IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 04.08.2010 CORAM THE HONOURABLE MS. JUSTICE K.B.K. VASUKI W.P. No.5607 of 2009 Dr. R. Devarajan .. Petitioner vs The Principal Secretary and Director of Indian Medicine and Homeopathy, Arumbakkam, Chennai-600 106 .. Respondent PRAYER: Writ Petition is filed to issue a writ of certiorari calling for the records relating to the proceedings dated 15.02.2009 in Ref.No.1964/E2/1/2009 issued by the respondent. For Petitioner : Mr. S. Conscious Ilango For Respondent : M/s. E. Ranganayaki, Government Advocate (Edn.) O R D E R
On consent, the writ petition is taken up for final hearing. The writ petition is filed to quash the charge memo issued against the petitioner by the respondent in his Proceedings dated 15.02.2009 in reference No.1964/E2/1/2009.
2. The petitioner was appointed as Assistant Medical Officer (Siddha) on 17.09.1981 and his appointment was regularised on 14.07.1988 with retrospective effect. While the petitioner was working as Professor, the petitioner was issued with the impugned charge memo containing two charges. On receipt of the charge memo, the petitioner duly submitted his objections on 02.03.2009. Thereafter the petitioner has come forward with this writ petition for quashing the charge memo mainly on the ground of delay and also on other grounds of malafide, bias and victimisation.
3. During the pendency of this writ petition, the petitioner attains his age of superannuation on 31.05.2010 and he was as per G.O. D 534 Health and Family Welfare Department dated 31.05.2010 passed by the first respondent and as per the consequential order passed by the Principal Secretary and Director of Indian Medicine and Homeopathy and memo in his reference No.307/E1/1/2010 permitted to retire on the afternoon of 31.05.2010 without prejudice to any action pending against him.
4. That being the latest development it is contended by the learned counsel for the petitioner before this Court that the disciplinary proceedings initiated against the petitioner cannot be proceeded with after his retirement on superannuation without passing any order retaining him in service for the purpose of continuing the disciplinary proceedings as required under Rule 56(c) of the fundamental rules. It is further contended by the learned counsel for the petitioner that the order permitting him to retire without prejudice to the disciplinary proceedings is contrary to Rule 56(c) and is also contrary to the legal dictum laid down by our High Court in various judgments few of which are cited herein.
2. 2004 II LLJ Page 139 Palani S. vs M.D., Tamil Nadu Water Supply and Drainage Board, Chennai and others
3. Unreported judgment dated 14.08.2009 in W.P. No.9270 of 2007 P. Ponnan vs The Superintendent, Borstol School, Pudukottai
4. Unreported judgment dated 07.08.2009 in W.P. No.34995 of 2004 P. Ramasamy vs The Secretary to Government, Agricultural Department, Fort. St. George, Chennai and others
5. Unreported judgment dated 21.12.2009 in W.P. (MD) No.6402 of 2009 V.P. Sankaran vs The District Collector, Madurai and another
5. The reading of all the judgments above referred to would show that as per the guidelines issued by the Government and as per the fundamental rules 56(c) the disciplinary proceedings initiated against the petitioner shall be completed before the date of the retirement of the delinquent employee and in the event of the same being not completed, the Government servant shall not be permitted to retire, but he should be retained in service until the enquiry under the charge is conducted and final orders is passed thereon by the competent authority. In the judgment reported in 2004 II LLJ Page 139 (Palani S. vs M.D., Tamil Nadu Water Supply and Drainage Board, Chennai and others) our High Court by relying upon the earlier Supreme Court judgment and Division Bench judgment of our High Court referred therein observed that the disciplinary proceedings initiated cannot be continued against any Government employee unless such person is retained in service under Rule 56(c) of the fundamental rule. The learned Additional Government Pleader also does not dispute the legal position as emerged in the judgments above referred to. That being the factual and legal position, the same is squarely applicable herein. Wherein also the petitioner is permitted the retire though subject to the departmental proceedings pending against him and he is not retained in service as required under FR 56(C). In the absence of one such order, the departmental proceedings against him cannot go on and in that event, the charge memo issued against the petitioner is to be deemed to be dropped.
6. In the result, the charge memo issued against the petitioner by the respondent on 15.02.2009 in his proceedings is deemed to be dropped and the petitioner on his retirement entitled to all the retirement benefits as if there is no disciplinary proceedings pending against him.
7. With this observation, the writ petition is disposed of. No costs.
The Principal Secretary and
Director of Indian Medicine and
W.P. No.5607 of 2009