IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED:02.02.2010 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.No.19707 of 2008 and M.P.No.1 of 2008 K.Rajendran ... Petitioner Vs. Senior District Collector, Tiruvellore District, Tiruvellore. ... Respondent PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorarified mandamus calling for the proceedings of the respondent in R.C.No.6441(08)/PA1 dated 31.07.2008 and quash the said proceedings of the respondent dated 31.07.2008 in so far as it relates to the words "without prejudice to the disciplinary proceedings pending against him" and the proceedings Na.Ka.No.29785/07/PA1 dated 31.07.2008 and pass such further orders. For Petitioner :Mr.R.Muthukumarasamy, Senior Counsel For Respondent :Mrs.Malarvizhi Udayakumar, Spl.G.P. ORDER
The petitioner K.Rajendran has filed the present writ petition seeking to issue writ of certiorari calling for the proceedings of the respondent in R.C.No.6441(08)/PA1 dated 31.07.2008 and quash the said proceedings of the respondent dated 31.07.2008 in so far as it relates to the words “without prejudice to the disciplinary proceedings pending against him” and the proceedings Na.Ka.No.29785/07/PA1 dated 31.07.2008.
2. The petitioner entered in Government service as Gram Sewak i.e., Rural Welfare Officer in March 1975. Subsequently, he was promoted to higher posts and ultimately came to be promoted as Block Development Officer on 07.04.2003. After serving in various places, the petitioner retired from service on 31.07.2008, on which date, the petitioner reached the age of superannuation. On the date of his retirement, the petitioner was given a farewell party by all the colleagues and other officers and staffs working in his department. The farewell party which was given to the petitioner went on till 9 p.m. on 31.7.2008 and in the said farewell party, the petitioner handed over the official charge to the incoming Block Development Officer and thereafter, the incoming Block Development Officer took over the office charges from the petitioner. Whileso, till 9 p.m. on 31.07.2008, it is an admitted fact that, there was no whisper of any adverse remarks from any quarters. Whileso, on 06.08.2008, the petitioner was served with the impugned order dated 31.07.2008 to the effect that the petitioner has been permitted to retire on the afternoon of 31.07.2008 without prejudice to the disciplinary proceedings against him.
3. The issues raised in the present writ petition, according to the learned Senior counsel appearing for the petitioner, is that six days after the date of retirement of the petitioner i.e., on 06.08.2008, whether the respondent was right in issuing the impugned order dated 31.07.2008 to the effect that the petitioner is permitted to retire on the afternoon of 31.07.2008 without prejudice to the disciplinary proceedings pending against him. The second contention is that the service of charge memo dated 31.07.2008, issued on 06.08.2008 upon the petitioner is not valid in law, particularly in view of the settled legal position as held by this Court in various judgements, namely 2005(3) CTC 4, 2008 Writ L.R. 104, 2007(3) CTC 518, ect.
4. While elaborating this submission, the learned Senior counsel appearing for the petitioner would submit that the impugned order dated 31.07.2008 was admittedly signed by the respondent only on 31.07.2008. Therefore, there is no proof of the communication of the impugned order dated 31.07.2008 being served on the petitioner; that it has not been satisfactorily established that the same was served on the petitioner on the date of his retirement. Hence, the learned Senior counsel submits that when a person retires on reaching the age of superannuation, the relationship of employer-employee cease to exist and therefore, as held by this Court in the above said judgements, the department has no authority to proceed against the petitioner and as a result, no disciplinary proceeding could be initiated against the petitioner. Thirdly, it was also contended that as per the ratio laid down by this Court in the decision reported in 2008 Writ L.R. 104, this Court has categorically held that retiring a person with liberty to continue disciplinary proceedings after superannuation, is also illegal and without jurisdiction, in the absence of any such provision in the service rules. On the above said submissions, it was prayed to allow the writ petition by setting aside the impugned order.
