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Judgment
V. Kanagaraj, J.—The writ Petitioner has filed this writ petition praying to issue a Writ of Certiorarified Mandamus calling for the records from the file of the first Respondent bearing R. No. 36484/PI/ 89, dated 10.1.1991 read with the order bearing No. 27807/01/92 dated 25.6.1992. quash the same and consequently direct the Respondents to pay the Petitioner all the amounts that have been deducted with interest and to pay the full pension due to the Petitioner.
The Petitioner would reveal his case in the affidavit filed in support of the writ petition that he joined the services of the Respondent Board on 5.9.1956 as an Amber Instructor; that by an order dated 13.6.1985, he was transferred from Nilakottai to work as a Secondary Grade Assistant in a sub branch at Idayanvalasu and joining duty there on 20.6.1985 and was working till his retirement on 30.11.1989 in the said capacity and from 1.12.1989, he was also paid a provisional pension of Rs. 773/-.
The Petitioner would further submit that to his shock and surprise, the second Respondent served a letter dated 7.5.1990 with contentions that during his tenure at Idayanvalasu branch, the Board had incurred a loss of Rs. 1,28,643.89 ps. fixing the responsibility on the Petitioner and directing for the recovery of the said amount from the Petitioner wherein the break up of the alleged loss incurred was tabulated as follows:
1.
The amount of loss in Rupees occurred due to faulty weight of woven bed sheets
16, 092.25
2.
The amount not collected from weavers:
9,554.95
3.
The arrears due in Khader loans repayable
by instalment for the years 1971 -72 to 1988-89,
1,02,214.99
4.
Axis loan arriaers:
214.40
5.
Value of 6 torn bedsheets:
567.30
1,28,643.89
The Petitioner would further submit that he submitted his explanation on 5.7.1990 stating that in the years 1986-87 and 1987-88, a total of 18,948 bedsheets including 10 dhurries were produced; that as per the advice of the second Respondent, second Respondent, 7,882 bedsheets were dyed and sold and a balance of 11,065 bedsheets remained; that since his tenure was coming to an end, he was advised to return the bedsheets to the Thiruppur Khadi Warehouse and he sent 7,860 bedsheets to Thiruppur besides selling six bedsheets on bills; that the remaining 3,399 bedsheets were directed to be dyed and sold and hence they were sent to the Mulanur Sarvodaya Sangh and it is these 3,399 bedsheets which are alleged to have weighed less by 140 kgs, the value of which was computed at Rs. 16,092.25 ps., which was to be recovered from him and that while he was in service, in spite of many inspections conducted by the Assistant Director and Khader Commissioner, no complaints were registered on this score.
The Petitioner would further submit that the second charge against him was that he had not collected the money from the weavers, who were given yarn and that the money outstanding was to the tune of Rs. 9,554.95 ps.; that as per the normal practice, this could be collected from the respective weavers by those who succeed to his office after his retirement; that the third aspect is to make good the outstanding arrears in the years starting from 1971-72 to 1988-89 amounting to Rs. 1,02,214.99 ps. for which he submitted that he took charge only on 20.6.1985 in the Idayanvalsu sub branch; that he undertook to collect and pay Rs. 3,566.10 being the outstanding loans issued by him for the year 1986-87, 1987-89 and 1988-89 respectively a sum of Rs. 139.45 ps., 905.50 ps. and Rs. 2,530.15 ps.
The Petitioner would further submit that for the fourth charge of uncollected arrears of axis loan, he submitted that a weaver wanted the axis, which costed Rs. 214.40 ps and he issued it to him with the permission of the second Respondent, but the weaver became impoverished and was unable to pay the money back; that he also explains properly regarding the torn condition of six bedsheets due to termites having been kept in one place for four years continuously and the general practice is that such bedsheets would be sold at a discount by the Regional Deputy Director, but even this is directed to be collected from the Petitioner.
