1. The applicant was a member of the Indian Administrative Service. He retired from service from 1.9.95 on attaining the age of superannuation. After his retirement, the Chief Secretary to the Government of West Bengal issued memorandum dated 29.10.96 communicating the applicant that the Governor had proposed to hold an inquiry under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969 against him. In paragraph No. 2 of the said memo it was further communicated that sanction of the Central Government under Sub-clause (i) of Clause (b) of the proviso to Rule 6(i) of All India Service (DCRB) Rules, 1958 had been obtained. On receipt of the said memorandum the applicant submitted his representation on 6.12.96 to the Chief Secretary stating the Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969 was not applicable to him as he had already retired from the service.
2. The case for the applicant is that the provision of All India Services (Conduct) Rules, 1968 are not applicable to him since he was not in service on the date the charge-sheet was issued and therefore, no inquiry could be held against him under the All India Services (Discipline and Appeal) Rules, 1969. The further case for the applicant is that no inquiry could be held against him for the alleged misconduct which had taken place more than 4 years before the institution of the proceeding. It is averred that in the AIS (D and A) Rules, 1989 member of the services has been defined and since the applicant had ceased to be the member of the service, no proceedings can be continued against him. It is prayed that the charge-sheet dated 29.10.96 be quashed.
3. In the reply filed by respondents No. 2 and 3 it is averred that the proceedings initiated against the applicant are perfectly valid. It is also stated that the applicant had already submitted his written statement of defence in terms of Rule 5 of AIS (D and A) Rules, 1969.
It is denied that charge-sheet for the alleged misconduct could not be given to the applicant after retirement.
4. In the reply filed by respondent No. 1 it is stated that the proposal of the Government of West Bengal was considered by the Government of India in the Department of Personnel and Training and keeping in view the allegations that the applicant had made illegal collection of money to the tune of Rs. 5,47,600/- from SC/ST candidate in the name of allotment of STD/ISD pay phone booths under the State Government Scheme the disciplinary proceedings had been initiated against him. It is also stated that the State Government was requested to consider the question of launching of separate criminal prosecution also against the applicant under the provisions of Prevention of Corruption Act, 1958 for accepting illegal gratification of Rs. 5.47 lakhs. It is averred that the applicant had misconducted in the year 1992-93 and therefore, when the departmental proceedings were initialed against him in the year 1996, it was within limitation. It is further stated that the act of the applicant is in the nature of grave misconduct.
5. In the rejoinder filed by the applicant besides, reiterating the facts stated in the O.A., it is averred that the charge-sheet is not legally tenable.
6. We have heard the learned Counsel for the parties and perused the documents placed on record.
7. The contention of Mr. Sarkar, learned Counsel for the applicant was three fold:-- (i) No enquiry can be held against the applicant, as the alleged misconduct had taken place beyond the period of 4 years from the date of issuing the charge-sheet.
(ii) No enquiry under the Rules of 1969 can be held against the applicant as he had ceased to be a member of the All India Services on attaining the age of superannuation.
(iii) No pecuniary loss is alleged to have been caused to the State Government or the Central Government and therefore, the enquiry cannot be held under Rule 6 of the All India Services (Death-cum-Retirement Benefit) Rules, 1958.State Bank of India v. A.N. Gupta and Ors., (1997) 8 SCC 60=1999(1) SLJ 60 (SC).Surath Chandra Chakravarty v. The State of West Bengal, AIR 1971 SC 752.
8. On the other hand, learned Counsel for the respondents contended that there is no bar against the departmental enquiry against a pensioner when misconduct is detected against him. It was pointed out that Rule 6 of the Rules of 1958 enables the Government to hold enquiry against the pensioner. It was contended that for departmental enquiry it is not necessary that there should be pecuniary loss for the State Government or the Central Government. It was also pointed out that the alleged misconduct had taken place within 4 years of the date of serving the charge-sheet.
9. We have given the matter our thoughtful consideration. The memorandum dated 29.10.96 and the articles of charge annexed thereunder are reproduced hereunder:-- "The Governor proposes to hold an inquiry, under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969, against Shri K.K. Naskar, IAS (Retd.) formerly a member of the Indian Administrative Service. The substance of imputations of misconduct in respect of which the inquiry is proposed to be held is set out in the articles of charge (Annexure-I). A statement of the imputations of misconduct in support of the articles of charge is enclosed (Annexure-II). A list of documents by which and a list of witnesses by whom, the articles of charge are proposed to be sustained are also enclosed (Annexure-III and IV).
