Petitioner Challenged the deduction of benefits during suspension after compulsory retirement with superannuation benefits. The court ruled in favor of the petitioner.
Respondents to recompute and disburse retirement benefits treating the petitioner as on duty during suspension, with 7% interest for delayed payment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE
BEFORE:
The Hon’ble Justice RAJA BASU CHOWDHURY
WPO/548/2012
SWAPAN KUMAR BASU VERSUS PUNJAB NATIONAL BANK & ANR.
For the Petitioners : Mr. Victor Chatterjee, Advocate Mr. Barnamoy Basak, Adv.
For the Respondents : Mr. R. N. Majumder, Advocate Mr. S. M. Obaidullah, Advocate Heard on : 18th January, 2023 Judgment on : 5th April, 2023.
RAJA BASU CHOWDHURY, J.:
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proceedings. On 27th August, 1987, Senior Chief Manager of UBI lodged a FIR and on the basis thereof, a criminal case being G.R. Case No. 2951 of 1989, T.R. No. 102 of 2002 was initiated against the petitioner which ultimately culminated in an order of acquittal passed by the Learned Metropolitan Magistrate, 15th Court, Calcutta.
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superannuation benefits i.e. Pension and/or Provident fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment. The Disciplinary Authority by the aforesaid order was, inter alia , pleased to further observe as follows:
“ In view of the facts and circumstances of the case and the gravity of the misconduct committed by you, I find that the proposed punishment has been just and proper. Therefore, I impose upon you the punishment of ‘Compulsory Retirement with superannuation benefits i.e. Pension and/or Provident fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment’ under Clause 6(c) of Bipartite Settlement dated 10th April, 2002 with immediate effect. It may further be noted that the period of your suspension shall not be treated as on duty and accordingly, you will not be entitled to pay and/or allowances including increments falling due, if any, during the period of your suspension, save and except what have been paid to you by way of subsistence allowance.”
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future employment’. Challenging the disciplinary proceedings, the order of compulsory retirement and the order of the appellate authority, the present writ application has been filed.
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compulsory retirement has been awarded yet at the same time the concerned employee is awarded superannuation benefits which includes pension, provident fund and gratuity, as would be due otherwise under the Rules and Regulations prevailing at the relevant point of time and without disqualification from future employment. By referring to Chapter 23 of the said Settlement, he says that it was open to the management of the respondent no.1 to award punishment as has been enumerated under the various Sub-Clauses of Clause 6 of the said Settlement. Having chosen to award punishment in terms of Clause 6(c) of the said Settlement, the Disciplinary Authority could not have, in derogation of the provisions contained in the said Settlement, directed that the period of suspension shall not be treated as on duty and the petitioner shall not be entitled to pay allowance including increments fallen due, to him during the period of suspension, save and except, what has been paid to him by way of subsistence allowance. By further referring to Clauses 3 and 6 and various Clauses under Chapter 23 of the said Settlement, it is submitted that his case could have been covered under Sub-Clause (c) of Clause 3 of the aforesaid chapter. The disciplinary authority, however, thought it fit to impose punishment on him in terms of Clause 6(c) of Chapter 23. Having thus, imposed punishment in terms of Clause 6(c) of Chapter 23, of the settlement the respondents ought not to have denied the benefits, which the
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said Settlement had provided to the employees, as per the various terms which are recorded in the respective clauses of the said Settlement.
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sheet. Subsequently, disciplinary proceedings were initiated. When the respondent attempted to proceed with the enquiry proceedings, the petitioner stood in the way of such enquiry. It was only upon acquittal of the petitioner that the enquiry proceedings could once again be started, de novo . Mr. Majumder by referring to the chargesheet at page 45 of the writ application submits that serious charges were levelled against the petitioner. He submits that simply because petitioner had been acquitted in the criminal trial, the same does not mean that enquiry proceedings cannot be proceeded against the petitioner. He says that the standard of proof, in criminal trial and in a disciplinary proceeding are different. In the instant case, the petitioner has been held guilty of the charges levelled against him. Ultimately, he was awarded with punishment of compulsory retirement in terms of Clause 6(c) of Chapter 23 of the said Settlement. He says that the appellate authority did not interfere with the order passed by the disciplinary authority and as such, the order passed by the disciplinary authority stands confirmed. He submits that pursuant to the direction passed by this Hon’ble Court, a report has been filed by the respondent no.1. According to Mr. Majumdar, nothing is due and payable to the petitioner. Not only the provident fund accumulations but the gratuity which was due and payable to the petitioner has been disbursed. For the purpose of computing both provident fund and gratuity, the authority had taken into
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consideration, the date when the petitioner had entered into service and the date when the order of suspension had been issued. Since the petitioner had not been reinstated in service, the petitioner cannot be entitled to gratuity for the period he was under suspension and in this case the order passed by the disciplinary authority specifically provided that the petitioner was not entitled to pay for the period when he remained under suspension. In the light of the submissions made by the petitioner’s advocate that he does not wish to challenge the enquiry proceedings any further, nothing survives in the writ application, the same should be dismissed.