The Petitioner would further submit that by a letter dated 14.12.1990, the second Respondent issued a show cause notice to the Petitioner calling upon the Petitioner to explain as to why a sum of Rs. 28,206.55 ps. should not be recovered from him, thereby reducing the original claim of Rs. 1,28,643.90 ps. to Rs. 28,206.55 ps.; that the Petitioner also sent his explanation on 19.12.1990 stating that he was not responsible for the amount mentioned and he could only be held responsible for a sum of Rs. 1,777.65 ps., which is shown due under charge No. 3 in the letter dated 14.12.1990; that thereafter by a letter dated 20.12.1990, the Respondent extended the sanction of provisional pension of Rs. 773/- for a further period of one year from 1.12.1990 to 30.11.1991 and by an order dated 10.1.1991, the first Respondent sanctioned the pensionary benefits to the Petitioner, stating that a sum of Rs. 30,924.50 ps. is due from the Petitioner i.e. a sum of Rs. 982.65 ps. towards audit shortage, a sum of Rs. 28,206.55 ps. towards loss at Idyanvalasu Sub Centre and a sum of Rs. 1,735.30 ps. towards D.C.B. due Khadi Kraft Nilakottai; that the D.C.R.G. of Rs. 26,004/- was to be adjusted against this recovery and the balance of Rs. 4,920.50 ps. was to be recovered from the D.A. on his pension and after deductions, his pension was reduced to Rs. 516/-; that by a letter dated 16.2.1991, a cheque for Rs. 39,696/ was enclosed, even though a sum of Rs. 62,621/ was due to the Petitioner; that the said cheque was issued apparently after deducting the amount of Rs. 30,924.60 ps.; that the action of the Respondents in holding the Petitioner responsible for such an exorbitant sum without holding an enquiry and finding him guilty of committing acts of waste and loss and making deductions from his terminal benefits is totally unfair, unjust and illegal; that besides this, on 26.8.1991, the second Respondent once again issued a show cause notice calling upon him to explain as to why a sum of Rs. 17,253.10 ps. should not be recovered from him; that curiously, some of the items that were allegedly due from the Petitioner in this show cause notice were also found in the earlier show cause notice dated 14.12.1990 and in spite of his sending reply on 14.9.1991, by an order dated 9.3.1992, the second Respondent ordered him to pay a sum of Rs. 12,286.60 ps., obviously after taking into account his representation wherein he stated that the amounts that were mentioned in the show cause notice dated 14.12.1990 were repeated in the show cause notice dated 25.6.1991; that on 12.3.1992, the second Respondent informed the first Respondent that the security deposit of Rs. 950/- paid by the Petitioner is being retained towards the amounts due from him and only the interest on the same is being paid to the Petitioner; that he made representation on 26.3.1992 against the illegal deductions and on 25.6.1992, the first Respondent issued an order holding him responsible for selling articles on credit to the tune of Rs. 17,253.10 ps. against the Board''s regulations during the year 1986-87 and ordered recovery of the same from the D.A. in his pension; that there are various contradictions in the orders passed by the Respondents and the alleged amounts due from the Petitioner have been changed in six orders and there is no consistency in the stand taken by the Respondents and that the orders of the Respondents holding the Petitioners responsible for certain amounts and directing recovery from his pension and other benefits are wholly unjust, illegal and arbitrary and would pray for the relief extracted supra.
