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Judgment
K. Chandru, J.—The Petitioner has filed the present writ petition seeking to challenge an order of the second Respondent, i.e Revenue Divisional Officer, Paramakudi, dated 31.5.2010 in not allowing the Petitioner to retire from service as illegal and for a consequential direction to the Respondents to pay all his terminal benefits.
When the matter came up on 23.8.2010, the Special Government Pleader Mr. R. Janakiramulu took notice. On notice from this Court, the second Respondent Revenue Divisional Officer, Paramakudi has filed a counter affidavit, dated Nil (September, 2010).
The Petitioner was working as a Village Administrative Office in Keela Mudukulathoor, Mudukulathoor Taluk. A First Information Report was registered by the Vigilance and Anti Corruption Police, Ramanathapuram unde various provisions of the IPC read with Sections 13(2) and 13(1)(c) of the Prevention of Corruption Act, 1988 on 7.9.2001. It was found that the Board of Directors of Pookkulam Primary Agricultural Cooperative Bank, Mudukulathur Taluk were involved in a misappropriation of the funds of the society. After registering the complaint, a charge sheet was filed before the Chief Judicial Magistrate, Ramanadapuram on 11.8.2008 in Crime No. 2 of 2001. The Petitioner was arraigned as 10th accused in the charge memo. The Petitioner was involved in the criminal conspiracy allong with the employees of the Cooperative Bank. Insofar as the role of the Petitioner is concerned, the charge sheet spoke as follows:
During the year 1998 to 1999, the accused Tr. Karuppasamy, Secretary, Tr. Rathinavel, Senior Clerk, Tr. Krishnan, Circle Supervisor, Tr. Vadamalaiyan, Village Administrative Officer, Enathi Group, Tr. Kalaiselvam, Formerly President of the said Primary Agricultural Co-operative Bank, Pookulam and A-5 to A-9 Tr. Alagarsamy, Tr. Ramaraj, Tr. Murugandy, Tr. Panchavarnam, tr. Jeyarani @ Rani, Formerly Directors of the said Pookulam Primary Agricultural Co-operative Bank at Pookulam, Criminal conspiracy with each other and agreed to commit and committed the offences of criminal breach of trust, cheating, fabricating false records, using the said forged records as genuine by putting the signatures, Thumb impressions of the farmers and also in the name of fictitious and non-existent persons, with the connivance of A-10 Village Administrative Officer Tr.V Adamalaiyan, Enathi Group, as if all the members ofthe said society were signed in the disbursement register and in the fertilizer register as if the loan sanctioned for them as cash and fertilizer was disbursed to the farmers. Receipt Book and had misappropriated a huge sum of Rs. 3,89,765/-and thereby committed an offence punishable u/s 120-B, 409, 420, 465, 468, 471, 477-A IPC and u/s 13(2) r/w 13(1)(c) and (d) of Prevention of Corruption Act 1988.
.....
In pursuance of the said Criminal conspiracy, the A-1 had in connivance with A-2, A-3 and A-4 to A-9 had prepared false records and A-10 village Administrative Officer, who has given false 10(1) Adangal for 12 ficitious and 2 non-existent persons and A-3 with making field enquiry verifying the genuiness of the members as well as 10(1) Adangal and prepared false records as if the agricultural loan was sanctioned to the 12 fictitious persons and 2 non-existent persons and cash amount and fertilizer were distributed to them, namely Rangasamy, Ramar, Mangalam, Muthumeenal, Vallimayil, Seetha, Thavasi, Alagarsamy, Irulayee, Pandi Thevar, Banumathi, Pechiammal, Marakathavalli and Sumathi (Last 2 non-existent persons) and A-4 to A-5 passed resolutions in support of this thereby the accused had misappropriated the Government funds of Rs. 99,900/-. A-1 to A-10 committed offence punishable u/s 409, 420, 471 and 477(A) IPC.
A-1 Tr. Karuppasamy, Secretary, A-2 Tr. Rathinavel, Senior Clerk of Primary Agricultural Co-operative Bank, Pookulam, A-3 Tr. Krishnan, Circle Supervisor of RDCC. Bank and A-10 Tr. Vadamalaiyan, Village Administrative Officer, Enathi Group along with other accused had fraudulently and dishonestly misappropriated the total amount of Rs. 3,89,765/-of Government fund of Primary Agricultural Co-operative Bank and converted them for their own use and thereby in the above said manner they have obtained the said money and the agricultural input such as fertilizer as pecuniary advantage for themselves by corrupt and illegal means and by abusing their official position as Public Servants. Hence, the acts of A-1 to A-3 and A-10 constitute the offence of criminal misconduct punishable u/s 13(2) r/w 13(1)(c) and (d) of Prevention of Corruption Act 1988 along with other offences punishable along with other accused A-4 to A-9 under the Indian Penal Code.
