Surendra Kumar Ray Choudhury vs Collector of Calcutta

Chittatosh Mookerjee, J.—In the year 1939 the Petitioner was appointed as Treasurer of the Calcutta Collectorate. On September 8, 1939, the Petitioner, his father, Sashi Bhusan Ray Choudhury jointly executed a bond in favour of the Governor of the then Province of Bengal binding themselves and their heirs and successors for due performance and fulfillment of the duties of the Petitioner as the Treasurer. They had delivered to, deposited with and endorsed over to the Collector Government Promissory Notes to the extent of Rs. 1,05,000 for the purpose of securing and indemnifying the Governor of the Province of Bengal against losses and damages which might be suffered. In September 1973, the Petitioner had attained the age of superannuation, but he was re-appointed as the Treasurer of the Calcutta Collectorate. He was due to finally retire on April 30, 1975. According to the Petitioner, on April 30, 1975, in the presence of the Collector, Calcutta and the Treasury Officer he had made over charge to Shri S. Sadhukhan, who was then the Special Treasurer of the Collectorate. On May 2, 1975, the Petitioner had drawn his salary for the month of April 1975. On June 30, 1975, he submitted papers for drawing up his pension and gratuity. On July 1, 1975, the office of the Collector, Calcutta, forwarded the pension and gratuity papers of the Petitioner to the office of the Accountant-General, West Bengal; On July 22, 1975, the Accountant-General, West Bengal, had submitted a final report for payment of pension and gratuity to the Petitioner.

The Respondents have disclosed that on June 27, 1975, the Commissioner, Presidency Division, had written a letter to Shri N. Ganguli, who was then the Collector, Calcutta, stating that the Chief Secretary had been informed that the new Treasurer had found cash balance at the Treasury short by a considerable amount after taking charge. But no report on this point had been submitted by the Collector, The Commissioner informed the Collector that he had asked his personal Assistant Shri B. Barman to look into the matter. The cash book etc. should be shown to him. On June 28, 1975, Shri N. Ganguli, the then Collector of Calcutta, wrote a D.O. letter to the Commissioner, Presidency Division, stating that the Treasury Officer in a note had informed him only day before yesterday the fact stated in the said D.O. letter. On April 30, 1975, certain deficit had been found in the cash balance of the Treasury. It had been now estimated that Rs. 545 was to be paid by the ex-Treasurer,, Shri Surendra Kumar Ray Choudhury. The Collector further stated that the present Treasurer had taken over charge from Shri Surendra Kumar Ray Choudhury on April 30, 1975, in the afternoon with full responsibility as regards cash and stamp etc. The Collector further stated that it was also apprehended that there might be certain shortages left by the ex-Treasurer in stamps and the Treasury Officer and the Treasurer had been asked to enquire into the matter and send a report. The Collector stated that he would shortly come up with the proposal to realise the amounts involved from Shri Surendra. Kumar Ray Choudhury''s security of Rs. 1,05,000 in Government Promissory Notes now being held in terms of the agreement dated September 8, 1939. Shri B. Barman, the Personal Assistant of the Commissioner, Presidency Division, after holding an enquiry into the allegations regarding the alleged shortages of stamps and cash in the Treasury double lock and defalcation of sale proceeds of stamps by the senior salaried stamp vendor submitted a report on July 19, 1975. Shri Barman adversely commented about the responsibility of the then Treasury Officer regarding the alleged shortages in cash and stamps. The Commissioner, Presidency Division, by his memorandum dated July 24/25, 1975, had forwarded the said report of Shri B. Barman together with his own comments and observations. The Commissioner also made adverse comments against the Collector and the Treasury Officer. He endorsed the suggestion that the Collector and the Treasury Officer should be transferred forthwith. On July 10, 1975, the Collector, Calcutta, submitted a report to the Commissioner, Presidency Division, Calcutta, stating that the new Treasurer after taking over charge had undertaken verification of stock of stamps etc. and had now submitted a total list of shortages in stamps. In the meantime, Shri N. Ganguli, the then Collector, proposed that the Government might be moved to realise the amount involved (Rs. 43,011-20) from the security furnished by the Petitioner. A copy of the said letter was also forwarded to the Secretary, Board of Revenue and the Secretary of Finance, Taxation Department.

