ORDER
P.K. Misra, J.
1. Heard the learned counsel appearing for the parties. The petitioner was serving as Assistant Executive Engineer under the Tamil Nadu Water Supply and Drainage Board (hereinafter called the Board). Disciplinary proceedings was initiated against him in 1994. Subsequently the petitioner on attaining the age of superannuation, without prejudice to the pending prosecution against him in a Court of law, was permitted to retire from service on December 31, 1996. Thereafter, even though the petitioner was not specifically retained in service as required under Fundamental Rules 56(c), an order was passed directing deduction of a sum of Rs. 1,000/- per month from the pension of the petitioner for a period of three years. Such order passed by the Board is being impugned in the present writ petition. Even though the learned counsel for the petitioner has raised several contentions relating to the illegality in the action of the respondents, it is unnecessary to deal with all such contentions as in my opinion the contentions relating to invalidity of the proceedings on account of violation of Rule 56 of the Fundamental Rules is substantial enough to allow the present writ petition.
2. Rule 56(c) of the Fundamental Rules is to the following effect:
“56(c) – A Government servant under suspension on a charge of misconduct should not be required or permitted to retire on his reaching the date of compulsory retirement, but should be retained in service until the enquiry into the charge is conducted and a final order passed thereon by the competent authority”
Regulation 58 of Tamil Nadu Water Supply and Drainage Board Service Regulations is to the following effect:
“Pay, allowances, leave, leave salary, pension and other conditions of service. The Fundamental Rules, the Madras Leave Rules and the Manual of special pay and Allowances and the pension code as amended from time to time in so far as they may be applicable and except to the extent expressly provided in these Regulations, shall mutatis mutandis apply to the members of the Board Service in the matter of their pay, allowances, travelling allowances, leave, leave salary and other conditions of service. The powers assigned to the Board and the powers assigned to the Head of the Department under the Fundamental Rules shall be exercised by the Chief Engineer in the case of Engineering and other staff under his control and by the Secretary in the case of the Board’s Secretariat.”
A bare reading of the Regulation 58 makes it clear that the provisions contained in the Fundamental Rules are applicable. There is no other specific provision in the regulation relating to retirement and continuation of person after the retirement for the purpose of continuing a disciplinary proceeding. Therefore Rule 56(c) of the Fundamental Rules being applicable, has to be given effect,
3. In the present case, instead of retaining the petitioner in service for the purpose of continuing the disciplinary proceedings, he was allowed to retire. Law is well settled if disciplinary proceedings initiated before the retirement or the particular employee, such disciplinary proceedings cannot be continued against him unless such person is retained in service as contemplated in Rule 56(c) of the Fundamental Rules. For the aforesaid purposes the decision of the Supreme Court in B.J. Shelat v. State of Gujarat and Ors. is applicable. Similar view is also expressed in the Division Bench decision of this Court in N.M. Somasundram v. D.G.P Madras 1997-II-LLJ-222. Keeping in view the facts and circumstances of the cases and the ratio of the decision in the aforesaid cases, the present writ petition has to be allowed. The impugned order is accordingly quashed. There is no order as to costs. If any amount has been recovered pursuant to the impugned order, such amount may be refunded to the petitioner within a period of three months from the date of communication of this order. Consequently, WPMP No. 17736/2002 is closed.