Thus A-4 to A-10 criminal conspiracy with each other and committed the offence of misappropriation, cheating, prepared forged and false documents and used them as genuine, falsification of accounts (A-2 forged the thumb impression of Saraswathi and Mahadevi and A-4 forged the signature of Mahadevi) .
(Emphasis added)
When the pendency of corruption case against the Petitioner came to light, the second Respondent on 31.5.2010, i.e the date on which he was to retire from service, relieved him from service without prejudice to the outcome of the criminal case. He had also passed an order on the same day placing him under suspension under Rule 17(e)(i) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The Petitioner was retained in service by invoking the power under FR 56(1)(c).
The challenge of the Petitioner was that the order was served on the Petitioner on 15.6.2010. Since he was already permitted to retire on reaching the age of superannuation, there cannot be any further order passed against him. The second Respondent cannot belatedly pass an order and antedate the same so as to retain the Petitioner in service. The incident related in the charge memo was during the old period.
In the counter affidavit, it was claimed that the case relating to the Petitioner came to light later and therefore, the earlier order was passed erroneously. It is only the order retaining him in service and placing him under suspension alone are correct orders in terms of FR 56(1)(c). The Tahsildar, Mudukulathur had served the order and sent back the copy of the said order. The allegation that the order was antedated was denied. The earlier order issued to the Petitioner was withheld and subsequently, the correct order was issued. The charges levelled against the Petitioner was serious. Therefore, the question of relieving him from service will not arise. In paragraph 6 of the counter, it was averred as follows:
Regarding the averments made in Grounds it is submitted that as stated by the Petitioner, the subsequent orders issued on the same day are not counter to the order initially issued. As the order prepared and sent to the Tahsildar, Mudukulathur was seems to be incorrect, the same was withheld and fresh orders issued for service. As the previous one was found to be incorrect, the copies of orders initially issued were recollected and fresh orders issued and they were served on the Petitioner himself on 31.05.2010 itself. However, the Petitioner was managed to had a copy of the initial order. The Petitioner is trying to evade from the bindings of Government before the conclusion of the case. As stated by the Petitioner no orders was served on him on 15.06.2010.
It is not clear as to how the Petitioner can challenge the order of retention in service which was served on him on the date on which he was superannuated, especially when he was facing serious criminal charges. The charge sheet to that effect was served on him even two years before the date of retirement. Reliance placed upon the first order allegedly permitting him to retire from service cannot be accepted especially when revised order was issued on the same day in terms of law. Even the impugned order dated 31.5.2010 issued on 15.6.2010 will not become invalid.
In this context, it is necessary to refer to the judgment of the Supreme Court in U.P. State Sugar Corporation Ltd. and Others Vs. Kamal Swaroop Tondon, . The following passage found in paragraph 40 may be usefully referred below:
Considering the facts and circumstances in their entirety, in our considered opinion, the High Court was wrong in holding that the proceedings were initiated after the Respondent retired and there was no power, authority or jurisdiction with the Corporation to take any action against the writ Petitioner and in setting aside the orders passed against him. In our judgment, proceedings could have been taken for the recovery of financial loss suffered by the Corporation due to negligence and carelessness attributable to the Respondent employee. The impugned action, therefore, cannot be said to be illegal or without jurisdiction and the High Court was not right in quashing the proceedings as also the orders issued by the Corporation. The appeal, therefore, deserves to be allowed by setting aside the order of the High Court.
A similar view was taken by the Supreme Court in The Secretary, Forest Department and Others Vs. Abdur Rasul Chowdhury, . The following passage found in paragraph 15 may be usefully extracted below:
In the present case, while the delinquent employee was in service, the departmental enquiry proceedings had been instituted by the employer by issuing the charge memo and the proceedings could not be completed before the government servant retired from service on attaining the age of superannuation and in view of Rule 10(1) of the 1971 Rules, the employer can proceed with the departmental enquiry proceedings though the government servant has retired from service for imposing only punishment contemplated under the Rules.
The Supreme Court in National Textile Corporation (M.P.) Ltd. Vs. M.R. Jhadav, has categorically stated that communication of an order of suspension is not necessary if the order goes out of control of the appointing authority. The following passage found in paragraphs 23 and 24 may be usefully extracted below:
In MCD v. Qimat Rai Gupta9 this Court opined: (SCC p. 319, para 27)
An order passed by a competent authority dismissing a government servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika6but an order placing a government servant on suspension does not require communication of that order. (See State of Punjab v. Khemi Ram.)
Therefore, there cannot be any doubt whatsoever that communication of the acceptance of offer was necessary. An internal noting does not constitute a communication. Even in a case of order of suspension, only when the case goes out of the control of the appropriate authority, actual communication may not be necessary.
In the light of the above, there is no case made out to entertain the writ petition. Accordingly, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed.