DURGADAS MUKHOPADHYAY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE principal appeal, being MAT No. 2643 of 1998, was disposed of earlier. It was contended that the other connected appeal being MAT No. 2589 of 1998 and the cross-objection, being COT No. 3019 of 1998, though was heard, was not disposed of. It appears from the order disposing of the principal appeal that no order was passed in relation to the other appeal and the cross-objection. This matter was mentioned, accordingly, it was placed and the matter has been heard on the other appeal, being MAT No. 2589 of 1988 and the cross-objection, being COT No. 3019 of 1998.

(2.) THE principal appeal was dismissed and the order of the learned Single judge was not interfered with. The learned Single Judge was pleased to set aside the disciplinary proceedings with liberty to proceed afresh within three months from the date the decision of the learned Single Judge was rendered in 1998. In view of the pendency of the appeal, the appellant did not proceed with the disciplinary proceedings. Initially, there was a stay for a limited period, however, after sometime the stay stood vacated or lapsed.

(3.) THE fact remains that the disciplinary proceedings was not proceeded with despite there being no interim order prohibiting from continuing with the disciplinary proceedings, the respondent/cross-objection retired in 2002. It was stated by Mr. Dutta that since the appeal has been dismissed, therefore, the cross-objection has to be allowed so far as it relates to the continuation of the disciplinary proceedings after retirement. According to him, sub-rule (8) of Rule 28 of the Management of Recognised Non-Government Institutions (Aided and unaided) Rules, 1969 (hereinafter referred to as the 1969 rules) postulates a disciplinary proceeding only against a teacher in service. There is no provision in sub-rule (8) which authorizes continuation of disciplinary proceedings after retirement of a teacher. He relied on the decision in Biswanath Seth vs. State of West Bengal and Ors. , 2005 (1) CLT 541 (HC) delivered by one of us (Soumitra pal, J.) sitting singly wherein such a view was taken relying on the decisions in bhagirathi Jena vs. Board of Directors, OSFC and Ors. , AIR 1999 SC 1841, hindusthan Copper Ltd. vs. Krishnendu Narayan Ghosh and Ors. , 2001 (3) CHN 122, of this Court. According to him paragraph 19 (5) of the West Bengal recognised Non-Government Educational Institutions Employees (Death-cum-Retirement) Benefit Scheme, 1981 does not permit continuation of disciplinary proceedings against an employee after retirement. It only provides for the contingency as to what would happen if any disciplinary/judicial proceeding is/ are continued against a retired employee. It does not authorize continuation of disciplinary proceedings as such. According to him, the Pension Scheme is an executive action and has no statutory force and it cannot override the management of the Recognised Non-Government Institutions (Aided and unaided) Rules, 1969. He also relies on the Recognised Non-Government educational Secondary Institutions Pension Rules, effective from 1st of April 1966 and contends that this Rule, being a statutory rule and being still effective and having not been repealed and there being no provision if the said Rule for continuing disciplinary proceedings against a retired employee, the Scheme cannot simply, by reason of its reference in paragraph 19 (5), conferring of jurisdiction as to the continuation of disciplinary proceedings against a retired employee. According to him, this Rule also does not provide as to who will continue with the disciplinary proceedings unlike Rule 10 of the West Bengal service (Death-cum-Retirement) Benefit Rules, 1971 wherein a specific jurisdiction has been conferred by recognising the disciplinary proceedings within the meaning of the said rules to be continued by the authority by winch the proceedings was so initiated before retirement. Therefore, according to him, there is no provision under which disciplinary proceedings can be proceeded with a against a retired teacher, as was held in Biswanath Seth (supra ). Therefore according to him, this Court should direct payment of all retirement benefits in terms of paragraph 19 (5) of the Pension Scheme and direct that the service of the respondent/cross-objector should be treated as in service till retirement and entitled to all service benefits accordingly.