IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.10.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.18470 of 2009 and M.P.NO.1 OF 2009 Dr.M.Rajendran .. Petitioner Vs. 1.The Secretary to Government, Government of Tamilnadu, Animal Husbandry, Dairying & Fisheries Department, Fort St. George, Chennai-600 009. 2.Commissioner & Director of Animal Husbandry & Veterinary Services, Chennai-600 006. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records and to quash the suspension order issued by the first respondent to the petitioner by G.O.(D)No.200 dated 31.7.2009 and G.O.(D) No.201, dated 31.7.2009 not permitting the petitioner to retire on 31.7.2009 and other reliefs. For Petitioner : Mr.T.D.K.Govindarajan For Respondents : Mr.R.Neelakantan, GA - - - - ORDER
The petitioner was working as a Cleanition. He filed the writ petition, seeking to challenge the order of the first respondent State Government made in G.O.(D) Nos.200 and 201, Animal Husbandry, Dairying and Fisheries (AH1) Department, dated 31.7.2009.
2.By the G.O.(D) No.200, the petitioner was placed under suspension until further orders. By G.O.(D) No.201, the petitioner was informed that since he was reaching the age of superannuation on 31.7.2009 and there was a complaint against him, it was necessary that he should not be permitted to retire on reaching the age of superannuation and he shall be retained in service. He was also to be paid an amount equivalent to pension, which would have accrued to him had he been retired from service.
3.In paragraph 10 of the affidavit filed in support of the writ petition, the petitioner stated that the two G.Os. impugned in the writ petition were served through a Fax message at 6.30 p.m. and it was served after the office hours. By the time it was served, the petitioner had already retired since the office hours was over by 5.30 p.m. Later on, those orders were served on him by a special messenger around 10.00 p.m. The petitioner stated that he had put in 27 years of service and there was no necessity to suspend him on the last day of his employment. In any event, in terms of FR 56(1)(c), the petitioner could not be served with a retention order that too after the close of the office hours. In the absence of any order being served during the working hours, the petitioner is deemed to have retired from service. Therefore, he filed the present writ petition.
4.The petitioner, just 10 days before his date of retirement, also filed a writ petition before this court being W.P.No.7905 of 2009, seeking for restoration of his name in the panel for the year 2004 for the post of Assistant Director of Animal Husbandry and also to place him as 32nd person in the promotion list. This Court took up the matter at the admission stage and held that the respondents should consider his case in accordance with law. Even at that stage, on behalf of the respondent Government, a submission was made that the petitioner was facing a vigilance case.
5.In paragraph 4 of the order, this court had recorded the submission of the learned Government Advocate as follows:
“4.On notice, the learned Government Advocate appearing for the respondents, on instructions, would submit that in respect of certain irregularities committed in the purchase, rearing and distribution of Heifer Calves, the Director of Vigilance and Anti-Corruption has been requested to register a case. The Director of Vigilance and Anti-Corruption in their final report have recommended to accord sanction to prosecute against certain persons including the petitioner during March, 2007. The Government has also accorded sanction for the prosecution of certain individuals including the petitioner as per the order dated 19.06.2009. Charges under 17(b) have been framed against the petitioner by the Commissioner, Animal Husbandry, Chennai in charge memo dated 02.05.2009. Thus, the case of the petitioner could not be considered for promotion due to the reasons cited above.”
6.On notice on this writ petition, the respondents have filed a written instructions, dated 15.09.2009, stating that the State Government by G.O.Ms.No.59, Animal Husbandry, Dairying & Fisheries (AH1) Department, dated 19.0.2009 has accorded sanction for prosecution against several officials of the department including the petitioner in connection with the allegation made and substantiated against them in the matter of purchasing, rearing and distribution of Heifer Calves to Adi Dravida beneficiaries at the District Livestock Farm, Hosur.
7.Therefore, the only question that has to be considered in the present case is whether the contention that a fax copy of the impugned order having served at 6.30 p.m. to the petitioner and the original order served at 10.00 p.m. at his residence will help the petitioner to sustain his contention that such an order was not valid in the eye of law.
8.The question raised here is no longer res integra. Normally, a person retires on completing 58 years or 60 years as the case may be, on the day on which his date of birth falls. However, for administrative convenience, the Government servants are allowed to retire on the last day of the month in which their retirement falls. The petitioner cannot press into service that he is deemed to have retired on the afternoon of 31.7.2009. It must be stated that as per the provisions of General Clauses Act, a day will end at 12.00 p.m.
