Considering  all  aspects  in  open  mind including  the  past  service  records,  I finally  impose  the  following  punishment upon  Sri  Rathin  Ghosh,  Superintending Engineer (E) (under suspension):-

“(i)Dismissal from service.

(ii)Permanent  withholding  of  pension for      

   lifetime.

(iii)forfeiture of entire gratuity.

(iv)The period of suspension in respect of  Sri  Rathin  Ghosh,  S.E.(E)  is hereby confirmed. He will not earn anything  beyond  the  subsistence allowances payable to him during the period of suspension.

This order takes immediate effect.”

5. The  appeal  filed  by  the  appellant  against  the

order  of  punishment  was  also  dismissed.  It  was

communicated  to  the  appellant  on  10.11.2009.

Aggrieved  against  the  punishment  order  as  well  as

order dismissing the appeal Writ Petition No.2712(W)

of 2010 was filed by the appellant. The writ petition

was heard by the learned Single Judge and by judgment

dated  29.06.2015  learned  Single  Judge  allowed  the

writ petition by following order:

“For  the  reasons  discussed  above,  the entire disciplinary proceeding including the order of suspension dated 29th April,

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2008, the charge sheet dated 25th May, 2008,  the  enquiry  report  dated  26th

December, 2008, the order of punishment dated 2nd June, 2009 and the appellate authority order dated 10th November, 2009 are  set  aside  and  quashed.  The respondents  are  directed  to  reinstate the petitioner within 6 weeks from the date of communication of this order and to  start  payment  of  the  petitioner’s monthly  salaries  and  other  allowances, month by month.  

The  respondents  are  also  directed  to treat the petitioner in service without any break as if no order of dismissal was ever issued to the petitioner. The petitioner  will  also  be  entitled  to receive full back wages for the period he was not paid the salaries in view of issuance of the order of dismissal which has  been  quashed  in  the  writ application. The respondents are further directed  to  calculate  the  back  wages payable to the petitioner in terms of this  order  and  to  disburse  the  same through 4 equal monthly instalments, the first of which should be paid within a period  of  6  weeks  from  the  date  of communication of this order.

With such observations and directions, the writ application is disposed of.”

6. The  respondent  aggrieved  by  the  judgment  of

learned Single Judge has filed the appeal before the

Division  Bench  of  the  Calcutta  High  Court.  The

Division  Bench  by  its  judgment  dated  20.09.2017

allowed the appeal and set aside the judgment of the

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learned Single Judge. Aggrieved by the judgment of

the Division Bench, this appeal has been filed by the

appellant.

7. Notice was issued by this Court on 24.11.2017.

The respondent appeared and the matter was heard by

this Court on 09.10.2018. This Court on 09.10.2008

passed following order:

“Learned  counsel  for  the  petitioner  had submitted  a  letter  of  resignation  on 13.05.2008.  

By  way  of  settlement,  it  is  proposed that the resignation letter be treated as a voluntary  retirement  and  the  petitioner will be entitled to all benefits accruing to him on retirement as on that date.  

This will also necessarily mean that the departmental  proceedings  against  the petitioner  initiated  by  the  respondents will stand quashed without going into the merits of the case.  

Learned counsel for the petitioner says that  this  is  acceptable  to  him.  However, learned  counsel  for  the  respondent  says that he would like to take instructions in this regard.  

List the matter after three weeks.”

8. When the matter was again taken by this Court on

09.04.2019,  learned  counsel  for  the  respondents

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submitted that the proposal recorded in the order of

this Court on 09.10.2018 is not acceptable to the

respondents  and  the  matter  be  heard  on  merits.

Consequently, the appeal was heard on 16.07.2019.  

9. Before we notice the submissions of the learned

counsel for the parties, it is necessary to notice

the substance of charges, which were levelled against

the appellant. The Division Bench of the High Court

in the impugned judgment has itself noticed twofold

charges in the following words:

“23. The charges against the delinquent employee were two folds i.e. (i) he gave a presentation in the seminar on 17.04.2008 at  New  Delhi  hosted  by  IEEMA  without having  any  permission  from  his  higher authority (ii) he availed the hospitality of SML as his air fare from Kolkata to New Delhi  on  16th April,  2008  and  return journey from New Delhi to Kolkata on 17th

April, 2008 was borne by SML when he was officially dealing with SML in the tender process,  which  was  pending  finalization for placement of orders to the successful company  of  suppliers.  He  thus  placed himself  under  pecuniary  obligation  under SML.”