In the counter affidavit filed on behalf of the first Respondent; besides generally denying the allegations of the writ petition, it would specifically be submitted that when the Petitioner was working as Secondary Grade Assistant in Edayavalasu Sub Centre and other places he committed irregularities and misappropriated large sums of money and hence on 10.1.1989 a show cause notice was issued seeking to explain as to why a sum of Rs. 11,783.40 ps. should not be recovered from him, further informing the Petitioner about the various other shortages and loss sustained by the Board due to his negligence and omission, but the Petitioner did not reply to the same; that the second Respondent also sent a show cause notice to the Petitioner calling upon him to explain as to why a sum of Rs. 1,28,643.90 ps. should not be recovered from him by notice dated 29.5.1990; that the Petitioner submitted his explanation, which was not satisfactory and hence the charges were held finalised and final orders were passed making the Petitioner responsible for the loss sustained by the Board to the tune of Rs. 1,28,643.89 ps., arriving at the same under different heads; that on appeal preferred by the Petitioner against the said order, the Centre Khadi Officer once again inspected the accounts and finalised the shortages at Rs. 28,206.55 ps., which the Petitioner was directed to pay; that on account of supplying yarn to the weavers over and above security deposit by the Petitioner, it was directed to be recovered from the Petitioner, who made the said supplies against the normal instructions; that on account of selling the Khadi clothes to individuals without proper care and caution to collect the value in time, there was an outstanding balance of Rs. 1,02,214.99 ps. as on 29.5.1990 and on appeal made by the Petitioner the Central Khadi Officer directed to inspect the records and after inspection the liability was reduced to Rs. 1,777.65 ps. under good impression that the amount could be collected from the individuals later on; that during the audit inspection the amount of Rs. 12,286.60 ps. was found as shortages in addition to a sum of Rs. 1,777.65, thus the total amount came to Rs. 14,064.25 ps.; that even though the Petitioner owes large amount of money to the Board, on humanitarian, grounds the security deposit of Rs. 950/ and interest of Rs. 748.05 ps. was released to him; that the Petitioner had made fictitious sales to imaginary persons and the Board is unable to collect the amount and as such the responsibility was fixed on the Petitioner for a sum of Rs. 12,286.60 ps.; that under Rule 9(3) of the Pension Rules the employer has got right to pass recovery orders within the period of four years after retirement, if any misappropriation is found on later date; that the Petitioner had also given his consent while he was submitting his application for pension that if any amount was found as shortage it may be recovered from the death-cum-gratuity and hence the recovery made by the Board is just, legal and valid; that a reasonable opportunity was given to the Petitioner and charges were framed and show cause notices were issued and the explanation given by the Petitioner was scrutinised and the amount was fixed at Rs. 28,206.55 ps. On such and other contentions, the Respondents would pray for dismissing the above writ petition with costs.
During arguments, the Learned Counsel for the Petitioner would submit that the Petitioner has filed the Writ Petition challenging the two orders issued for recovery of the amounts noted therein from the pensionary benefits of the petitoner; that the utmost point that is to be decided is whether the Respondent Board can make recoveries from the Petitioner''s terminal benefits on certain allegations, without conducting enquiry; that for the show-cause notice issued by the Board, the Petitioner submitted his explanation with reasons, but without being satisfied, the Respondent Board has proceeded against the Petitioner for the recovery of the said sums; that the Petitioner joined the Respondent Board in 1956 and after unblemished service of 33 years, he retired; that during his service, in 1977, he got transferred to Nilakottai and in 1985 to Idayanvalasu and retired on 30.11.1989, while he was working as Secondary Grade Assistant and that even through the Petitioner joined Idayanvalasu branch in the year 1985, Item No. 3 of the charge is ranging from the year 1971-72 to 1988-89, thereby showing an amount of Rs. 1,02,214.99 to be recovered from the Petitioner being the arrears due in Khader loans repayable by instalment.
Citing the relevant passages from the explanation submitted by the Petitioner, dated 5.7.1990, the Learned Counsel for the Petitioner would point out that the Petitioner is not responsible for many items, but as per the show-cause notice dated 14.12.1990 in Roc. No. 11157/ 88 K3, the Assistant Director, Tamil Nadu Khadi and Village Industries Board, Dindugal, the Petitioner was held responsible for an amount of Rs. 28,206.55 ps. attributing it to the loss occurred during the tenure of the Petitioner, for which the Petitioner cannot at all be held responsible in any manner; that the first Respondent in his proceedings Rc. No. 36484/Pl/ 89, dated 20.12.1990, accorded provisional pension at Rs. 773/- per month to the petitoner; that the first Respondent by his proceedings in Rc. No. 36484/Pl/89, dated 10.1.1991 accorded pensionary benefits to the Petitioner withholding an amount of Rs. 30,924.50 ps. and issued a cheque for an amount of Rs. 31,696/- to the Petitioner as per the proceedings of the Board in its letter No. P Al/U5/91, dated 14.2.1991.
