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U. Duraikannu v/s State Commissioner for the Differently Abled & Another

    W.P.No.23125 of 2010

    Decided On, 07 September 2011

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAJA

    For the Petitioner: R.S. Anandan, Advocate. For the Respondents: K.V. Dhanapalan, AGP.



Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue Writ of certiorarified mandamus to call for the records relating to the first respondent herein pertaining to the orders in proceedings No.5725/Admn.2/2010, dated 31.08.2010 and quash the same in so far as the permission granted for retirement of the petitioner herein without prejudice to the criminal case contemplated against the petitioner is concerned and consequently direct the respondent to pass an order allowing the petitioner to retire from service on attaining the age of superannuation on 31.08.2010 without any stigma attached to it and confer all the retiral benefits with due regards to the petitioner's seniority and with interest.)

1. The present writ petition is directed against the impugned order passed by the first respondent, in his proceedings No.5725/Admn.2/2010, dated 31.08.2010 and to quash the same in so far as the permission granted for retirement of the petitioner without prejudice to the criminal case contemplated against the petitioner is concerned, with a direction to the respondent to pass an order allowing the petitioner to retire from service on attaining the age of superannuation on 31.08.2010 without any stigma attached to it and confer all the retiral benefits with due regards to the petitioner's seniority and with interest.

2. The petitioner had joined the Government service in the category of Office Assistant in the Tamil Nadu Basic Service on 22.05.1985, in the office of the Chief Superintendent, Government Rehabilitations Homes, DMS Complex, Chennai,