On July 10, 1975, Shri N. Ganguli, the then Collector, had requested the Petitioner to see him in connection with certain matter at his office on July 16, 1975. The Petitioner, however, did not meet the Collector. On July 23, 1975, the Collector lodged a first information report with the Officer-in-charge, Hare Street P.S. Calcutta, against the Petitioner and one Gopal Seh, a lower division clerk, alleging defalcation of Government stamps, tampering with the entries in the stock register etc. On August 5, 1975, Shri N. Ganguli as the Collector of Calcutta forwarded to the Petitioner a statement showing total shortages of stamps'' in the double lock of the Calcutta Collectorate found out on actual stock verification relating to the period prior to April 30, 1975, when the Petitioner was the Treasurer. The Collector called upon the Petitioner to make good the total shortage in stamps so far noticed amounting to Rs. 43,011-20 by August 25, 1975, failing which the amount might be recovered out of his security of Rs. 105,000 in Government Promissory Notes then held in terms of the security bond registered on September 8, 1939. The Petitioner by his letter dated September 20, 1975, denied his responsibility for the shortage of stamps. He claimed that he had handed over the full charge at the time of his retirement on April 30, 1975. On August 6, 1975, the Joint Secretary, Finance Department, Audit Branch, Government of West Bengal, issued a memorandum directing the Assistant Director of Treasuries and Accounts to undertake physical verification of stocks of stamps and cash etc. in the Calcutta Collectorate Treasury jointly with the judicial P.A. to the Commissioner, Presidency Division, with the assistance of two divisional auditors of the Board of Revenue. The verification was to be done in the presence of the Collector and the Treasury Officer. The ex-Treasurer was also directed to be informed. The Collector of Calcutta by his memorandum dated August 8, 1975, notified the Petitioner that a joint physical verification of stocks of stamps and of cash in the Calcutta Collectorate Treasury would be Undertaken by the Assistant Director of Treasuries and Accounts, West Bengal and the P.A. to the Commissioner of Presidency Division in the presence of the Collector and the Treasury Officer during the office hours from 10-30 a.m. daily with effect from August 13, 1975, till the above work be completed. The Petitioner was requested to remain present during the said physical verification of stocks and stamps and of cash on and from the date and hours mentioned above. The Petitioner by his letter dated August 12, 1975, informed the Collector that his duties, responsibilities had ended with the handing over of charge to the new Treasurer under the supervision of the Collector. He claimed that he had been released only after everything was found in order. On August 26, 1975, the Petitioner had written another letter to the Collector, Calcutta, denying his responsibility for the alleged short age of stamps in the Collectorate.

On September 20, 1975, the Collector, Shri N. Ganguli, Calcutta, issued a notice upon the Petitioner stating that at the time of making over charge on his retirement there was shortage in stamps amounting to Rs. 43,011-20 in the double lock of Calcutta Collectorate Treasury which amounted to grave misconduct on his part and in respect of which a Police case had been started against him and the same was under investigation. The Collector stated that it was proposed to withhold the Petitioner''s pension which included gratuity under Rule 8(3) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. The Petitioner was requested to submit any representation which he might wish to make before the Collector by October 8, 1975. On August 13, 1975, this Court had granted an anticipatory bail to the Petitioner u/s 438 of the Code of Criminal Procedure, 1973. On September 24, 1975, the said bail order was modified by permitting the Petitioner to withdraw the interest accrued or which might accrue on his security deposit of Rs. 1,05,000 without touching the principal amount.

On October 1, 1975, the Petitioner moved this Court and obtained C.R. No. 18827(W) of 1975, inter alia, praying that the orders of the Collector of Calcutta dated August 5, 1975, asking him to make good shortage of stamps amounting to Rs. 43,011-20 be set aside. The Petitioner also challenged the show-cause notice under Rule 8(3) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, dated September 20, 1975, issued by the Collector, Calcutta.

