Madras High Court
P.Pandaram Pillai vs The State Of Tamil Nadu on 27 June, 2011
Author: B.Rajendran
Bench: B.Rajendran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/06/2011 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD)No.10032 of 2009 and M.P(MD)Nos.1 & 2 of 2009 & 1 of 2010 P.Pandaram Pillai ... Petitioner Vs. 1.The State of Tamil Nadu, Rep. by its Secretary to Government, Labour & Employment Department, Secretariat, Chennai-600 009. 2.The Commissioner of Employment & Training, Alandur Road, Guindy, Chennai-32. ...Respondents Prayer Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the order passed by the second respondent in his Proceedings No.Ona2/28645/2008, dated 16.09.2009 and the order passed by the first respondent in G.O.(2D) No.84, Labour and Employment Department, dated 19.09.2009 and quash the same and direct the respondents to confer all the consequential benefits. !For Petitioner ... M/s.S.Mani ^For Respondents... Mr.M.Govindan Special Government Pleader :ORDER
The petitioner who was working as District Employment Officer in Kanyakumari District was served with a show cause notice dated 18.08.2009 for an alleged lapse in discharging his functions, viz., omission of four candidates while sending the list for the post of Sanitary Worker, invited by the Dean of Kanyakumari Medical College.
2. According to the petitioner, the incident took place in October, 2007; he has submitted his explanation on 28.08.2009 inter alia stating that three candidates were over-aged i.e. they have completed the upper age limit prescribed by the Dean and the fourth person was not eligible since she has not given her willingness to the post of Sanitary Worker; without considering the explanation, the second respondent has framed charge against the petitioner on 16.09.2009 as he was to retire on 30.09.2009 and at the verge of his retirement, the respondents have placed him under suspension vide the impugned order in G.O.(2D) No.84, Labour and Employment Department dated 19.09.2009; challenging, the charge memo dated 16.09.2009 and the order of suspension dated 19.09.2009, this writ petition is filed.
3. According to the petitioner, both the charge memo and the suspension order are arbitrary, illegal, vitiated by error of law, apparent on the basis of the records and liable to be quashed.
4. The respondents have filed a detailed counter along with the vacate stay petition. According to the respondents, at the time of nomination, the petitioner has not considered the upper age limit which is applicable for BC/MBC communities which led to omission of candidates while nomination; on receipt of complaints, the Government have asked for remarks and as per the report of the Regional Deputy Director, Madurai, dated 30.04.2009, the names of three candidates had been omitted and recommended for suitable action at the Commissionerate level; based on the report, explanation was called for from the individual; the main ground the Department would say is that as per G.O.Ms.No.16, Backward Classes, Most Backward Classes and Minorities Welfare (BC.I) Department dated 03.05.2002, the upper age limit is 32 years as far as backward classes is concerned and as per G.O.(Ms) No.98, Personnel and Administrative Reforms (S) Department, dated 17.07.2006, the Government also relaxed the upper age limit for five years during the ban period and further, in G.O.(Ms) No.21, Labour and Employment Department dated 02.02.2000, one year age relaxation is to be allowed for every three years of waiting periods; since all these Government Orders have been duly intimated to the relevant officers, the failure to nominate the three names even though they are coming within the age limit, is a serious lapse. But, in the counter, they would also state that the charge is framed under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Hence, the petitioner was placed under suspension on 19.09.2009, as he was to retire on 30.09.2009.