10. Shri Shyam Divan, learned senior counsel assisted

by Shri Udayaditya Banerjee, learned counsel for the

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appellant contends that the appellant had unblemished

service  of  22  years  and  the  charges  which  were

levelled  against  the  appellant  were  not  correct.

Learned counsel for the appellant submits that with

regard to Charge No.1 of his attending a presentation

at  New  Delhi  invited  by  IEEMA,  he  had  already

informed  his  immediate  superior  Officer  before

leaving  for  Delhi  with  regard  to  his  absence  on

17.04.2008. His application for casual leave was also

allowed  on  24.04.2008.  Hence,  no  misconduct  was

committed by the appellant inviting any punishment.

With regard to charge No.2, learned counsel submits

that with regard to tender Notice No.P-28/2007-08(PC-

II) the appellant was merely involved in preparation

of  specifications  and  the  technical  report  was

submitted  by  the  Additional  Chief  Engineer(Distt.

Testing),  which  was  sent  to  separate  committee

comprising  higher  official  to  take  decision.  The

appellant was neither a member of the core committee

nor  he  was  present  during  the  discussion  of  core

committee where decision was taken. Neither there is

any allegation nor any kind of benefit or favour has

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been  accepted  by  the  appellant  from  M/s.  Secure

Meters nor the appellant has caused any loss to the

Company.  Tender  Notice  No.P-28/2007-08  was

subsequently cancelled.  Insofar as booking of air

tickets  by  Globe  Travel  Agency  is  concerned,  no

payment of bill was paid by M/s. Secure Meters rather

payment was made by the appellant of the bill amount

of  Rs.12,345/-  to  M/s.  Secure  Meters,  receipt  of

which  was  filed  during  the  inquiry.  The  Inquiry

Officer  without  adverting  to  relevant  aspects

proceeded  and  submitted  the  report  in  premeditated

manner  and  proceeded  to  hold  charges  proved.  The

appellant in his representation against the findings

of  the  Inquiry  Officer  has  given  all  facts  and

material  to  prove  that  findings  are  perverse  but

disciplinary  authority  without  adverting  to  those

material and facts held the charges proved. In any

view  of  the  matter,  charge  of  attending  IEEMA

presentation  on  17.04.2018  without  previous

permission of employer was not such a charge on which

punishment  of  dismissal  could  have  been  awarded.

Further, insofar as air tickets obtained from Travel

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Agent  of  M/s.  Secure  Meters  are  concerned,  the

payment of air tickets was never made by M/s. Secure

Meters  but  was  made  by  the  appellant,  receipt  of

which  was  filed  in  the  inquiry  proceedings  which

having  not  been  disbelieved,  there  is  no  other

material  or  evidence  of  any  kind  of  obtaining

pecuniary  benefit  from  M/s.  Secure  Meters  by  the

appellant. Further, there being no material or charge

for any kind of favour or benefit extended by the

appellant to M/s. Secure Meters, present was not a

case of awarding punishment of dismissal.  Awarding

punishment  of  dismissal  of  the  appellant  is

disproportionate and deserves to be set aside. It is

further  submitted  that  punishment  of  permanent

withholding of pension for life time and forfeiture

of entire gratuity by the order of the disciplinary

authority is without jurisdiction, which punishment

could  not  have  been  imposed  in  the  disciplinary

proceedings  which  were  initiated  under  the  West

Bengal  State  Electricity  Board  Employees’  Service

Regulations adopted by WBSBCL.

11. Shri  Yasobant  Das,  learned  senior  counsel,

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appearing for the respondent refuting the submissions

of  the  appellant  contends  that  the  charges  having

been  proved  in  the  inquiry  proceedings,  learned

Single Judge committed error in interfering with the

punishment. The appellant had official dealing with

M/s. Secure Meters and it was not expected from such

officer in obtaining any benefit from such bidder,

the appellant obtained air tickets from M/s. Secure

Meters  and  utilized  its  hospitality,  which  is  a

misconduct  inviting  punishment  under  Service  Rules

and Service Regulations.

12. Learned counsel for the respondents has supported

the  impugned  judgment  of  the  Division  bench  of

Calcutta  High  Court.  It  is  further  submitted  that

Company has lost confidence in the appellant and the

direction of the learned Single Judge to reinstate

the appellant with back wages was uncalled for. It is

submitted that Company cannot reinstate a person who

has lost confidence of the Company.  