The Respondents in the said Rule disclosed that on September 4, 1975, the Deputy Secretary to the Board of Revenue, West Bengal, by a memo, had informed the Commissioner that he had been directed to say that in view of the provision of the security bond steps should be taken immediately to recover the loss of Rs. 43,011-20 from the security bond of the Petitioner. The securities were not to be returned to him. If any further loss be detected by October 31, 1975, the same could be also recovered from the balance of the amount of the security bond. The Deputy Secretary of the Board of Revenue, West Bengal, also stated that suitable action might also be taken for withholding of pension of the Petitioner in accordance with Rule 8 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. A copy of the said letter of the Board was forwarded by the Commissioner, Presidency Division, to the Collector of Calcutta for information and necessary action. A copy of the note recorded on Board''s file was endorsed for the information of the Collector. The Respondents further disclosed that on September 17, 1975, the Reserve Bank of India had sold some of the securities furnished by the Petitioner and had credited a sum of Rs. 43,011-20 to the account of the State Government.

The Petitioner has been allowed to amend his writ petition in C.R. No. 18827(W) of 1975 in order to challenge the aforesaid order for deduction made from the security.

On October 9, 1975, Shri N. Ganguli, Collector of Calcutta, passed an order that the pension including the gratuity of the Petitioner be withheld under Rule 8 of the West Bengal (Death-cum-Retirement Benefit) Rules, 1971, until further orders. The Petitioner has obtained C.R. No. 20443(W) of 1975 against the said order for with holding his pension and gratuity. On the prayer of the learned Advocates for both the parties. I have heard these Rules analogously because they raise common question as law and fact.

Mr. Mukherjee, learned Advocate for the Petitioner, has submitted before me that the Respondents have no power to deduct the alleged loss of stamps from the Calcutta Collectorate by sale of the Government Promissory Notes furnished by the Petitioner as security. The Petitioner had denied his liability for the said alleged loss. He had claimed that on April 30, 1975, he had handed over charge to his successor Treasurer. It was not open to the Respondents to adjudicate the Petitioner''s liability for the said alleged loss of stamps. The civil Court alone was competent to determine the said question of loss, without such adjudication by a civil Court, the Respondents were not entitled to deduct the alleged loss out of the Government Promissory Notes furnished by him along with his indemnity bond. Mr. Mukherjee further submitted that on the date of the deduction of the alleged loss by way of sale of some of the securities furnished by the Petitioner, there had been no adjudication as regards the Petitioner''s responsibility for the said alleged loss. Further, the Collector who had issued the show cause notice did not pass any final order. The Board of Revenue or the Commissioner did not hold any adjudication proceeding, but the Deputy-Secretary of the Board of Revenue conveyed the direction that steps be taken to recover the loss from the Petitioner''s security bond. Mr. Mukherjee further submitted that Shri N. Ganguli, the then Collector of Calcutta, was in the position of co-accused in the matter of the alleged loss of stamps from the double lock of the Collectorate. In this connection, he relied upon the report of Shri B. Barman, Personal Assistant to the Commissioner, Presidency Division and several communications sent by the Commissioner, Presidency Division. The proceedings for deduction and for withholding the Petitioner''s pension and gratuity were quasi-judicial in nature. There was grave apprehension about the impartiality and fairness of Shri N. Ganguli, the then Collector of Calcutta. Therefore, his decision in these matters was biased and liable to be quashed.

Mr. Mukherjee, learned Advocate for the Petitioner, submitted that the order u/s 8 of the West Bengal (Death-cum-Retirement Benefit) Rules, 1971, passed by Shri N. Ganguli, the then Collector of Calcutta, was also without jurisdiction. Mr. Mukherjee submitted that Rule 8 was attracted in case of conviction on a criminal charge or in case of commission of acts of grave misconduct after retirement. Rule 8(1) cannot be applied in case of acts and omissions of a Government servant during his tenure of office.

