Madras High Court
S.Thirumalaiappan vs Secretary To Government on 11 October, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/10/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.10912 of 2009 S.Thirumalaiappan ... Petitioner Vs. 1.Secretary to Government, Finance (Treasury and Accounts) Department, Chief SEcretariat, Chennai- 600 009. 2.Commissioner of Treasury and Accounts, Panagal Maligai, Saidapet -600 015. 3.The District Collector, Tirunelveli. 4.The Treasury Officer, District Treasury Office, Tirunelveli. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certioraified Mandamus calling for the records of Na.Ka.5533/09/A2 dated 04.05.2009 passed by the fourth respondent and letter No.Na.Ka.35271/2005/C2 dated 09.06.2009 by the second respondent and quash the same and consequently direct the respondent to grant compassionate allowances to the petitioner within a time frame fixed by this Court, !For Petitioner ... M/s.J.Anandhavalli ^For Respondents ... Mr.M.Govindan Special Government Pleader :ORDER
The petitioner has filed the present writ petition seeking to challenge the communication dated 04.05.2007 sent by the fourth respondent namely, the Treasury Officer, Tirunelveli as well as the communication sent by the second respondent, Commissioner of Treasury & Accounts, dated 09.06.2009 and for setting aside the same and also seeks for a direction to grant compassionate allowance to the petitioner within a time frame.
2. The writ petition came up on 29.10.2009, this Court ordered notice of motion. On notice form this Court, the second respondent filed the counter affidavit dated 09.02.2010.
3. It is seen from the records that the petitioner, who was working as an accountant under the fourth respondent office, was placed under suspension on 28.11.1991 in connection with misappropriation of Government money while disbursing pension. Disciplinary action was initiated against him and a criminal case was also initiated against him for misappropriation, cheating and forgery punishable under Sections 409, 420, 465, 447(A), 468 and 471 of IPC by the Inspector of Police, District Crime Branch, Palayamkottai. Since the criminal case in this connection got delayed and no charge sheet was filed, suspension was revoked without prejudice to the outcome of the criminal case on 25.03.1993.
4. A Charge memo dated 10.02.1992 and 17.02.1992 was given to the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. After finalisation of the disciplinary proceedings, he was ordered to be reverted to the post of Junior Assistant for three years with immediate effect. After the expiry of the said period of three years he was to be restored to the post of Accountant. That apart, on restoration, the period of reversion shall operate to postpone his future increments for a period of three years.
5. The criminal case registered in crime No. 9 of 1991 was tried before the Judicial Magistrate No.I, Tirunelveli in C.C.Nos.134 and 135 of 1993. The petitioner was convicted by the Judicial Magistrate on 30.09.1997 and he was imposed with a penalty of Rigorous Imprisonment for a period of one year with a fine of Rs.500/- each and in default 3 months rigorous imprisonment on each of the four counts in the first case i.e. C.C.No.134/93. In the second case, i.e. in C.C.No.135 of 1993, he was imposed a penalty of rigorous imprisonment for one year with fine of Rs.500/- in default to undergo rigorous imprisonment for another three months. Both conviction was directed to run concurrently. Subsequently, he was remanded to judicial custody and lodged in the Central Prison at Palayamkottai from 30.09.1997 to 20.10.1997. Therefore, he was once again placed under suspension on 30.09.1997 on account of his detention in custody.
6. The petitioner filed an appeal to the District Sessions Court, Tirunelveli. The Sessions Court also dismissed his appeal on 30.01.2003. The petitioner did not prefer any further proceedings before this Court. He underwent the sentence from 19.02.2003 to 02.12.2003, Based upon his conviction by the criminal Court, the fourth respondent by an order dated 23.03.1998 dismissed the petitioner from service. The dismissal order was also not challenged before any forum.
7. Thereafter, the petitioner started sending representations from 30.06.2005 seeking compassionate allowance from the date of his dismissal, reliance was placed upon Rule 40(1)(a) of the Tamil Nadu Pension Rules, 1978. The petitioner claimed that he must be paid compassionate allowance under Rule 40(1)(a) of the Tamil Nadu Pension Rules, 1978.