13. We  have  considered  submissions  of  the  learned

counsel for the parties and perused the records.

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14. The  substance  of  the  charges  against  the

appellant  as  noted  in  the  impugned  judgment  dated

20.09.2017 and extracted above were twofold. Insofar

as  charge  of  attending  the  seminar  on  17.04.2008

without  having  any  permission  from  higher

authorities, suffice it to say that the casual leave

application for 17.04.2008 having been sanctioned by

Additional  Chief  Engineering  (Distt.  Testing)  by

order dated 24.04.2008 ex post facto the sting of

charge goes away. Further, it is on the record that

the appellant had informed his superior, Additional

Chief Engineer (Distt. Testing) on 16.04.2008 itself

about his programme to attend the presentation at New

Delhi.  The  Additional  Chief  Engineer  (Distt.

Testing),  Shri  Subrata  Kumar  Das  was  produced  by

employer as PW.4 in support of the charges, who in

his  statement  has  clearly  mentioned  about  the

invitation by the appellant having been placed before

him and appellant having intimated in the evening of

16th April, 2008 prior to leaving for New Delhi that

he was going to New Delhi for attending the meeting.

It  is  further  stated  by  the  witness  that  the

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appellant  informed  him  regarding  his  intention  to

attend  the  meeting  on  17.04.2008.  Following  was

stated by PW4 in his cross-examination:

“The CO had shown me the letter (Ex.13) received from IEEMA by himself. Sri Ghosh, CO informed me regarding his intention to attend meeting on 17.04.2008. The CO had intimated me on 16.04.2008 in the evening prior  to  leaving  New  Delhi  that  he  was going to New Delhi for attending the said meeting  I  never  restrained  or  forbidden the CO from going to New Delhi.”

15. Thus, the appellant attended the presentation at

New Delhi with the prior information to his superior

officer  and  also  shown  his  invitation.  The

presentation  organized  by  IEEMA  was  a  programme

organised by a private organisation on the subject of

presentation  MIOS  (Meter  Inter  Operative  System),

which subject was relevant and beneficial to all who

were concerned with the subject. The invitation was

not any official invitation but was in the personal

name of the appellant. The appellant has never been

nominated  nor  has  been  sent  by  the  Co.  for  the

presentation. Even if it is assumed that appellant

was required to obtain prior written permission from

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the Company to go to attend the meeting, he having

informed his superior officer in advance before going

to attend the presentation, the charge of any such

misconduct is not made out, which may warrant extreme

punishment of dismissal.  

16. Now, coming to the second charge as noted above

i.e. appellant availed the hospitality of M/s. Secure

Meters  as  his  air-fare  from  Calcutta  to  Delhi  on

16.04.2008 and return journey on 17.04.2008 was paid

by M/s. Secure Meters when he was officially dealing

with  M/s.  Secure  Meters,  one  of  the  tenderers.

Suffice it to say that M/s. Secure Meters has not

made any payment for the air tickets nor is there any

material on the record to show that such payment was

made.  The  appellant  has  made  the  payment  on

28.04.2008 for an amount of Rs.12,350/- against the

bill raised by the Travel Agency dated 18.04.2008,

money  receipt  dated  28.04.2008  was  filed  in  the

proceedings, which has not been disbelieved, thus, it

was  the  appellant,  who  made  the  payment  for  the

journey  from  Delhi-Calcutta  and  Calcutta-Delhi.

Inquiry Officer was not right in his conclusion that

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getting  ticket  booked  through  the  Travel  Agent  by

M/s. Secure Meters is equivalent to borrowing money

by  the  appellant  from  M/s.  Secure  Meters.  The

conclusion of the Inquiry Officer is perverse and not

supported by the material on record.