Continuing to argue, the Learned Counsel for the Petitioner would submit that the Board once again issued another show-cause notice as per Roc. No. l2625/90/K3, dated 26.8.1991 for an amount of Rs. 17,253.10 ps. for which also the Petitioner submitted his vivid explanation on 14.9.1991. At this stage, the Learned Counsel would contend that issuing of one more show-cause notice is nothing but arbitrary and violative of the principles of natural justice.
The Learned Counsel for the Petitioner would further submit that there are two impugned orders, the first one dated 10.1.1991 by which all his pensionary benefits have been reduced to and adjusted and the second one dated 25.6.1992 and that the total amount due to the Petitioner in spite of being calculated to Rs. 62.000/-, his full pension has not been fixed and paid, but only a provisional pension of Rs. 32,000/- has been settled. Contending that there is absolutely no justification in the orders passed by the Board after the retirement of the Petitioner, he would end up his arguments praying to grant the relief as prayed for in the writ petition.
In reply, the Learned Counsel appearing for the Respondent Board would submit that under Regulation 28 of the Tamil Nadu Khadi and Village Industries Board Service Regulations, various penalties to be imposed upon Members of the Board''s Service were contemplated; that Regulation 28(v) deals with recoveries; that so far as the recoveries under these Regulations are concerned, it is only a minor punishment and not major; that for a major punishment, an enquiry is mandatory and this penalty under Regulation 28(v) shall be deemed to be a minor penalty; that Regulation 34(a) deals with minor penalties, whereas Regulation 34(b) deals with major penalties; that Regulation 34(a) does not contemplate a full fledged enquiry and hence no question of fffviolation of Regulation 34(a) would arise, therefore, since enquiry is contemplated only for those delinquencies falling under Regulation 34(b), sofar as the case in hand is concerned, enquiry is not at all necessary; that the Petitioner committed various acts including preparation of bogus bills in the name of fictitious persons and has further indulged in misappropriation of funds; that even while he was in service, on 10.1.1989, a show-cause notice had been issued, wherein he was found to be responsible for an amount of Rs. l 1,783.40 ps., but the Petitioner did not send any reply; that as per Centre Khadi Officer''s Report, Assistant Director of Khadi ad Village Industries, Dindigul has sent show-cause notice dated 29.5.1990 calling upon him as to why a sum of Rs. l, 28, 641.90 ps. should not be recovered from him and on finding his explanation not satisfactory, charges were finalised and final orders were passed holding the Petitioner responsible for an amount of Rs. l,28,643.89 ps. and on appeal by the Petitioner, on humanitarian consideration, the appellate authority reduced the amount to Rs. 28,206.55 that the Petitioner himself had admitted in his explanation dated 5.7.1990 his guilt for a sum of Rs. 3,566.10 ps. and also admitted that the authorities are within their powers to recover the amount.
In clarification, the Learned Counsel for the Petitioner would submit that under the guise of minor charge, the Respondents cannot impose a major penalty on the Petitioner. At this stage, the Learned Counsel would pose a question that by taking away half of the terminal benefits of the Petitioner, can the Respondents say that it is a minor punishment; that the Board cannot initiate disciplinary proceeding against a retired employee, unless there are specific provisions in their rules to that effect. At this juncture, the Learned Counsel for the Petitioner would cite a judgment of the Apex Court delivered in State Bank of India Vs. A.N. Gupta and Others, wherein it has been held that:
Once an employee ceased to be in the service of the bank, continuation of disciplinary proceeding was not permissible unless there was a specific provision to this effect in the relevant rules.
The Learned Counsel for the Petitioner would further argue that since the Respondents have taken a stand that they have such provision to initiate disciplinary proceeding against a retired employee thus relying on Rule 9 of the Tamil Nadu Pension Rules, as an answer, would cite an order passed by a single Judge of this Court in W.P. No. 11398 of 1994, dated 22.12.1994 wherein it has been held that:
In the absence of such a specific Rule or Regulation in the Board, the Respondent has no jurisdiction to continue the disciplinary proceedings after the retirement of an employee.
