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Judgment
Kanakaraj, J.—By consent the Writ Petition itself is taken up for final disposal at the time of hearing the petition for stay of the impugned order.
The Petitioner was appointed as B.T. Assistant in a Private School called Thiru Arul High School, Kulasekarapattinam in the year 1960. He was removed from service by the management on certain charges in the year 1962. He was however, reinstated with back wages in the year 1964, on his appeal being allowed By the Education Department. The Petitioner was also involved in a Criminal case before the Judicial Magistrate, Tiruchendur in C.C. No. 2557/67. He was however, released u/s 3 of the Probation of Offenders Act, 1958. He preferred a Criminal Revision Case No. 840 of 1968 and the same was dismissed on 20.2.1969 with the observation that the Petitioner did not suffer any disqualification by virtue of Section 12 of the Probation of Offenders Act, 1958. In the year 1968 the Petitioner''s services were again terminated by the management. Again his appeal to the Director of School Education was allowed directing reinstatement of the Petitioner, by an order dated 11.6.1974. Against the said order the management filed an appeal before the Tribunal u/s 44 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1974, Though the appeal was numbered as C.M.A. No. 56 of 1977 it was ultimately dismissed on 4.2.1981 because the management did not deposit the back wages to the tune of Rs. 73,923/- . The first chapter relating to the Petitioner''s services ends here.
After the dismissal of the Petitioner in the year 1968 by the management of the said Private School, notwithstanding the subsequent proceedings, the Petitioner applied to the second Respondent on 21.6.1968 seeking appointment as B.T. Assistant in the Corporation High School. In his application he had indicated his previous teaching experience for six years. On 16.7.1968 the certificates of the Petitioner were verified and Petitioner was appointed as B.T. Assistant on 24.7.1968. In fact, he was given age relaxation before being appointed. On 5.12.19/8 his appointment was confirmed. By an order dated 9.6.1988 the Petitioner was given selection grade with effect from 1.4.1973 by including his service in the Private School. The Petitioner says that he had been discharging his function to the utmost satisfaction of the Respondent. Here ends the second chapter of the Petitioner''s service.
The Petitioner was due to retire on superannuation on 12.1.1993 on his completion of 58 years of age. An order of suspension dated 11.1.1993 is said to have been served on the Petitioner. On 4.2.1993 the Petitioner was also served with a charge memo dated 28.12.1992. This Writ Petition is to quash the charge memo dated 28.12.1992 and the order of suspension dated 11.1.1993. In support of the Writ Petition it is contended as follows:
(i) Factually the charges cannot be substantiated.
(ii) The entire action is vitiated by mala fides at the instance of the private management.
(iii) Inasmuch as the suspension order dated 11.1.1993 was served on the Petitioner only on 4.2.1993 there was nothing to stop the retirement of the Petitioner on 12.1.1993 on superannuation. Therefore, the charges cannot be proceeded with.
(iv) The order of suspension says that the same was pending enquiry into grave charges contemplated. Thus no charges were pending on 11.1.1993 warranting the order of suspension.
(v) The instances referred to in the charge memo dated 28.12.1992 relate to the year 1968 and 1977 and the Respondents have no jurisdiction to re-open the issues which had happened more than 15 to 20 years prior to the Charge memo.
In the counter affidavit filed by the second Respondent it is sought to be made out that the charges can be substantiated, on facts and that the order of suspension dated 11.1.1993 was affixed on the door of the Petitioner''s residence on 16.1.1993 because he refused to receive the same. It is however, admitted that the Petitioner did not receive any amount as claimed in C.M.A. No. 56 of 1977, but it was his duty to have disclosed his employment with the second Respondent, to the School Tribunal. The motive for the impugned orders is denied by the second Respondent. It is also stated that the corporation came to know about the facts only on 22.4.1992, on a complaint received from one B. Sekar. Thereafter the matter was investigated by the Vigilance and charges were framed on 28.12.1992 and the order of suspension was passed on 11.1.1993. It is also faintly contended that the investigation disclosed the fact that the Petitioner was running a chit business and a music college and that charges in that respect were contemplated. Therefore the Respondents contend that the suspension on the ground that charges were contemplated cannot be faulted. There is again a faint averment that even though the Petitioner attained the age of superannuation on 11.1.1993 (sic) for 12.1.1993), normally teachers are entitled to continue till the end of the academic year and therefore, the Petitioner will only retire on 30.4.1993.
