IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.02.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.5755/2008, & M.P.No.1&2/2008 W.P.Nos.13724, 17419 to 17421/2009 W.P.No.5755/2008 1.K.Sreenivasan ... Petitioner -vs- 1.State of Tamilnadu, rep. by its Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai -9. 2.The Commissioner of Municipal Administration, Chepauk, Chennai – 5. 3.The Commissioner of Town Panchayat, Kuralagam, Chennai – 108. 4.The Executive Officer, Maraimalai Nagar III Grade Municipality, Maraimalai Nagar, Kancheepuram District. ... Respondents W.P.No.13724/2009 K.Sreenivasan ... Petitioner Vs. 1.State of Tamilnadu, rep. by its Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai -9. 2.The Director of Municipal Administration Ezhilagam, Chepauk, Chennai – 600 005. https://hcservices.ecourts.gov.in/hcservices/ 3.The Director of Town Panchayat Kuralagam Chennai – 600 108. ... Respondents W.P.Nos.17419 to 17421/2009 K.Sreenivasan ... Petitioner in W.P.Nos.17419 to 17421/09 -vs- 1.State of Tamilnadu, rep. by its Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai -9. 2.The Director of Municipal Administration, Ezhilagam, Chepuak, Chennai – 600 005. 3.The Director of Town Panchayat, Kuralagam, Chennai – 108. 4.The Assistant Director of Town Panchayats, Kancheepuram Zone, Collectorate Building, Kancheepuram ... Respondents in W.P.Nos.17419 to 17421/09 Prayer in W.P.No.5755/2008 : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records of the order passed by the third respondent relating to charge memo issued in Letter/Memo/Na.Ka.8120/97/B2 dated 09.05.1998 and quash the same; and direct the respondents to allow the petitioner to retire from service as he reached the age of super annuation on 30.06.1997 with all consequential and monetary benefits along with interest. Prayer in W.P.No. 13724/2009 The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Mandamus to for bear the respondents from proceedings with the departmental proceedings pending against the petitioner and direct the respondents to settle the terminal benefits and arrears of pension from 01.07.1997 and continue to pay the monthly pension to the petitioner. Common prayer in W.P.Nos. 17419 to 17421/2009 The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorari to call for the proceedings https://hcservices.ecourts.gov.in/hcservices/ of the first respondent made in his letter No.32389/Peru 4/2006-21, No.32389/Peru 4/2006-3 dated 13.07.2009, No.1705/Na. Pa. 4/2000-49 and quash the said order dated 13.07.2009 & 04.08.2009 respectively. For Petitioners in all W.Ps.: Mr.V.Ramajegadeesan For Respondents in all W.Ps: Mr.P.Subramani AGP(W) for R1-R3 COMMON ORDER By consent the main Writ Petitions are taken up for disposal and since the issue involved is common the Writ Petitions are disposed off by a common order. 2. The prayer in W.P.No.5755 of 2008 is for issue of a Writ of Certiorarified Mandamus to quash the charge memo dated 9.5.1998 and to allow the Petitioner to retire from service on the date of his superannuation, 30.06.1997 with all consequential benefits. 3. W.P.No.13724 of 2009 has been filed for a Writ of Mandamus to forbear the Respondents from proceeding with the Departmental proceedings pending against the Petitioner and direct the Respondents to settle the terminal benefits and arrears of pension from 01.07.1997 and continue to pay monthly pension. 4. W.P.No.17419 to 17421 of 2009 have been filed to quash the Government Letter dated 13.07.2009, 13.07.2009 and 4.8.2008 respectively by which the 1st Respondent proposed to impose a cut in pension payable to the petitioner for a stated period. 5. The Petitioner was initially appointed as a Lab Attender during 1958 in the erstwhile District Board Service. He was promoted as Junior Assistant during 1959, as Executive Officer Grade I during 1971, Executive Officer Selection Grade during 1982 and as Executive Officer Special Grade during 1994. The petitioner's name found place in the panel prepared for promotion to the post of Assistant Director of Town Panchayat in the panel for 1993, 1994 and 1995. Though the Petitioner's name figured as Serial No.56 in the 1995 panel, he was not considered for promotion due to disciplinary action initiated against the petitioner, which according to him was initiated to prevent him from being considered for promotion. The Petitioner was to attain the age of superannuation on 30.06.1997. While so a charge memo dated 30.04.1996 came to be issued and the Petitioner submitted his explanation, an enquiry was order and based on such enquiry report the charges were dropped. However the 1st Respondent did not agree with such conclusion and by Government order dated 6.3.1997 directed fresh enquiry to be conducted. Thereafter the Petitioner was placed under suspension on 13.6.1997 and not allowed to retire on the date of his superannuation i.e. 30.06.1997. It is stated that an enquiry