17. It is further relevant to notice that insofar as

the  appellant’s  role  in  providing  for  technical

specifications for tender and his role in selection

of M/s. Secure Meters in acceptance of technical bid

or in decision regarding acceptance of tenders, the

appellant had no role to play. PW4, the Additional

Chief Engineer (Distt. Testing), who was produced on

behalf of the employer in support of the charges,

himself in his statement has clearly stated about the

role of the appellant. In the above reference with

regard  to  notice  No.P-28/2007-08  and  its  details,

following statement was made by PW4:

“Tenders  specifications  vide  Notice  No.P- 28/2007-08 (P-II) was actually prepared by the Advisor(S&V) and finally settled by the Adviser (S&V) and myself. Sri.P.Biswas, SE and  Sri  Ghosh,  CO  assited  me  in  the process.  The  specification,  which  was referred  above,  was  presented  by  the Adviser (S&V) in a meeting where all the Technical  Directors  were  present.  The

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Chairman  and  myself  were  also  present there.  Sri  Ghosh,  CO  was  not  present  in that meeting. I formed a team of engineers and technicians to test the sample meters submitted  by  the  bidders.  The  testing reports  as  in  Ext.7A,  Ext.7B,  Ext.7C respectively were prepared in an approved format  of  the  Company.  The  meter  testing was  made  as  per  pre-scheduled  date  and representative  from  S&LP  Wing  and  other interested bidders were allowed to witness the  testing.  In  the  instant  case  the engineers  of  the  S&LP  Wing  were  present during  testing.  I  have  not  received  any complaint  from  any  bidders  regarding  the testing of meters so far I remember. After completion of the testing by the respective officers  and  technical  to  whom  it  was allotted, I personally made certain sample checking  and  being  fully  satisfied  I submitted  technical  evaluation  report  in this  regard.  After  I  send  the  technical evaluation report a separate core committee comprising  higher  officials  take  decision towards  the  acceptance  of  the  technical evaluation  report.  The  CO  was  neither  a member  of  the  core  committee  nor  he  was present during the discussion of the core committee.”

18. The above statement of PW4, who was produced on

behalf of the employer, clearly indicates that the

appellant was neither a member of the committee nor

he  was  present  during  the  discussion  of  the  core

committee, who was authority competent to accept the

tenders. Further, insofar as specification regarding

Notice  No.P-28/2007-08,  it  was  clearly  stated  that

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specification was prepared by the Adviser (S&V) and

finally decided by the Adviser (S&V) himself, i.e.,

Additional  Chief  Engineer  (Distt.  Testing).  The

appellant  was  not  involved  in  any  such  manner.

Furthermore, neither any allegation nor any material

regarding appellant having got any kind of benefit

from M/s. Secure Meters in any manner was produced.

The tender specification by specification notice NO.

P-28/2007-08  was  ultimately  cancelled,  hence  it  is

not a case of any benefit obtained from M/s. Secure

Meters  out  of  the  tenders.  The  immediate  officer

under whom appellant was working himself spoke about

the tender and further spoke that:- “….I can depose

that  the  CO  never  lacking  in  his  sincerity  and

integrity towards his work.”  

19. We are conscious of the scope of judicial review

by  the  High  court  and  this  Court  in  reference  to

disciplinary proceedings. A three Judge Bench of this

Court  in  B.C.  Chaturvedi  vs.  Union  of  India  and

others, (1995) 6 SCC 749,  in paragraph 18 has laid

down  parameters  of  judicial  review  in  the

disciplinary proceedings to the following effect:

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“18. A review of the above legal position would  establish  that  the  disciplinary authority,  and  on  appeal  the  appellate authority, being fact-finding authorities have  exclusive  power  to  consider  the evidence  with  a  view  to  maintain discipline.  They  are  invested  with  the discretion  to  impose  appropriate punishment keeping in view the magnitude or  gravity  of  the  misconduct.  The  High Court/Tribunal, while exercising the power of  judicial  review,  cannot  normally substitute its own conclusion on penalty and  impose  some  other  penalty.  If  the punishment  imposed  by  the  disciplinary authority  or  the  appellate  authority shocks  the  conscience  of  the  High Court/Tribunal,  it  would  appropriately mould  the  relief,  either  directing  the disciplinary/appellate  authority  to reconsider  the  penalty  imposed,  or  to shorten the litigation, it may itself, in exceptional  and  rare  cases,  impose appropriate punishment with cogent reasons in support thereof.”

20. There cannot be any dispute to the proposition

that  disciplinary  authority  has  exclusive  power  to

impose  appropriate  punishment  keeping  in  view  the

magnitude and gravity of misconduct. The punishment

to  be  imposed  on  a  delinquent  employee  has  to  be

proportionate to the charge and in event punishment

is disproportionate, the delinquent has to be held to

be given discriminatory treatment violating Article

14. The test as has been approved by this Court is

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that the High Court and this Court can interfere with

the punishment imposed by the disciplinary authority

when it shocks conscience of the Court. The present

is a case where the punishment is so disproportionate

to the charge that it clearly shocks the conscience

of  the  Court.  The  charges  which  were  held  to  be

proved were not any such charges on which punishment

of dismissal could have been imposed. Further, when

the payment of air ticket which was got prepared by

Travel  Agent  of  M/s.  Secure  Meters  was  ultimately

made by the appellant, which was not disbelieved in

the  proceedings  and  no  other  material  or  evidence

extending any benefit to M/s. Secure Meters were on

the record, there was no occasion of awarding extreme

punishment.