this Court had occasion to deal with a similar matter in G. Subramanian Vs. Government of Tamil Nadu and Others, ). In that case also a Government servant was suspended from service on 30.6.1977 when the said Government servant was due to retire on the afternoon of 30.6.1977. Consequently, the said Government servant was not allowed to retire from the service in accordance with Fundamental Rules 56(e). Thereafter, charges were framed and an enquiry was conducted and a final order was passed. All the subsequent proceedings were also challenged on the ground that the initial order of suspension itself was illegal and therefore after retirement the subsequent proceedings were also illegal. The contention was accepted by this Court and the Writ Petition was allowed. In dealing with that matter Kader, J. has considered all the aspects of the matter as well as an earlier Division Bench judgment in Natarajan v. Government of Tamil Nadu ( 1981 Writ L.R. 191).
The ratio of the said judgment is based on Rule 9 of the Pension Rules and Fundamental Rule 56(e) read with Rule 17(e) of the Tamil Nadu Civil Service (Classification, Control and Appeal) Rules. So far as the Petitioner is concerned it is not disputed that the Madras Corporation Class III and IV Services (Disciplinary and Appeal) Bye-laws are in pari-materia with the Civil Service Classification and Control Rules relating to a Government Servant. Similarly the Fundamental Rules and the Government Servant Conduct Rules are also applicable to the Petitioner and this can be verified from the charge memo dated 28.12.1992 and the order of suspension dated 11.1.1993 where reference is made to both the said Rules. Fundamental Rules 56(e) is as follows:
A Government servant under suspension on a charge of misconduct should not be required or permitted to retire on his reaching the date of compulsory retirement but should be retained in service until the enquiry into the charge is conducted and a final order passed thereon by the competent authority.
The ratio of the said judgment is that for the applicability of F.R. 56(e) the Government Servants must be under suspension on a charge of misconduct. In other words a charge sheet must have been framed on the date of such an order of suspension. The mere fact that an enquiry into grave charges was contemplated, is not a ground to hold that the Government Servant is under suspension of the charge of the misconduct within the meaning of F.R. 56(e). Therefore, on the facts of the present case it is seen that the order of suspension only says that "An enquiry into grave charges against Thiru Mariya Arulnathan, B.T. Assistant, CGHSS, Korukkupet is contemplated". Therefore, it must be presumed that for the purpose of F.R. 56(e) it is not a case of suspension on charge of misconduct. Therefore, the Petitioner could not have been continued in service till the enquiry into the charge is concluded.
Though the order of suspension only relates to the contemplation of an enquiry into grave" charges, the fact remains that a charge memo had, in fact, been issued on 28.12.1992 but the order of suspension is not based on the said charge-memo. I will deal with the validity of the said charge memo a little later. Suffice it to say that on the wording of the impugned order of suspension it cannot be sustained under Rule 56(e) of the Fundamental Rules.
As to the scope of departmental proceedings instituted while the Government Servant was in service and continued after his retirement, the entire Rule 9 of the Pension Rules has to be looked into. Kader, J. has analysed the said Rules and has relied on R.P. Nair v. Kerala State Electricity Board (AIR 1979 Ker 135 (F.B.)) and has arrived at the following conclusion:
I respectively agree with the observations of the learned judges and hold that the continuance of the disciplinary proceedings against the Petitioner initiated on the last day of his service can be only for the purpose of finding out whether any pecuniary loss is caused to the Government and ordering the recovery of the same.
Therefore, it has to be seen, whether the charges framed on 28.12.1982 could, if proved, result in the recovery of any pecuniary loss caused to the Government, from the pension amount payable to the Petitioner. Therefore, we will have to look at the charges in that perspective. I will therefore, quote the charges framed under the impugned memorandum dated 28.12.1992:
that Thiru Maria Arulnathan, B.T. Assistant CHSS, Korukkupet now doing duty at CHSS, Lioyds Road has failed to inform about his previous employment in Thiru Arul High School and the fact about his conviction by Sub-Magisfrate. Tiruchendur in a Criminal Case u/s 355, IPC, to the competent authority with whom he got an appointment.
that he has wilfully concealed the facts in all his activities since 1968 while filing of appeal against conviction of Sub-Magistrate Court, Tiruchendur, appeal in Tuticorin, filing an affidavit for claiming the back wages from 1.5.68 to 15.12.77 in the Sub-Court, Tuticorin, subsequent letter to the District Educational Officer, Tuticorin in CHSS56/77 for ordering to deposit the back wages, absorbing him into service etc., filing of affidavit in the Tribunal and their judgment, filing on an appeal in the High Court for his conviction in the lower Court and filing of an affidavit in the High Court to stay the proceedings of the school and to get back wages and the High Court orders etc.
