Asoke Kumar Guria vs The State Of West Bengal & Ors.

Rai Chattopadhyay, J. :-

The sole legal question involved in the instant writ petition is whether Rule 5(3) second proviso of the West Bengal Board of Secondary Education (Appointment, Confirmation, Conduct and Discipline of Teachers and Non-Teaching Staff) Rules, 2018 is a provision, to be mandatorily applied in case of a retired teacher and if so whether the impugned order of the respondent/Commissioner of School Education, Government of West Bengal, dated April 4, 2023 duly conforms with the same or is liable to be set aside as illegal, being de-hors the Rule as above stated.

The order dated April 4, 2023, of the Commissioner of School Education, Government of West Bengal is under challenge in the instant writ petition.

Before proceeding to determine the disputed question as above, let the factual background of the case be narrated in a nut-shell. The original writ petitioner happened to be an assistant teacher appointed initially on and from September 3, 1981. On and from May 15, 1996, he has been appointed and approved as a Headmaster of the school. He has retired from service upon attaining the age of superannuation with effect from April 30, 2019. After retirement, the original petitioner was duly provided with the “No Liability Certificate”, form the school. The school has sent his pension-papers as well as reply to the queries and objections raised by the Joint Director of Accounts (SE), Paschim Medinipur. Allegedly, the successor/teacher-in-charge of the school has raised grievance and complaint against the original writ petitioner the ex-Headmaster not to have handed over charge of the school in proper manner, at the time of his superannuation, by handing over all relevant records/documents of the school to the said successor in office. Allegedly also that though the original writ petitioner had retired on April 30, 2019, as Headmaster of the school, he has actually handed over charge of the school on June 26, 2019, after about two months from the date of his superannuation.

The documents said to have not been handed over are (i) original cash book of the school, (ii) fund register, (iii) assets register, (iv) recognition memo, (v) clerk‟s post sanctioning memo, (vi) resolution book for the periods 1968-1960, February 16, 1974 to October 10, 1977, July 1985 to April 29, 1991, (vii) original documents of land and building of the school, (viii) Kanyashree, Sabujsathi, Shikkhashree registers in original, etcetra.

On a complaint lodged against the said ex-Headmaster of the school and as per order of the Additional District Magistrate, Samagra Shiksha Mission (SSM), Paschim Medinipur, a committee was formed and an enquiry was conducted on August 21, 2019. The committee submitted its report, part of which is reproduced bellow:

Thereafter, pursuant to this Court‟s order dated July 8, 2022 in WPA No. 5828 of 2022, audit of accounts of the school was done by an independent auditor. The following is the observation of the auditor:

In essence the auditor's observations disclose substantial deficiencies in maintenance and preservation of the school's financial records, particularly for the periods 1996–2017 and 2017–2019, including missing cash-book entries, pencil-written accounts and non-production of vouchers and other supporting documents. At the same time, the auditor records that the 2019 ACR grant (“Additional Class Room Grant”, i.e. a capital grant for construction of Additional Class Rooms in Government-aided/Government-sponsored schools), was not withdrawn by the retiring Headmaster and that expenditure from it was subsequently incurred by the teacher-in-charge with corresponding accounting entries and vouchers. The report also records the explanations of the school authorities attributing the historical deficiencies principally to poor bookkeeping and the casual conduct of the clerk of the school, since deceased.

On August 24, 2022, this Court has passed the order

The Joint Director of Audit and Accounts of Directorate of School Education has expressed his views as follows:

In this backdrop, the respondent/Commissioner of School Education, in his order dated April 4, 2023 has discussed and relied upon Scheme 19(4) and (5) of the West Bengal Recognised Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981, which are as follows:

Scheme 19(4) concerns the quality of the employee's past service for determining entitlement to full pension, whereas scheme 19(5) provides a specific mechanism for dealing with misconduct and pending proceedings even after retirement. It says when departmental or judicial proceeding are pending concerning alleged misconduct of a retiree, his pension may be withheld or reduced; provisional pension may be granted; gratuity may be withheld pending final decision.

Hence in the said impugned order dated April 4, 2023, the Commissioner issues direction that the President of the Managing Committee of the school should issue show cause notice to the said ex-Headmaster directing him to explain the irregularities pointed out for the period while he was the Headmaster of the school; that his reply should be sent to the disciplinary authority, that is, the West Bengal Board of Secondary Education for taking necessary action in terms of 2018 Rules; that disciplinary proceeding should be initiated if not the reply by him to the show cause notice is found to be satisfactory, with approval of the State Government; in case his reply is satisfactory, his pension papers should be duly processed. The Provident Fund accumulation has been directed to be released towards the ex-Headmaster. Mr. Arka Bhattacharyya has submitted that in terms of the Court‟s order dated August 24, 2022, the original writ petitioner has been granted provisional pension.