5. The petitioner has also filed a rejoinder to the counter and according to him, the names of the three candidates allegedly not sponsored by him are over-aged; as they have got the age limit of 35 years even as on 01.07.2009 and the employer himself has specifically requested to send the list of candidates within 35 years of age, so only, on the basis of the requirement sent by the Dean, Kanyakumari Medical College, the three candidates referred were not sponsored, as they were, at that time, over-aged; further, G.O.(Ms) No.16, Backward Classes, Most Backward Classes and Minorities Welfare (BC.1) Department, dated 03.05.2002, would be applicable only for those candidates for which post the prescribed qualification is S.S.L.C. or below S.S.L.C., whereas, in this case, no educational qualification is required as it is only a cleaning job and the only requirement is that the Tamil language to be known and even G.O.(Ms) No.21, Labour and Employment Department, dated 02.02.2000, will not be applicable as the three candidates have registered their names only for occupational trades and above all these things, he would also point out that even out of the three candidates, two of them have crossed the concessional age even before the ban period of five years of concession was fixed only to the persons who have become over-aged during the ban period; further, if at all though the charges can be levelled against him, it could be only charged under Section 17(a) and not charged under 17(b); therefore, the need to suspend him, will not arise and above all these things, he would also point out even in the counter that they themselves have admitted that the alleged lapse committed by the petitioner is only an inadvertent omission and there is no specific pleading that he has voluntarily done this mistake and therefore, the charge framed under Section 17(b) will not be applicable and passing order of suspension during the last date of retirement is deprecated by the Hon'ble Supreme Court and this Court. Hence, he would seek the impugned order to be quashed.
6. Heard the learned counsel appearing on either side.
7. The petitioner has put in more than 35 years of service. When he was employed as a District Employment Officer, he was served with the request by the Dean of Kanyakumari Medical College to sponsor names for the post of Sanitary Workers, Hospital Workers, Cooks, etc. According to the petitioner, the request made by the Dean itself is for people with less than the age limit of 35 years and the notification sent to the petitioner categorically states for backward classes, 35 years and for most backward classes, it was mentioned as 37 years and the crucial date for reckoning the age was 01.07.2007. According to the petitioner, pursuant to this notification, the petitioner himself sent a letter on 24.10.2007 seeking clarification as to whether the instructions contained in G.O.Ms.No.82, Health and Family Welfare Department, dated 13.02.1996, have been duly taken note of wherein the age limit for widows and women candidates was also mentioned. The Dean, Kanyakumari Medical College, has also sent a reply on 24.10.2007 stating that the notification has been issued only in accordance with G.O.Ms.No.82, Health and Family Welfare Department, dated 13.02.1996. Therefore, the explanation now sought by the petitioner is that even though papers were sent as early as 2007 as per the requirement and as per the age limit sought by the Dean, Kanyakumari Medical College, for the first time, a show cause notice was issued to him only on 18.08.2009 after a period of more than two years. In this show cause notice, it is specifically mentioned that the failure to include the names of three candidates without considering the relaxation age for backward classes is considered as an irregularity and illegality. The petitioner has sent a detailed reply on 28.08.2009 itself. He has categorically explained that as there was a mistake in the computer, the names of three candidates were missed during the relevant time and the names were rectified only after 2008. In fact, in respect of Stella, she has not renewed her registration and it has expired in January 2009 and she has not renewed earlier from November 2008. Further, he has also specifically made out a case that the alleged mistake or omission to include the names of three candidates was not wanton or wilful and if at all it could only be an inadvertent mistake. In any view of the matter, he would also contend that the main requirement by the authority itself was 35 years and this was taken into consideration. But, unfortunately, when the matter is pertaining to the relevant period i.e., 2007 and even according to the show cause notice, the Regional Deputy Director, Madurai, has initiated the proceedings even as early as 13.04.2009 asking as to why no action was taken till 18.08.2009. The fact that the show cause notice itself is given only after a period of two years which is just before his retirement and immediately after his explanation, the impugned order of charge memo and the consequential suspension order has been passed at the fag end of the retirement period is highly exaggerated. In fact, in the counter, it has been very clearly stated as follows:
"but the petitioner inadvertently failed to nominate the candidates for the post of sanitary worker notified by the Dean, Kanyakumari Medical College, Asaripallam. Hence, the charges were framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules."
