R. Madevan Pillai vs The District Collector

R.S. Ramanathan, J.—Heard both sides.

The petitioner has joined the Revenue Department as ''Typist'' in the office of the Ramanathapuram Collectorate at Madurai on 18.06.1976 and later promoted as ''Junior Assistant'' and served as Special Tahsildar (Inspection of Match Factories), Sivakasi, at the time of his retirement. The petitioner attained superannuation on 31.05.2009 and he was allowed to retire by the respondent, by his proceedings, dated 28.05.2009 and it has been stated in the said order that he is allowed to retire without prejudice to the disciplinary proceedings that may be taken up against the petitioner in respect of certain irregularities committed by him, while he was working as Revenue Tahsildhar of Thirusulzhi Taluk, Virudhunagar District. This order is challenged in this writ petition.

Mr. S. Visvalingam, the learned Counsel appearing for the petitioner, submitted that till he attained superannuation, no disciplinary proceedings have been initiated nor any criminal case is pending against him. Therefore, the petitioner ought to have been allowed to retire and his retirement cannot be subject to the disciplinary proceedings that may be initiated in future in respect of certain alleged irregularities committed by him, while he was working as Revenue Tahsildar of Thirusulzhi.

4.It is further submitted by Mr. S. Visvalingam, the learned Counsel appearing for the petitioner that the petitioner was the only witness in the criminal proceedings that was filed against one Jayakumar and therefore, the retirement cannot be subject to the out come of the criminal case and there cannot be any reservation while allowing the petitioner to retire. In support of his contention, the learned Counsel appearing for the petitioner relied upon the judgment of the Honourable Supreme Court reported in 2009 (1) MLJ 761, in the case of Kootha Pillai v. Commissioner, Municipal Administration, Chennai and Ors., 2005 (2) MLJ 342 in the case of State of Tamil Nadu represented by the Commissioner and Secretary to Government, Home Department, Chennai and Ors. v. R. Karuppiah, Inspector of Police (Under Orders of Suspension), Manamadurai Circle, Sivagangai District and Ors. and in 1997 W L.R. 120 in the case of N.M. Somasundarm v. The Director General of Police Office of the Director General of Police, Government Estate, Madras-4 and 3 Ors.

5.The learned Counsel appearing for the petitioner Mr. S. Visvalingam, further submitted that as per Fundamental Rules 56(1)(c), unless a Government Servant is retained in service, no disciplinary proceedings can be initiated against him after his retirement as there is no relationship of master and servant exist between the Government and servant and in this case, the petitioner was allowed to retire and the respondent has reserved the right to continue or proceed against the petitioner in respect of certain irregularities committed by him and that is not permitted under Fundamental Rules 56(1)(c)

Per contra, Mr. K. Balasubramaniam, the Additional Government Pleader, appearing for the respondent submitted that action can be taken against a Government servant in contemplation of enquiry or framing of charges and it has been made clear in the impugned order, by which the petitioner was allowed to retire and the Government reserved the right to proceed against the petitioner in respect of the certain alleged irregularities committed by him when he was working as Special Tahsildar, Thirusuzhi and hence, the impugned order is perfectly valid.

I have given my anxious consideration to the submissions made by both the counsels.

In this case, it is seen from the impugned order that disciplinary proceedings have been proposed or contemplated against the petitioner in respect of irregularities alleged to have been committed by the petitioner, while he was the Special Tashildar in Thirusuzhi Taluk. It is further stated that the charge memo issued against the petitioner, dated 20.06.2007 was cancelled as charges under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules can be initiated only after recording statement of witness in criminal case. Therefore, it was stated that in the criminal case filed against Mr. Jayakumar, statement of witnesses were not recorded and the case against the Mr. Jayakumar is pending before the Magistrate Court and only after recording the statement, charge sheet can be issued against the petitioner and therefore, the right was reserved, while permitting the petitioner to retire.

The question to be decided in this writ petition is whether the Government can reserve the right to proceed against a Government servant in respect of certain irregularities alleged to have been committed by the Government Servant, while he was in service, when he was allowed to retire. This matter is no longer re-integra and as rightly contended by the learned Counsel appearing for the petitioner, in the above three judgments, it has been made clear that without retaining a Government servant in service, no disciplinary proceedings can be initiated against him after retirement and for initiating the disciplinary proceedings against a Government servant there should exist a relationship of master and the servant and after retirement, there is no relationship of master and servant exist between the Government and the servant and hence, when a Government Servant is allowed to retire, thereafter he can not be proceeded against for the irregularities committed by him, when he was in service.

