Ramendra Lal Biswas Vs the State of Assam and 4 Ors.

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GAHC010069152022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2529/2022

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RAMENDRA LAL BISWAS S/O- LATE RASTIK LAL BISWAS R/O- HAILAKANDI TOWN, WARD NO. VI (TOLL ROAD) P.O AND P.S- HAILAKANDI DIST- HAILAKANDI, ASSAM PIN-788151

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VERSUS

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THE STATE OF ASSAM AND 4 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, FINANCE DEPARTMENT, DISPUR, GUWAHATI-6

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2:THE DIRECTOR OF ACCOUNTS AND TREASURIES ASSAM KAR BHAWAN DISPUR GUWAHATI-781006

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3:THE DEPUTY COMMISSIONER HAILAKANDI ASSAM

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4:THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI-781029

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5:THE TREASURY OFFICER HAILAKANDI

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ASSA

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Advocate for the Petitioner : MS. S SEAL, MS. J CHETTRY,MS. S KANUNGOE

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Advocate for the Respondent : SC, FINANCE, GA, ASSAM,SC, AG (A AND E)

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BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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Date of Hearing : 21.02.2024 Date of Judgment : 04.04.2025

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JUDGMENT & ORDER (CAV)

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(N. Unni Krishnan Nair. J)

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Heard Ms. S. Kanungoe, learned counsel for the petitioner. Also heard Ms. M. Bhattacharjee learned Additional Senior Government appearing for the State respondents.

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2. The petitioner, by way of instituting the present proceeding, has prayed for the following reliefs: -

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(i) By directing the respondent authorities to release regular pension and other pensionary benefits after calculating the 4(four) increments w.e.f. 201316 and the promotion scale to the post of Superintendent due in the year 2014.

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(ii) By directing the respondent authorities to grant 4(four) increments w.e.f. 2013 to 2016 and to give promotional scale to the post of Superintendent due in the year 2014.

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(iii) By directing the respondent authorities to regularize the period of suspension as on duty, in the interest of justice.

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After perusal of the records, cause or case shown if any and upon

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hearing the parties, Your Lordships may be pleased to make the Rule absolute and/or pass such appropriate Order/Orders or direction as Your Lordships may deem fit and proper in the interest of justice.

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3. The brief facts requisite for adjudication of the issue, arising in the present proceeding is noticed as under: -

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The petitioner, while working as an Accountant, Treasury Establishment at Hailakandi, basing on an allegation of commission of misconduct by him on account of using the monogram of the Treasury Officer unauthorizedly, came to be placed under suspension vide an order dated 12.10.2011. Thereafter, a show-cause notice, under the provisions of Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964, came to be issued upon the petitioner on 29.11.2011. The petitioner had submitted his written statement against the show-cause notice dated 29.11.2011, on 08.12.2011. The said proceeding so drawn up against the petitioner was vide order dated 31.12.2011, closed with a warning issued to him which was also required to be recorded in his service book. The period of suspension undergone by the petitioner was directed to be treated as on leave.

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Thereafter, basing on materials coming on record, with regard to commission of misconduct by the petitioner herein, the District Commissioner, Hailakandi, vide an order dated 12.04.2013, proceeded to place the petitioner herein, under suspension. An FIR was also submitted against the petitioner in the matter leading to registration of Hailakandi Police Station Case No. 115/2013, under Sections 25/420 of the IPC. The petitioner, who was arrested in connection with the said criminal case, was extended with the privilege of bail by this Court vide order dated 22.05.2013, passed in Bail Application No. 1198/2013.

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The disciplinary authority of the petitioner, thereafter, instituted a

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departmental proceeding against the petitioner vide issuance of a show-cause notice dated 22.06.2013. The petitioner submitted his written statement in the matter, on 07.08.2013. The disciplinary authority not being satisfied with the written statement so submitted against him, directed for holding of a departmental enquiry in the matter and according, an enquiry officer and a presenting officer came to be appointed. The enquiry officer, thereafter, proceeded to conduct the enquiry and on conclusion of the same, submitted his enquiry report on 10.10.2014. The enquiry officer, in his enquiry report, concluded that the allegation leveled against the petitioner herein, could not be substantiated through concrete evidence and accordingly, the involvement of the petitioner in the matter of sale/issue of fake/counterfeit stamp papers could not be established. After submission of the said enquiry report, the disciplinary authority of the petitioner vide order dated 06.08.2015, proceeded to revoke the suspension of the petitioner and reinstated him in his service. The petitioner, thereafter, on attaining the age of superannuation, retired from his services w.e.f., 31.08.2016.

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The departmental proceeding, having not been taken to its logical conclusion, the petitioner, on his retirement being only authorized a provisional pension, he approached this Court by way of instituting the present writ petition with the prayers as noticed herein above.