8. It is the claim of the petitioner that he was 61 years old and he had lost his earnings. He was also suffering from asthma and he has a family to support. As he had served more than 34 years, he should be given compassionate allowance. When he did not get a reply, he sent a representation to the Chief Minister's Grievance Cell, which was in turn redirected to the District Collector. The District Collector in turn requested the fourth respondent to give reply to the petitioner.
9. In pursuance of the same, the fourth respondent by his communication dated 04.05.2009 informed to the petitioner that he will not be given any compassionate allowance and that his case does not deserve any special circumstances. Similarly a reply was sent to the Chief Minister Grievance Cell in which it was stated that since the petitioner has been convicted by a criminal Court and had undergone sentence and have no special circumstances arose. The petitioner sent further letter to the Chief Minister's Grievance Cell stating that he had already been punished by the dismissal order and had undergone the sentence and therefore, he should be given compassionate allowance.
10. In the writ petition the petitioner had contended, that 3rd proviso to Rule 40(1) of the Tamil Nadu Pension Rules 1978 only disabled a person from getting compassionate allowance. It was stated that no compassionate allowance shall be granted only in cases of Government servants dismissed or removed from service under the second proviso to sub clause(a) of clause (2) of Article 311 of the Constitution of India, for overt, anti-national activities such as sabotage, espionage and like. He further contended that the petitioner's conviction does not come under the said explanation.
11. In the counter affidavit filed by the second respondent dated 03.02.2010, the misconduct and criminal conduct of the petitioner was duly pointed out in paragraphs 8 and 9, which reads as follows:
"8. The petitioner has been dismissed on the ground of criminal conduct. In this case the petitioner had swindled Government money of Rs.9,766/- using the names of pensioners Thiru.N.Muthusamy and Tmt.Mary Flora, while preparing the pension schedule in October' 1991 by doing some wrongful deeds. He has manipulated Government records to get personal pensionary gains. He has collected unauthorisedly Rs.5,348/- and Rs.28,697/- from the pensioners Tmt.B.Mary Flora and Thiru.No.Muthusamy, respectively without any authority from the competent authorities.
9. It is further submitted that the petitioner has prepared a letter bearing No.K4/2775/94, dated 14.10.1991 purporting to have been issued by the Treasury Officer, Tirunelveli with a fraudulent notion to cheat the pensioner and sent it to Thiru.N.Muthusamy, Pensioner. He has manipulated the Government records viz. Pension schedule fro 11/91 by inflating pension due to Tmt.D.Mary Flora. Thiru N.Muthuswamy and Thiru.D.Paul Devamony with an attempt to swindle the inflated pension amount of Rs.17,494/-, as done in the case of 10/91. He has included a non-existent Pensioner in the name of Thiru.S.Sankaranaryanan, with an imaginary PPO.NO.A.98740 in the pension schedule for 11/91 seeking to credit into a fictitious SB account No.9842 of IOB/Thirunelveli junction on a sum of Rs.2764/- with a scheming mind to appropriate the amount to him. He cheated the poor pensioner Tmt.D.Paul Davamony by giving her false promises adopting fraudulent methods etc. to the tune of Rs.6,690/-. He in the capacity of Government Servant un-authorisedly collected Rs.6690/- for which he misused the designation of the Treasury Officer/Assistant Treasury Officer in the challans purported to be the official receipts as felt by the pensioner and during the course of the disciplinary proceedings the petitioner had accepted all the above charges levelled against him."
12. It was stated that in this background, there cannot by any special circumstances in favour of the petitioner, notwithstanding the fact he was rendered a number of service.
