Madras High Court
R.Ramalingam vs The State Of Tamil Nadu Rep on 28 January, 2008
Author: S.Nagamuthu
Bench: S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/01/2008 Coram THE HONOURABLE MR JUSTICE S.NAGAMUTHU W.P.(MD)No.9980 of 2007 R.Ramalingam ..Petitioner vs. 1.The State of Tamil Nadu rep. by its Secretary to Government, Industries Department, Fort St.George, Chennai - 9. 2.The District Collector, Madurai - 625 020. ..Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus, calling for the records relating to the order passed by the first respondent in his proceedings No.24579/E1/2005-06 dated 29.06.2007 as well as the consequential portion of the order passed by the second respondent in his proceedings Na.Ka.No.30968/2007/Pa.A.1 dated 30.06.2007 and quash the same and further direct the respondents to allow the petitioner to retire with all service and other monetary benefits with interest at 18% annum till date of final settlement. !For Petitioner ... Mr.A.Thirumurthy ^For Respondents ... Mrs.V.Chellammal, Spl.G.P. :ORDER
The petitioner is a retired Tahsildar. Previously he worked as Deputy Tahsildar in the Office of the Assistant Director of Mines and Minerals, Madurai between 04.07.2000 to 08.08.2001. His date of retirement on attaining the age of superannuation is 30.06.2007. Whileso, on 29.06.2007, the first respondent issued a charge memo against him under Rule 17(b) of the Tami Nadu CCA Rules and as many as four charges were framed against him. All the charges pertain to the alleged misconduct on his part when he was working as a Deputy Tahsildar at the Office of the Assistant Director of Mines and Minerals at Madurai between the year 2000 and 2001. However, the petitioner was allowed to retire, subject to the continuance of disciplinary proceedings against him. In this writ petition, the petitioner challenges the charge memo as well as the order allowing him to retire from service subject to the continuance of the disciplinary proceedings.
2. Heard the learned counsel for the petitioner and the learned Special Government Pleader appearing for the respondents.
3. The main contention of the learned counsel for the petitioner is that since he was allowed to retire from service, the disciplinary proceedings cannot be allowed to continue, since, by virtue of retirement, the Master and Servant relationship got extinguished as early as on 30.06.2007 itself. The learned counsel relies on Rule 9(2)(b) of The Tamil Nadu Pension Rules, 1978 and he also relies on Rule 56(1)(c) of The Fundamental Rules of the Tamil Nadu Government and a Judgment of a Division Bench of this Court in the case of N.Kunnai Gowder Vs. The Coimbatore District, Co-op Milk Producers' Union Ltd,(2007 (5) CTC 491) and another case in State of Tamil Nadu V. R.Karuppiah, Inspector of Police (2005 (3) CTC 4.)
4. The next contention of the learned counsel for the petitioner is that though the events leading to the framing of charges had occurred in the year 1999-2000, the charges were framed only in the year 2007, that is after about eight years, which is not sustainable under law. For that he relies on a Judgment of Honourable Supreme Court reported in (1998) 4 SCC 154, State of Andhra Pradesh Vs. N.Radhakishan and AIR 2006 SC 207, P.V.Mahadevan Vs. M.D., Tamil Nadu Housing Board.
5. Per contra, the learned Special Government Pleader would submit that Rule 9(2)(b) of the Tamil Nadu Pension Rules as well as Rule 56(1)(c) of the Fundamental Rules of the Tamil Nadu Government are not applicable to the case of the petitioner, since the disciplinary proceedings were initiated while he was in service. She would further submit that the delay in this case cannot by itself a ground for quashing the charges since the petitioner has not alleged any prejudice to him.
6. I have carefully considered the rival contentions put forward by either side and also perused the records carefully.
7.The relevant Rule which deals with the continuance of disciplinary proceedings or initiation of disciplinary proceedings subsequent to the retirement of a Government servant is Rule 9(2) of the Tamil Nadu Pension Rules, which reads as follows:
9(2)(a) The departmental proceeding referred to in sub-rule (1), if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:
Provided that where the departmental proceedings are instituted by an authority subordinate to the Government, that authority shall submit a report recording its findings to the Government.
(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,-
(i) shall not be instituted save with the sanction of the Government;
(ii) shall not be in respect of any event which took place more than four years before such institution; and
(iii)shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(3)[...] (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 60 or Rule 69, as the case may be, shall be sanctioned.
8. A plain reading of the above provision would go to show that Rule 9(2)(a) deals with those employees against whom disciplinary proceedings were initiated while they were in Government service or while they were in re- employment. Whereas, Rule 9(2)(b) deals with those employees against whom disciplinary proceedings is sought to be initiated subsequent to the retirement. Therefore, in my considered opinion, under Rule 9(2)(a) if disciplinary proceedings have already been initiated when the Government servant was very much in service, under the said Rule, the proceedings could be continued, despite the retirement of the Government servant. But under Rule 9(2)(b) if no disciplinary proceedings had not been initiated while he was in service and if any such proceeding is sought to be initiated subsequent to the retirement, it shall be necessary to get the sanction of the Government and also the said proceedings shall be initiated within four years from the date on which the alleged misconduct had occurred. In this case, since the disciplinary proceedings were initiated, by issuance of the impugned charge memo even on 29.06.2007, while the petitioner was in service, under the Pension Rules, there is no bar at all for the department to proceed with the said enquiry.
