ORDER
S.K. Krishnan, J.
1. As against the Common Order of the Tamil Nadu Administrative Tribunal in O.As. Nos. 3441 of 1991 and 1458 of 2001, dated 19.10.2001, the respondents in the above said applications, invoking the jurisdiction of this Court under the Article 226 of the Constitution of India, have filed these Writ Petitions in W. Ps. No. 32890 and 32891 of 2002 respectively.
2. Since both the Writ Petitions assailed the same order and the issue involved in these petitions are one and the same, they are disposed of by a common order. For the sake of convenience, we call the parties as arrayed in W.P. No. 32890 of 2002.
3. The facts, leading to the filing of these Writ Petitions, are as follows:
a. On the basis of the vigilance report that the first respondent accepted bribe and committed malpractice while he was working as Sub Inspector of Police at Thallakulam Police Station, Madurai District, in the enquiry conducted against the first respondent and one Head Constable Murugesan, the charges levelled against the first respondent were proved, whereas against the said Murugesan, action was dropped as the charges were not proved.
b. As against the three allegations, while action in respect of the first allegation was dropped by the Deputy Inspector General of Police, Madurai, Tribunal enquiry was recommended in respect of second and third allegations against the first respondent. Since the non-co-operation of the first respondent and in view of filing an application in O.A. Nos. 3441 and of 1991, the Tribunal for Disciplinary Proceedings could not proceed against the first respondent.
c. Since the Tamil Nadu Administrative Tribunal allowed the applications filed by the first respondent in his favour, the petitioners have filed these petitions.
4. Heard both sides.
5. The learned Special Government Pleader appearing for the petitioners would contend that because of the non-cooperation of the first respondent, the Tribunal for Disciplinary Proceedings could not proceed with the allegations levelled against him and therefore, the order passed by the Tamil Nadu Administrative Tribunal without considering the above said fact, is not sustainable under law and is liable to be set aside.
6. Per contra, the learned counsel appearing for the first respondent would contend that when the first respondent was allowed to retire from service on 31.5.1990, he cannot be proceeded with the charges levelled against him and therefore, after considering the materials available on record, the Tribunal came to the right conclusion and quashed all the proceedings against the first respondent.
7. In support of his contention, he strongly relied on the decision in N.M. Somasundaram v. The Director General of Police, Madras -4 and Ors. (1997 Writ L.R.120).
8. In response, the learned Special Government Pleader relying on Rule 56(1)(a) of the Fundamental Rules would submit that no Government Servant in superior service shall be allowed to retain in service after the age of fifty-eight years except with the sanction of the Government on public grounds and therefore, the contention of the learned counsel cannot be accepted.
Further, placing strong reliance on sub rule 2(a) and 6(b) to Rule 9 of the Tamil Nadu Pension Rules, 1978, it is contended that since the first respondent was placed under suspension while he was in service, the departmental proceeding already instituted, shall, after the final retirement of the Government Servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service and therefore, in this regard, the contention of the learned counsel for the first respondent cannot be accepted.
9. It is an admitted fact that while the first respondent was working as Inspector of Police, Manamadurai Circle, on certain grave charges, he was placed under suspension with effect from 20.11.1989 by an order of the second petitioner in W.P. No. 32891 of 2002.
10. It is also an admitted fact that the first respondent was retired from service on 31.5.1990 and the departmental enquiry was initiated by referring the matter to the Tribunal for Disciplinary Proceedings on 30.7.1990, i.e. after two months from the date of retirement of the first respondent.
11. While the matter was pending before the Tribunal for Disciplinary Proceedings, the first respondent approached the Tamil Nadu Administrative Tribunal, which by its order dated 19.10.2001 allowing the two applications passed the following order:
“For the above reasons, it is considered that the prayer of the applicant in both the O.As deserves favourable consideration. Therefore, the suspension order dated 21.11.1989 and the charge memo dated 30.7.1990 in DE. No. 38/99 are set aside and the both O.As. Are allowed and applicant is deemed to have retired on the date of superannuation (i.e.) on 31.5.1990 and he shall be paid all the retirement benefits within a period of six months from the date of receipt of this order.”
12. As against the above order, the petitioners have filed the above Writ Petitions.
13. Now the first and foremost question to be decided is whether the first respondent can be proceeded with the charges levelled against him, when he was allowed to retire from service without any order retaining him in service until the completion of the enquiry.