In the above Order, citing the Apex Court judgment delivered in State of West Bengal v. Nripendra Nath reported in AIR 1996 S.C. 447, the learned single Judge of this Court has observed:
In this case, we have already noticed the fact that the Petitioner was allowed to retire from service in and by proceedings dated 19.3.1994. The question is whether the Board was justified in continuing the disciplinary proceedings and making the retirement without prejudice to the outcome of the disciplinary proceedings. The situation might have been different if the Petitioner had been suspended from service before the date of superannuation. That is not the procedure adopted in the instant case. The Petitioner had been allowed to retire and as rightly pointed out by Mr. Prasad, the employee must be allowed to live with dignity in retirement. If the Board was inclined to adopt a similar to Rule 9 of the Tamil Nadu Pension Rules, they should have certainly framed regulations in exercise of the powers under the Electricity Supply Act. Such an important Rule which affects the service condition of the employees of the Board cannot be invoked by merely referring to the Tamil Nadu Pension Rules. Equally, the mere fact that payment of retirement benefits are undertaken following the Government Orders issued from time to time, it cannot be argued that even the liability under Rule 9 is by inference adopted by the Board. In my opinion, this is a lacuna in the Board''s Service Regulations and may be they can introduce amendments if necessary to their own Regulations. But as on date there is no Regulation of the Board which is equal to Rule 9 of the Tamil Nadu Pension Rules. Consequently, I uphold the contention that the Board has no right to continue the disciplinary proceedings after allowing the Petitioner to retire on 31.3.1994. Therefore, instead of the prayer sought for in the writ petition, I can only issue a Writ of Mandamus directing the Respondent not to proceed with the disciplinary proceedings, commenced by the issue of a chargesheet in Board''s Memorandum No. 58382.D2/93-4 dated 24.2.1994.
Ultimately, the learned single Judge would arrive at the conclusion that:
Therefore, I am allowing the Writ Petition only on the ground that the disciplinary proceedings cannot be continued against the Petitioner because he has been allowed to retire on superannuation with effects from 31.3.1994. I direct the issue of a Writ of Mandamus to the above effect instead of the prayer sought for in the writ petition. The writ petition is allowed as above...
Assessing the merit of the case based on the pleadings of parties in the writ petition and the counter affidavit and having regard to the materials placed on record and upon hearing the Learned Counsel for both, the main point that surfaces for consideration and determination is whether the Respondent Board can make recoveries from the Petitioner''s terminal benefits on certain allegations without conducting an enquiry much less after allowing the Petitioner to retire.
On the part of the Respondents it would be argued that Regulation 28 of the Tamil Nadu Khadi and Village Industries Board Service Regulations contemplates various penalties to be imposed on the Members of the Board''s service among which Regulation 28(v) dealing with recoveries would categories such recoveries to be minor penalties and for inflicting such minor penalties no enquiry necesarily be held; that only for those punishments which are categorised major penalties under Regulation 34(b) it does contemplate a full-fledged enquiry and since recoveries to be effected such as one inflicted on the Petitioner falling under Regulation 24(a) dealing with minor penalties, no enquiry need be held and hence no question of violation of Regulation 34(a) would arise and on such lines, it would be argued on the part of the Respondents that it is a delinquency falling under Regulation 34(a) dealing with minor penalties and therefore enquiry into such affairs is not at all required or contemplated. It would further be argued on the part of the Respondents that the Petitioner committed various acts including preparation of bogus bills in the name of fictitious persons and further indulged in misappropriation of funds; that as per the Khadi Officer''s report, the Assistant Director of Khadi and Village Industries, Dindigul has sent show-cause notice dated 29.5.1990 calling upon him as to why a sum of Rs. 1,28,643.90 ps. should not be recovered from him and on finding his explanation not satisfactory, the charges were finalised and final orders were passed holding the Petitioner responsible for an amount of Rs. 1,29,643.90 ps. and on appeal by the Petitioner, on humanitarian consideration, the appellate authority reduced the amount to Rs. 28,206.55 ps. and the Petitioner himself has admitted in his explanation dated 5.7.1990 his guilt for a sum of Rs. 3,566.10 ps.