was conducted pursuant to the Government order dated 6.3.1997 https://hcservices.ecourts.gov.in/hcservices/ and after inordinate delay. The Petitioner was called upon to submit his explanation in 2005 and ultimately by G.O.Ms.No.94 dated 7.2.2006 the charge was held not proved. Prior to these events another charge memo came to be issued on 9.5.1998 and though the Petitioner submitted his explanation and the Enquiry Officer also found that the charges were not proved no final order was issued from 21.8.1998. Therefore the Petitioner has challenged the charge memo dated 9.5.1998 in W.P.No.5755 of 2008 mainly on the ground that the disciplinary proceedings has not been concluded within a reasonable period and kept to pending for over 10 years. 6. The Petitioner while working as Executive Officer in Maraimalai Nagar Town Panchayat was served with the charge memo dated 13.6.1997 and enquiry was conducted and the Enquiry Officer by report dated 27.9.1998 held that the charges were proved and the matter was kept pending by the Government since 13.12.2002. The Petitioner was issued with another charge memo dated 1.8.1997 in which the Enquiry Officer submitted a report holding that the charges are not proved but the Government choose to differ with the findings of the Enquiry Officer and the matter was kept pending at that stage since 19.12.2006. The Petitioner challenged these charge memos dated 13.6.1997 and 1.8.1997 before this Court by filing W.P.No.5753 and 5754 of 2009. This Court by two separate orders both dated 19.11.2008 directed to complete the enquiry and pass final orders on or before 31.3.2009 and 31.1.2009 respectively. It is after the disposal of these Writ Petitions the Petitioner have filed W.P.No.5755 of 2008 referred to above. 7. The Petitioner was to attain the age of superannuation on 30.06.1997 but was placed under suspension on 13.6.1997 and not allowed to retire and orders were passed extending the service of the Petitioner till 30.06.2009. Thereafter the Government by G.O.D.No.231 dated 2.6.2009 revoked the orders of suspension and allowed the Petitioner to retire with effect from 30.06.1997 by invoking Rule 17 (e) of the Tamilnadu Civil Services (Discipline and Appeal) Rules and this permission to retire was without prejudice to the disciplinary cases pending against the Petitioner. Since the charges framed against Petitioner was pending from 1997 onwards and inspite of the earlier directions of this Court to finalise the same within a time frame, since no action was taken, the Petitioner filed W.P.No.13724 of 2009 to forbear the Respondents from proceeding with the departmental proceedings and direct the Respondents to settle the terminal benefits and arrears of pension from 1.7.1997. The Petitioner contended in the said Writ Petition that the Respondents have no authority or jurisdiction under the fundamental rules or the pension rules to continue the disciplinary proceedings after the Petitioner was permitted to the retire, merely because the Petitioner was permitted to retire without prejudice to the departmental proceedings. While W.P.No.13724 of 2009 was pending the 1st Respondent issued 3 notices invoking rule 9 of the Tamilnadu Pension Rules https://hcservices.ecourts.gov.in/hcservices/ calling upon the Petitioner as to why recovery of pension at the rate of Rs.500 / Rs.200 / Rs.1000, respectively, should not be recovered from the Petitioner pension in respect of the charges dated 9.5.1998, 13.6.1997 and 1.8.1997 respectively. These three notices issued against the Petitioner invoking Rule 9 of the Pension Rules are impugned in W.P.No.17419 to 17421 of 2009. 8. Mr.V.Ramajagadeesan, the learned counsel for the petitioner would assail the correctness of the impugned orders and the action of the Respondents mainly on the ground that there is no jurisdiction for the Respondent to issue the impugned notices invoking Rule 9 of the Pension Rules. The Learned Counsel would content that the 1st Respondent by exercising powers under Rule 56 (1) (c) of the Fundamental Rules extended the service of the Petitioner beyond his date of superannuation for 11 years from 1997 to facilitate the Government to finalise the Disciplinary Proceedings and the Government having not passed final orders within the period of 11 years cannot invoke Rule 9 of the Tamilnadu Pension Rules after the Petitioner was permitted to retire by G.O.D.No.231 dated 2.6.2009. The Learned Counsel would further contend that though in the Government order dated 2.6.2001 it was stated that the Government in exercise of its powers under sub rule (e) (6) of Rule 17 of the Tamilnadu Civil Services (Discipline and Appeal) Rules revoked the orders of suspension and allowed the petitioner to retire with effect from 30.06.1997 without prejudice to the Disciplinary cases pending against him the same cannot clothe the 1st Respondent the power to proceed against the Petitioner under the