13. Since the claim of the petitioner was based upon Rule 40(1) of the Tamil Nadu Pension Rules, 1978 it is necessary to refer to the Rule 40(1):
"40.Compassionate allowance - (1) A Government servant who is dismissed or removed from service shall forfeit his pension and gratuity:
(Provided that the authority competent to dismiss or remove him from service may, if the case is deserving of special consideration, sanction a compassionate allowance non exceeding two-thirds of pension or gratuity or both which would have been admissible to him if he had retired on medical certificate:) Provided further that no allowance shall be granted to an officer under the Rule-making control of the Government of India, other than those who are governed by All India Services (Death-cum-Retirement Benefits)Rules, 1958, without further sanction:
(Provided also that no compassionate allowance shall be granted in cases of Government servants dismissed or removed from service under the second proviso (a) to clause (2) of Article 311 of the Constitution of India, for overt, anti-national activities such as sabotage, espionage and like." (emphasis supplied)
14. It must be noted that the same pension rules even in respect of a Government Servants, who was getting pension also, provides for withdrawal of such pension under Rule 8(1) and (2) of the Tamil Nadu Pension Rules, 1978. The crimes set out under Rule 8(1)(b) was also a serious. As per Note (A) appended to the said rule the term "serious crime" includes a crime involving an offence under the Official Secrets Act, 1923 (19 of 1923). A Government Servant getting pension after retirement forfeits his right to receive pension if he commits a serious crime. Hence it is unthinkable a Government servant, who commits crime during his service, will be allowed to have compassionate allowance in terms of Rule 40(1) of the Tamil Nadu Pension, Rules 1978. There must be some correlation between Rule 40 (1), where after a dismissal of Government servant from service, providing for compassionate allowance on special circumstances and a Government pensioner who subsequently gets convicted for a serious crime will have his pension deprived by order of the Government.
15. The right to get pension by a Government servant came to be considered by the Supreme Court in State of U.P. v. Brahm Datt Sharma reported in (1987) 2 SCC 179, wherein in paragraphs 6 to 8 it was held as follows:
6.Grant of pension to employees of the State Government is regulated by the Civil Service Regulations which have statutory character. Article 348-A provides that pension shall be granted subject to the conditions contained in the Regulations. Article 351-A empowers the Governor to withhold or withdraw pension or any part of it, whether permanently or for a specified period and also to order recovery from pension of the whole or part of the pension for any pecuniary loss caused to the Government if the pensioner is found guilty in departmental or in judicial proceedings for any misconduct or negligence during his service. Article 353 lays down that no pension shall be granted to an officer dismissed or removed from service for misconduct, insolvency or inefficiency, but compassionate allowance may he granted on special consideration. The claim of pension is determined by length of service, as provided by Articles 474 to 485. Full pension is admissible under the rules not as a matter of course but only if the service rendered by the government employee is approved. The Regulations empower the authority sanctioning the pension to make such reduction in the amount of pension as it may think proper.
These provisions indicate that a government servant is entitled to pension but the claim of pension is determined in accordance with the statutory rules. No doubt pension is no more a bounty; instead it is a right earned by the government servant on the basis of length of service. Nonetheless grant of full pension depends on the approval of service rendered by the employee. In other words if the service rendered by the government servant has not been satisfactory he would not be entitled to full pension and it would always be open to the Government to withhold or reduce the amount of pension in accordance with the statutory rules. If the Government incurs pecuniary loss on account of misconduct or negligence of a government servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Government to initiate departmental proceedings, and if in those proceedings he is found guilty of misconduct, negligence or any other such act or omission as a result of which Government is put to pecuniary loss, the State Government is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension. These provisions ordain the government servant to perform his duties faithfully and honestly. Honest and devoted service rendered by a government servant ensures efficiency in public administration, the statutory rules therefore contain provisions for the forfeiture and deduction in the pension of government servants who have not rendered satisfactory service or who may have been found guilty of misconduct or negligence resulting in pecuniary loss to the Government. Merely because a government servant retires from service on attaining the age of superannuation he cannot escape the liability of misconduct and negligence or financial irregularities.