In the judgment reported in 2005 (2) MLJ 342, in the case of State of Tamil Nadu represented by the Commissioner and Secretary to Government Home Department, Chennai and Ors. v. R. Karuppahi, Inspector of Police (Under Orders of Suspension), Manamadurai Circle, Sivagangai District and Ors., it has been held without fulfilling requirement of Rule 56(1)(c) which is a mandatory one, the initiation of disciplinary proceedings against the Government is not sustainable in law and the proceedings are liable to be set aside.

Further as per Sub-rule 2(a) and 6(b) to Rule 9 of the Tamil Nadu Pension Rules, 1978, only in the event of fulfilling the requirement under Rule 56(1)[c] of the Fundamental Rules, the above Rules can be invoked and the Pension Rules referred to above are the extension to Rule 56(1)(a) and [c] of the Fundamental Rules. This has been made clear in the judgment reported in 2009(1) MLJ 761, in the case of Kotha Pillai v. Commissioner, Municipal Administration, Chennai and Ors., wherein the above and various judgments were considered and the learned Judge has held that placing a Government servant under suspension is mandatory for taking action after his retirement and without placing the Government servant under suspension and allowing him to retire will not permit the Government to initiate any disciplinary action against him thereafter.

In the judgment reported in 2009 (1) MLJ 761 in the case of P. Muthusamy Vs. Tamilnadu Cements Corporation Limited, in the case of P. Muthusamy v. Tamil Nadu Cements Corporation Ltd., wherein the Division Bench of this Court held that permission to retire an employee without prejudice to the disciplinary proceedings is not authorised under any Rule and hence, such permission is illegal and without jurisdiction.

The learned Judge in the judgment reported in 2009 (1) MLJ 761 in the case of Kootha Pillai v. Commissioner, Municipal Administration, Chennai and Ors. held as follows:

Rule 56(1)(c) of the Fundamental Rules prescribe 3 mandatory procedure to be followed, when the department decides to initiate or continue disciplinary action against a Government servant, after his retirement.

Rule 56(1)(a) of the Fundamental Rules states that every Government servant in the superior service shall retire from service on the afternoon of the last day of the month, in which he attains the age of 58 years and he should not be retained in service after that age except with the sanction of the Government on Public grounds which must be recorded in writing but he should not be retained after the age of 60 years except in very special circumstances.

Rule 56(1)(c) is an exception to the Rule 56(1)(a) of the Fundamental Rules and it states that if a government servant is under suspension on a charge of misconduct or against whom an enquiry into grave charges of criminal misconduct or allegations of Criminal misconduct is pending or against whom an enquiry into grave charges is contemplated or is pending or 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 of the above mentioned nature is concluded and a final order is passed therein. Thus it could be seen that Rule 56(1)(a) and 56(1)(c) mandate that a Government servant has to be retained in service, if the department intends to proceed against him, in respect of certain grave charges and in the absence of retention of the government servant, no fresh departmental proceedings can be initiated against him after retirement. Reading of the fundamental rules, makes it clear that when a Government servant reaches the age of superannuation, the service rules applicable to him should enable or authorise the competent authority to retain him in service for the completion of the enquiry. A Government servant is on a contract of employment subject to the service conditions of Master and servant relationship and the said relationship ceases to have effect on the retirement of the government servant, except for payment of pension and other retiral benefits. Therefore, unless there is an express order issued by the competent authority under Fundamental Rules 56(1(c) retaining him in service, the respondent or any other authority cannot take shelter, quoting in the retirement order that he is permitted to retire, without prejudice to the departmental action, being taken against him.

When Rule 56(1)(c) of the fundamental Rule, contemplates a condition of placing a Government servant under suspension, for the purpose of conducting an enquiry into the charges of misconduct or enquiry into grave charges under contemplation and for other criminal misconduct, the said procedure ought to have been followed by the respondents, by retaining the petitioner in service for the purpose of holding an enquiry into the alleged charges. Retention of a government servant in service is a sine quo non for initiating or conducting disciplinary proceedings, after retirement.

Hence, it is made clear from the above judgments, that without placing a Government servant under suspension, disciplinary proceedings cannot be initiated against the Government servant after retirement and the Government cannot reserve the right to proceed against the Government when he was allowed to retire. Therefore, the order of the respondent in permitting to retire the petitioner and at the same time, reserves the right to proceed against the petitioner is set aside and the Government cannot reserve any right, while allowing a Government servant to retire unless he has placed under suspension. As the petitioner was not placed under suspension and he was allowed to retire, no condition can be imposed or the Government is not entitled to reserve any right to proceed against the Government servant after permitting him to retire. Hence, para 3 of the impugned proceedings whereby a right is reserved to proceed against the Government servant is contrary to law and is hereby set aside.

In the result, the writ petition is allowed. No costs.