9.The Supreme Court had an occasion to consider the question which is diametrically opposite to one projected by the petitioner in AIR 1990 SC 285 : 1989 Supp (2) SCC 486 (S. BANERJEE v. UNION OF INDIA). In that case, an Additional Registrar of the supreme Court was to retire on 31.3.1987 and he sought to go on voluntarily retirement from service. By an officer order, dated 6.12.1985, it was intimated that the Honourable Chief Justice of India had permitted him to retire voluntarily from the service of the Registry of the Supreme Court with effect from the forenoon of January 1, 1986. The question arose was whether he was eligible to get benefits as per the recommendations made by the VI Central Pay Commission which was ordered to be implemented for employees who retired from service on 1.1.1986 onwards.
10.Though it was contended by the Government that the said Banerjee would have retired on 31.12.1985, that contention was rejected by the Supreme Court in paragraph 6 of the judgment, which is as follows:
“6. . . . But, in our opinion, that has no bearing on the question as to the date of retirement. Can it be said that the petitioner retired on 31-12-1985 ? The answer must be in the negative. Indeed, Mr Anil Dev Singh, learned counsel appearing on behalf of the respondents, frankly conceded that the petitioner could not be said to have retired on 31-12-1985. It is also not the case of the respondents that the petitioner had retired from the service of this Court on 31-12-1985. Then it must be held that the petitioner had retired with effect from 1-1-1986 and that is also the order of this Court dated 6-12-1985. It may be that the petitioner had retired with effect from the forenoon of 1-1-1986 as per the said order of this Court, that is to say, as soon as 1-1-1986 had commenced the petitioner retired. But, nevertheless, it has to be said that the petitioner had retired on 1-1-1986 and not on 31-12-1985. In the circumstances, the petitioner comes within the purview of para 17.3 of the recommendations of the Pay Commission.”
11.Subsequently, the Supreme Court had an occasion to consider another case of a School Teacher in (2008)2 SCC 639 (ACHHAIBAR MAURYA v. STATE OF UTTAR PRADESH AND OTHERS). In that case, an Assistant teacher in a primary school was to retire on the last day of the month (i.e. 30.6.2003) in which she had attained the age of 60 years. But if retirement falls during the period from July 1 to June 30, such teachers were permitted to continue in service till the end of that academic year. The teacher in that case contended that she will retire from service only on 1.7.2003 and that she should be given the benefit of reemployment. The Supreme Court rejected the said contention made by the teacher. In paragraphs 8, 10 and 11 of the judgment, the Supreme Court observed as follows:
“8. As the appellant was born on 1-7-1943, he would retire on 30-6-2003. The question as to whether he would obtain the benefit of extended period of service up to 30th June and the next year will depend upon the situation as to whether the teacher retires on or after 1st July or not.
. . .
10. A benefit of getting an extended period of service must be conferred by a statute. The legislature is entitled to fix a cut-off date. A cut-off date fixed by a statute may not be struck down unless it is held to be arbitrary. What would, therefore, be an employees last working date would depend on the wordings of the Rules. It may seem unfortunate as some people may miss the extended period of service by a day, but therefor a valid provision may not be held to be invalid on the touchstone of Articles 14 or 16 of the Constitution of India. A statute cannot be declared unconstitutional for conferring benefit to a section of the people. We, therefore, do not agree with the view taken in Khan Chandra Madhu.
11. In S. Banerjee v. Union of India, whereupon reliance has been placed, the fact situation obtaining was completely different. In that case, the appellant filed an application for voluntary retirement which was accepted from the forenoon of 1-1-1986. In that view of the matter, he was found to be entitled to the benefit of Para 17.3 of the Recommendations of the Pay Commission.”
12.In those two cases, it was contended that a person retires from service on the next day after his date of birth and that he will have the benefits which are granted with effect from that date. But in the present case, the petitioner wanted to contend that he got retired at 5.30 p.m. itself at the closing of office hours and any order served after those hours will have no effect. This contention cannot be accepted.
13.Even otherwise it is immaterial that the order must be served on that date of retirement itself. The Supreme Court in National Textile Corpn. (M.P.) Ltd. v. M.R. Jadhav reported in (2008) 7 SCC 29 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:
23. In MCD v. Qimat Rai Gupta9 this Court opined: (SCC p. 319, para 27)
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 Harika6 but an order placing a government servant on suspension does not require communication of that order. (See State of Punjab v. Khemi Ram.)
24. 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.
14.In the light of the above, this writ petition shall stand dismissed. However, there shall be no order as to costs. Consequently, connected MP also stands dismissed.
vvk
To
1.The Secretary to Government,
Government of Tamilnadu,
Animal Husbandry, Dairying &
Fisheries Department,
Fort St. George,
Chennai-600 009.
2.Commissioner & Director of
Animal Husbandry & Veterinary
Services,
Chennai 600 006