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Judgment
K. Chandru, J.—The Petitioner has come forward to challenge the order of the first Respondent dated 01.10.2010 and after setting aside the same, seeks for a consequential direction to pay the withheld D.C.R.G. amount to the Petitioner, within a time frame.
By the impugned order, a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was framed against the Petitioner by the first Respondent. The Petitioner was working as Village Administrative Officer at Ayyalur Village in Dindigul District. The first charge against him was that he had issued four coconut growing farmers identity cards without the knowledge of the farmers and without visiting the places. The above cards were used for procurement of copra by Panchamadevi Primary Agricultural Co-operative Bank, Karur during the year 2000-2001 under minimum price support scheme 2000 of the Government of India. The second charge framed against him was that he failed to maintain absolute integrity and devotion to duty and conducted himself in a manner unbecoming of a member of service. A form of questionnaire has also been given to him.
The Writ Petition was not admitted. However, the learned Counsel appearing for the Petitioner has filed a written argument together with the supporting judgments.
Mr. S. Visvalingam, learned Counsel appearing for the Petitioner contended that disciplinary proceedings cannot be initiated on the day when the Petitioner was about to retire viz., 31.05.2009. Since the Petitioner was already allowed to retire without prejudice to the disciplinary proceedings, no further proceedings can be initiated.
According to the Petitioner, no proceedings under Pension Rules can be taken, as the incident had taken place four years before the alleged occurrence. Therefore, in the absence of the rules being followed, the charge memo issued was illegal and the order should be quashed.
In support of his contention, the learned Counsel also placed reliance upon the following decisions:
(1) N.M. Somasundaram v. The Director General of Police, etc. 1997 W L.R. 120;
(2) Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and Others, ;
(3) The State of Tamil Nadu Vs. R. Karuppiah, Inspector of Police (Under Orders of Suspension) and The Registrar, Tamil Nadu Administrative Tribunal, ;
(4) P. Muthusamy Vs. Tamilnadu Cements Corporation Limited, ;
(5) N. Kunnai Gowder Vs. The Coimbatore District Co-op. Milk Producers'' Union Ltd., ;
(6) UCO Bank and Another Vs. Rajinder Lal Capoor, ;
(7) Kootha Pillai v. Commissioner, Municipal Administration 2009(1) MLJ 761;
(8) dated 27.07.2009 Poomalai v. The District Collector, Virudhunagar District, Virudhuna gar W.P. (MD) No. 5827 of 2009;
(9) State of Tamil Nadu and Ors. v. A. Chidambarakuttalam 2010 Writ L.R. 560;
(10) M.K.S. Balasubramanian v. The Kancheepuram Central Co-operative Bank Limited 2010 W L.R. 929;
(11) dated 17.03.2010 R. Madevan Pillai v. The District Collector, Virudhunagar District, Virudhunagar W.P.(MD) No. 8259 of 2009;
(12) dated 05.07.2010 S. Sathiah v. The Revenue Divisional Officer, Ramanathapuram Division, Ramanathapuram and Anr. W.P.(MD) No. 7484 of 2010;
(13) dated 06.07.2010 N. Mohanraj v. The District Collector W.P.(MD) No. 8460 of 2010, Trichirappalli District, Trichirappalli-620 001;
(14) dated 09.07.2010 R. Govindaraju v. The Secretary to Government, Revenue Department, Secretariat W.P.(MD) No. 8750 of 2010, Chennai-600 009);
(15) dated 15.07.2010 S. Pappu v. The District Collector, Madurai District, Madurai W.P.(MD) No. 9037 of 2010;
(16) dated 20.07.2010 K. Karuppiah v. The District Collector W.P.(MD) No. 9256 of 2010, Madurai District, Madurai-625 020);
(17) dated 29.07.2010 G. Anbalagan v. The Secretary to Government, Revenue Deparrtment, Chief Secretariat W.P.(MD) No. 9835 of 2010, Chennai-9 and another);
(18) dated 12.08.2010 V. Mookkiah v. The Deputy Commissioner of Labour, Dindigul, Dindigul District W.P.(MD) No. 10466 of 2010;
(19) dated 30.08.2010 S. Sankaran v. The Accountant General (Accounts and Entitlement), Tamil Nadu Office and Anr. W.P.(MD) No. 7510 of 2010; and (20) Joseph Durairaj v. The State of Tamil Nadu 2010(2) CWC 745.