4. In reply, learned Special Government Pleader appearing for the respondent submits that the petitioner was to retire on 31.07.2008, but before the completion of office hours, the petitioner had gone out of the office and, therefore, the impugned order dated 31.07.2008 could not be served on the petitioner on 31.07.2008 itself. However, when an officer from the respondent office was deputed with the impugned order to serve the same on the petitioner at his residence, the same also could not be served on him, since the petitioner deliberately absconded till 06.08.2008 and only after the Personal Assistant to the Collector had spoken to the petitioner over phone to receive the retirement order, the petitioner has received the same. Therefore, the impugned order permitting the petitioner to retire without prejudice to the disciplinary proceedings pending against him cannot be put against the department. Secondly, it was also urged that for the lapse committed by the staff/officer in the department for non service of the impugned order dated 31.07.2008 upon the petitioner on 31.07.2008, an explanation has been called for from the concerned officer to show cause as to why the petitioner was not served with the impugned order dated 31.07.2008 on the date of his retirement itself, for which a detailed explanation has been given mentioning that the petitioner was evading the receipt of the order. Finally, it was served on the petitioner on 06.08.2008 and on that basis, learned Special Government Pleader appearing for the respondent submits that the department is entitled to proceed against the petitioner after his retirement from service.
5. Heard the learned counsel appearing on either side.
6. The broader question advanced by the learned senior counsel appearing for the petitioner is that, when the petitioner retired on 31.07.2008, the impugned order dated 31.07.2008 was not served upon the petitioner till 06.08.2008, which clearly indicates that the respondent has allowed the petitioner to retire on 31.07.2008 without serving the impugned order. Once the petitioner was allowed to retire from the service on 31.07.2008, and subsequently, after six days from the date of retirement, the impugned order dated 31.07.2008 was passed and the respondent has come forward to say that the impugned order dated 31.07.2008 could not be served due to non availability of the petitioner and it was served only after a few days viz. on 06.08.2008. From the relevant Rules and pronouncements of this Court and Apex Court, it is clear that without a specific provision of law or regulation or a by-law governing the service conditions of the person in question for continuing a departmental enquiry, initiated before the date of superannuation, even after the employee had retired from service. Without such a provision being available, there cannot be an employer-employee relationship surviving after the employee retires from service. Therefore, continuing the enquiry proceedings or taking any action against a person after his retirement from service cannot be sustained in the eye of law. The same view has found favour of the Apex Court in Bhagirathi Jena v. Board of Directors, O.S.F.C.(1999) 3 SCC 666, wherein it is held as under:
“7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.06.1995, there was no authority, vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.”
7.3. A Division Bench of this Court in State of Tamil Nadu v. R.Karuppiah, (2005) 2 MLJ 555, also held as under:
“29. From the above note it is also clear that to proceed against the Government servant, who is under suspension on a charge of misconduct, after his retirement, the fulfilling of the requirements under Rule 56(1)(c) of the Fundamental Rules is a mandatory one, otherwise, the competent authority cannot have any jurisdiction on the retired Government servant to proceed against him and the non-compliance of the said rule has vitiated all the proceedings initiated against the first respondent and therefore, the same are not sustainable under law and are liable to be set aside.”
7.4. Again a Division Bench of this Court in P.Muthusamy v. Tamil Nadu Cements Corporation Ltd., (2006) 4 MLJ 504, wherein taking note of the service rules of Tamil Nadu Cements Corporation Limited, it was held that retiring a person with liberty to continue disciplinary proceedings, after superannuation, is illegal and without jurisdiction, in the absence of such a provision in the service rules.”
7. Admittedly, the petitioner retired from the service of the respondent on 31.07.2008. After six days of his retirement, a proceeding under Rule 17(b) of Tamilnadu Civil Services (Classification, Control and Appeal) Rules was issued stating that the petitioner was allowed to retire without prejudice to the disciplinary proceedings pending against him. Admittedly, after the petitioner retired from service on 31.07.2008, the respondent had no jurisdiction to initiate the proceedings under Rule 17(b) of Tamilnadu Civil Services (Classification, Control and Appeal) Rules. A charge memo relating to one incident to the effect that a gift deed in respect of a road laying work has been obtained on the basis of a resolution passed by the Panchayat Union Council without an approval granted by the Chennai Metropolitan Development Authority for such layout and the said subject having not been included in the agenda for the Panchayat Union Council, a resolution was passed to accept the gift of the roads. The petitioner, who is only an Executive Authority, is not the deciding authority either to have a subject as “Table Subject’ or not or in the matter of deciding to accept the gift of road donated by the people for the people by passing a resolution. The Chairman, Panchayat Union Council has got every right to decide as to any change that could be taken for consideration as table subject and the Panchayat Union has every right to pass a resolution on the said subject. Further, the entire facts would go to show that the petitioner has nothing to do with the decision to table the subject or in the matter of passing resolution. More so, if we look into the nature of charge, it is disturbing me, because a road has been given to a local body for the benefit of road users, therefore, absolutely there is no wrong or illegality in gifting the road to the local body by plot owners by passing a resolution, and accepting the same by the petitioner as Block Development Officer.