The bond jointly executed by the Petitioner, his father sashi Bnusan Ray Choudhury and mother Sm. Naresh Kamini Ray Choudhury in favour of the Governor of the Province of Bengal on September 8, 1939, has been made annEx. ''D'' to the affidavit-in-opposition affirmed by Jagannath Chatterjee on behalf of the Respondent No. 7 dated November 3, 1976. The said deed, inter alia, recited that whereas the Petitioner as the Treasurer had the care, charge and responsibility for all money species, bullion, com, gold, silver, goods, stores, chattels etc. in the Treasury of the Calcutta Collectorate, they had in consideration of his appointment had delivered to and deposited with and endorsed over to the Collector Government securities to the extent of Rs. 1,05,000 the numbers and other particulars of which were set forth in the bond for the purpose of securing and indemnifying against all loss and damage which might be suffered by reason consumption, waste, embezzlement, theft, mis-spent, loss, mis-application through dishonesty, negligence, over-sight or violence by the Petitioner or any other person acting for him in his absence or by the Sub-Treasurer and other serving under him. The said bond further stipulated that the Governor of Bengal and his successor and assigns for the indemnity and other purposes mentioned in the bond shall be entitled to sell and dispose of the Government security or any part thereof and to apply the proceeds thereof together with any interest receivable towards the indemnity furnished by the Petitioner in the event of vacation of the Office of the Treasurer. In the event of death of the Petitioner, the Government Promissory Notes shall be returned after six months from the date of such death or vacation. It was further provided that the return at any time of the Government Promissory Notes shall not be deemed to affect the right of the Governor to take proceedings upon or under the bond against the said Surendra Kumai Ray Choudhury, Sashi Bhusan Ray Choudhury and Naresh Kamini Ray Choudhury in case of any breach of the condition of the bond.

Thus, the Petitioner, his father and mother entered with the Governor of Bengal into a contract to save the latter from loss that might be caused by the conduct of the Petitioner (vide Section 124 of the Indian Contract Act). Mr. Mukherjee, learned Advocate for the Petitioner, has submitted that the aforesaid bond does not confer upon the Government any power to arbitrate or adjudicate whether loss had been actually caused by any act or omission on the part of the Petitioner. Only after it is determined in any judicial proceeding that the Petitioner is liable to indemnify the Government would have right to sell the aforesaid Government securities. In the instant case, there had been no such judicial determination. Therefore, the Respondents were not entitled to sell the Government securities.

The decision of S.N. Andley C.J. and S.N. Shankar J. in Marwar Tent Factory v. Union of India and Anr. AIR 1975 Del. 27 and the other cases noted therein undoubtedly support the Petitioner''s above contentions. The Petitioner of the said case had entered into contract with the Government of India for supply of tents at a total cost of Rs. 6,23,650 of the specification and quality. According to the terms and conditions of the contract 95% of the agreed purchase price was to be paid after inspection and acceptance of the same by the Inspecting Officer on the proof of their despatch. The balance 5% was to be paid after receipt in good condition by the consignee. The Petitioner had received 95% of the price of the consignments on the proof of their despatch. The balance 5% was also paid on the basis of three certificates issued by the consignee that they were received in good condition. After the lapse of over two years the Director-General of Supplies and Disposals had called, upon the Petitioner to pay a sum of Rs. 92,363 as compensation -for breach of warrantee of the contract. Failing such payment the...Government threatened to deduct the amount from the pending or future bills of the Petitioner in terms of Clause XVIII of the General Terms and Conditions governing the contract in question. Clause. XVIII was set out in para. 6 of the judgment in Marwar Tent Factory v. Union of India and Anr. AIR 1975 Del. 27. The Division Bench held that the claim raised by the Government as the purchaser was really by way of compensation for an alleged breach of a warrantee of contract Therefore, the claim was for damages. The same amounted to a right to sue and not an actionable claim. Therefore, when a person complained of a breach, his remedy was to file a suit for recovering damages. The Division Bench in Marwar Tent Factory v. Union of India held that there was no word in Clause XVIII conferring upon the purchaser to adjudicate its claim for damages and to convert the amount claimed into a binding debt. They refused to read a power to adjudicate implicit in the clause because that would amount to constituting the purchaser as a judge in its own cause. The said Division Bench had relied upon the following three decisions. The decision of the Supreme Court in General Manager North Eastern Railway v. Dinabandhu Chakravarty (1970) S.L.R. 382 dealt with the power of the Government to make deduction from the provident fund of a Government servant in the exercise of its powers in Rule 1341 of the Provident Fund Rules. The Supreme Court held that in the relevant rule no authority had been constituted for deciding any dispute that might arise between the subscriber and the Government as regards any alleged incurring of liability or as regards its quantum. Therefore, the only forum in which these dispute could be decided was the civil Court. The Government could not be a judge in its own cause. Hence, the Government''s action was held to be an arbitrary one.

