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U. DURAIKANNU V/S STATE COMMISSIONER FOR THE DIFFERENTLY ABLED & ANOTHER, decided on Wednesday, September 7, 2011.
[ In the High Court of Madras, W.P.No.23125 of 2010. ] 07/09/2011
Judge(s) : T. RAJA
Advocate(s) : R.S. Anandan. K.V. Dhanapalan, AGP.
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judgment - (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 on 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.