On the contrary, on the part of the Petitioner it would be argued that the Petitioner having joined the service of the Board in 1956,after unblemished service of 33 years, on 30.11.1989, while he was serving at Idayanvalasu he retired; that even though he joined the Idayanvalasu branch in the year 1985, Item No. 3 of the charge covers the period ranging from 1971-72 to 1988-89 thereby showing an amount of Rs. 1,02,214.99 to be recovered from the Petitioner being the arrears due in Khadi loans repayable in instalments by the Members of the Board; that ultimately it was held that the Petitioner was responsible only for an amount of Rs. 28,206.55 ps. attributing it to the loss occurred during the tenure of the Petitioner and an amount of Rs. 30,924.60 ps. from the pensionary benefits of the Petitioner had been withheld.
On the part of the Petitioner, two judgments would be cited, the first one delivered in State Bank of India Vs. A.N. Gupta and Others, wherein it is held that once an employee ceased to be in the service of the management continuation of disciplinary proceeding is not permissible unless there is a specific provision to this effect in the relevant rules. The second judgment is an unreported one delivered by a single Judge of this Court delivered in W.P. No. 11398 of 1994, dated 22.12.1994 wherein it has been held that in the absence of such a specific Rule or Regulation in the Board, the Respondent has no jurisdiction to continue the disciplinary proceedings after the retirement of an employee. In this judgment, the learned single Judge of this Court relying on the judgment of the Apex Court delivered in the State of West Bengal v. Nripendra Nath reported in AIR 1996 S.C. 447 observed that the Petitioner was allowed to retire from service and opining that if the Board was inclined to adopt a similar to Rule 9 of the Tamil Nadu Pension Rules, they should have certainly framed regulations in exercise of the powers under the Electricity Supply Act and lack of regulation to the said effect being a lacuna in the Board''s Service Regulation and recommending for introducing amendments if necessary to their regulations, upheld the contention of the Petitioner that the Board had no right to continue the disciplinary proceeding after allowing the Petitioner to retire and instead of the prayer sought for in the writ petition, the learned single Judge of this Court had issued a Writ of Mandamus directing the Respondent not to proceed with the disciplinary proceeding commenced by the issue of a chargesheet ultimately concluding that the disciplinary proceedings cannot be continued againtthe Petitioner because he has been allowed to retire on superannuation thus allowing the writ petition ultimately.
Falling in line with the above judgments, in the case in hand also, absolutely nothing is brought forth on the part of the Respondent to the effect that there is any provision or specific rule or regulation in the Board''s Regulations either to initiate or to continue the disciplinary proceeding after the retirement of an employee and hence such a proceeding has to be held impermissible in law.
It is also not relevant as argued on the part of the Respondents whether it is a delinquency that is to be punished with a major penalty or minor one. Since the very disciplinary proceeding initiated through the impugned show-cause notice against the Petitioner could not be done in law, the other question whether it is a delinquency attracting Regulation 34 (a) or 34(b) making a distinction between major and minor penalties does not form the basis for consideration and determination. In view of the above discussions, it is hereby held that the proceeding initiated against the Petitioner by the Respondents is erroneous and a nullity and bereft of any authority under law and hence such proceeding has to be quashed.
In result, the above Writ Petition succeeds and the same is allowed.
The order bearing R. No. 36484/PI/ 89, dated 10.1.1991 of the first Respondent read with the order bearing No. 27807/01/92, dated 25.6.1992 is hereby quashed.
The Respondents are directed to pay the withheld amount of Rs. 30,924.60 ps. in favour of the Petitioner within a period of sixty days from the date of receipt of this order.
However, in the circumstances of the case, there shall be no order as to costs.
Consequently, W.M.P. Nos. 21017 of 1992 and 27282 of 1993 are closed.