The decision in M.C. Joseph Vs. The State of Kerala and Others, dealt with the extent of authority of the Government to fix liability under a bond furnished by a godown-keeper of a food-grains depot of the Civil Supplies Department of the Kerala Government. Incidentally, the said Government servant by executing a bond agreed that in the event of any loss or damage being caused to the Government by any act, omission, negligence, carelessness, misconduct or dishonesty, he would be bound to make good such loss or damage to the Government, In case of his failure it would be lawful and competent to the Government to recover the same as arrears of Public revenue. P. Narayan Pillai J. held that there was no indication in the said bond as to how the Government would fix the extent of the liability of the said godown-keeper. The Government had not been made an arbitrator by the impugned bond and no right had been conferred upon the Government to fix the liability. Liability for damages and the power to fix the extent of the damages were entirely distinct things. Therefore, the Government was incompetent to fix the liability of the Petitioner. It was further held that no man could be a judge in his own cause and in case of a dispute about a contract a person could not be both a party and a judge.

In my view, the above principles of law should be applied for considering the extent of the power of the State Government to determine the liability of the Petitioner for the alleged loss of stamps from the Government Collectorate. Undoubtedly, the indemnity executed by the Petitioner and two others was in very wide terms and the Petitioner was made responsible for all kinds of losses and damages which might occur while he would remain the Treasurer. But the bond did not confer upon the Government any authority to adjudicate whether any loss or damage, in fact, had occurred during the time he was functioning as the Treasurer or whether such loss or damage had occurred after he had retired. In this case, the Petitioner denied his responsibility for the alleged loss and shortage of stamps from the Collectorate on the ground that he made over charge on April 30, 1975 and the new Treasurer had taken over charge with full responsibility. When the aforesaid bond did not empower the Government to arbitrate the said question of liability, it could not claim to be a judge of its own cause in total disregard of the fundamental principles of jurisprudence. Mr. Chowdhury tried to contend before me that the above decision in Marwar Tent Factory v. Union of India (Supra) does not lay down good law, but I am not prepared to accept this submission. A party to a contract of indemnity can claim its authority to adjudicate the liability of the other party only if the terms of the particular contract authorise one party to fix the extent of liability of the other party. Unless a particular contract confers such a right of adjudication, a party to a contract cannot decide whether the other party has committed a breach and whether the said party is liable to compensate it. In the present case, the indemnity bond did not arm the Government with such power to adjudicate any dispute concerning the liability of the Petitioner arising under the bond. Only after the said question of liability is adjudicated by the civil Court in favour of the Government, the Government may proceed to enforce its right to sell the securities deposited by the Petitioner and others. It may be pointed out that the aforesaid bond was executed not only by the Petitioner but also by his father and mother. These two others, in effect, are promising to save the Government from the loss and damage which might be caused by the Petitioner acting as the Treasurer. In the absence of any express authorisation, the Government is not entitled in law to determine the liability of the three promissors and to sell the Government Promissory Notes jointly deposited by the promissors. In the absence of any clear provision in the bond I cannot hold that the Government was entitled to act as a judge of its own cause. The said bond does not create any actionable claim but really confers a right to sue the Petitioner and the two others for alleged loss or damage during the Petitioner''s treasurer ship.

Further, the Board of Revenue itself without recording any finding that the Petitioner was, in fact, responsible for the alleged loss directed that the loss of Rs. 43,011-20 should be recovered from the Petitioner''s security bond. The Board had never called upon the Petitioner to show cause why the above deduction should not be made and no hearing was given to him. The Commissioner of the Presidency Division did not also conduct any proceeding against him but forwarded the Board''s letter to the Collector. The Collector acted mechanically by carrying out the directions contained in the letter of the Deputy Secretary of the Board dated September 4, 1975. Thus, the deduction order was also in violation of the principles of natural justice.

I do not, however, decide whether in fact any loss has been caused during the time the Petitioner served as the Treasurer of the Calcutta Collectorate. Nothing said in this judgment will prejudice the claims and contentions of the parties in any suit between them in respect of the said bond.

It appears that the Reserve Bank of India under instructions of the Collectorate of Calcutta had sold the sum of the Government Promissory Notes on September 17,1975 and had credited the sum of Rs. 43,011-20 to the account of the State Government. Accordingly, I propose to direct the Respondents to forbear from making any deduction from the sale proceeds of the security bond except in accordance with a decree of the civil Court. The Government should return the remaining Promissory Notes and refund the sale proceeds realised by the Government by disposal of some of the Government Promissory Notes on September 17, 1976.