14. At this juncture, it is pertinent to see what the Fundamental Rules says with regard to retirement on superannuation.
15. Rule 56 (1) deals with the Retirement on Superannuation, which reads as follows:
56(1) Retirement on Superannuation – (a) Every Government servant in the superior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. He shall not be retained in service after that age except with the sanction of the Government on public grounds, which must be recorded in writing but he shall not be retained after the age of sixty years except in very special circumstances:
Provided that this clause shall not apply to Government servants who are treated as in superior service for the purpose of these rules but as in the Tamil Nadu Basic Service for the purpose of pension. Such Government servants as well as all basic servants shall retire on attaining the age of sixty years:
Provided further that on and from the 1st January 1993, a District Judge, Chief Judicial Magistrate, Sub-ordinate Judge or District Munsif-cum-Judicial Magistrate, who, in the opinion of the High Court, Madras, has potential for continued useful service beyond the age of fifty-eight years, shall retire from service on attaining the age of sixty years.
16. No doubt, as contended by the Special Government Pleader, a plain reading of the above Rule reveals that a Government servant in the superior service shall retire on the last day of the month in which he attains the age of fifty-eight years and he shall not be retained in service except with the sanction of the Government on public ground.
17. However, sub-rule 1(c) to Rule 56 of the Fundamental Rules reads as follows:
(c) Notwithstanding anything contained in clause (a), a Government servant who is under suspension,
(i) on a charge of misconduct; or
(ii) against whom an enquiry into grave charges of criminal misconduct of allegations of criminal misconduct, is pending; or
(iii) against whom an enquiry into grave charges is contemplated or is pending; or
(iv) against whom a complaint of criminal offence is under investigation or trial.
Shall not be permitted by the appointing authority to retire on his reaching the date of retirement, but shall be retained in service until the enquiry into the charge of misconduct or criminal misconduct or the enquiry into allegations of criminal misconduct or the enquiry into contemplated charges or disciplinary proceeding taken under rule 17(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or rule 3(c) of the Tamil Nadu Police Sub-ordinate service (Discipline and Appeal) Rules, as the case may be, in respect of item (iv) above is concluded and a final order passed thereon by the competent authority or by any higher authority.
Explanation – For the purpose of this clause, the expression ‘criminal misconduct’ shall have the same meaning as in Section 13 of the Prevention of Corruption Act, 1988 (Central Act 49 of 1988).
Instruction under Rule 56(1)(c)-Whether a Government servant referred to in clause (c) is fully exonerated or not , he shall be considered to have been on extension of service for the period from the date of retirement tot he date of termination of the proceedings. During such an extension of service, the service rights which have accrued to the Government servant shall freeze at the level reached on the date of retirement and the salary during that period shall not exceed the pension which has accrued to the Government servant on that date.
18. A combined reading of the above rules make it clear that when a Government servant, who is under suspension, against whom an enquiry into grave charge is pending, Rule 56(1)(a) of the Fundamental Rules has no role to play, whereas, Rule 56(1)(c) alone can play as the same is mandatory in the case of a Government Servant, who is under Suspension, to have a jurisdiction over him.
19. As already stated above, though the first respondent was placed under suspension on certain grave charges, he was allowed to retire from service on 31.5.1990 without passing any order retaining him in service as required under Rule 56(1)(c) of the Fundamental Rules. Though it is mentioned in the affidavit filed by the petitioners that the first respondent was not allowed to retire on 31.5.1990, no material is available on record in regard thereto.
20. In such circumstances, we can come to a conclusion that without fulfilling the requirement of Rule 56(1)(c) of the Fundamental Rules, which is mandatory, the initiation of Disciplinary Proceedings against the first respondent is not sustainable under law and therefore, we are of the view that the very proceedings are liable to be set aside.
21. In the decision relied on by the learned counsel for the first respondent, same view was taken by the Division Bench of this Court when it has an opportunity to deal with a similar matter.