2. Since Shri K.K. Naskar is a retired Indian Administrative Service Officer the sanction of the Central Government under Sub-clause (i) of Clause (b) of the provisio to Rule 6(i) of All India Services (DCRB) Rules, 1958, has been obtained under their order No. 106/14/96-AVD, I., dated 22.10.96.
3. Shri K.K. Naskar is required to submit to the undersigned a written statement of his defence not later than twenty one days from the date of receipt of this Memorandum by him and also to state whether he desires to be heard in person.
4. Shri Naskar is informed that an inquiry will be held only in respect of the articles of charge and the imputations as are not admitted. He should, therefore, specifically admit or deny each of the articles of charge and each of the imputations annexed herewith.
5. The receipt of this Memorandum and its enclosures may be acknowledged.
Statement of Article of charge framed against Shri Kamal Kanti Naskar, I.A.S., Ex-Secretary to the Scheduled Castes and Scheduled Tribes Deptt. Govt. of West Bengal.
It appears that Shri Kamal Kanti Naskar while functioning as the Secretary to the Scheduled Castes and Scheduled Tribes Department, Govt. of West Bengal some time during the period of 1992-93 by abusing his official position and in connivance with his wife Smt.
Alaka Naskar and one Shri Ram Chandra Poddar, Director of Poddar Telecommunications Pvt. Ltd., 26, Raj Ballav Saha Lane, Howrah-711 101, cheated several intending SC/ST candidates for STD/ISD pay phone booths on ownership basis including the following five persons, viz., Shri Swapan Biswas, Smt. Sima Biswas, Shri Pankaj Kumar Mondal, Shri Gopal Naskar and Shri Nirod Baran Mondal, who were not only induced to collect money from several intending SC/ST candidates which comes to a total sum of Rs. 5,47,600/- but also induced them except Smt. Sima Biswas to pay their own contributions for the said purpose which was totally illegal and was not provided for in the guidelines for the NSFDC, on the false plea of alloting them STD/ISD pay phone booths at Calcutta, South 24-Parganas, North 24-Parganas, and Howrah on ownership basis under the project for 500 STD/ISD/Local call pay phone booths for self-employment of SC/ST entrepreneurs. In doing so Shri Naskar by passed the implementation and monitoring committee formed for the said scheme making the said committee non-functional and defunct and, in the process also ignored SC and ST Development and Finance Corporation, in respect of the administrative proposal regarding the tie-up arrangement with N.S.F.D.C. and the Nationalised Banks for implementation of the said project.
This was apparently done by Shri Naskar in collusion with his wife Smt. Naskar and Shri Poddar with the intention to have wrongful gain by cheating the aforesaid intending SC/ST poor and downtrodden candidates.
Details are given in the statement of imputation. Such conduct of Shri Naskar prima facie shows lack of integrity and devotion to duty and is highly improper and unbecoming of a public servant and also derogatory to the prestige of the Govt. and as such is violative of Rule 3(1) of the All India Services (Conduct) Rules, 1968".
10. It is evident from the Article of charge that the allegations against the applicant are that while functioning as Secretary to the Scheduled Caste and Scheduled Tribes Department, Government of West Bengal during the period of 1992-93 he abused his official position and collected a huge sum of Rs. 5,47,600/- from the various persons who were aspirants of getting STD/ISD pay phone booths at Calcutta. The charge-sheet had been issued on 29.10.96 for the alleged misconduct in the year 1992-93. It is evident that charge-sheet had been issued within 4 years of the alleged misconduct.
11. The relevant part of Rule 6 of the Rules of 1958, which is required to be looked into and which is the subject-matter of the controversy is reproduced hereunder: "Recovery from pension :--6(1) The Central Government reserves to itself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from pension of the whole or part of any pecuniary loss caused to the Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence, during his service, including service rendered or re-employment after retirement.