fundamental rules or under the Tamilnadu Pension Rules. That the provisions of the Tamilnadu Pension Rules would have no application to cases were the power of extension of service has already been exercised under F.R. 56 (1) (c) of the Fundamental Rules. The Learned counsel placed reliance on the decision of this Court in P.S.Kasturi vs. Commissioner Municipal Administration, (2009) 3 MLJ 583 in support of his contention. The Learned Counsel also placed reliance on the decision of the Hon'ble Supreme Court in P.V.Mahadevan vs. M.D.Tamilnadu Housing Board, 2005 (4) CTC 403 and submitted that the inordinate delay in finalising the disciplinary proceedings has caused mental agony and suffering to the Petitioner which was more than the punishment and therefore the impugned action of the Respondent has to be setaside and the Writ Petitions have to be allowed. 9. Though Counter Affidavit has not been filed the Learned Additional Government Pleader based on Written instructions would contended that the charges against the Petitioner were grave and therefore the Government thought it fit to differ from the conclusion of the Director of Town Panchayat and ordered for fresh enquiry. The Learned Additional Government Pleader by relying upon the sequence of events would contend that the disciplinary proceedings were proceeded against the Petitioner in a proper manner and in view of the allegations against the Petitioner the Department proceedings were https://hcservices.ecourts.gov.in/hcservices/ conducted in the proper manner and the services of the Petitioner were periodically extended and finally after the petitioner was acquitted in C.C.No.124 of 2002 by the Judicial Magistrate Court, Chegalpattu on 1.7.2009 under section 248 (1) Cr.P.C., the Petitioner was permitted to retire by G.O.2D No.231 dated 2.6.2009 and such permission to retire was without prejudice to the disciplinary cases pending against the Petitioner. Therefore the Learned Additional Government Pleader would submit that the Respondent has jurisdiction to issue the impugned order and the impugned orders are only show cause notices and therefore the Petitioner could submit is explanation to the same and the Writ petitions are liable to be dismissed. It is to be noted that there is no explanation as to why the disciplinary proceedings were not concluded inspite of the earlier orders passed by this Court in W.P.No.5753 and 5754 of 2008 fixing an outer time limit for concluding the disciplinary action. 10. Though detailed submissions have been made by the learned counsel for the petitioner and the learned Additional Government Pleader on the facts of the disciplinary cases pending against the Petitioner, this Court does not propose to go in to such questions since the ground of challenge is on the ground lack of jurisdiction, which is a legal issue to be considered. Therefore the question for consideration before this Court in all these Writ Petitions are as to whether the 1st Respondent having permitted the Petitioner to retire without prejudice to the disciplinary proceedings pending against the Petitioner is justified in issuing the impugned notices proposing to impose a cut in pension by invoking Rule 9 of the Pension Rules. The further legal issue is when Rule 56 (1) (c ) of the Fundamental rules prescribes a particular method for taking action against a Government Servant after retirement whether the Respondents can now initiate proceedings under Rule 9 of the Pension Rules for imposing a cut in pension. Further whether inordinate delay in concluding the disciplinary action has resulted in prejudice to the Petitioner and on that ground the impugned notices could be quashed. These issues came up for consideration before this Court in the case of P.S.Kasturi vs. Commissioner Municipal Administration referred supra, the Learned Judge (Justice S.Manikumar) after considering Rule 56 (1) of the Fundamental Rules and the decisions of the Hon'ble Supreme Court in Bhagirathi Jena vs. Board of Director O.S.F.C., (1999) 3 SCC 666 and the decision of this Court in State of Tamilnadu vs. R.Karupiah, 2005 (3) CTC 4 and the Hon'ble Division Bench of this Court in P.Muthusamy vs. Tamilnadu Cements Corporation Limited (2006) 4 MLJ 504 and N.Kunnai Gowder vs. Coimbatore District Co-operative Milk Producers Union Limited, 2007 (5) CTC 491 held as follows: "39. Rule 56(1)(c) of the Fundamental Rules prescribe a mandatory procedure to be followed, when the department decides to initiate or continue disciplinary action against a Government servant, after his retirement. Rule 56(1)(a) of the Fundamental Rules states that every Government https://hcservices.ecourts.gov.in/hcservices/ 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 58 years and he should 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 should not be retained after the age of 60 years except in very special circumstances. 