A. Sundaram vs The Commissioner, Corporation of Chennai

S. Vaidyanathan, J.—The writ petition is filed with the following prayer:

"To issue a Writ of Certiorari to call for the records pertaining to order Po. Thu.Na.Ka. No. P9/30256/2009 dated 06.01.2010 of the 1st respondent and quash the same."

The case of the petitioner is that he joined the service of the respondent Corporation as an Attender on 23.10.1975. On 20.06.1984, he was promoted as Conservancy Inspector. After completing 32 years of unblemished service, the petitioner retired from service on 30.06.2008. The further case of the petitioner is that, while in service, he was placed under suspension; a charge memo dated 18.05.2007 was served on him, and an enquiry was also conducted.

The charges levelled against the petitioner are that (1) He wantonly obtained full salaries between 16.01.2007 to 15.02.2007 for absentee employees as per the attendance register of sanitary employees (2) He did not do his duties properly (3) He caused loss of Rs. 62,660/- within one month to the respondent Corporation and (4) He tampered with the official duties of the Corporation. The petitioner submitted his explanation to the aforesaid charges and thereafter, an enquiry was conducted. Before the punishment could be imposed, the petitioner attained the age of superannuation and he was allowed to retire by proceedings dated 30.06.2008, without any order being passed retaining him in service beyond the date of superannuation as per FR 56(1)(c). However, in the said proceedings, it was stated that any amount due to the Corporation would be recovered from the Gratuity payable to the petitioner. On 06.10.2008, the 1st respondent, awarded the following punishment:

(1) to cut off increment benefits for 3 years for Rs. 1,10, 433/-

(2) to deduct a sum of Rs. 62,660/- from the petitioner''s retirement benefits. Challenging the said proceedings, the present writ petition is filed.

According to the learned counsel for the petitioner, the request made by the petitioner for furnishing copies of the Enquiry Officer''s report and findings of the Enquiry Officer was not considered. The learned counsel also contended that in the absence of any order, having been passed, retaining the petitioner in service, beyond the date of superannuation, as per FR 56(1)(c), continuation of disciplinary proceedings cannot be sustained. Further, even for the purpose of invoking powers under Rule 9(2)(a) of Pension Rules, an order under FR 56(1)(c) has to be passed and in the absence of the same, the authority concerned cannot continue with the disciplinary proceedings. The learned counsel also submitted that the action of the respondents in deducting the amount, as quantified by proceedings dated 06.01.2010, from the benefits payable to the petitioner, nearly after 10 months from the date of his retirement, that too, in the absence of any order of retention as per the Rules and without furnishing the enquiry report, is unjustified.

The respondents have filed counter affidavit stating that the writ petition is not maintainable. According to the respondents, the petitioner, who was in charge of maintaining the conservancy workers'' welfare measures; to draw the conservancy workers'' salary on work basis as well as maintaining the day to day attendance of the conservancy workers, had fraudulently and dishonestly, obtained full salaries for absentee employees during the period from 16.01.2007 to 15.02.2007. For the said misconduct, the Commissioner, Corporation of Chennai framed charges under the provisions of The Madras Corporation Class III and IV Employees ( Disciplinary & Appeal) By-laws 1983 and the petitioner was placed under suspension by order dated 30.03.2007. According to the respondents, in the enquiry conducted, the petitioner was found guilty of the offence alleged and based on the findings of the Enquiry Officer, the 1st respondent passed the impugned order to make good the loss caused to the Corporation by the petitioner. Further, according to the respondents, the Commissioner, Corporation of Chennai, has got every right to take disciplinary action against the employees of the Corporation while in service and even after their superannuation, as per the provisions of sub rule 5(vi) of the above said by-laws. The respondents have further stated that as against the punishment awarded by the competent authority, an appeal remedy is available before the Appointment Committee (Corporation of Chennai) and without exhausting the same, the petitioner has approached this Court and therefore, on the ground of alternative remedy, the writ petition is liable to be dismissed.

Heard both parties.

It is an admitted fact that the petitioner attained the age of superannuation on 30.06.2008. The disciplinary proceedings did not culminate into the order of punishment before the date of his retirement. It is also not disputed that in terms of FR 56(1)(c) mentioned supra, the service of the petitioner should have been extended to continue with the disciplinary proceedings or an order should have been passed to proceed against the petitioner under the Pension Rules. In the absence of either, when there was cessation of employer-employee relationship on 30.06.2008 itself, for the reason stated supra, the respondents cannot proceed against the petitioner. Hence, the impugned order dated 06.01.2010 is illegal and the same is set aside. The writ petition is allowed. As the impugned order is no longer in existence in the eye of law, the respondents are directed to disburse the recovered amount to the petitioner within a period of 2 months from the date of receipt of a copy of this order. In the event of failure to settle the amount, within the stipulated time, the petitioner will be entitled to interest @12% per annum, on the said amount, from the date of writ petition till the date of disbursement. No costs.