The contention raised by the Petitioner, though attractive, do not help in any way. On the other hand, the question of conducting enquiry against a person after his age of retirement came to be considered in several judgments of the Supreme Court and it is unnecessary to keep a person under suspension, because after retirement, there was no scope of his coming to work. The suspension itself has been made only to prevent a person from attending duty and after the age of retirement, there was no scope of his attending duty. Further, if the Petitioner is allowed to work, in the normal circumstances, he will be eligible for pension. It is open to the Government to proceed with the disciplinary action, provided such an action was initiated before his date of retirement. The impugned order is precisely passed reserving the right to take disciplinary action before his retirement.
In a similar circumstance, a Division Bench of this Court presided by P.K.MISRA, J., (as he then was) vide judgment in T.K.K. Tharmar v. Registrar, Central Administrative Tribunal, Chennai Bench, Chennai-104 and Ors. 2008 (3) MLJ 877,has held as follows:
Of the three Division Bench judgments cited by the Petitioner, the first decision went on the interpretation to Rule 56(1)(c) of the Fundamental Rules made by the Tamil Nadu Government. The third decision related to an employee working in a Government company.
In the second decision, while dealing with F.R. 56 (1)(c), this Court also relied upon the judgment of the Supreme Court reported in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and Others, and after referring to paragraphs 6 and 7, came to the conclusion that if an employee was permitted to retire on attaining the age of superannuation, then there was no power vested in the authority to proceed against an employee after attaining the age of superannuation until he was suspended from service pending further action.
But on a careful reading of the judgment of the Supreme Court in Bhagirathi Jena case (cited supra), it can be seen that the said case proceeded on the basis that in the absence of any specific provision in the relevant rule, the authority will have no legal power to reduce the retiral benefit or conduct of a disciplinary proceeding.
The Bhagirathi Jena''s case was subsequently considered by the Supreme Court in Ramesh Chandra Sharma Vs. Punjab National Bank and Another, . The following passages found in the paragraphs 16, 17 and 19 to 22 may be usefully extracted below:
Para 16: "The question, thus, as to whether continuation of a disciplinary proceeding would be permissible or the employer will have to take recourse only to the pension rules, in our opinion, would depend upon the terms and conditions of the services of the employee and the power of the disciplinary authority conferred by reason of a statute or statutory rules.
Para 17: We have noticed hereinbefore that the Bank has made Regulations which are statutory in nature. Regulation 20(3)( iii ) of the said Regulations reads thus:
(3)( iii ) The officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The officer concerned will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for the payment of retirement benefits till the proceedings are completed and final order is passed thereon except his own contribution to CPF.
The said Regulation clearly envisages continuation of a disciplinary proceeding despite the officer ceasing to be in service on the date of superannuation. For the said purpose a legal fiction has been created providing that the delinquent officer would be deemed to be in service until the proceedings are concluded and final order is passed thereon. The said Regulation being statutory in nature should be given full effect.
It was further observed in the said judgment after reviewing all the case laws that in case of a pension retiree, the power always lies with an employer to take further action even after retirement. The following passages found in paragraphs 19 to 22 of the said judgment may be extracted:
Para 19: "The issue is, thus, no longer res integra, which as would be evident from the ratio laid down by this Court from time to time.
Para 20: In State Bank of India v. C.B. Dhall 6 it was held as under:
17 . Under Rule 20-B disciplinary proceedings if initiated against an employee before he retires from service could be continued and concluded even after his retirement and for the purpose of conclusion of the disciplinary proceedings, the employee is deemed to have continued in service but for no other purpose.