In this factual backdrop and challenging the impugned order of the respondent as above, Mr. Sarwar Jahan, learned advocate for the writ petitioner has submitted that the said impugned order ultimately turns out to be bad in law due to its non-conformity with the relevant Rules. In this regard he refers to Rule 5(3) second proviso of 2018 Rules in particular. For benefit of discussion let Rule 5(1), (2) and (3), of 2018 Rules be quoted as herein bellow:

It has been submitted that in terms of Rule 5(3) second proviso, disciplinary proceeding, if any, as regards a retired school teacher (in this case a Headmaster), has to be instituted with approval of the State Government, within a period of three years from the date of his retirement. It is submitted that the respondent authority has never initiated any disciplinary proceeding against the original writ petitioner within the said time frame as per the Rule. Even in the said order dated April 4, 2023, the respondent has not initiated disciplinary proceeding but only has contemplated it against the said ex-Headmaster.

It is further submitted that withholding of pension to a retired teacher is permissible under the law, if only the charge of corruption against him is proved. That, as no disciplinary proceeding has ever been initiated against the said ex-Headmaster, much less than any misconduct of him being proved so far, the said person would be eligible for full pension, otherwise allowable to him. Likewise, since the person has died during pendency of the instant writ petition, his legal heir/s are entitled to family pension and gratuity. It is submitted that entire allegations against the said ex-Headmaster is based only on presumptions and assumptions and he having not returned the registers, cash books and other accounts related documents are allegations, which are only baseless and frivolous. This is so because at the time of his superannuation, he has been duly provided with the “No Due Certificate”, from the school.

The respondent is represented by Mr. Arka Bhattacharya. He submits that the service tenure of the ex-Headmaster cannot be said to be satisfactory. He indicates that allegations of fairly a large number of irregularities committed by him in keeping accounts of the school have surfaced. According to the allegations made by the successor in office alleged in the Public Grievance Cell of the office of the District Magistrate, Paschim Medinipur, there has been gross financial and managerial irregularities in connection with the school accounts and records. That the petitioner has allegedly not handed over important documents, registers, cashbooks and accounts at the time of making over charge on his superannuation. That, he did not keep financial transaction records properly. The internal enquiry committee as well as the Auditor appointed by virtue of this Court‟s order have unanimously reported about the irregularities happened during the period when the said ex-Headmaster was in charge of the affairs of the school.

Mr. Bhattacharyya, learned advocate for the State has relied on Rule 23A (i) of the Management of Sponsored Institutions (Secondary) Rules, 1972 as amended from time to time. He submits that, as Head of the institution, the Headmaster has to firstly keep the records in proper form and also he is duty-bound to hand over the same at the time of making over charge. Now, that there is strong apprehension and belief that at the instance of the said ex-Headmaster, there has been gross irregularity in the financial sector in the said school, the respondent authority is entitled to proceed to conduct a disciplinary enquiry against him, he says. He has further stated that until and unless the concerned person is exonerated in the said disciplinary proceeding he would not be entitled for any pensionary benefit in accordance with law. In such circumstances, according to the said respondent, there is no illegality or infirmity in the order of the Commissioner of School Education, West Bengal dated April 04, 2023, as impugned in the instant case in which the said respondent authority, after consideration of the entire gamut of allegations and findings of the internal enquiry committee as well as the Auditor against the said ex-Headmaster has directed for initiation of a disciplinary proceeding to be initiated against him. He insists that there is no sufficient ground for this Court to interfere into that order of the Commissioner, much less than any illegality having been made by the respondent authority in passing the said impugned order. He insists further for dismissal of the instant writ petition.

Fact remains that during pending of this writ petition, the original writ petitioner/ex-Headmaster of the school died on October 25, 2023. His death was brought on record by the Court and the present petitioner has been incorporated as the substituted writ petitioner in the instant case. It is learnt that though by dint of the Court‟s order dated January 13, 2023, the ex-Headmaster has been receiving provisional pension, however pursuant to his death, grant of such pension has also been stalled.

It appears that the ex-Headmaster retired from service with effect from April 30, 2019. After his retirement, some persons including his successor in office agitated about irregularity, corruption and defalcation being done by the ex-Headmaster as regards the account of the school.

The internal enquiry committee was formed vide order of the District Magistrate (SSM), Paschim Medinipur dated August 13, 2019. An independent Auditor has audited the accounts of the school after being appointed vide memo dated July 08, 2022.

Report of both are quoted above from which it transpires inter alia that occurrence of irregularity in the accounts of the school during the period when the ex-Headmaster was posted therein, is apparent. However, involvement of the ex-Headmaster in commission of the alleged irregularity and/or defalcation and/or mismanagement in the account of the school is a subject matter of disciplinary proceeding and proof. Till now it is only an assumption considering the proximity of the tenure of employment of the Headmaster in the school and the period during which the account of the school is alleged to have been defalcated. Assumption, however strong it is, cannot take place of proof and a proven fact in a duly constituted enquiry proceeding.