Provided that no such order shall be passed without consulting the Union Public Service Commission:-- 6(1)(a) such departmental proceeding, if instituted while the pensioner was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the pensioner, be deemed to be a proceeding under this sub-rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the pensioner had continued in service: 6(1)(b) such departmental proceeding, if not instituted while the pensioner was in service, whether before his retirement or during his re-employment; (i) shall not be instituted save with the sanction of the Central Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and in such place or places as the Central Governmental may direct and in accordance with the procedure applicable to proceeding on which an order of dismissal from service may be made; 6(1)(c) such judicial proceeding, if not instituted while the pensioner was in service whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution.
(a) a departmental proceeding shall be deemed to be instituted when the charges framed against the pensioner are issued to him or, if he has been placed under suspension from an earlier date, on such date and (i) in the case of criminal proceedings, on the dated on which a complaint is made or a charge-sheet is submitted, to the criminal Court and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, as application is made, to a Civil Court." Rule 6(1)(b)(ii) shows that the departmental proceeding cannot be instituted in respect of an event which took place more than 4 years of the institution of the departmental proceeding. As already stated, the alleged misconduct had taken place within a period of four years from the date of the issuing of the charge-sheet. That being so the first contention of the learned Counsel for the applicant is devoid of merit.
12. As to the second contention of the learned Counsel of the applicant it is true that applicant had ceased to be the Government servant when he retired on 1.9.96. It is also true that the proceedings under AIS (D&A) Rules, 1969 can be initiated during the service period of the member of the service. This is what can be gathered from the Rules of 1969 in as much as the penalties provided for under Rule 6 can be inflicted only when the incumbent is in service.
13. However, the matter does not end here. All India Services (DCRB) Rules, 1958 give ample power to the Government to initiate departmental proceeding against the pensioners. We have already read Rule 6 here above. Rule 6(1)(b) says that if the departmental proceeding had not been instituted against a pensioner while he was in service, then the same can be instituted with the sanction of the Central Government.
There are two other conditions for instituting such departmental proceedings one of them we have already discussed. The other is not relevant in this case.
14. It may be pointed out that there is no specific provision in the Rules of 1969 that no disciplinary proceedings can be held against a retired member of the service. At the same time there is specific provision in the Rules of 1958 that departmental proceedings can be held against a pensioner after satisfying certain conditions. In view of the specific provision of the Rule6 in the Rules of 1958, it cannot be said that the departmental proceedings cannot be held against the applicant for the alleged misconduct.
15. Learned Counsel for the applicant in support of his contention has cited one case of the Privy Council and some cases of the Supreme Court. In those cases this principle has been enunciated that on retirement the relationship of master and servant comes to an end and therefore, after retirement no order of dismissal/removal can be passed against a Government servant. There cannot be quarrel with this legal position that once an employee retires from service he cannot be dismissed or removed from service.
In those cases it was not the fact situation that the employee was served with the charge-sheet keeping in view of the provision akin to Rule 6 of the Rules of 1958. Therefore, those rulings do not assist the applicant.
16. As already stated, there is specific provision in Rule 6 which enables the Government to initiate departmental proceedings for the misconduct alleged to have been committed by him within four years from the date of the issue of the charge-sheet. It is admitted position that the Government of West Bengal has sought sanction of the Central Government before issuing the charge-sheet. In the memorandum dated 29.10.96 it is clearly stated that sanction of the Central Government had been obtained under Sub-clause (i)(b) of proviso to Rule 6(i) of All India Services (DCRB) Rules, 1958. There is, therefore, no legal impediment in initiating and continuance of the departmental proceedings against the applicant.
17. It may be that major penalties mentioned under Rule 11 of the Rule 6 of Rules 1969 cannot be imposed on the applicant as he has already retired. But that is not the end of the matter. Rule 6 of Rules 1958 as read above enables the Central Government to withhold or withdraw the pension or part thereof permanently or for specific period if the applicant is found guilty of the charges. Thus the punishment can be given to a pensioner in respect of the misconduct alleged to have been committed by him while in service, if the charges framed against him are found to be established. Rule 6 is the complete code for the retired members of All India Services.
18. Coming to the third contention on which Mr. Sarkar had laid much emphasis, it may be stated that there is no necessity for initiating departmental proceedings against a pensioner for causing pecuniary loss to the Central or the State Government. We have already read the provisions in extenso. It is clearly stated in Rule 6 (1) of AIS (DCRB) Rules, 1958 that if the pensioner is found guilty in a departmental proceedings of grave misconduct or to have caused the pecuniary loss, the pension can be withheld or withdrawn. Thus either of the two conditions is to be satisfied. Either it is established that the pensioner had caused pecuniary loss to the Central Government or the State Government or he is found guilty of the grave misconduct during his service period.