When the department has categorically admitted that it is only an inadvertent mistake and it does not call for any charge framing under Rule 17(b), as rightly pointed out, if at all, the charge can be framed only under Rule 17(a) and not under Section 17(b) as nowhere they have alleged that in the show cause notice or charge memo that the petitioner has voluntarily, wilfully or negligently done. Even as per the petitioner's explanation, it is very clear that the eligibility criterion of 35 years and plus two years upto 37 years is only applied in the case of candidates whose educational qualification is to be taken note of. Whereas, in this case, it is only a mere cleaning work and that too, the knowledge of Tamil language is the only requirement. Be that as it may. It is also brought to the notice of this Court now that the five years of ban period relaxation would not be applicable to them as they have already crossed the age even prior to the ban period and it is also not the case that the petitioner has not been diligent. In fact, he had even sent a letter to the Dean, Kanyakumari Medical College, seeking clarification as to whether the Government Orders have been followed in letter and spirit. Therefore, as rightly admitted in the counter, it can be only an inadvertent mistake and not wanton, wilful and deliberate omission on the part of the petitioner. Therefore, the present action taken by the respondent at the fag end of the retirement is definitely not in accordance with law. Therefore, in paragraph 5 of G.O.Ms.No.144, Personnel and Administrative Reforms (N) Department, dated 08.06.2007, insofar as it relates to taking action as against the officers at the time of retirement, the Government have categorically given certain guidelines to be followed which are as follows:
"5.(i) The disciplinary authority should not resort to last minute suspension of the Government servants (i.e.) on the date of their retirement. A decision either to allow Government servant to retire from service or suspend him from service should be taken well in advance (i.e.) three months prior to the date of retirement on superannuation and orders issued in the matter and such a decision should not be taken on the date of retirement, if final orders could not be issued in a pending disciplinary case against a Government servant retiring from service due to administrative grounds.
(ii) If an irregularity or an offence committed by the Government servant comes to notice within a period of three months prior to the date of retirement, the disciplinary authority shall process the case on war-footing and take a decision either to permit the Government servant to retire from service without prejudice to the disciplinary case pending against him or to place him under suspension, based on gravity of the irregularities committed by him.
(iii) ....
(iv) Any failure on the part of the disciplinary authority to issue final orders three months before the date of retirement of a delinquent officer will be viewed seriously and it will entail severe action to be initiated against the officials responsible for dragging on the case to the date of retirement of Government Servant concerned.
(v) Where the delinquency committed by a Government servant is very grave which warrants imposition of major penalty such as dismissal or removal from service and if it is not possible to pass final orders. In such departmental proceedings, then it is necessary to suspend the Government Servant from service and not to permit him to retire on attaining the age of superannuation under Fundamental Rule 56(1)(c). In such cases also, the disciplinary authorities have to ensure that the suspension orders are not issued on the date of retirement of the Government servants. However, where a Government servant is already under suspension orders retaining the services of Government servant beyond the date of superannuation under Fundamental Rule 56(1)(c) have to be issued on the date of retirement only.
(vi) In cases where charges have been framed and the disciplinary authority is of the view that a pension cut or withholding of pension under the Tamil Nadu Pension Rules, 1978 would suffice for the delinquency committed, the disciplinary authority may allow the Government servant to retire from service without prejudice to the departmental proceedings.
(vii) If the disciplinary authority comes to know of the commission of a delinquency which warrants imposition of major penalty such as dismissal or removal from service, within three months prior to the date of retirement of the Government servant and charges could not be framed before the date of retirement of the Government servant, then also it is necessary to suspend the Government Servant from service and not to permit him to retire on attaining the age of superannuation under Fundamental Rule 56(1)(c). In such cases also, the disciplinary authorities may ensure that the suspension orders are not issued on the date of retirement of the Government servant.