That he has claimed wages from Thiru Arul High School, Kulasekarapattinam to the tune of Rs. 55,036/- while he is actually employed in Corporation of Madras for the period from 1.9.68 to 15.12.1977 even though he had not received the amount which amounts to double drawal of income through Private employment which is contrary to Rule 8(1)(a) of Government Servant Conduct Rules, 1973.
That it is his bounden duty to inform the authorities with whom he is seeking employment about his previous employment and other particulars including the above said orders by the Judicial Forums in which he has failed and thus it amounts to willful concealment of facts and there exposed to both criminal and departmental action.
Charges 1, 2 and 4 certainly do not involve any pecuniary loss to the Respondents. Even Charge No. 3 certainly does not involve any loss to the Respondents or even to the said private management mentioned in the charge memo. The only allegation is that the Petitioner had claimed a sum of Rs. 55,036/- from the said private management as wages due to him for the period from 1.5.1968 to 15.12.1977 notwithstanding the fact that the Petitioner had been employed by the Respondent in the year 1968. Even the charge concedes that the Petitioner had not received any amount amounting to double drawal of income for the relevant period. This is really an allegation which should be made by the private management and I do not think that the Respondents have any grievance because the Petitioner had made such a claim before the School Tribunal. That apart, for the purpose of this case I have no doubt in my mind even this charge certainly does not involve any pecuniary loss to the Respondents. Consequently, none of the charges even if proved, will result in or lead to any recovery of loss from the pension amount payable to the Petitioner. Therefore, applying the ratio of the judgment of Kader, J. the charges themselves cannot be maintained as against the Petitioner after his retirement on 12.1.1993.
There is one other principle which has been repeatedly laid down by this Court and the Apex Court which principle has not been kept in mind by the Respondents. I have already referred to the fact that the charges have been framed in respect of the action of the Petitioner during the year 1968 or 1977, that is more than 15 years prior to the framing of charges. this Court in Ramanarayan V.S. v. The Food Corporation of India, Rep. by its Zonal Manage (1985 W.L.R. 522) had quashed the memorandum of charges on the ground that there was a delay of six years between the incident and the date of the charge memo. The Supreme Court of India in The State of Madhya Pradesh Vs. Bani Singh and another, has laid down as follows:
The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage.
No doubt the Respondents seek to explain the delay by stating that they became aware of the alleged misconduct of the Petitioner only after receiving a complaint from one Sekar on 24.2.1992. As against this allegation Learned Counsel for the Petitioner has pointed out that even in his application dated 21.6.1968 he had given his experience in teaching with reference to his service in the said private management. Secondly while granting selection grade salary to the Petitioner with effect from 1.4.1973, the period of 20 years was calculated taking into account his service in the private management. I do not think therefore, the explanation of the Respondents for the delay in taking disciplinary action can be accepted. In other words the explanation cannot be considered as a satisfactory explanation for the inordinate delay in initiating disciplinary proceedings.
What is more, I am unable to see as to why the Respondents should take serious notice about the failure to inform his previous employment in a private school after a lapse of nearly 15 years. The service of the Petitioner with the Respondent has practically come to an end. Therefore, what is the use of the Respondents conducting a post mortem into the failure on the part of the Petitioner and in what way will that affect the Respondents especially because the Petitioners service had practically come to an end. Such an enquiry is a futile attempt to probe into the conduct of the Petitioner and it will not serve the interest of the Respondents or the public. So far as the conviction by the Sub-Magistrate is concerned the judgment of this Court in Cr.R.C. No. 840 of 1968 is clear and categoric that the same will not be considered as a disqualification so far as the Petitioner seeking service in any department or school. Certainly this is not a case of corruption or misappropriation of funds or other malpractice which are normally considered as grave or serious. However, I am not inclined to accept the argument of the Petitioner that the charges are vitiated by mala fides because the said private management has not been impleaded as a party-Respondent. It is not necessary for me to go into the other points raised by the Petitioner relating to the correctness of the charges.
For all the above reasons The Writ Petition is allowed and both the charge memo dated 28.12.1992 and the order of suspension dated 11.1.1993 are quashed. The Writ Petition is allowed with costs. Counsel''s fee Rs. 1,000/- .