Madras High Court
The District Collector vs N.Mohanraj on 22 July, 2011
Bench: P.Jyothimani, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/07/2011 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY W.A.(MD).No.669 of 2011 and M.P.(MD)No.2 of 2011 The District Collector, Tiruchirappalli District, Tiruchirappalli-620 001. ... Appellant Vs. N.Mohanraj ... Respondent PRAYER Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 06.07.2010 made in W.P.(MD).No.8460 of 2010 on the file of this Court. !For Appellant ... Mr.R.Karthikeyan Additional Government Pleader ^For Respondent ... Mr.S.Visvalingam ******** :JUDGMENT
************* [Judgment of the Court was delivered BY P.JYOTHIMANI, J] This Writ Appeal is directed against the order of the learned Single Judge dated 06.07.2010 passed in W.P.(MD)No.8460 of 2010, by which, the learned Single Judge allowed the Writ Petition filed by the respondent challenging the order dated 30.06.2010, by which, the writ petitioner was permitted to retire on the attainment of age of superannuation without prejudice to the disciplinary proceedings, which are contemplated. The learned Single Judge has held that unless and until by invoking the powers under Rule 56(1)(c) of the Fundamental Rules the Government passes orders retaining the services of the Government servants even after attaining the age of superannuation for the purpose of facing disciplinary proceedings, the authority has no power to proceed with the disciplinary proceedings. The learned Single Judge has also relied upon a judgment of this Court in P.Muthusamy v. Tamil Nadu Cements Corporation Limited reported in 2006(4) MLJ 504, wherein a Division Bench of this Court has, in categoric terms, held that permission to retire an employee without prejudice to the disciplinary proceedings is not authorised under any rule. The mandatory procedure of following Rule 56(1)(c) has been reiterated by another judgment of the Division Bench in Kootha Pillai vs. Commissioner, Municipal Administration, Chennai and others reported in 2009(1) MLJ 761.
2. Rule 56(1)(c) of the Fundamental Rules, which is as follows:
"56(1)(c).- Notwithstanding anything contained in clause (a), a Government servant who is under suspension,
(i) on a charge of misconduct; or
(ii) against whom an enquiry into grave charges of criminal misconduct or allegations of criminal misconduct, is pending; or
(iii) against whom an enquiry into grave charges is contemplated or is pending; or
(iv) against whom a complaint of criminal offence is under investigation or trial.
shall not be permitted by the appointing authority to retire on his reaching the date of retirement, but shall be retained in service until the enquiry into the charge of misconduct or criminal misconduct or the enquiry into allegations of criminal misconduct or the enquiry into contemplated charges or disciplinary proceeding taken under rule 17(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or rule 3(c) of the Tamil Nadu Police Sub-ordainte Service (Discipline and Appeal) Rules, as the case may be, in respect of item (iv) above is concluded and a final order passed thereon by the competent authority or by any higher authority.", imposes a mandatory duty on the part of the Government in not allowing a Government servant to retire, in cases where the disciplinary proceedings were already initiated and pending and it is only when such order is passed, the Government will be entitled to proceed with the disciplinary proceedings. In fact, the question as to whether the Government can proceed under the Tamil Nadu Pension Rules in such cases came up for consideration before the Division Bench of this Court in The State of Tamil Nadu v. R.Karuppiah reported in 2005(3) CTC
4. The Division Bench, by analyzing the entire issue, by referring to various judgments, has held as follows:
"24. Further, on a perusal of the sub-rules 2(a) and 6(b) to Rule 9 of the Tamil Nadu Pension Rules, which are extracted below, they reveal that they come into existence only in the event of fulfilling the requirements under Rule 56(1)(c) of the Fundamental Rules, even it can be said that they are the extension of Rule 56(1)(a) and (c) of the Fundamental Rules. In the event of non-compliance of Rule 56(1)(c) of the Fundamental Rules, the petitioners cannot seek the aid of the above said rules for their unjust act."
Even for the purpose of invoking the powers under Rule 9(2)(a) of the Tamil Nadu Pension Rules, unless and until an order under Rule 56(1)(c) of the Fundamental Rules is passed, there is no power on the disciplinary authority. The Division Bench has also noted a Note to Rule 32 of the Tamil Nadu Pension Rules, which speaks about the superannuation pension and the Note reads as follows:
"NOTE.- A Government servant under suspension, on a charge of misconduct, shall not be required or permitted to retire but shall be retained in service until the enquiry into the charge is concluded and final order is passed by a competent authority."
3. The contents of the said Note to Rule 32 of the Tamil Nadu Pension Rules is the re-production of what is contained in Rule 56(1)(c) of the Fundamental Rules. It was in the light of such Note available under the Tamil Nadu Pension Rules, the Division Bench has held that even under the Tamil Nadu Pension Rules, unless and until an order under Rule 56(1)(c) is passed, no further proceedings can be continued under the Tamil Nadu Pension Rules also. While so, we see no reason to interfere with the order of the learned Single Judge. It is also brought to the notice of this Court that even the Government in G.O.(2D).No.604, Revenue (Ser.10-2) Department, dated 02.12.2009 in another case, which is similar to that of the present case, has stated that the delinquent was allowed to retire without prejudice to the disciplinary proceedings and it was, in categoric terms, stated by the Government that no such order shall be passed, since the word "without prejudice" does not confer any power on the Government from proceeding further.
4. In view of the above, the Writ Appeal stands dismissed. However, the appellant shall send the necessary pension proposal in respect of the respondent/writ petitioner, within a period of eight weeks from the date of receipt of a copy of the judgment. Consequently, the connected miscellaneous petition is also dismissed. No costs.
SML