1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.07.2011 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.7391 of 2011 AND M.P.(MD)Nos.1&2 of 2011 K.Sankaran .. Petitioner Vs. 1.The Agricultural Production Commissioner, and Secretary to Government, Agricultural Department, Secretariat, Chennai – 600 009. 2.The Commissioner of Agriculture, Chepauk, Chennai – 600 005. 3.The Joint Director of Agriculture, Pudukkottai, Pudukottai District. .. Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, calling for records pertaining to Letter No.27937/AA-2/06-4, dated 31.08.2006 passed by the 1st respondent and G.O.3(D)No.221, Agriculture (AA II) Department, issued by the first respondent dated 31.08.2006 in sofar as the words without prejudice to the disciplinary proceedings pending against him are concerned, and quash the same and further directing the respondents to give the retirement benefits to the petitioner within a stipulated period. For Petitioners : Mr.D.Gnanasekaran For Respondents : Mr.S.Chandrasekar, Govt.Advocate ORDER Challenge in the Writ Petition is to a letter dated 31.08.2006, passed by the Agricultural Production Commissioner and Secretary to Government, Chennai, by which, disciplinary proceedings have been initiated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and an order in G.O.3(D)No.221, Agriculture (AA II) Department, where the petitioner has been allowed to retire from service on attaining the age of superannuation on 31.08.2006, without prejudice to the disciplinary proceedings. Being aggrieved by the words, “without prejudice to the disciplinary proceedings” pending against him in the Government Orders, stated supra, the petitioner has filed the present writ petition. 2.According to the petitioner, he joined the Agricultural Department on 05.10.1966 and gradually reached the level of Administrative Officer on 10.03.2005. On the verge of his retirement, he was issued with a first charge memorandum dated 31.08.2006, alleging that while he was working as Assistant (Accounts) in the Office of the Assistant Director of Agriculture https://hcservices.ecourts.gov.in/hcservices/ 2 (Oilseeds), Sivagangai, he has colluded with one Kaliappan, Assistant Director of Agriculture, Sivagangai and handed over a sum of Rs.21,280/- to one K.Ramaiah, instead of disbursement to the riots concerned either by cheque or draft after obtaining stamped receipts, and thus, violated rule 20(1) of the Tamil Nadu Government Servant Conduct Rules, 1973. As the petitioner was due to retire from service on 31.06.1986, by order in G.O.3 (D)No.221, Agriculture (AA II) Department, dated 31.08.2006, he was permitted to retire from service, but, without prejudice to the above said disciplinary proceedings. 3.According to the petitioner, he was given provisional pension, Gratuity and other retirement benefits, after withholding the above said sum of Rs.21,280/-. It is the further case of the petitioner that an enquiry officer was appointed in the year 2008, but no enquiry was conducted so far. He further submitted that if the disciplinary proceedings are permitted to be conducted, at this distant time, after a period of 25 years, he shall not be able to defend. According to him, the charge memo issued against a co-delinquent for the alleged misconduct has been quashed by this Court in W.P.(MD)No.2322 of 2007, dated 23.04.2010, on the ground of inordinate delay. It is his further submission that though the charge memorandum was issued on 31.08.2006, even after a lapse of five years, it did not reach finality. In these circumstances, he has filed the present writ petition for the relief stated supra. 4.On the above said pleadings and placing reliance on the order passed by this Court in W.P.(MD)No.2322 of 2007, dated 23.04.2010, in respect of a co-delinquent, learned counsel appearing for the petitioner submitted that in respect of the proceedings initiated against the above said Government official under rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, the Charge Memo has been set aside by this Court on the ground of inordinate delay and therefore, as there is similarity of facts and law, the judgment stated supra squarely applies to the facts of this case. He also submitted that though the judgment in respect of Mr.Kaliyappan, a co-delinquent, has been passed on 23.04.2010, there is no appeal so far. 5.Mr.S.Chandrasekar, learned Government Advocate appearing for the respondents objected to the relief sought for by the petitioner and submitted that departmental proceedings initiated can be continued against a government servant, even after his retirement, eventhough no punishment can be imposed under rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and the said proceedings are deemed to have been converted into rule 9 of the Tamil Nadu Pension Rules. The objection of the learned Government Advocate is placed on record. 6.To ascertain as to whether the charge levelled against the petitioner and Thiru S.Kaliyappan, former Assistant Director of Agriculture, Sivagangai, are identical, learned counsel for the petitioner was directed to produce the charge memorandum issued to the co-delinquent. 