The order of Shri N. Ganguli for withholding the Petitioner''s pension and gratuity is also liable to be set aside. Rule 8(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, has no manner of application to the facts of the present case. The said rule empowers the pension-sanctioning authority either to withhold or to withdraw a pension or part thereof in two circumstances, (i) the person is convicted of a serious crime and (ii) he is found guilty of grave misconduct. Rule 8(1) refers to convictions or finding guilty of grave misconduct occurring after a Government servant is retired and the pension is already sanctioned. The word ''withhold'' means ''to refrain from putting in actions'', ''refusing to grant''. Similarly, ''withhold'' means ''to pull aside'' or ''pull back'', ''take away''. Thus, unless the pension is sanctioned and becomes payable, no question of either withholding or withdrawal permanently or for specified period could arise. This is clear from the opening word of Rule 8(1) that future good conduct shall be the implied condition of every grant of pension. In other words, even after the pension is granted, the pension-sanctioning authority may withhold or withdraw the same on either of the grounds mentioned under Rule 8(1). Rule 8(1) mentions two circumstances which will be treated as breaches of this stipulation for continued good conduct of a pensioner, i.e. conviction of a serious crime or finding guilty of grave misconduct.

Mr. Chowdhury, the learned Advocate for the Respondents, his submitted that the expression ''withhold'' in Rule 8(1) means refusing to grant. Therefore, the authority concerned by invoking Rule 8(1) may refuse to grant pension to a Government servant on the ground of his conduct. But a pension is sanctioned under Clause (VII) of Rule 65 and not Rule 8(1).

My attention has been drawn to chap. VI of the West Bengal Services (Death-cum-Retirement Benefit Rules, 1971. Rule 62 lays down how the amount of pension is to be determined. Rule 65(1) lays down that the full pension admissible under the rules is not to be given as a matter of course or unless the service has really been approved. Rule 65(2) elucidates the said expression ''approved service'' and the consequence of disapproval. If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount it thinks proper. Thus, pension cannot be claimed by a Government servant as a right and the Government reserves its power to reduce the pension of a Government servant whose service has not been thoroughly satisfactory. Even after the pension is sanctioned, the Government has its power under Rule 800 to withdraw or withhold either permanently or temporarily the entire or a part of the pension because of his misconduct. Such misconduct is obviously other than those which are covered by notes 3 and 4 to Rule 65.

The view I have taken in this case is in accord with the scheme of the West Bengal (Death-cum-Retirement Benefit) Rules, 1971. Chapter XII of the Rules deals with application for grant of pension. Rule 128 provides that subject to the provision of Rules 8 and 10 pension once sanctioned after final assessment shall not be reduced to the disadvantage of the Government servant unless such revision becomes necessary on account of detection of clerical errors. Thus, Rule 128 itself contemplates that Rules 8 and 10 can be invoked to reduce pension after the same is sanctioned. Thus, these two rules are in nature of exceptions to the provisions of Rule 128 that a pension once sanctioned is not to be reduced. Mr. Mukherjee, learned Advocate for the Petitioner, has correctly pointed out the difference in language used in Rule 10. The Governor under Rule 10 reserves to himself the right to withhold or withdraw a pension or part thereof either permanently or for a specified period if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence during the period of his service including service rendered on re-employment. Thus, Rule 10 expressly provides for withholding or withdrawal of pension as a result of finding that misconduct or negligence was committed during the period of service of a Government servant. Rule 8(1) starts by providing that future good conduct shall be an implied condition of every grant of pension. Rule 8 unlike Rule 10 does not provide that the grave misconduct mentioned therein may be in respect of acts committed during the period of service and before. The procedure for holding an enquiry about the misconduct of a pensioner is different under Rule 8 from the procedure contemplated under Rule 10 Under proviso (a) to Rule 10(1) a departmental proceeding which is pending at the date of retirement of a Government servant may be continued and concluded in the same manner as if the officer had continued in service. Rule 10, proviso(b) provides for institution of a departmental proceeding on the charge of misconduct 01 negligence committed during the period of service even after retirement of an officer subject to the following conditions, (i) sanction of the Governor, (ii) enquiry shall be in respect of events which took place within three years before such institution and (iii) the procedure of departmental proceeding for dismissal shall be applicable and the enquiry Shall be conducted in such a place and by such authority as the Governor may direct. Rule 10 also provides that a judicial proceeding contemplated under the said rule if not instituted while the officer was in service shall be instituted in respect of the cause of action which arose or an event which took place not more than three years before such institution. Thus, Rule 10 provides a period of limitation both for departmental proceeding and judicial proceeding in respect of the acts of grave misconduct or negligence committed during the period of service of a Government servant,

