In APO 64 OF 2022-CAL HC- Pensionary benefits should not be withheld for indefinite period when State has failed to conclude criminal proceedings within reasonable time frame: Calcutta HC asks Municipal Corporation to release pensionary benefits to employee subject to final decision in criminal proceeding
Justices Arijit Banerjee & Apurba Sinha Ray [25-11-2022]

 

Read Order: KOLKATA MUNICIPAL CORPORATION & ORS Vs. DILIP KUMAR DAS & ORS

LE Correspondent

Kolkata, November 28, 2022: The Calcutta High Court has granted relief to an employee of the Kolkata Municipal Corporation while observing that the writ petitioner’s pension should not be curtailed particularly when the State has been given ample opportunity to conclude the trial within a reasonable time frame, but it has failed to do so. 

“The purpose of expeditious disposal of any proceedings, either disciplinary or criminal, concerning any employee, is to protect the employee from any unnecessary harassment, mental agony, monetary loss etc…”, the Division Bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray asserted. 

In this case, the The respondent-writ petitioner was an employee of Kolkata Municipal Corporation but when he was posted in I and PR department as UDA, he was arrested in connection with a case having a political flavour. The said case had no connection with his service and later, he was enlarged on bail.

After being enlarged on bail the writ petitioner was allowed to join his service and the period during which petitioner was in custody was treated as period under suspension by the office of the writ petitioner, which was still pending. The writ petitioner was also promoted to the higher post during pendency of the Criminal proceeding, which was still pending.

When the  writ petitioner superannuated from service, he was not granted full pensionary benefits and he was allowed to have two thirds of his pensionary benefits on the ground that by virtue of Regulation 43 of Corporation of Calcutta (Death Cum Retirement Benefit) Regulation 1982 (DCRB), he was entitled to 2/3rds of his pensionary benefit as criminal proceedings were still pending against him.

The writ petitioner approached the learned Single Judge for release of his full pension and the Court directed the Chief Manager, to take steps for disbursing the balance arrear pension of the petitioner at the earliest. Thus, Kolkata Municipal Corporation filed the appeal in question.

The Bench was of the opinion that as the State has failed to discharge its constitutional obligation in concluding the criminal proceedings against the writ petitioner/respondent within a reasonable time frame, the pensionary benefits of the writ petitioner/respondent should not be withheld for an indefinite period by the Corporation, which is regarded as an arm or agency or instrumentality of the state, merely on the ground that criminal proceeding is pending against the writ petitioner. 

Noting that the criminal proceeding against the writ petitioner was pending for more than 10 years for offences which were allegedly committed 21 years ago, the Bench stated that though there was no disciplinary proceeding against the writ petitioner, he was being denied his full pensionary benefit for unending criminal proceedings which were instituted in 2012 for offences allegedly committed in the year 2001. 

“...when the State has been given ample opportunity to conclude the trial within a reasonable time frame, but has failed to do so, the writ petitioner’s pension should not be curtailed particularly when the said criminal proceedings are not related to the service rendered by the writ petitioner as an employee of KMC”, the Bench held.

Considering the provisions under 40 of the Regulation 1982 by which the Authority has the power to withdraw or withhold the pension or part thereof, of a retired employee on the grounds of conviction of a serious crime, the Bench directed the KMC authority to release all the admissible pensionary benefits to the writ petitioner/respondent subject to the final decision in the criminal proceeding, treating the suspended period, as if the petitioner were on his earned leave.

The Bench also asked the Authority to obtain  an undertaking, supported by an affidavit-cum-indemnity bond, from the writ petitioner, that in case the writ petitioner is found guilty in the relevant criminal proceeding, he shall return the financial benefit without interest, which will become inadmissible to the writ petitioner on account of being found guilty of such offences under Regulation 40 and 43, within three months.