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petitioner moved this Hon’ble Court by filing a writ application being WPA No. 1737 of 2005. By order dated 12th September, 2005, this Hon’ble Court directed that the departmental proceedings may continue in accordance with law but the Final Order if passed adversely affecting the petitioner will not be given effect to without leave by this Court. The petitioner did not attend the department proceedings on 22/23rd September, 2005, and the department proceedings were held ex-parte. The enquiry officer submitted his report on 7th November, 2005, holding the petitioner guilty of the charges. By cover of letter dated 24th November, 2005, the petitioner was furnished with a copy of the report. By letter dated 9th December, 2005, the petitioner submitted his representation against the enquiry report. After the petitioner was acquitted of the criminal charges, by letter dated 22nd February, 2006, the Disciplinary Authority proposed the punishment of compulsory retirement with superannuation benefits to the petitioner. The petitioner made his representation against the proposed punishment by his letter dated 7th March, 2006, whereupon the Disciplinary Authority passed his Final Order of compulsory retirement on 13th March, 2006.
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quashed and set aside. The aforesaid order dated 20th March, 2009, was carried in appeal by the respondents. The Division Bench of this Hon’ble Court by an order dated 8th July, 2009, was, inter alia , pleased to set aside the judgment and order of the learned Single Judge to the extent the Court refused liberty to the respondents to proceed with departmental proceedings afresh. By the aforesaid order, the Division Bench of this Hon’ble Court granted liberty to the respondent bank to proceed afresh, on the basis of the charge-sheet already issued by them. Although a Special Leave Petition was filed challenging the said order, the same was dismissed by an order dated 1st October, 2009.
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Clause 6(c) of the Bipartite Settlement dated 10th April, 2002, for having committed gross misconduct. While proposing as such, the disciplinary authority also afforded the petitioner a personal hearing, in terms of Clause 12(a) of chapter 23 of the memorandum of settlement/bipartite settlement dated 10th April, 2002, on the nature of punishment proposed. Ultimately, by an order dated 8th November, 2010, the disciplinary authority was, inter alia , pleased to impose a punishment of “ compulsory retirement with superannuation benefits i.e. pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing and without disqualification from future employment ” under Clause 6(c) of the Bipartite Settlement dated 10th April, 2002, with immediate effect. Additionally the Disciplinary Authority also noted as follows:-
“It may further be noted that the period of your suspension shall not be treated as on duty and accordingly, you will not be entitled to any pay and/or allowances including increments falling due, if any, during the period of your suspension, save and except what have been paid to you by way of subsistence allowance.”
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October, 2011, while disposing of the appeal was, inter alia , pleased to observe as follows :-
““Therefore, in consideration of the nature and gravity of the misconduct proved in the enquiry, against the Appellant, I do not find any cogent reason or scope for intervening in the quantum of punishment imposed upon him by the Disciplinary Authority. I therefore, upheld the punishment of “Compulsory Retirement with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing in the Bank and without disqualification from future employment.”
With the above decision, I now dispose off the appeal preferred by the appellant.””
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disciplinary authority had also proposed to award punishment on the petitioner in terms of Clause 6(c) of the Settlement, having thus so proposed, the disciplinary authority ought not to have been deviated therefrom and ought not to have been enlarged the punishment, by directing that the period of suspension shall not be treated as on duty and that the petitioner shall not be entitled to any benefits during the said period save and except the subsistence allowances already paid.
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suspension of the petitioner as not on duty, thereby curtailing pay and allowances and increments to the petitioner.
“If he be acquitted, it shall be open to the management to proceed against him under the provisions set out below in Clause 11 and 12 infra relating to discharges, However, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months’ pay and allowances in lieu of notice. And he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full pay and allowances minus such subsistence allowance as he has drawn and to all other privileges for the period of suspension provided that if he be acquitted by being given the benefit of doubt he may be paid such portion of such pay and allowances as the management may deem proper, and the period of his absence shall not be treated as a period spent on duty unless the management so directs.”
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the Final Order of punishment had been passed; that being the case, the petitioner cannot be denied the service benefits till the date of his retirement. Denial of service benefits to the petitioner would tantamount to breach of the terms of the said Settlement as well.
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what had been paid to him by way of the subsistence allowance. On the aforesaid terms the appeal had been disposed of. In the light of the discussions made hereinabove, the respondents cannot be permitted to deny the legitimate entitlement of the petitioner.
(RAJA BASU CHOWDHURY, J.)
sg/akg.
3 issues framed by the court
Whether an employee awarded compulsory retirement with superannuation benefits is entitled to service benefits including gratuity for the entire period of employment including suspension period.
Whether the disciplinary authority can deny service benefits when it has imposed a punishment of compulsory retirement with superannuation benefits under the Bipartite Settlement.
What direction should the court issue to ensure the employee receives entitled retirement benefits?
2 provisions across 1 enactments
SWAPAN KUMAR BASU
PUNJAB NATIONAL BANK
ANR
RAJA BASU CHOWDHURY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