8. In these circumstances, after allowing the petitioner to retire from service as Block Development Officer, that too, after six days from retirement, issuing a charge memo under Rule 17(b) of Tamilnadu Civil Services (Classification, Control and Appeal) Rules as against the petitioner on 06.08.2008 i.e., after six days of the date of his retirement is not valid in law. In this context, a judgement of this Court may usefully be referred as follows:
9. A Division Bench of this Court in N.M.Somasundaram v. The Director General of Police, Madras-4 and others, 1997 W.L.R.120 has held as follows:
Even though it may not be necessary to permit to Government servant against whom a disciplinary proceeding is pending, to retire from service, in order to retain him in service for the purpose of disciplinary proceedings, a positive order in writing is required to be passed. The public ground for passing the said order is the pendency of the disciplinary proceeding. But, what is necessary is that there should be an order passed by the Government not permitting a Government Servant to retire from service.
In the present case, the impugned order dated 31.07.2008 has been passed, that too, six days after the date of retirement of the petitioner stating that the petitioner is permitted to retire on the afternoon of 31.07.2008 without prejudice to the disciplinary proceedings pending against him. As held by this Court in the above said judgement, to have disciplinary control under the Rule 17(b) of Tamilnadu Civil Services (Classification, Control and Appeal) Rules, in order to retain the petitioner in service for the purpose of disciplinary proceedings, no separate order in writing has been passed by any competent authority. Therefore, the impugned order issued under the Rule 17(b) of Tamilnadu Civil Services (Classification, Control and Appeal) Rules stating that the petitioner is permitted to retire from service without prejudice to the disciplinary proceedings pending against him is not legally sustainable for the simple reason that when the petitioner retired from service on 31.07.2008, the relationship of master and servant ceased to exist between the department and the petitioner. Therefore, once again, without any authority of law, the impugned order seeks to retain its disciplinary control against a retired employee is not valid in law. Therefore, the impugned order without passing an independent order retaining the petitioner in service for the purpose of disciplinary proceedings is without any jurisdiction.
10. In another judgement reported in 2008 Writ L.R. 104, a similar view has been expressed, the relevant portion of the judgement is extracted hereunder:-
“6. A departmental proceedings can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer, the employee cannot be made to retire. In the instant case, no rule has been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. There has to be a specific provision of law or regulation or a by-law governing the service conditions of theperson in question for continuing a departmental enquiry, initiated before the date of superannuation, even after the employee had retired from service. Without such a provision being available, there cannot be an employer-employee relationship surviving after the employee retires from service. Therefore, continuing the enquiry proceedings or conducting an action against the person after his retirement from service cannot be sustained in the eye of law.”
A mere reading of the above said judgement clearly indicates that a departmental enquiry can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer, the employee cannot be made to retire. When there is no rule providing for continuation of such proceeding despite permitting the employee concerned to retire, it has been held that even continuance of the enquiry proceedings or taking any action against the person after his retirement from service cannot be sustained in law.
11. In the present case, admittedly, the petitioner had retired from service on 31.07.2008, but the order dated 31.07.2008 permitting the petitioner to retire from service without prejudice to the disciplinary proceedings against the petitioner, was served only on 06.08.2008, and by the time the impugned order dated 31.07.2008 was served on the petitioner, the relationship of employer-employee ceased to exist. Therefore, the case of the petitioner is fully covered by the above ratio laid down by this Court that, without there being a specific provision of law or regulation or a by-law governing the service conditions of the person in question for conducting a departmental enquiry, any attempt to retain the petitioner in service for the purpose of proceedings against him departmentally, after his retirement from the service, cannot be sustained in the eye of law.
11. In this view of the matter, I am of the considered opinion that the impugned order dated 31.07.2008, served upon the petitioner on 06.08.2008, which is admittedly after the date of retirement of the petitioner, cannot be sustained in the eye of law and accordingly, the impugned order is liable to be set aside and accordingly, the impugned order so far as it relates to the words “without prejudice to the disciplinary proceedings pending against him” is quashed.
12. With the above observation, the writ petition is allowed. No Costs. Consequently, connected M.P.No.1 of 2008 is closed.
rkm
To
1.The Senior District Collector,
Tiruvellore District,
Tiruvellore