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4. The State respondents, through the Treasury Officer, Hailakandi, had filed an affidavit in the matter and therein, contended that the disciplinary authority of the petitioner, while reinstating him in his service vide the order dated 06.08.2015, had stipulated that the departmental proceeding against the petitioner shall be deemed to continue till receipt of the final enquiry report from the Superintendent of Police, CID, Assam, in connection with the criminal proceeding instituted against the petitioner herein. It was further submitted that the Investigating Agency had submitted a report

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dated 08.11.2013 to the District Commissioner, Hailakandi, stating that since the documents i.e., the stamp papers were required to be examined by the experts of FSL, the investigation in the matter had not concluded.

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5. This Court, vide order dated 29.07.2024, on being apprised that in the criminal proceeding so instituted against the petitioner, no charge-sheet was so filed till then and also noticing that in the departmental proceeding so instituted against the petitioner, the enquiry officer had submitted his report on 10.10.2014, however, the same was not taken to its logical conclusion, had directed the disciplinary authority i.e., the District Commissioner, Hailakandi, to pass appropriate orders on the enquiry report submitted by the enquiry officer in the departmental proceeding instituted against the petitioner herein.

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6. In pursuance to the said direction passed by this Court, vide the order dated 29.07.2024, the District Commissioner, Hailakandi, has placed before this Court, an order dated 05.08.2024, by which the disciplinary proceeding instituted against the petitioner was dropped. Further, it was stipulated in the said order that the period of suspension of the petitioner w.e.f., 12.04.2013 to 05.08.2015 shall be treated as on duty for all purpose. The said order dated 05.08.2024, being relevant is extracted herein below: -

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“ No. HA.210/DP-1/2013/121 Dated, Hailakandi, the 5^th August, 2024

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ORDER

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In continuation of this officer order communicated vide No. HA.210/DP1/2013/291 dated 06/08/2015, the Departmental Proceeding/Enquiry vide No. HA.210/DP-1/2013 initiated against Shri. Ramendra Lal Biswas, the then Accountant, Treasury Establishment, Hailakandi is hereby dropped with immediate effect. The period of suspension in respect of Shri Ramendra Lal Biswas, the then Accountant, Treasury Establishment, Hailakandi w.e.f. 12/04/2013 to 05/08/2015 shall be treated as on duty for all purpose.

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District Commissioner Hailakandi

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Memo No. HA.210/DP-1/2013 Dated, Hailakandi, the 5^th August, 2024”

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7. The departmental proceeding instituted against the petitioner vide the showcause notice dated 22.06.2013, having been dropped vide the order dated 05.08.2024, the same would have the effect of exonerating the petitioner from the charges leveled against him, therein, and the period of suspension of the petitioner also being regularized as on duty, there exist no bar in authorizing to the petitioner his regular pension and other pensionary benefits.

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8. The learned Addl. Senior Government Advocate appearing for the State respondents has submitted that a criminal proceeding being still pending against the petitioner, he would not be entitled to be authorized his regular pension along with other pensionary benefits including DCRG and would be entitled only to a provisional pension in terms of the stipulation made in Rule 22(1) of the Assam Services (Pension) Rules, 1969. The learned State counsel has by referring to the provisions of Rule 21 of the said Rules of 1969; more particularly, Explanation (b) thereto, has submitted that the judicial proceeding against the petitioner is to be deemed to have been instituted and accordingly, the provisions of Rule 22(1) would automatically stand attracted in case of the petitioner, herein.

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Rule 21 of the said Pension Rules of 1969, being relevant is extracted herein below: -

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“ 21. The Governor of Assam reserves to himself 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 a pension of the whole or part of any pecuniary loss caused to Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement provided that -

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(a) such departmental proceeding, if instituted while the officer was in service, 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 rule 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:

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Explanation: The continuation of the proceeding after the final retirement of the officer shall be automatic under sub-rule (a) of Rule 21 and no fresh decision of the Governor and/or the Appointing Authority nor any show-cause notice to the person concerned shall be necessary.

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The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases.

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(b) such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment –

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(i) shall not be instituted save with the sanction of the Governor of Assam;

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(ii) shall not be in respect of any event which took place more than 4 years before such institution; and

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

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(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 a cause of action which arose or an event which took place more than 4 years before such institution only;

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(d) the Assam Service Commission shall be consulted before final orders are passed. Explanation - For the purpose this rule-

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(a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, of if the officer has been placed under suspension from an earlier date, on such date: and

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(b) a judicial proceeding shall be deemed to be instituted-

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(i) in the case of a criminal proceeding, on the date on which the complaint or report of police officer on which the Magistrate takes cognizance, is made, and

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(ii)in the case of a civil proceeding, on the date of presentation of the plaint in the Court."

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9. A perusal of the provisions of Rule 21 of the said Pension Rules of 1969 would go to reveal that the Governor of Assam reserves to himself 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 a pension of the whole or part of any pecuniary loss caused to Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement.

