N.M. Elayaperumal vs State of Tamil Nadu

T. Raja, J.—The petitioner, Mr. N.M. Elayaperumal, who was allowed to retire on reaching the age of superannuation, by the impugned order passed against him under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules without prejudice to the disciplinary proceedings, has come to this Court challenging the same by taking several grounds inter alia that the respondents have no power or jurisdiction to reserve the right to proceed against the petitioner in respect of the pending charges after he was allowed to retire, for the reason that, once he attains the age of superannuation, the only option to the respondents is to suspend him from services and extend the services of the petitioner beyond the date of superannuation under Rule 56(1)(c) of the Fundamental Rules. On the other hand, without retaining the petitioner, if the department proceeds against the petitioner, and comes to the conclusion that the charges are established against the petitioner, yet they cannot impose any major penalty of dismissal or reduction in rank or removal, although they got enormous power under Rule 9(2)(b) of the Tamil Nadu Pension Rules, 1978, to impose any suitable punishment cutting the pension, including deduction of the service benefits. Mr. R. Muthukumarasamy, learned Senior Counsel appearing for the petitioner stated before this Court that the issue raised in the present writ petition is no longer res integra in the light of the ratio laid down by the Honourable Full Bench judgment of this Court in the case C. Mathesu Vs. The Secretary to Government and Others, wherein it has been held that if a Government Servant is permitted to retire on attaining the age of superannuation without prejudice to the disciplinary proceedings pending against him, the said proceedings can be permitted to be continued in terms of Rule 9(2) of the Tamil Nadu Pension Rules, 1978. Indicating further to paragraph-28(ii), learned Senior Counsel stated that in the present case, since the petitioner was permitted to retire from service on attaining the age of superannuation without prejudice to the disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, the departmental proceeding can be continued. However, there is no question of passing order of dismissal or removal from service and only the pension can be withheld, withdrawn or reduced. In view of that, he finally prayed for disposal of the writ petition, by giving a direction to the first respondent to expedite the pending disciplinary proceedings in terms of paragraph-28(iv) and (v) of the said judgment mentioned supra.

In reply, Mr. R. Vijayakumar, learned Additional Government Pleader appearing for the respondents, would submit that since the issue raised in the present writ petition is covered by the judgment of the Full Bench of this Court reported in C. Mathesu Vs. The Secretary to Government and Others, a direction may be given to the respondents to expedite and dispose of the pending enquiry against the petitioner on merits and in accordance with law, by keeping in mind the above ratio.

It is pertinent to extract the ratio laid down in the Honourable Full Bench Judgment of this Court as stated supra, particularly paragraph-28(ii), (iv) & (v), which reads as follows:

28(ii) If there is any statutory provision for continuing the Departmental proceedings like Rule 9(2) of the Pension Rules even after the Government servant has retired on attaining the age of superannuation, then the Departmental proceedings already instituted before the retirement of the Government servant can be continued against the delinquent employee by treating him to be in service.

(iv) In cases where the Government Servant is allowed to retire on attaining the age of superannuation or where the Departmental proceedings are to be initiated after the retirement, there is no question of passing the order of dismissal or removal from service and only the pension can be withheld, withdrawn or reduced. The question of dismissal or removal of the said delinquent employee from service, therefore, does not arise.

(v) Since in the present case, the appellant was permitted to retire on attaining the age of superannuation without prejudice to the Disciplinary proceedings pending against him, in our considered opinion, the said proceedings can be permitted to be continued in terms of Rule 9(2)(b) of the Tamil Nadu Pension Rules, 1978.

The above ratio mentioned two situations. In the first situation, a Government servant, who is placed under suspension, not permitted to retire even on reaching the age of superannuation and retained in service until the enquiry into the charge or misconduct etc., is concluded and final order is passed by the Competent Authority, can be imposed with major penalty like dismissal, removal or reduction in rank. In the second situation, wherever the disciplinary authority has allowed the delinquent officers to retire from service on attaining the age of superannuation, they are entitled to continue the disciplinary proceedings against the delinquent officer, however, in respect of imposition of punishment, the ratio laid down by this Court in paragraph 28(ii), (iv) & (v) alone can be resorted to mainly for the reason that the delinquent was allowed to retire, therefore, the question of imposing major punishment of dismissal, removal or reduction in rank does not arise.

In view of the above settled legal position, when the power of disciplinary authority to proceed against the delinquent officer even after he reached the age of superannuation is continued, the impugned order cannot be interfered with. However, since the petitioner was allowed to retire from service on reaching the age of superannuation without prejudice to the disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules pending against him, the respondent can continue the pending disciplinary proceeding against the delinquent employee in accordance with law, as per the ratio laid down by this Court in the above said judgment in paragraph-28(ii), (iv) and (v), as expeditiously as possible. The writ petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.