The Court is inclined to look into the provision of West Bengal recognized Non-Government Educational Institution Employees (Death-cum-Retirement benefit) Scheme, 1981 which are quoted above. Scheme No. 19(4) says that any action under this Scheme should be taken only after a charge of corruption has been proved further in Scheme No. 19(5) it has been provided that an employee facing departmental or judicial proceeding, would not be entitled for final pension, gratuity and in case of misconduct of the pensioner, the pension sanctioning authority has the power to withhold or reduce his pension. „This misconduct of the petitioner‟ as mentioned in the Scheme No. 19(5) is not to be an idea of misconduct committed by the pensioner without proof of the same, duly established through a well-founded disciplinary proceeding.

As a matter of fact in the instant case, admittedly, no disciplinary proceeding has yet been initiated against the said ex-Headmaster and now there is no scope for the same due to demise of the said person during pendency of the writ petitioner.

The other question is whether the impugned order dated April 04, 2023 can stand the test of law in view of Rule 5(3), second proviso of the 2018 Rules. It is found that for a retiree, the disciplinary proceeding may be initiated on the allegation of misconduct/corruption, but that has to be instituted within three years from the date of his retirement, if the misconduct becomes known to the Board after his retirement.

Even if it is held that the alleged misconduct of the ex-Headmaster was discovered after his retirement and becomes known to the authorities only after his retirement, even then terms of the said provision of the Rules, the authorities are not empowered or authorized to initiate any disciplinary proceeding against the retiree, after lapse of three years time-frame from the date of his retirement. This has to be a mandatory provision in the context of the Rules of 2018, in so far as a retiree cannot be deprived of pension and other retiral benefits, for indefinite period, in absence of any proof of misconduct. This proposition of law is now well-settled and upheld by the Constitutional Courts, for time and again.

Having considered the date of retirement of the original writ petitioner, that is, with effect from April 30, 2019, the impugned order, which contemplated a disciplinary proceeding to be initiated against the said ex-Headmaster, is found to have been passed after lapse of the statutory time frame of three years from the date of his retirement. This hits the provision of Rule 5(3) second proviso of 2018 Rules and charges levelled against the petitioner cannot be said to be sustainable any further in the eye of law.

An authority vested with statutory power must exercise such power strictly within the four corners of the statute or statutory rules and cannot enlarge the period, scope or consequence of such power by administrative interpretation. Secondly, where a rule prescribes a definite period within which disciplinary jurisdiction may be invoked against a retired employee, such prescription is not merely procedural but constitutes a substantive limitation upon the exercise of jurisdiction, particularly where the consequence of its disregard is to keep the retiral rights of the employee in a state of continuing uncertainty. Thirdly, pension, once earned upon completion of qualifying service, is not a matter of bounty or grace but a statutory entitlement, and its withholding or reduction can be sustained only upon strict compliance with the conditions prescribed by law. Fourthly, an allegation, however serious, cannot be equated with a finding of misconduct; the former may furnish the basis for initiation of a proceeding where the law so permits, but cannot, in the absence of a duly constituted proceeding and a finding in accordance with law, become the foundation for deprivation of an accrued pensionary entitlement. Lastly, the principle of administrative legality requires that an authority cannot, by keeping a proposed disciplinary action in contemplation beyond the period expressly permitted by the governing rule, achieve indirectly what it is prohibited from doing directly. These principles assume greater significance in the case of a retired employee, since the law cannot ordinarily countenance an indefinite suspension of retiral benefits on the basis of allegations which have neither culminated in a lawful proceeding nor resulted in a finding of misconduct.

For such impugned order of the Commissioner of School Education, West Bengal dated April 04, 2023 being de hors the Rules of 2018 in the manner as discussed above, is found to be illegal and not sustainable in the eye of law. The same is liable to be set aside.

Similarly, the allegation on misconduct or corruption against the ex-Headmaster being not proved as per law, the Court finds that the respondent authority cannot hold him not entitled, pensionary and over-retiral benefits on the ground of his service being not satisfactory by citing provision of any Rules or Schemes in vogue. The contention of the respondent State that the documents and materials which have already come on record through the internal committee‟s enquiry and the Auditor‟s report would suffice to come to a conclusion about dissatisfactory service of the ex-Headmaster and has a sufficient ground to withhold his pension is absolutely unsustainable in view of the provision of Rules and Scheme as discussed above. This is more so, when admittedly, no disciplinary proceeding has ever been initiated on the allegation of misconduct against the ex-Headmaster far less of proof of his misconduct being on record.

It is advisable that the State authorities may not be such reckless in the manner in which it deals with the issue of pension of a person which is accepted in law not to be a bounty but a legal right of a service holder, after his retirement.

On the basis of discussion as made above, let this writ petition be disposed of with the following directions: -

The writ petition being No. WPA 11376 of 2023 is disposed of along with applications pending, if any.

Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.