8.A plain reading of the regulation indicates that full pension is not awarded as a matter of course to a government servant on his retirement instead; it is awarded to him if his satisfactory service is approved. If the service of a government servant has not been thoroughly satisfactory the authority competent to sanction the pension is empowered to make such reduction in the amount of pension as it may think proper. Proviso to the regulation lays down that no order regarding reduction in the amount of pension shall be made without the approval of the appointing authority. Though the Regulations do not expressly provide for affording opportunity to the government servant before order for the reduction in the pension is issued, but the principles of natural justice ordain that opportunity of hearing must be afforded to the government servant before any order is passed. Article 311(2) is not attracted, nonetheless the government servant is entitled to opportunity of hearing as the order of reduction in pension affects his right to receive full pension. It is no more in dispute that pension is not bounty; instead it is a right, to property earned by the government servant on his rendering satisfactory service to the State. In State of Punjab v. K.R. Erry1 this Court held that the State Government could not direct cut in the pension of officers without giving a reasonable opportunity of hearing to them. In Deokinandan Prasad v. State of Bihar2 it was held that pension is not bounty payable at the sweet will and pleasure of the Government; instead the right to pension is valuable right vested in a government servant. Again in D.S. Nakara v. Union of India3 this Court held that payment of pension does not depend upon the discretion of the Government but it is governed by the rules and government servant coming under those rules is entitled to claim pension. A government employee earns his pension by rendering long and efficient service; the claim of pension is regulated by rules, which provide for reduction in the amount of pension if the government servant has failed to render efficient service. In M. Narasimhachar v. State of Mysore4 this Courtupheld the order of the State Government in reducing pension of a government employee as the rules regulating the grant of pension made provision for reduction of pension on account of his having rendered unsatisfactory service. Rule 6.4 of Punjab Civil Pension Rules provides for the reduction in the amount of pension if the service of the government employee has not been thoroughly satisfactory. The State Government's order directing reduction of pension of the employee of State of Punjab were set aside by this Court in State of Punjab v. K.R. Erry1 and in State of Punjab v. Iqbal Singh5 on the ground that the orders imposing deduction in the pension had been passed in violation of principles of natural justice as the affected employees had not been afforded opportunity of hearing. These decisions leave no scope for any doubt that the State Government is competent to direct reduction in pension after affording opportunity of hearing to the government servant.
16. Further, a similar rule framed by the Maharashtra Government akin to Rule 8 of the Tamil Nadu Pension Rules, 1978, came up to be upheld by the Supreme Court vide judgment in State of Maharashtra v. M.H. Mazumdar, reported in (1988) 2 SCC 52, wherein in paragraphs 4 to 6 it was observed as follows:
4.There is no dispute that the respondent had retired from service on attaining the age of superannuation on September 1, 1977 and charges were served on him on October 16, 1978 after about a year of his retirement. Indisputably the proceedings against the respondent were initiated after the respondent ceased to be in service of the State Government. The proceedings culminated in an order of the State Government reducing the respondent's pension by 50 per cent. The question is whether the State Government was competent to take action against the respondent by reducing his pension. Conditions for grant of pension to a government servant of the State of Maharashtra are regulated by the Bombay Civil Services Rules (hereinafter referred to as "the Rules"). Rule 184 provides for grant of pension admissible under the rules to government servant who is borne on its establishment. Rules 188 and 189 relevant for our purpose are as under:
"188. Government may make such reduction as it may think fit in the amount of the pension of a government servant whose service has not been thoroughly satisfactory.
189. Good conduct is an implied condition of every grant of pension. Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service, provided that before any order to this effect is issued, the procedure referred to in Note I to Rule 33 of Bombay Civil Services Conduct, Discipline and Appeal Rules shall be followed."
5.The aforesaid two rules empower Government to reduce or withdraw a pension. Rule 189 contemplates withholding or withdrawing of a pension or any part of it if the pensioner is found guilty of grave misconduct while he was in service or after the completion of his service. Grant of pension and its continuance to a government servant depend upon the good conduct of the government servant. Rendering satisfactory service maintaining good conduct is a necessary condition for the grant and continuance of pension. Rule 189 expressly confers power on the Government to withhold or withdraw any part of the pension payable to a government servant for misconduct which he may have committed while in service. This rule further provides that before any order reducing or withdrawing any part of the pension is made by the competent authority the pensioner must be given opportunity of defence in accordance with the procedure specified in Note I to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules. The State Government's power to reduce or withhold pension by taking proceedings against a government servant even after his retirement is expressly preserved by the aforesaid rules. The validity of the rules was not challenged either before the High Court or before this Court. In this view, the Government has power to reduce the amount of pension payable to the respondent. In M. Narasimhachar v. State of Mysore2 and State of Uttar Pradesh v. Brahm Datt Sharma3 similar rules authorising the Government to withhold or reduce the pension granted to the government servant were interpreted and this Court held that merely because a government servant retired from service on attaining the age of superannuation he could not escape the liability for misconduct and negligence or financial irregularities which he may have committed during the period of his service and the Government was entitled to withhold or reduce the pension granted to a government servant.
