BINDESHWARI PRASAD SINGH Vs. EASTERN COAL FIELDS LTD

JUDGEMENT

(1.) The petitioner has taken out the instant writ petition, inter alia, praying for release of his gratuity, other terminal benefits, arrear wages and leave encashment which have been wrongfully withheld by the respondent company and also for quashing the disciplinary proceeding initiated vide memorandum of charges dated 27.01.2010 which is being continued even after his superannuation. The respondent company has opposed the instant writ petition by filing affidavit-in-opposition in the matter. The stance of the respondent company in the affidavit-in opposition is to the effect that the delinquent conduct of the petitioner amounted to grave misconduct which called for awarding of major penalty under the extant service rules and therefore, the respondent company was entitled to continue the disciplinary proceedings against the petitioner notwithstanding superannuation. At the interim stage, this Court by order dated 4.10.2010 directed the Assistant Commissioner to consider and dispose of the representation of the petitioner with regard to release of gratuity. Pursuant to such direction, it appears that the gratuity payable to the petitioner has been released by the respondent company. In course of the hearing. Mr. Banerjee, learned counsel appearing for the respondent company further informed this Court that the arrear of wages payable to the petitioner have also been released.

(2.) In view of the aforesaid facts, what remains to be decided at the final hearing of this writ petition is whether the disciplinary proceedings initiated against the petitioner ought to be continued even after his retirement.

(3.) Mr. Ghosh, learned counsel appearing for the writ submits that the continuation of the disciplinary proceeding post superannuation would be an empty formality in view of the law declared by the Supreme Court in the case of Jaswant Singh Gill v. Bharat Coking Coal Ltd. & Ors., 2007 1 SCC 663. In the said decision, the Apex Court held that Regulation 34.3 of the Coal India Executives' Conduct, Discipline and Appeal Rules, 1978 was ultra vires the provisions of the Payment of Gratuity Act, 1972 and would not permit the respondent company to withhold payment of gratuity resorting to the said rule in violation of the provisions of the said Act. In view of such ratio as laid down by the Supreme Court, he submits that the disciplinary proceeding for the purpose of withholding the payment of gratuity is not permissible in law. Mr. Ghosh further submits that a bare reading of memorandum of charges would show that no pecuniary loss had been suffered by the respondent company on account of the alleged delinquent act of the petitioner. Relying on the decisions rendered by this Court in the cases reported in (2009) 1 CLJ (Cal) 221 and GOUR CHANDRA SARKAR V/S STATE OF WEST BENGAL, 2010 3 CalHN 871, and the Apex Court in BHAGIRATHI JENA V/S BOARD OF DIRECTORS, O S F C, 1999 AIR(SC) 1841 and KANBI NANJI VIRJI V/S STATE OF GUJARAT, 1970 AIR(SC) 219 he submits that in the absence of pecuniary loss suffered by the respondent company, the latter docs not have jurisdiction to continue such disciplinary proceeding post superannuation. He, therefore, prays that the disciplinary proceeding be quashed and other dues like leave encashment be forthwith released by the respondent authorities to the petitioner.