High Court Of Judicature At Madras

C. Murugesan V. Chief Engineer (General) Highways Department & Another

WRIT PETITION NO.24686 of 2004, W.P.M.P.NO.30030 OF 2004 AND W.V.M.P.NO.142 OF 2005. 02-11-2010

JUDGMENT

(Prayer: The Writ Petition is filed under Article 226 of The Constitution of India seeking for the relief of issuance of a writ of mandamus to forbear the respondents 1 and 2 to proceed with enquiry on the basis of the charge memo dated 30.12.2003 issued by the first respondent and the consequential notice dated 25.6.2004 issued by the 2nd respondent without disbursing the terminal benefits due to the petitioner after withholding a sum of Rs.25,735/- in compliance to the orders of the Tamilnadu Administrative Tribunal, Chennai in O.A.No.9270/1997 dated 30.12.2003.)

The Writ Petitioner was originally appointed as a Junior Engineer in the Panchayat Union, Kambam and thereafter he was transferred and posted as Assistant Engineer, National Highways. It appears that based on certain audit objection, the Additional Block Development Officer, Panchayat Union, Kambam has issued order 13.10.1997 directing recovery of an amount of Rs.25,735/- from the petitioner, which is stated to be the amount of loss caused by the petitioner to the Department. Challenging the said recovery order dated 13.10.1997, the petitioner has approached Tamilnadu Administrative Tribunal by filing O.A.No.9270 of 1997. There appeared to be an order of interim stay and ultimately the Tribunal in the order dated 30.12.2003, which is stated to be passed one day before the date of superannuation of the petitioner, has set aside the order of recovery, however given liberty to the respondent Department to proceed with the enquiry by framing charges without prejudice the disciplinary proceedings and also directing the Government to allow the petitioner to retire on the date of superannuation viz., on 31.12.2003.

2. It is not in dispute that the 1st respondent has allowed the petitioner to retire from service on the attainment of superannuation viz., on 31.12.2003, however without prejudice to the right of the Department from proceeding with the disciplinary proceedings. The 1st respondent has issued the impugned charge memo on 30.12.2003 one day before the date of superannuation of the petitioner and it appears that when the 2nd respondent was appointed as Enquiry Officer, he has issued a notice directing the petitioner to appear for enquiry in June 2004 inspite of the fact that the petitioner was allowed to retire. It is not in dispute that the Fundamental Rules applies to the service conditions of the petitioner. As per Sub-rule 1(c) to Rule 56 of the Fundamental Rules, which reads as follows:

(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 of 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 charges 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 Subordinate 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."

unless the Department passes a positive order directing the delinquent to be kept in service even after the date of attainment of age of superannuation, the Government loses its right either to proceed with the disciplinary proceedings or frame any fresh charges since the relationship of employer and employee comes to an end by allowing the delinquent to retire from service.

3. The Supreme Court in the case of BHAGIRATHI JENA VS. BOARD OF DIRECTORS, O.S.F.C. AND OTHERS, (1999) 3 SCC 666 has held that when once the delinquent is allowed to retire from service, the relationship of employer employee comes to an end and thereafter the employer loses his right of continuing disciplinary proceedings, unless the delinquent is kept under suspension or his services are continued for the purpose of facing the disciplinary proceedings. In the said judgment, while considering the case of an employee, who worked in Orissa State Financial Corporation and with reference to the provisions of Orissa State Financial Corporation Staff Regulations, 1975, the Supreme Court held as under:

"7. In view of the absence of such a provision in the above said regulations, it smut be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it smut be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."

4. The above principle was also followed by hierarchy of judgments including Division Bench of this Court in the case of STATE OF TAMIL NADU VS. R.KARUPPIAH ((2005) 2 MLJ 342) and later by another Division Bench in N.KUNNAI GOUNDER VS. THE COIMBATORE DISTRICT COOPERATIVE MILK PRODUCERS UNION LIMITED, (2007(5) CTC 491). In fact, the Division Bench presided over by Justice P.Sathasivam, (as His Lordship then was) in the case of STATE OF TAMIL NADU VS. R.KARUPPIAH ((2005) 2 MLJ 342) has held that in the absence of an order passed under Rule 56(1)(c) of the Fundamental Rules, invoking the provisions of Rule 9 of Tamil Nadu Pension Rules is not permissible thereby holding that recovery from the employee is not permissible when the employee is allowed to retire from service.

5. Applying the above said consistent view taken by the Courts to the facts of the present case, there is absolutely no difficulty to conclude that the charge memo, which has been framed against the petitioner dated 30.12.2003 cannot be continued by the respondents when the petitioner was allowed to retire on 31.12.2003, of course without prejudice to the recovery charges pending against him. There is absolutely no manner of right accrues to the respondent Department by inclusion of the words "without prejudice to the recovery charges pending against him" in the order dated 31.12.2003, unless a positive order is passed under Rule 56(1)(c) of the Fundamental Rules.

6. It is stated that the amount of Rs.25,735/-, which is stated to be the loss caused to the Department, has been withheld by the respondent Department even before the enquiry is concluded. The respondents have no manner of right to withhold or retain the said amount of Rs.25,735/-.

7. In such view of the matter, the writ petition stands allowed and the impugned charge memo stands set aside with direction to the 1st respondent to release the amount of Rs.25,735/- to the petitioner within a period of eight weeks from the date of receipt of copy of this order. It is also not in dispute that as submitted by the petitioner, who appeared as party in person, that the pension amount has already been settled to him and he is being paid regularly. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed.

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