In the instant case, the Collector of Calcutta purported to withhold the Petitioner''s pension on the ground that the Petitioner was guilty for shortage of stamps during his service as Treasurer of the Collectorate even before the Petitioner''s pension was sanctioned. Therefore, this exercise of power under Rule 8(1) was not permissible in law. The Collector in the instant case did not also comply with Rule 8(3) read with Rule 8(1). The Collector, as the pension-sanctioning authority, has the power to withhold or withdraw a pension upon finding of guilt of grave misconduct only after complying with Sub-rule (3) of Rule 8. Sub-rule (3) provides that the pension-sanctioning authority shall first form a prima facie opinion that the pensioner is guilty of grave misconduct, then it shall serve upon the pensioner a notice specifying the action proposed to be taken and calling upon him to submit his representation. Thereafter, the authority after taking into consideration the representation, if any, may withhold or withdraw a pension. In the instant case, the Collector formed a prima facie opinion under Rule 8(3) but did not record his finding in terms of Rule 8(2) that the Petitioner was guilty of grave misconduct. In the absence of such finding in terms of Rule 8(3) the Collector, in any event, was not competent to exercise his power under Rule 8(1). The Collector in, his order dated October 9, 1975, had inter alia stated that the above facts prima facie proved grave misconduct, lie withheld the Petitioner''s pension until further orders.

Mr. Chowdhury, the learned Advocate for the Respondents, stated before me that the Collector acted in pursuance of the memorandum dated September 4, 1975, issued by the Deputy Secretary, Board of Revenue, which was endorsed by the Commissioner, Presidency Division. Neither the Board of Revenue nor the Commissioner, Presidency Division, had issued any show-cause notice upon the Petitioner regarding withholding of his pension or deduction from his security deposit. Neither the Board nor the Commissioner gave any hearing to the Petitioner. Neither the memorandum of the Deputy Secretary of the Board of Revenue nor the endorsement of the Commissioner, Presidency Division, contained any finding that the Petitioner was responsible for the loss of stamps or that he was guilty of grave misconduct. There is considerable substance in the submissions of the Petitioner that Shri N. Ganguli, the then Collector, was disqualified from passing the impugned orders, for deduction from the Petitioner''s security bond on account of the alleged loss of stamps and also for withholding or withdrawing the Petitioner''s, pension and gratuity. The Commissioner, Presidency Division, had severely criticized him regarding the alleged taking over and making over of charge of treasurer ship when the Petitioner retired. Shri N.C. Ganguli was ultimately transferred from, the post of Collector. Therefore, there could be a reasonable apprehension in the Petitioner''s mind that Shri N. Ganguli could not fairly and impartially decide the matters. In this proof of actual bias was not necessary. It would be sufficient to show that he reasonably apprehended that a bias might have operated against him : vide Manak Lal Vs. Dr. Prem Chand, .

I am unable to accept the submissions of Mr. Chowdhury, the learned Advocate for the Respondents, that the writ petition in respect of the enforcement of the security furnished by the Petitioner is not maintainable. The decision in Marwar Tent Factory v. Union of India (Supra) and the case noted therein establish that a writ application in the present circumstances is maintainable.

I, accordingly, make these Rules absolute. Let a writ in the nature of certiorari issue quashing the impugned order under Rule 8(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules withholding the Petitioner''s pension. I quash also the orders passed for deducting Rs. 43,011-20 from the security furnished along with the bond dated September 8, 1939. Let a writ in the nature of mandamus issue commanding the Respondents to forbear from giving effect or further effect to the impugned order under Rule 8(1). I also command the Respondents to forbear from adjusting the sale proceeds of G.P. Notes sold on September 17, 1975, without any decree or order of competent Court of law. Liberty is given to the Respondents to proceed according to law.

The operation of this order will remain stayed for four weeks'' from date, as prayed for.