21. Another aspect, which needs to be noticed is that

disciplinary authority while imposing the punishment

of  dismissal  from  service  has  also  awarded

(a)permanently withhold of pension for life time; (b)

forfeiture of his entire gratuity.  The proceedings

were  initiated  against  the  appellant  under

Regulations  61  and  63  of  WBSEB  Employees’  Service

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Regulations, which is clear from following statement

in the charge-sheet:

“The  undersigned  proposes  to  hold  an enquiry under Regulation 61 & 63 of WBSEB Employees’  Service  Regulations  since adopted  by  WBSEDCL,  against  Sri  Rathin Ghosh, Superintending Engineer (E) (Under suspension)  attached  to  Distribution Testing Department.”

22. The  West  Bengal  State  Electricity  Board

Employees’  Service  Regulations  are  on  record.

Regulation  61  deals  with  act  of  misconduct.

Regulation  62  which  deals  with  punishment  is  as

follows:

“Regulation  62.  Without  prejudice  to  the provisions of any law for the time being in force,  an  employee  who  is  found  to  be guilty of any act of misconduct or of any breach  of  discipline  is  punishable  as indicated below, according to the gravity of the breach or misconduct. The punishment will not only depend on the findings in the case under review, but also on his record. The imposition of penalties may be ordered by  the  Secretary  or  by  the  respective appointing  authorities  or  any  other officers  of  the  Board  empowered  in  this behalf.

(1) Censure

(2) Withholding of increment or Promotion

(3) Suspension

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(4) Reduction to a lower post or time-scale or to a lower stage in the time-scale

(5) Recovery  from  pay  of  any  sum  as  a measure of punishment forming part of any pecuniary loss caused to the Board by  wilful  negligence  or  breach  of orders

(6) Removal  from  service  which  does  not debar future employment

(7) Dismissal from service which ordinarily debars future employment.”

23. It is relevant to notice that Regulation 62 does

not contain any punishment of permanent withholding

of pension for life time or forfeiture of gratuity.

In the proceedings drawn against the appellant under

West  Bengal  State  Electricity  Board  Employees’

Service Regulations, which have been adopted by the

Company,  no  punishment  could  have  been  awarded  as

permanent  withholding  of  pension  for  life  time  or

forfeiture  of  gratuity.  Learned  Single  Judge  has

dealt with the issue and has rightly concluded that

the  disciplinary  authority  committed  jurisdictional

error in imposing the above punishments. The Division

Bench in the impugned judgment has sought to justify

the  punishment  of  withholding  the  pension  and

forfeiture of gratuity by referring to West Bengal

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State  Electricity  Board  Employees’(Death-Cum-

Retirement  Benefit)  Regulations,  1985  (hereinafter

referred  to  as  “Regulations,  1985”,  which  contain

provisions as Regulation 11A dealing with withholding

of pension. Pension has been defined in Regulation

6(i) as:  “Pension” except when the term pension is

used  in  contradistinction  to  gratuity,  includes

gratuity. Regulation 11A which is relevant for the

present case is as follows:

“11A : (1) The pension of an officer may be withheld in whole or in part under an order of the Board passed not later than three years after the date of retirement to meet any sum due under the liability incurred by such officer to the Board.  

(2) Right of the Board to withhold pension in certain cases : The Board reserves to itself  the  right  of  withholding  or withdrawing the pension or any part of it whether permanently or for specified period and the right of ordering the recovery from a  pension  of  the  whole  or  part  of  any pecuniary loss caused to the Board, if the pensioner  is  found  in  a  departmental  or judicial proceeding to have been guilty of grave misconduct or negligence during the period  of  his  service,  including  service rendered  on  re-employment  after  the retirement : Provided that-  

(a)  Such  departmental  proceeding  if instituted while the officer was in service

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whether before his retirement or during his re-employment  shall  after  the  final retirement of the officer be deemed to be a proceeding under this Regulation and shall be continued and concluded by the authority by  which  it  was  commenced  in  the  same manner as if the officer had continued in service.