40. Rules 56(1)(c) is an exception to the Rule 56(1) (a) of the Fundamental Rules and it states that if a Government servant is under suspension on a charge of misconduct or against whom an enquiry into grave charges of criminal misconduct or allegations of Criminal misconduct is pending or against whom an enquiry into grave charges is contemplated or is pending or 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 of the above mentioned nature is concluded and a final order is passed therein, Thus it could be seen that Rule 56(1)(a) and 56(1)(3) mandate that a Government servant has to be retained in service, if grave charges and in the absence of retention of the government servant, no fresh departmental proceedings can be initiated against him after retirement. Reading of the Fundamental Rules, makes it clear that when a Government servant reaches the age of superannuation, the service rules applicable to him should enable or authorise the competent authority to retain him in service for the completion of the enquiry. A government servant is on a contract of employment subject to the service conditions of Master and servant relationship and the said relationship ceases to have effect on the retirement of the government servant, except for payment of pension and other retrial benefits. Therefore, unless there is an express order issued by the competent authority under FR 56(1)(c), retaining him in service, the respondent or any other authority cannot take shelter, quoting in the retirement order that he is permitted to retire, without prejudice to the departmental action, being taken against him. 41. Neither Tamil Nadu Municipal Subordinate Service (Discipline and Appeal) Rules applicable to the use of the petitioner nor Tamil Nadu Civil Services (Discipline and Appeal) Rules, authorise the respondents to continue disciplinary proceedings or permit them to initiate fresh action after retirement, without placing the employee of the municipality or the government servant, as the case may be, under suspension before attaining the age of superannuation. When Rule 56(1)(c) of the Fundamental Rules, contemplates a condition of placing a Government servant under suspension, for the purpose of conducting an enquiry into the charges of https://hcservices.ecourts.gov.in/hcservices/ misconduct or enquiry in to grave charges under contemplation and for other criminal misconduct, the said procedure ought to have been followed by the respondents, by retaining fie petitioner in service for the purpose of holding an enquiry into she alleged charges. Retention of a government servant in service is a sine quo non for initiating conducting disciplinary proceedings, after retirement." 11. In the decision rendered in the case of P.S.Kasturi, the question as to whether reserving the right to take disciplinary action against the Petitioner after permitting him to retire without suspending him from service his contrary to F.R.56 (1) (c) was also considered and in paragraph 48 the Learned Judge held as follows: "48. Rule 56(1)(a) of the Fundamental Rules states that 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 58 years. Rue 56(1) (c) of the said Rules is an exception, by which the relationship of master and servant, as between the government and its servant, is retained even after he attains the age of superannuation, by suspending him from service and by another order of not permitting him to retire, for the purpose of conducting an enquiry, or trial before the Court of law. When exception to Rule 56(1)(a) warrants suspension under FR 56(1)(c) and another specific order of not permitting him to retire from service, the authorities are precluded from action otherwise. Therefore, as rightly contended by the learned counsel for the petitioner that if a statute prescribes a particular thing to be done in a particular manner, it should be done in the same manner and not otherwise and more particularly, the result of an enquiry into grave charges is likely to deprive a government servant or an employee of the local body of his retiral benefits. Therefore, the impugned order of the second respondent, reserving the right to take disciplinary action against the petitioner, after permitting him to retire, without suspending him from service is contrary to FR 56(1)(c) and therefore, impugned order is liable to be set aside." 12. The other question as regards to delay in finalising the disciplinary proceedings was also considered by the Learned Judge after placing reliance of the decisions in State of Madhya Pradesh vs. Bani Singh and another (1990) Supp SCC 738, In State of A.P. v. N.Radhakrishnan AIR 1998 SC 1833 (1998) 4 SCC 154, In Union of India v. CAT 2005 (2) CTC 169 (DB), In P.V. Mahadevan v. M.D. Tamilnadu Housing Board 2005 (4) CTC 403, In the Special Commissioner and Commissioner of Commercial Taxes, Chapauk vs. N.Sivasamy 2005 (5) CTC 451, In R.Tirupathy and others v. District Collector, Madurai https://hcservices.ecourts.gov.in/hcservices/ District and others 2006 (2) CTC 574, The Supreme Court in M.V.Bijlani v. Union of India and others (2006) 5 SCC 88, In M.Elangovan v. Trichy District Central Cooperative Bank Ltd., 2006 (2) CTC 635 and the Learned Judge concluded the impugned order therein was liable to be struck down also on the ground of inordinate and unexplained delay. 