6.The High Court in our view committed serious error in holding that the State Government had no authority to initiate any proceedings against the respondent. In B.J. Shelat v. State of Gujarat1 disciplinary proceedings had been initiated against the government servant for purposes of awarding punishment to him after he had retired from service. The ratio of that decision is not applicable to the instant case as in the present case the purpose of the enquiry was not to inflict any punishment; instead the proceedings were initiated for determining the respondent's pension. The proceedings were taken in accordance with Rules 188 and 189 of the Rules. It appears that the attention of the High Court was not drawn to these rules. (emphasis supplied)
17. It is in the light of the above, the case of the petitioner has to be considered. The contention of the petitioner that though he got convicted for various act of forgery and cheating will not amount to any anti-social activities, cannot be accepted and it has to be rejected out rightly. A criminal activity of a Government Servant like forgery and cheating can itself can be held to be an anti- national activity, because even while he was part of the Government, he had cheated the members of the Public.
18. Increasing criminal misconduct and corrupt practices committed by Government servants came to be noted by the Supreme Court vide its decision in K.C. Sareen v. CBI reported in (2001) 6 SCC 584. In paragraph 12 it was observed as follows:
"12.Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. ..."
19. Similarly, the Supreme Court in State of M.P. v. Ram Singh reported in (2000) 5 SCC 88 in paragraphs 8,9 and 11 had observed as follows:
"8.Corruption in a civilised society is a disease like cancer, which if not detected in time, is sure to maliganise (sic) the polity of the country leading to disastrous consequences. It is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti-people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence - shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society.
9.The menace of corruption was found to have enormously increased by the First and Second World War conditions. Corruption, at the initial stages, was considered confined to the bureaucracy which had the opportunities to deal with a variety of State largesse in the form of contracts, licences and grants. Even after the war the opportunities for corruption continued as large amounts of government surplus stores were required to be disposed of by the public servants. As a consequence of the wars the shortage of various goods necessitated the imposition of controls and extensive schemes of post-war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants giving them a wide discretion with the result of luring them to the glittering shine of wealth and property. In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from time to time. In the year 1988 a new Act on the subject being Act 49 of 1988 was enacted with the object of dealing with the circumstances, contingencies and shortcomings which were noticed in the working and implementation of the 1947 Act. The law relating to prevention of corruption was essentially made to deal with the public servants, not as understood in common parlance but specifically defined in the Act.
11.Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and deciding cases under it." (emphasis supplied)
20. Hence a Government Servant who was convicted for acts of corruption and dismissed by the Government upon his conviction by having recourse to Article 311(2)(a) of the Constitution must be debarred from the grant of any compassionate allowance. The third proviso to Rule 40(1) of the Tamil Nadu Pension Rules disqualify a person getting compassionate allowances for his anti-social activities cannot be circumscribed by the petitioner's contention. The list of activities described are not exhaustive and they are only illustrative.
21. In the light of the above, it cannot be said that the rejection of the petitioner's request by the respondents is without any basis and not in consonance with the Rule under which the petitioner had claimed relief. Therefore, no case is made out and the writ petition will stand dismissed. No costs.
jikr To
1.Secretary to Government, Finance (Treasury and Accounts) Department, Chief Secretariat, Chennai- 600 009.
2.Commissioner of Treasury and Accounts, Panagal Maligai, Saidapet -600 015.
3.The District Collector, Tirunelveli.
4.The Treasury Officer, District Treasury Office, Tirunelveli.