9. The next contention is regarding Fundamental Rules 56(1)(c). Under Rule 56(1)(a), a Government servant shall not be retained in service after the age of superannuation except with the sanction of the Government on public grounds, which must be recorded in writing but he shall not be retained after the age of sixty years except in very special circumstances. In this case, since the petitioner has been allowed to retire and he has not been retained in service, Rule 56(1)(a) is not relevant for consideration.
10. The learned counsel would further submit that Rule 56(1)(c) is relevant under which unless the Government servant is retained in service beyond the due date of retirement on superannuation, no proceeding can be initiated. Rule 56(1)(c) reads 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 in contemplated or is pending; or
(iv) against whom a complaint of criminal offence is under investigation or trial.
11. A close reading of the said provision would go to show that it deals with a Government Servant who was placed under suspension while in service on the ground that grave charges are pending or contemplated. If the suspension is to be continued beyond the due date of retirement on superannuation, then the Master and Servant relationship is to be retained by retaining the Government servant in service and that is the requirement under Section 56(1)(c). But in a case where the Government servant has not been placed under suspension and there is no move to suspend him then, Rule 56(1)(c) has got no application at all because it does not deal with continuance of the disciplinary proceedings beyond due date of retirement on superannuation.
12. The Judgments of a Division Bench of this Court in N.Kunnai Gowder Vs. The Coimbatore District, Co-op Milk Producers' Union Ltd, reported in 2007 (5) CTC 491 has got no application at all. The Division Bench has held in Paragraph No 6 as follows:
"A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer, the employee cannot be made to retire. In the instant case, no rule has been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire..." (Emphasis supplied) That was a case where there is no rule providing for continuation of disciplinary proceedings after the retirement. That was the reason why the Division Bench held in that case that the department proceedings initiated against the petitioner therein could not be allowed to continue even after the retirement. But in our case, Rule 9(2)(a) of Tamil Nadu Pension Rules provides for such continuation. Thus the said Judgment has got no application to the facts of our case.
13. The other Judgment relied by the learned counsel for the petitioner is State of Tamil Nadu V. R.Karuppiah, Inspector of Police (2005 (3) CTC 4). In the said case, the petitioner therein was allowed to retire from service on 31.05.1990 and the departmental proceedings were initiated after two months from the date of retirement of the first respondent. Therefore, the Honourable Division Bench referring to Rule 56 of the Fundamental Rules held that Rule 56(1)(c) of the Fundamental Rule alone is applicable since even while he was in service, he was placed under suspension. The relevant conclusions arrived at by the Division Bench in Paragraph Nos. 19 and 20 are as follows:
"19. As already stated above, though the first respondent was placed under suspension on certain grave charges, he was allowed to retire from service on 31.05.1990 without passing any order retaining him in service as required under Rule 56(1)(c) of the Fundamental Rules. Though it is mentioned int he affidavit filed by the petitioners that the first respondent was not allowed to retire on 31.05.1990, no material is available on record in regard thereto.
20. In such circumstances, we can come to a conclusion that without fulfilling the requirement of Rule 56(1)(c) of the Fundamental Rules, which is mandatory, the initiation of Disciplinary Proceedings against the first respondent is not sustainable under law and therefore, we are of the view that the very proceedings are liable to be set aside."
But in our case, the facts are otherwise. The proceedings were initiated when the petitioner was in service, and he was not placed under suspension. So, under the Pension Rules, the proceedings can go on even after his retirement.
14. The next contention of the learned counsel for the petitioner is in respect of the delay. The learned counsel relies on two judgments of the Honourable Supreme Court in :
(i) State of Andhra Pradesh Vs. N.Radhakishan (1998 4 SCC 154) and
(ii) P.V.Mahadevan Vs. M.D., Tamil Nadu Housing Board (AIR 2006 SC 207) In so far as State of Andhra Pradesh Vs. N.Radhakishan (1998 4 SCC 154) is concerned, the charges were quashed not only on the ground of delay but on the ground that the charges are vague. But here in our case, there is no such stand taken by the petitioner that the charges are vague. As far as the Judgment reported in AIR 2006 SC 207, P.V.Mahadevan Vs. M.D., Tamil Nadu Housing Board is concerned, the delay in initiating the proceedings was held not only inordinate but unexplained. Further to quash the charge memo, prejudice should also be shown to have been caused. In our case, no such prejudice is pleaded and the delay in the given set of facts and circumstances, in my considered opinion is not inordinate and thus the second ground also fails.
15. In the result, I do not find any merits in the writ petition and the same is dismissed. Consequently, connected miscellaneous petition is dismissed.
svki To
1.The Secretary to Government, The State of Tamil Nadu Industries Department, Fort St.George, Chennai - 9.
2.The District Collector, Madurai - 625 020.