(b) Such departmental proceedings, if not instituted while the officer was in service before  his  retirement  or  during  his  re- employment—

(i) Shall not be instituted save with the sanction of the Board;  

(ii) Shall  not  be  in  respect  of  any event which took place more than four years before such institution and  

(iii) Shall  be  conducted  by  such authority and in such place as the Board may direct and in accordance with  the  procedure  applicable  to the  departmental  proceedings  in which an order of dismissal from service could be made in relation to the officer during his service;

(c)  No  such  judicial  proceeding,  if  not instituted while the officer was in service whether before his retirement or during his re-employment  shall  be  instituted  in respect of the cause of action which arose or an event which took place more than four years before such institution.  [Ref: Office Order No.4232 dtd.23.11.1987]  

Provided  further  that  the  pension  of  an employee may be released in rarest of the rare  cases  by  the  Chairman  of  the  Board even  during  pendency  of  the  criminal

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proceedings against the employee where the Chairman of the Board is entirely satisfied that  the  following  conditions  are fulfilled:-  

(i) There  is  a  reasonable  possibility of  acquittal  from  all  charges leveled against the employee in the pending criminal proceedings.  

(ii) The conduct of the employee during his tenure in service was otherwise satisfactory in all respects.  

(iii) The criminal proceeding arises out of  due  discharge  of  the  official duties by the employee.  

[Ref:  Office  Order  No.5676  dated 21.01.1999]”

24. There  is  no  doubt  that  Board  has  right  to

withhold  pension  in  certain  cases  in  the

circumstances as mentioned in Regulation 11A(2). The

pre-condition for withholding pension as enumerated

in Regulation 11A(2):- “…if the pensioner is  found

in a departmental or judicial proceeding to have been

guilty of grave misconduct or negligence during the

period of his service…”  

25. The scheme of the Regulation indicates that the

power to withhold the pension has to be exercised

when proceedings are drawn under Regulations, 1985.

Further,  what  is  contemplated  is  withholding  of

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pension of pensioner, which power has to be exercised

qua a pensioner, the appellant having never retired

from  service  nor  was  a  pensioner,  there  was  no

occasion for exercising of power under Regulation 11A

of  Regulations,  1985.  Even  for  argument,  it  is

assumed if before retirement of a person power under

Regulation  11A  can  be  exercised,  there  has  to  be

separate  proceeding  under  Regulations,  1985  for

withholding of pension with notice under Regulations,

1985 for proposed action. Present is a case where

disciplinary authority has drawn proceeding against

the appellant under the West Bengal State Electricity

Board  Employees’  Service  Regulations  and  not  any

proceeding  is  drawn  under  Regulations,  1985.  The

imposition  of  punishment  of  withholding  of  pension

while  in  proceeding  under  WBSEBES  Regulations  are

illegal and without jurisdiction.  The order passed

by  the  disciplinary  authority,  thus,  suffered  from

the above jurisdictional error.  

26. In  view  of  the  foregoing  discussions,  we  are

unable to sustain the judgment of the Division Bench.

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We upheld the judgment of the learned Single Judge to

the extent it has set aside the dismissal order.  

27. Now, we come to the question of relief which the

appellant may be entitled in the facts of the present

case.  As  noticed  above,  the  appellant  has  already

submitted  his  resignation  on  13.05.2008,  which  was

not accepted by the respondent. As recorded in the

order dated 09.10.2018, this Court has proposed that

the  resignation  letter  be  treated  as  a  voluntary

retirement  and  the  appellant  be  entitled  to  all

benefits accruing to him on retirement as on that

date.  We are of the view that the ends of justice be

served  in  allowing  this  appeal  setting  aside  the

dismissal order by directing that resignation letter

of  the  appellant  dated  13.05.2008  be  treated  as

voluntary retirement with further direction to treat

the appellant as voluntarily retired on that date and

to  compute  all  benefits  accruing  to  the  appellant

including gratuity and pension as admissible on that

date.  The  respondents  are  directed  to  compute  the

entire benefits of the appellant and make the payment

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within a period of two months from today. In event,

the payment is not made within two months of this

order, such payment shall carry interest at the rate

of 6% per annum. The appeal is allowed to the above

extent.  

......................J.                                   ( ASHOK BHUSHAN )

......................J.                                   ( NAVIN SINHA ) New Delhi, July 29, 2019.