Para 21: In Harihar Bhole Nath upon considering Regulations 351A and 470 of the Civil Services Regulations, this Court following Brahm Datt Sharma opined as under:
"21. The right to withhold or withdraw the pension may arise in different situations. Two different contingencies are clearly envisaged under the Regulations viz. if the pensioner is found guilty of misconduct either in departmental proceedings or in judicial proceedings. Although, prima facie , the proviso appended to Regulation 351A does not envisage continuation of the proceedings, the same must be held to be existing on a plain reading thereof. Regulations 351A and 470 provide for a composite scheme; by emphasising that payment of pension is not automatic it can be withheld if the conditions laid down therein are satisfied. Undoubtedly, before an order of withholding the amount of pension or a part thereof is passed, the procedures laid down under the statute are required to be complied with. The procedural safeguards must be kept in mind. Limitations of application of the Rules again have to be borne in mind.
But the said Rules read with the proviso and the Explanation appended thereto construed in their entirety clearly postulate that the proceeding initiated before the delinquent officer reached his age of superannuation would be valid.
This Court therein distinguished this decision in State of U.P. v. Shri Krishna Pandey and Bhagirathi Jena v. Board of Directors, O.S.F.C. in the following terms: ( Harihar Bhole Nath case, SCC pp. 468-70, paras 20 and 25) "20. The High Court has placed strong reliance on State of U.P. v. Shri Krishna Pandey 7 wherein the departmental enquiry was initiated after the delinquent officer reached his age of superannuation. Noticing Regulation 351A of the Civil Services Regulations and that the departmental proceeding was initiated after the retirement of the employee, the same was held to be impermissible in law. Although it was not necessary to pronounce upon the construction of Regulation 351A involving a case where a departmental proceeding was initiated prior to reaching of the age of superannuation by the delinquent officer, it was observed that as the officer had retired on 31-3-1987 and proceedings were initiated against him on 12-4-1991, proviso appended to the rule would be applicable.
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Reliance has also been placed on Bhagirathi Jena v. Board of Directors, O.S.F.C. 8 wherein this Court was concerned with interpretation of Regulation 17 of the Orissa State Financial Corporation Employees Provident Fund Regulations, 1959.
To the same vein is the decision of this Court in State of U.P. v. R.C. Misra.
Para 22: We are, therefore, of the opinion that it was permissible for the Bank to continue with the disciplinary proceedings relying on or on the basis of Regulation 20(3)( iii ) of the Punjab National Bank (Officers) Service Regulations, 1979.
Therefore, in the light of the above, it has to be held that even after retirement, if there are statutory Rules providing for continuation of the disciplinary proceedings, no exception can be taken for continuing a disciplinary action by an employer.
In the present case, Rule 9 is a complete answer for the contention raised by the Petitioner. It must also be noted that very recently, the Supreme Court in the judgment reported in U.P. State Sugar Corporation Ltd. and Others Vs. Kamal Swaroop Tondon, dealt with a case of the employer''s right to initiate action even after retirement. The following passages found in paragraphs 27 and 28 may be usefully reproduced:
Para 27: "In UCO Bank and Others Vs. Sanwar Mal, , the Court held that two concepts: (i) resignation; and (ii) retirement were different and employed for different purposes and in different contexts. Resignation brings about complete cessation of master and servant relationship, but retirement does not do so. In case of retirement, master and servant relationship continues for grant of retiral benefits.
Para 28: If it is so, the Appellant Corporation, in our opinion, is right in submitting that the proceedings could have been continued after the retirement of the Respondent employee as far as the financial loss caused to the Corporation because of negligence on the part of employee and the benefit claimed by the Respondent workman on his terminal benefits are concerned.
In view of the above reasons stated above, the Writ Petition is misconceived and the same stands dismissed accordingly. Consequently, the connected miscellaneous petition is closed. No costs.