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n being sponsored by the employment exchange. Subsequent to the above, the said office was merged with the department of Social Welfare. Therefore, the petitioner came under the control of the second respondent/the Director of Social Welfare, Chennai, and after some time, he was promoted to the post of Junior Assistant in the Tamil Nadu Ministerial Service on 31.03.2004, and again, he was promoted to the post of Assistant on 05.03.2010. Thereafter, anticipating his retirement on 31.08.2010, the petitioner, on 11.08.2010, made a representation through the first respondent to the second respondent, requesting for a promotion to the post of Superintendent before the date of his retirement, namely, on 31.08.2010, so as to have some additional retirement and pensionary benefits. However, on 30.08.2010 at about 6 p.m., the second respondent had received a phone call from the office of the Deputy Chief Minister, who has introduced himself as a Personal Assistant to the Deputy Chief Minister, and has informed the second respondent to promote the petitioner to the post of Superintendent from the post of Assistant. Immediately thereafter, when the same was verified by the second respondent by making a call to the office of Deputy Chief Minister, the second respondent came to know that no such phone call was made by the Personal Assistant. Therefore, when the petitioner was to retire on the next date, namely, on 31.08.2010, on confirmation of the fact that the petitioner had committed offence of impersonation in order to get promotion to the post of Superintendent for the purpose of reaping additional retirement benefits, a complaint was made to prosecute the petitioner under Section 419 of IPC. Under this circumstances, the petitioner was permitted to retire from service, without prejudice to the criminal case contemplated against him. After the petitioner was permitted to retire from service, without prejudice to the criminal case, he was not paid with pensionary benefits by the first respondent, therefore, he made a representation before the first respondent on 20.09.2010 for release of the pensionary benefits. As the said representation has not been considered, the petitioner has filed the present writ petition for the aforesaid prayer.3. Assailing the impugned order, the learned counsel appearing for the petitioner submitted that the first respondent, being a borrowing authority, has no authority over the petitioner to pass an order of permitting him to retire from service, without prejudice to the criminal case, which is yet to be filed. Further, it was contended that from the date of his retirement, the petitioner has not been disbursed with his pensionary benefits on the guise of contemplation of a criminal case, which, as per law, is not permissible, inasmuch as no criminal case could be held as contemplated for retaining the pensionary benefits of a Government servant without any due sanction of law.4. In his further submission, it was argued that the first respondent, not being a cadre controlling authority or appointing authority, has no power to pass the impugned order permitting the petitioner to retire from service, without prejudice to the criminal case contemplated against him, inasmuch as as per the extant rules, if at all a criminal case or disciplinary case is pending, the person concerned has to be suspended from service and thereafter, he has to be retained in service by the appointing authority under Rule 56(1)(c) of the Fundamental Rules for the Tamil Nadu Government Servants. But, in the present case, no such procedure has been followed, and on the contrary, on a complaint preferred by the second respondent, which is yet to be culminated into a criminal case, the first respondent permitted the petitioner to retire him from service, without prejudice to the criminal case contemplated against him. Further, it was contended that the said impugned order has been served on the petitioner on 31.08.2010 at about 11.30 p.m., which is well after the office hours, rendering non-enforceable in the eye of law, because there was no employer and employee relationship between the petitioner and the respondents, since the petitioner had already retired from service on reaching the age of superannuation on the crucial date, namely, on 31.08.2010. Further, it is submitted that the first respondent have failed to see that there is no order retaining the petitioner from service pending contemplation of criminal case and thereby, he has not followed the mandatory provision of Rule 56(1)(c) to proceed against the petitioner.5. In support of his submissions, he has also relied upon a judgment of this Court in the case of Y.Raja Vs. the Joint Registrar of Co-operative Societies, Madurai (W.A.(MD).No.698 of 2010, dated 02.12.2010) and also relied upon another judgment in the case of K.Rajendran Vs. Senior District Collector, Tiruvellore (W.P.No.19707 of 2008, dated 02.02.2010) for a preposition that since there was no order passed under Rule 56 of the Fundamental Rules extending the period of service beyond the age of 58 years, the respondent has lost his jurisdiction to continue the disciplinary proceedings. On that basis, he prayed for allowing the present writ petition.6. Per contra, learned counsel appearing for the respondents submitted that when the petitioner was serving as Assistant, just 8 days prior to his retirement, he made a representation dated 11.08.2010 through the first respondent, to the second respondent seeking promotion to the post of Superintendent and further requested the second respondent to promote him to the post of Superintendent before his date of retirement in order to get additional retirement and pensionary benefits. The said representation was also forwarded to the concerned authority for appropriate action.7. When the matter stood thus, on 30.08.2010 at about 6 p.m., the second respondent received a phone call, who has introduced himself as a Personal Assistant to the Deputy Chief Minister and informed the second respondent to promote the petitioner to the post of Superintendent from the post of Assistant. Subsequently, when the same was verified by the second respondent, it was informed by the higher officers from the office of the Deputy Chief Minister that, no such phone call was made by the Personal Assistant of the Deputy Chief Minister to the office of the second respondent. Therefore, based on this verification, a police complaint was registered before the Assistant Director General of Police, CBCID, by presuming that the petitioner, in order to get promotion