TaxTMI 
TaxTMI 
2009 (5) TMI 961
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....ry, he was kept under suspension, pending departmental enquiry proceedings by the Divisional Forest Officer, Cooch Bihar Division vide his order dated 13.8.1987. Thereafter, a charge memo dated 13.8.1987 was served on the respondent by the disciplinary authority. The Articles of charges against respondent were two, namely :- (i) The respondent while functioning as Care Taker, Tourist Lodge, Jaldapara under Cooch Bihar Division from October 1985 to January 1987, deliberately neglected his duty in execution of works entrusted on him as care taker of the said Tourist Lodge and made excess payments against inflated measurements to the contractors for malafide personal gain, causing financial loss to the government to the tune of Rs. 1,25,293.34 paisa. (ii) While functioning as care taker of the tourist lodge, Jaldapara, the respondent intentionally falsified government documents and tempered with the same with ulterior motive of personal gain. 4) After initiation of departmental proceedings nothing seems to have been done by the disciplinary authority. 5) The respondent retired from service on 31st day of March, 1995, on attaining the age of superannuation. 6....
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....ired from service on attaining the age of superannuation and, therefore, the employer now cannot proceed with the domestic enquiry proceedings. 10) The State being aggrieved by the aforesaid order of the High Court, has presented this Special Leave Petition. 11) The learned counsel Shri Tara Chandra Sharma would submit Rule 10(1) of West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, would permit the employer to reduce or withhold pension by initiating proceedings against a government servant even after his retirement from service and the vires of the said rule has been upheld by this court in the case of State of West Bengal vs. Haresh C. Banerjee and Others, (2006) 7 SCC 651. It is further contended that departmental proceedings though initiated in 1987, the same could not be completed before the respondent retired from service on attaining the age of superannuation in view of non- cooperation of the respondent and, if any body has to be blamed, it is the respondent and not the employer for the delay in completing the proceedings. 12) The learned counsel Shri D.N. Ray, appearing for the respondent justifies the judgment of the High Court. 13) Two issues w....
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....tion which arose on an event which took place more than four years before such institution; and (d) the Public Service Commission, West Bengal, shall be consulted before final orders are passed. Explanation.- For the purpose of this article- (a) a departmental proceeding shall be deemed to have been instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to have been instituted- (i) in the case of criminal proceeding, on the date on which the complaint or report of police officer, on which the Magistrate takes cognizance, is made, and (ii) in the case of a civil proceeding, on the date on which the plaint is presented or, as the case may be, an application is made to a civil court." 15) Rule 10 of the rules speaks of the right of the Governor to withhold pension in certain cases. Sub-Rule 10(1) says that the Governor reserves himself the right of withholding or withdrawing pension or any part of it whether permanently or for a specified period and....
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.... 16) In the present case, while the delinquent employee was in service, the departmental enquiry proceedings had been instituted by the employer by issuing the charge memo and the proceedings could not be completed before the government servant retired from service on attaining the age of superannuation and in view of Rule 10(1) of the Rules, 1971, the employer can proceed with the departmental enquiry proceedings though the government servant has retired from service for imposing only punishment contemplated under the Rules. 17) The next issue is with regard to delay in concluding disciplinary proceedings. In our view that the delay in concluding the domestic enquiry proceedings is not fatal to the proceedings. It depends on the facts and circumstances of each case. The un-explained protracted delay on the part of the employer may be one of the circumstance in not permitting the employer to continue with the disciplinary enquiry proceedings. At the same time, if the delay is explained satisfactorily then the proceedings should be permitted to continue. This court in the case of Deputy Registrar, Co- operative Societies vs. Sachindra Nath Pandey, (1995) 3 SCC 134, has explained ....