13. Having considered the facts and circumstances of the present case I am fully convinced that the decision the case of P.S.Kasturi, referred supra is squarely applicable to the facts and the circumstances of the present case and all the questions framed above are to be answered in favour of the Petitioner. Thus it has to be held that the order permitting the Petitioner to retire without prejudice to the disciplinary action is without jurisdiction and when a particular mode has been prescribed under Rule 56 (1) (c ) of the Fundamental rules to take action against a Government servant it has to be done in such manner alone and not otherwise and consequently the impugned notices issued invoking Rule 9 of the Pension Rule has to be held as without jurisdiction. 14. Coming to the next aspect regarding inordinate delay in finalising the disciplinary proceedings, it is to be noted that the 1st charge memo came to be issued while the Petitioner was in service on 30.04.1996. Thereafter the Petitioner was placed under suspension on 13.6.1997 and not permitted to retire on the date of his superannuation i.e. 30.06.1997. Thereafter the order of suspension came to be periodically extended for over 11 years till the Petitioner was permitted to retire by G.O.2D No.231 dated 2.6.2009. This Court in W.P.No.5753 of 2008 and 5754 of 2008, which were filed to quash the charge memos dated 13.6.1997 and 1.8.1997 respectively, disposed off the writ petitions giving direction to conclude the disciplinary proceedings within 31.1.2009 and 31.3.2009 respectively, which direction was not complied with. Infact while disposing of the Writ Petitions time was sought for by the respondents to complete the enquiry and pass final orders and based on such submission the Writ petitions were disposed off giving a specified date to finalise the proceedings. However the 1st Respondent did not comply with the direction issued and there is no reasons given for such compliance. In my view the delay remains unexplained and it has caused great mental agony to the petitioner which is more than the punishment now proposed in the impugned notices, proposing to impose a cut in pension of Rs.500 / Rs.200 / Rs.1000 respectively. From the facts of the case it could be seen that the Petitioner had co-operated in the conduct of the disciplinary proceedings and in respect of the 1st charge dated 30.04.1996 after enquiry the charges were dropped. However the Government choose to defer with the finding and ordered for fresh enquiry in G.O.D.No.88 dated 6.3.1997. Thereafter the Petitioner submitted further explanation and ultimately the Government in G.O.D. No.94 dated 7.2.2006 dropped the charges against the Petitioner. In respect of the 2nd charge memo dated 9.5.1998 https://hcservices.ecourts.gov.in/hcservices/ though enquiry was completed and the Enquiry Officer held that the charges were proved no final orders were passed from 21.8.1998 and only now the impugned notice on 13.7.2009 proposing to impose a pension cut has been issued after 12 years from the date of charge memo. Likewise in respect of the charge memo dated 13.6.1997 the Petitioner submitted his explanation on 9.3.1998, enquiry was conducted and the enquiry report was given on 20.8.1998 and the 2nd Respondent passed orders on 27.9.1998 for 12 years and matter was kept pending, and in respect of the charge memo dated 1.8.1997 the entire enquiry proceedings were concluded and the Petitioner also submitted his explanation on 2.8.1998. In respect of these two charge memos this Court in W.P.No.5753 and 5754 of 2008 directed the matter to be concluded before 31.3.2009 / 31.1.2009 respectively and inspite of the same no action appears have been taken. The order passed by this Court granting time to pass final orders would not have the effect of wiping out the delay in finalising the matter as the 1st Respondent did not choose to avail the direction issued by this Court. In fact failure to obey the direction amounts to disobedience of the direction issued. Having failed to pass orders within the time limit permitted by this Court, it has to be construed that no action was taken within a reasonable time and the delay has to be reckoned from 1998 onwards. Hence I am fully convinced that the entire disciplinary proceedings initiated against the Petitioner deserves to be set aside. 15. For all the above reasons all the Writ Petitions are allowed, the impugned notices dated 13.7.2009, 13.7.2009 and 4.8.2009 are quashed and the Respondents are directed to settle the entire