before his retirement, had made unanimous call impersonating as Personal Assistant to the Deputy Chief Minister. However, since such impersonation had taken place on 30.08.2010 at about 6 p.m., he was permitted to retire from service without prejudice to the criminal case as per the report dated 31.08.2010 of the appointing authority/the second respondent herein, therefore, there is no infirmity in the impugned order, permitting the petitioner to retire without prejudice to the criminal case contemplated against him.8. The above said contention of the learned counsel for the respondents finds force, inasmuch as the petitioner, by impersonating himself as a Personal Assistant to the Deputy Chief Minister, had made a fake telephone call and informed the second respondent to promote him to the post of Superintendent from the post of Assistant, that too, on 30.08.2010 at about 6 p.m., that is, just one day before his date of retirement, namely, on 31.08.2010. However, the second respondent immediately verified by making another phone call to the office of the Deputy Chief Minister. But, they have informed the second respondent that no such phone call was ever made by the Personal Assistant of the Deputy Chief Minister. Therefore, on the basis of a confirmation from the office of the Deputy Chief Minister, a police complaint was registered before the Assistant Director General of Police, CBCID, under Section 419 of IPC, since the petitioner had attempted to cheat the second respondent by impersonating himself as a Personal Assistant to the Deputy Chief Minister. Since there was only one day left out, as held by a Division Bench of this Court in Y.Raja's case (cited supra), a departmental proceeding, which was initiated while the Government servant was in service, shall, after the final retirement of the Government Servant, be deemed to be a proceeding under the 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. However, on account of his retirement, as per the impugned order, there can be no impediment to continue the proceedings, but it shall be deemed that it is a proceeding initiated under Rule 9 of the Pension Rules. In effect, on completion of such enquiry, the respondent cannot impose any punishment upon the petitioner, as provided in Rule 17(b) of the Rules. Instead, the Government can withhold or withdraw the pension as provided in Rule 9(1)(a) of the Rules, which reads as follows:-"9(1)(a);- the Government reserve to themselves the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement, and such withholding or withdrawing the pension may be effected irrespective of the fact whether or not any pecuniary loss on account of such grave misconduct or negligence was caused to the Government, to any local body or to any cooperative society comprising of government servants and registered under the Tamil Nadu Co-operative Societies Act, 1961;[provided that before passing an order under this sub-rule withholding or withdrawing the pension of a pensioner, the Tamil Nadu Public Service Commission shall be consulted if the petitioner does not agree to such withholding or withdrawal of the pension. The Tamil Nadu Public Service Commission need not be consulted in cases where the pensioner agrees to withholding or withdrawal of the pension but a copy of the order passed by the Government in such cases shall be sent to the commission.] "9. Further, for better appreciation of the case on hand, it is pertinent to have a perusal of Rule 9(2)(a) and 9(2)(b) of the Pension Rules, which read as follows:-"9(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.9(2)(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment:-(i) shall not be instituted save with the sanction of the Government;(ii) shall not be in respect of any event which took place more than four years before such institution; and(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service."A close reading of the above said both rules empowers the department to initiate the departmental proceedings after the retirement of a government servant. However, two conditions are prescribed, they are; the departmental proceedings shall not be instituted except with the sanction of the Government and shall not be in respect of any event which took place more than four years before such institution. In the present case, Rule 9(2)(b) cannot be pressed into service, the reason being that the petitioner said to have committed an impersonation by making a fake phone call posing himself as a Personal Assistant to the Deputy Chief Minister on 30.08.2010 at about 6 p.m. and at that time, the department hardly had only one day. However, the second respondent had verified within a reasonable time whether any real phone call had emanated from the office of the Deputy Chief Minister and on verification, it was proved that no such phone call was received from the office of the Deputy Chief Minister. This has been done within one day. Therefore, since the relieving order has to be passed within a day time, the respondent has rightly passed the impugned order dated 31.08.2010 permitting the petitioner to retire from service, without prejudice to the disciplinary proceedings. Because, within one day, namely, 31.08.2010, it would be impossible for the second respondent to get any order from the Government to retain the petitioner in service. As per the impugned order, there can be no impediment to continue the proceedings, but it shall be deemed that it is a proceeding initiated under Rule 9 of the Pension Rules. Therefore, as held by a Division Bench of this Court, the respondent cannot impose any punishment upon the petitioner, as provided in Rule 17(b) of the Rules, instead, the Government can withhold or withdraw the pension as provided in Rule 9(1)(a) of the Rules.10. Further, the argument of the learned counsel for the petitioner in respect of 56(1)(c) of the Fundamental Rules for the Tamil Nadu Government Servants shall not apply to him, because he was not under suspension on the date of his retirement. To put it more clearly, the petitioner till he retired from service on 31.08.2010, he was not placed under suspension. Further, when he received the impugned order on 31.08.2010, the relationship of the employer and employee ceased to exist. Therefore, the impugned order passed by the first respondent is valid in law. Hence, I do not find any merit in the writ petition filed by the petitioner.11. In result, with the aforesaid observations, the present writ petition is dismissed. No Costs. Consequently, connected miscellaneous petitions are closed.
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