22. The Division Bench of this Court in N.M. Somasundaram v. The Director General of Police, Madras -4 and Ors. (1997 Writ L.R.120) has held as follows:
“A reading of Rule 56(a) and (c) together would lead to an irresistible conclusion that in order to retain a public servant or a Government servant in service on attaining his age of superannuation, a positive order in writing shall have to be passed by the Government giving the reasons as to on what grounds which should be on public grounds, a Government servant is retained in service. No doubt Rule 56(c) says that a Government servant under suspension on a charge of misconduct should not be required or permitted to retire of his reaching the date of compulsory retirement. It further says that he should be retained in service until the enquiry into the charge is conducted and a final order passed thereon by the Competent Authority. Therefore, 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. The instruction under Rule 56(c) also does not help the State Government. The instruction reads thus:-
“Whether a Government servant referred to in clause (c) is fully exonerated or not he shall be considered to have been on extension of service for the period from the date of compulsory retirement to the date of termination of the proceedings. During such an extension of service, the service rights which have accrued to the Government servant, shall freeze at the level reached on the date of compulsory retirement and the salary during the period shall not exceed the pension which has accrued to the Government servant on the date.”
It only provides that in a case where a Government servant is exonerated or not, he shall be considered to have been on extension of service for the period from the date of termination of the proceedings. The further words in this instruction are, during such an extension of service, the service rights which have accrued to the Government servant shall freeze at the level reached on the date of compulsory retirement and the salary during that period shall not exceed the pension, which has accrued to the Government servant on the date. The instruction only takes away the effect, if any, of the orders passed by the State Government in writing, retaining a Government servant even after attaining the age of superannuation. Therefore, it states that even retention does not help him for obtaining any service benefits and those service benefits will freeze on the date he attains the age of superannuation.”
23. What was observed in the above decision is squarely applicable to the case on hand.
24. Further, on a perusal of the sub-rules 2(a) and 6(b) to Rule 9 of the Tamil Nadu Pension Rules, which are extracted below, they reveal that they come into existence only in the event of fulfilling the requirements under Rule 56(1)(c) of the Fundamental Rules. Even it can be said that they are the extension of Rule 56 (1)(a) and (c) of the Fundamental Rules. In the event of non-compliance of Rule 56(1)(c) of the Fundamental Rules, the petitioners cannot seek the aid of the above said rules for their unjust act.
25. Sub Rule 2(a) to Rule 9 of the Tamil Nadu Pension Rules, 1978, reads as follows:
“2(a) The departmental proceeding referred to in sub-rule(1), if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:
Provided that where the departmental proceedings are instituted by an authority subordinate to the Government, that authority shall submit a report recording its findings to the Government.”
26. Sub-Rule 6(b) reads as follows:
“6(b) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner or if the Government servant has been placed under suspension from an earlier date, on such date; and”
27. We also find a ‘NOTE’ to Rule 32 which deals with Superannuation Pension.
28. Rule 32 of The Tamil Nadu Pension Rules reads as follows:
“Rule 32 : Superannuation Pension: – A superannuation pension is granted to a Government servant entitled or compelled, by rule, to retire at a particular age.
Explanation – For purposes of this rule –
(1) The date of compulsory retirement of a Government Servant in superior service is the date on which he attains the age of (58 years). The date of compulsory retirement of a Government servant in Last Grade Service is the date on which he attains the age of 60 years.
(2) The age of retirement of trained teachers in the educational institution under the management of Government is the date on which he attains the age of 58 years.
(3) The date of retirement in the case of persons who had taken part in the freedom struggle and courted imprisonment and who have been, appointed to the posts of social workers up the end of December 1965, shall be the date on which they attain the age of 60 years.
NOTE:- A Government servant under suspension, on a charge of misconduct, shall not be required or permitted to retire but shall be retained in service until the enquiry into the charge is concluded and final order is passed by a competent authority. ”
29. From the above note it is also clear that to proceed against a 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 is 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.
30. That apart, as rightly held by the Tribunal that keeping of the disciplinary proceedings alive for nearly one and a half decade against the retired Government servant, on whom the petitioners have no jurisdiction to proceed against him, is itself fatal to the disciplinary proceedings.
31. In the light of the above discussion and following the principles laid down by this Court, we are of the view that the order of the Tribunal is not suffered from any infirmity and no interference of this Court is warranted. However, the first respondent shall be paid all the retirement benefits within two months from the date of receipt of a copy of this order.
32. In result, the Writ Petitions fail and are dismissed. No costs. Connected W.P.M. Ps. are also dismissed.