7.The charge levelled against the writ petitioner is as follows:- “Charge: While Thiru K.Ramiah was working as the Assistant Director of Agricultural (Oil seeds) on 21.5.1986 had https://hcservices.ecourts.gov.in/hcservices/ 3 sanctioned an amount of Rs.21,280/- towards the truthful subsidy for the Groundnut oilseeds procured during the period 1985-1986 vide D.C. Bills 1 to 3/8-87. He was relieved on 22.05.1986 by Thiru S.Kaliappan. The said amount was encashed on 30.05.1986. On the request of the Thiru K.Ramaiah, formerly Assistant Director of Agriculture, the said amount was handed over to Thiru K.Ramaiah by you (Thiru K.Sankaran) while you were working as the Assistant (Accounts), Office of the Assistant Director of Agriculture, Sivagangai in collusion with Thiru Kaliappan, Assistant Director of Agriculture, Sivangangai instead of giving the said amount to the real beneficiaries in the form of Draft or cheque after getting stamped receipts. Thus, you have violated rule 20(1) of Tamil Nadu Government Servant Conduct Rule 1973.” 8.The charge levelled against Thiru Kaliyappan, the former Assistant Director of Agriculture (Oilseeds) Sivagangai, is as follows:- Fw;wrhl;L 1 22.5.88 md;W rptfA;if Btshz;ik cjtp naf;Feh; (vtp) Mfg; gzpBaw;w jhA;fs; 30.5.86 md;W gzkhf;fg;gl;l 21280 fpByh epyf;fliy tpijfSf;fhd cz;ik epiy khdpak; bjhif U.21280/-I rk;ge;jg;gl;l tptrhapfSf;F Beuoahf tHA;fhky; rptfA;if Btshz;ik cjtp naf;Feh; (vtp) mYtyfj;jpy; Kd;dhs; cjtpahsh; jpU.Bf.rA;fud;, Jiza[ld; mg;bghGJ Btshz;ik cjtp naf;Feh; bghWg;gpy; ny;yhj jpU.Bf.nuhikah Kd;dhs; rptfA;if Btshz;ik cjtp naf;Feh; (vtp) mth;fsplk; xg;gilj;Js;sjd; PKyk; mth; muR gzj;ijf; ifahly; bra;a cWJizahf nUe;Js;sPh;fs;. Fw;wrhl;L 2 epyf;fliy tpijfs; tHA;apajhfj; Fwpg;gpl;Ls;s tptrhapfSf;Fwpa cz;ik epiy khdpak; bjhifia BgA;fh;!; brf; my;yJ okhd;l; ouhg;l; PKyk; bgw;W Beuoahf mDg;gj; jtwpa[s;sjd; PKyk; jA;fs; flikapypUe;Jk; bghWg;g[fspypUe;Jk; jtwpa[s;sPh;fs;. ““ 9.Reading of the above shows that there is similarity of charge pertaining to disbursement of a sum of Rs.21,280/- to the riots concerned. Perusal of the order made in W.P.No.2322 of 2007, dated 23.04.2010 shows that while the disciplinary proceedings initiated against the former Assistant Director of Agriculture (Oilseeds) Sivagangai and the Government Order were assailed on the ground of delay and other points, a learned single Judge of this Court considered the rival submissions and allowed the writ petition by quashing the disciplinary proceedings and the reasons recorded are as follows:- “5. According to me, for initiating proceedings against the government servant and to continue the same, there must be relationship of masters and servants exist between the employer and employee. Once a person is allowed to retire, he ceases to be the employee of the https://hcservices.ecourts.gov.in/hcservices/ 4 government and therefore even though the government reserves the right to proceed against the enquiry, while permitting the employee to retire, that will not give any right to the government to proceed with the enquiry. 6.In similar circumstances, this Court has held in the judgment reported in (2009) 1 MLJ 761 (Kootha Pillai Vs. Commissioner, Municipal Administration, Chennai and Others) that permission to retire an employee without prejudice to the disciplinary proceedings is not authorized under any rule and hence the said permission is illegal without jurisdiction. Further under rule 56 (1)(c) of the Fundamental Rules, when the department decided to continue the disciplinary proceedings against the government servant’s retirement, he should be retained in service. 7. Therefore, considering the fundamental rules 56 (1)(c), the learned Judge held that after permitting a person to retire, he should not proceed with the enquiry. Following the same, I have also rendered a judgment in W.P.NO.8259 of 2009 in similar circumstances. 8. Further, admittedly, in respect of certain misconducts alleged to have taken place in the year 1986, charge sheet was issued in the year 2001 and explanation was stated in the counter for the delay in laying the charge sheet. 9. In the judgment in P.V.Mahadevan Vs. M.D.Tamil Nadu Housing Board reported in 2005(4) CTC SC 403, the Hon'ble Supreme Court has held that when disciplinary proceedings were initiated after a lapse of 10 years and the explanation was also not acceptable, permitting the disciplinary proceedings to continue in the prejudicial to the public interest and interest of employee and quashed the charge sheet. 10. As stated supra, in this case also, the respondent has not stated any reason for the delay in filing charge sheet and as stated supra, the respondents are not entitled to continue the disciplinary proceedings for allowing a person to retire. For all these reasons, the impugned proceeding is liable to be quashed and the writ petition is liable to be allowed.” 10.As stated supra, there is similarity of facts and law and that inordinary delay of 20 years in initiating the proceedings, and further, after the issuance of the Chargememo, no enquiry has been conducted, even after a lapse five years, the delay has not been explained, even in the earlier writ petition. 11.In view of the above, this Court is inclined to follow the decision made in W.P.No.2002 of 2007, dated 23.04.2010. Accordingly, the impugned orders in the present writ petition are set aside and the writ petition is https://hcservices.ecourts.gov.in/hcservices/ 5 allowed. There shall be a direction to the respondents to give retirement benefits to the petitioner within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed. SD ASST REGISTRAR ( RECORDS ) /TRUE COPY/ SUB ASST REGISTRAR MPK To 1.The Agricultural Production Commissioner, and Secretary to Government, Agricultural Department, Secretariat, Chennai – 600 009. 2.The Commissioner of Agriculture, Chepauk, Chennai – 600 005. 3.The Joint Director of Agriculture, Pudukkottai, Pudukottai District. 1CC TO MR. D.GNANASEKARAN,ADVOCATE, SR: 22085: 1CC TO THE SPL. GOVT PLEADER SR: 21982: DM::2011:JULY::20:: ORDER MADE IN W.P.(MD)No.7391 of 2011 06.07.2011 5P:6C:: https://hcservices.ecourts.gov.in/hcservices/