8. From a reading of the Government Order itself, it is very clear that prior to three months from the date of retirement, at least such disciplinary action should have been taken. Unfortunately, in this case, for a very minimal alleged violation of interpretation of the Government Order, the petitioner who has put in 35 years of service has been suspended from service at the fag end of his career which is highly deprecatory as per the Division Bench judgement of this Court reported in 2005 (5) CTC 451, The Special Commissioner and Commissioner of Commercial Taxes, Chepauk, Chennai - 5 and another vs. N.Sivasamy, Commercial Tax Officer (Under suspension) and another, wherein it has been held as follows:
"14. ... Further, there was inordinate delay in issuing the charge memo and the same was issued just 7 days before the date of superannuation. Though the alleged lapse occurred in the year 1995 and certain charges related to the period 1993-94, the charge memo was issued on 15.07.97 and served on 23.7.97, just 7 days before the date of retirement. The contention of the applicant that only with a view to cause hardship, agony and anguish, the charge memo was issued cannot be ignored. As rightly stated, if every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers and that misconduct is not coming within the purview of mere error in judgment, carelessness or negligence in performance of the duty. Likewise, wrong interpretation of law cannot be ground for misconduct. He may have wrongly exercised his jurisdiction, but that wrong can be corrected in appeal and the same cannot always form basis for initiating disciplinary proceedings for an officer while he is acting as quasi-judicial authority. We have already pointed out that though the applicant filed Original Application No.6284/97 challenging the charge memo dated 15.7.97, admittedly, no stay was granted. Despite the above fact that the department had not proceeded with disciplinary proceedings; there is an inordinate and unexplained delay on the part of the department. According to the applicant, he is 67 years of age as on date and had rendered 38 years of service in the department. He had undergone sufferings from mental worry, agony, anguish and hardship for all these years. We are satisfied that there is no need to pursue the charge memo dated 15.7.97.
15. In the light of our discussion, while setting aside the order of the Tribunal dated 10.8.2001, for the reasons mentioned above, the Commercial Tax Department is not permitted to proceed with the charge memo dated 15.7.97 against the applicant even under Pension Rules and the applicant is deemed to have been retired on 31.7.1997 on attaining superannuation with entitlement of all retirement benefits. Both the writ petitions are disposed of accordingly. No costs. Connected W.P.M.P. is closed."
Also as per the Division Bench judgement of this Court reported in 2007 (3) CTC 518, Bommusamy, A. V. The Government of Tamil Nadu, rep. by its Secretary to Government, Co-Operation, Food and Consumer Protection Department and four others, wherein it has been held as follows:
"13. ...Time and again, the Supreme Court and this Court has deprecated the initiation of Disciplinary Proceedings against an employee or the fag end of his retirement and keeping the matter pending for a long time by keeping the matter pending for a long time by keeping the employee under suspension. Further when the petitioner had pleaded that there was official prejudice and enmity between him and the third respondent in the matter of use and maintenance of the official vehicle, the Tribunal has failed to consider this aspect of the case in proper perspective while dismissing the Original Applications. The Disciplinary Proceedings were initiated against the petitioner when there was hardly fifteen days left for his retirement. More over, when his date of retirement is on 11.3.1987 and the order of suspension was passed on 25.3.1987 by invoking G.O.No.173. Therefore, when once the petitioner has reached the age of superannuation on 11.3.1987, the placing the petitioner under suspension after his date of superannuation is without authority and that when the relationship of master-servant ceased to exist, no Disciplinary Proceedings could be initiated against the petitioner. On this ground also, the impugned order of the Tribunal is liable to be set aside.
14. For the aforesaid reasons, we are of the view that the Tribunal has committed an error in upholding the order dated 21.1.1993 passed by the first respondent. The Tribunal has committed an illegality in dismissing the Original Application filed by the petitioners. The impugned orders passed passed by the Tribunal are, therefore, liable to be set aside.
15. The impugned orders passed by the Tribunal are set aside and consequently, the writ petitions are allowed. No costs. "
9. Taking into consideration the very admission in the counter itself that it is only an inadvertent mistake, it is highly improper for the authorities to place the petitioner under suspension at the fag end of his career and rightly this Court has granted stay.
Under these circumstances, the impugned orders are liable to be set aside. Accordingly, they are set aside and the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.
srm TO
1.The State of Tamil Nadu, Rep.by its Secretary to Government, Labour & Employment Department, Secretariat, Chennai-600 009.
2.The Commissioner of Employment & Training, Alandur Road, Guindy, Chennai-32.