19. It is not necessary to discuss in detail the cases of R.P. Nair and Another (supra) (decided by the Full Bench of Kerala), Mrinal Kanti Chakraborty v. State of W.B. (decided by a Division of Calcutta High Court) and Beni Madhab Poddar v. State of West Bengal and Ors. (Cal. LT 1996(1) HC 36) because the relevant rule position at Kerala as also in West Bengal was different. In the rules which existed in Kerala or in West Bengal the words 'grave misconduct' were missing and therefore, their Lordships held that unless there are allegations of causing pecuniary loss to the Central or the State Government the departmental enquiry cannot be held.It would have been necessary on our part to consider these rulings in great detail, had we not placed our hands on a Supreme Court decision directly on the point. In the case of State of Orissa v. Kali Charan Mohapatra, 1995(2) SCSLJ 369=1996(1) SLJ 142 (SC), their Lordship had occasion to consider the scope of Rule 6 of AIS (DCRB) Rules, 1958.
That was the matter of are tired member of Indian Police Service. It was clearly held by their Lordships that under Rule 6 it is not necessary that the proceedings should relate to the charge of causing pecuniary loss to the Central or State Government for misconduct or negligence during his service. It was clearly observed that where the pensioner is found guilty of grave misconduct there also action under Sub-rule (2) of Rule 6 can be taken. It may be stated that, that was a case where the criminal proceedings had been initiated against the petitioner. Under Rule 6, an order can be passed on both the situations i.e., where the pensioner is found guilty on the basis of the judicial proceedings or on the basis of the departmental proceedings. Therefore, the ruling applies on all fours to the instant case. It is profitable to read the observations of their Lordships appearing at Paras 5 and 6 of the report hereunder: "5. A reading of Sub-rule (1) of Rule 6 discloses the following features : (a) if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or (b) where a pensioner is found in a departmental or judicial proceeding to have caused pecuniary loss to the Central or State Government by his misconduct or negligence during his service (including the service rendered on re-employment after retirement), (c) The Central Government is entitled to withhold a withdraw pensioner any part of it whether permanently or for a specified period. The Central Government is also entitled to order recovery from pension of the whole or part of any pecuniary loss caused to the Central or State Government. Sub-rule (2) says that (a) says that where a departmental or judicial proceeding is instituted under Sub-section (1) or (b) where a departmental proceeding is continued under Clause (a) of the proviso to Sub-rule (1), (c) such employee shall be sanctioned by the Government which instituted such proceedings a provision pension not exceeding the maximum pension admissible to him during the period of pendency of such proceeding, (d) but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceedings and the issuance of final orders thereon.
(6). It is thus clear from an analysis of Sub-rules (1) and (2) that where a judicial proceeding is pending against a pensioner for grave misconduct, the Government is entitled to with-hold gratuity amount and/or death-cum-gratuity amount and is also entitled to sanction provisional pension for the period of pendency of the said proceedings. It is not necessary that a judicial proceeding should relate to the charge of causing pecuniary loss to the Central or State Government by misconduct or negligence during his service.
Sub-rule (1) of Rule 6 specifies two grounds upon which action thereunder can be taken. One is where the pensioner is found guilty of grave misconduct and that the other is where he is found to have caused pecuniary loss to the Central and State Government by misconduct and negligence during his service. Sub-rule (2) provides for orders to be made during the pendency of such proceedings. It may also be mentioned that neither the All India Service (Death-cum-Retirement) Rules nor the Pensions Act, General Clauses Act or the Leave Rules [referred to in Rule 2(2)] define the expression "misconduct." It would, therefore, be reasonable and permissible to understand the said expression in Rule 6 aforesaid in the manner defined in the Prevention of Corruption Act." 20. Since there is authoritative pronouncement of the Apex Court of India, there is hardly any scope for contending that without the allegations of causing pecuniary loss to the Central Government or the State Government, the departmental proceedings cannot be initiated.
21. Having rejected all the contentions raise on behalf of the applicant, we have no alternative but to dismiss this O.A.