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10. From a perusal of the provisions of Clause (b) of the Explanation as appended below Rule 21 of the Pension Rules, 1969, a judicial proceeding for the purpose of the said Rule, shall be deemed to be instituted w.e.f., the date on which a report of the police officer is made and on which the Magistrate takes cognizance. Section 190(1) of the Cr.P.C., contains the provision for taking cognizance of offences by the Magistrate.

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Sub-clause (b) of Section 190(1), Cr.P.C., has specifically provided for taking of cognizance of any offence by the Magistrate upon a police report of such facts. As per definition provided in Section 2(r) of the Code, ‘police report’ means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173, Cr.P.C. A police report under Section 173(2) is forwarded to a Magistrate when upon completion of investigation, any offence appears to have been committed and against such accused by whom such offence appears to have been committed. Such police report is also known as the charge sheet. In the case on hand, nothing has been placed/brought on record by the State respondents to indicate that police report/charge sheet has been submitted by police in the criminal proceeding instituted against the petitioner. Accordingly, in respect of the petitioner herein, it cannot be held that a judicial proceeding stood instituted against him, so as to deny to him his due pension and pensionary benefits. A judicial proceeding, having not been instituted against the petitioner, herein, the provisions of Rule 22(1) of the Rules of 1969, would have no application, insofar as, the case of the petitioner is concerned.

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11. The criminal proceeding pending against the petitioner herein, in the considered view of this Court, would not act as a bar for authorizing to the petitioner his pension and pensionary benefits, inasmuch as, the bar under Rule 22(1) of the Pension Rules, 1969, would only occasion in respect of a criminal proceeding w.e.f., the date on which the complaint or report of a police officer, on which the Magistrate takes cognizance is made, which stage has admittedly not arisen in the case of the petitioner, herein.

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12. In view of the above conclusions reached by this Court, this Court is of the considered view that the petitioner would be entitled to authorized his regular pension and pensionary benefits w.e.f., the date of his superannuation i.e., w.e.f. 31.08.2016. The State respondents are directed to process the pension and pensionary benefits receivable by the petitioner and forward the proposal prepared to the office of the Accountant General (A & E), Assam for disbursal.

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13. The State respondents shall now process the pension papers of the petitioner and prepare a pension proposal for authorizing to the petitioner his pension and pensionary benefits w.e.f., 01.09.2016. The said pension proposal be so prepared, complete in all respects within a period of one month from the date of receipt of certified copy of this order.

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14. The said pension proposal be thereafter, forwarded to the Office of the Accountant General (A & E) Assam for disbursal of the pension and pensionary benefits to the petitioner. It is directed that while preparing the pension proposal of the petitioner, the State respondents shall reckon the period of suspension undergone by the petitioner as on duty, in terms of the stipulations made in this connection in the order dated 05.08.2024 and also reckon the increments due to the petitioner, during the period he was so placed under suspension.

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15. The Accountant General (A & E) Assam, on receipt of the pension proposal in respect of the petitioner from the State respondents shall further process the same and issue the Pension Payment Order (PPO), authorizing to the petitioner, his pension and other pensionary benefits within a period of one month from the date of receipt of such proposal from the State respondents.

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16. The petitioner is also required to co-operate with the respondent authorities in the matter of finalization of his pension proposal.

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17. The period of suspension of the petitioner, having been regularized as on duty vide the order dated 05.08.2024, the petitioner would be entitled to receive his salaries for the said period and accordingly, the respondent nos. 3 & 5 shall release to the petitioner his due salaries for the period of his suspension w.e.f., 12.04.2013 to 05.08.2015 after deducting the subsistence allowance already paid to him. The arrears so working out shall be released to the petitioner within a period of one month from the date of receipt of certified copy of this order.

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18. At this stage, it is to be noted that the petitioner has also made a prayer for

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grant of promotional benefits for the post of Superintendent w.e.f., the year 2014. The said prayer of the petitioner would not mandate an acceptance, inasmuch as, the petitioner having proceeded on retirement, on reaching the age of superannuation w.e.f., 31.08.2016, it would not be open to this Court to now direct the State respondents to promote the petitioner to the post of Superintendent with retrospective effect, as, it would now be not permissible for the petitioner to assume the charge of the post of Superintendent. Accordingly, the said prayer of the petitioner stands rejected.

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19. The observations made herein above by this Court, have been so made in connection with the claim of the petitioner for being authorized his pension and pensionary benefits. Accordingly, any observations made by this Court herein above, shall not be construed to have been so made also considering the merit of the criminal proceeding pending against the petitioner and such proceeding shall be proceeded with by the Investigating Agency, strictly, in accordance with law.

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20. With the above observations and directions, the present writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Ramendra Lal Biswas v. the State of Assam and 4 Ors.

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Ramendra Lal Biswas v. the State of Assam and 4 Ors.

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