IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.03.2011 Coram THE HON’BLE MR. JUSTICE VINOD K.SHARMA W.P.No.21631 of 2010 & M.P.No.1 of 2010 K.O.Bhupathy .. Petitioner .. Vs .. 1. The Secretary to Government Educational Department Chennai-1 2. The Director of Collegiate Education, College Road, Nungambakkam, Chennai 3. The Principal The Accountant General (A&E) (Pension) Tamilnadu Teynampet, Chennai-600 018. 4. The Principal Arignar Anna Government Arts College Cheyyar-604 407 ... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus by calling for records relating to the charge memo in letter No.51080/F1/92-93 dated 06.05.1993 issued by the 1st respondent and quash the same and to consequently direct the third respondent and fourth respondent to settle the arrears of pensionary benefits due to the petitioner with interest. For Petitioner : Ms.Rajeni Ramadass For Respondents : Mrs.E.Ranganayaki O R D E R The petitioner has approached this Court, with a prayer for issuance of a writ in the nature of Certiorari to set aside the charge memo dated 06.05.1993 issued by the 1st respondent and quash the same and consequently direct the third and the fourth respondent, to settle the arrears of pensionary benefits due to the petitioner with interest. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner was appointed as demonstrator in Zoology in Government Arts College, Coimbatore on August 1956. He was promoted as Asst. Professor of Zoology in Government Arts College in the year 1960 and thereafter as Head of Department of zoology. The petitioner was thereafter transferred to Kilpauk Medical College as Professor of Biology. The petitioner was included in the three member Admission Committee for admission of students in Government Arts College, Ooty for the year 1990-1991. The committee was headed by the Principal of the college. After completion of the admission processes certain complaints were received against the committee with regard to the irregularities in admission of the students. On the complaints, the principal of the college was suspended and other committee members were asked to proceed on leave. The respondent was transferred to Arignar Anna Government Arts College, Cheyyar, and allowed to retire on attaining the super annuation subject to the out come of the enquiry which was said to be pending against the petitioner. The order permitting the petitioner to retire reads as under: ABSTRACT TAMIL NADU COLLEGIATE EDUCATIONAL SERVICE – Thiru K.O.Boopathy, Selection Grade Lecturer in Zoology, Government Arts College, Cheyyar – Relief of attaining the age of superannuation Orders – Issued. - - - - - - - - - - - - - - - - - - - - - - - - EDUCATION(FI)DEPARTMENT G.O.(MS)No.715 DATED:29.6.1991. From the Director of Collegiate Education, Letter Rc.No.9272/E/91, dated 03.06.1991. ORDER:- The Director of Collegiate Education has brought to the notice of the Government that large scale irregularities have been committed in the admission of students for the year 1990- 91 in Government Arts College, Ooty. 2. Thiru N.Sudarsana Babu, Principal, Government Arts College, Ooty is the Chairman of the Student Admission Committee. Thiruvalargal K.O.Boopathy, selection Grade Lecturer in Zoology, T.M.Kullan, Selection Grade Lecturer in History, and N.M.Viswanathan, Selection Grade Lecturer in Economics are the members of the Admission Committee. 3. The Committee which was constituted to enquire into the alleged malpractices has concluded on completion of enquiry that there were believable reasons of the allegations of https://hcservices.ecourts.gov.in/hcservices/ money changing hand illegally for securing admission. The Director of Collegiate Education has sent a copy of the report of the Committee for appropriate action. Based on the recommendation of the Committee a detailed enquiry is being conducted by the appropriate authority against Thiru K.O.Boopathy. He is due to retire on 30.06.1991 on superannuation and the individual has not opted for re-employment till 31.5.92, the concession given to the teachers. 4. In view of the pendency of the enquiry by the appropriate authority against Thiru K.O.Boopathy for the alleged malpractices in the Students admission for 1990-91 in Government Arts College, Ooty, the Government have examined the question whether to allow him to retire on attaining the age of superannuation. 5. The Government after careful examination now direct that Thiru K.O.Boopathy, Selection Grade Lecturer in Zoology, Government Arts College, Cheyyar be permitted to retire with effect from 30.6.91 A.N on the attaining the age of Superannuation without prejudice to the outcome of the enquiry conducted by the appropriate authority against him. 3. The order on the face of it, is the outcome of non application of mind, in as much as on the date of retirement of petitioner, no enquiry was pending against him, as admittedly, the charge sheet was issued to the petitioner on 06.05.1993 i.e after more than two years of his retirement. 4. The reading of the order further shows that no order was passed, to retain the petitioner in service in view of the contemplated enquiry. The enquiry therefore is being conducted , in violation of Fundamental Rule 56(1) (c) which reads as under: 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 attins 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 https://hcservices.ecourts.gov.in/hcservices/ 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 opinionn of he 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. 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 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 retirement and the salary during that period shall not exceed the pension which has accrued to the Government servant on that date. A bare reading of the rule referred above would make it clear, that due to non retention of petitioner, no actions under the Discipline and Appeal Rules can be invoked against the petitioner, as the competent authority cannot impose any punishment. 5. The case of the petitioner is also that the petitioner was no way concerned with the admission of students, as he was only one of the member of the Selection Committee. The impugned charge sheet therefore deserved to be quashed. 6. This contention of the learned counsel for the petitioner cannot be accepted, as it is not for this court to go into the merits of the allegation, as it can be only determined by the Enquiry Officer. 7. However, the charge sheet issued to the petitioner deserves to be quashed for the reasons that the petitioner was not retained in service to face departmental enquiry. Therefore, no punishment can be awarded to the petitioner under the Rules. 8. The allegation against the petitioner, are not of the nature, to attract Rule 9 of Pension Rules, as no loss has been caused by the petitioner, even as per allegations levelled against him. 9. After issuance of the charge sheet to the petitioner on 06.05.1993, the Enquiry Officer was only appointed on 02.03.1994. https://hcservices.ecourts.gov.in/hcservices/ Enquiry officer issued notice to the petitioner to appear before him on 09.08.1994. The petitioner appeared before the Enquiry Officer to collect necessary documents for preparation of his defence. Enquiry was accordingly adjourned, to 22.08.1994 on the said date Enquiry officer was not in a position to supply the requested document to the petitioner. The petitioner was informed that the next date will be intimated after necessary documents are received. Thereafter, till date the petitioner has not heard anything from the Enquiry Officer. 10. The inordinate delay in conclusion of Enquiry, and non application of mind in issuing charge sheet has caused prejudice to the petitioner in defending himself in enquiry. 11. The continuation of enquiry would otherwise also would be futile excercise, as for want of retention of petitioner in service, on attaining superannuation, as no punishment under punishment of appeal rules can be imposed on the petitioner, after retirement in view fundamental rule reproduced above. 12. The continuation of proceedings, therefore is nothing but misuse of the process of law, which cannot be permitted. 13. Consequently, the writ is allowed and the charge sheet issued to the petitioner is quashed. The respondents are directed to release the retiral benefits to the petitioner within 3 months of date of receipt of a certified copy of this order. No costs. Connected miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kpr To 1. The Secretary to Government Educational Department Chennai-1 2. The Director of Collegiate Education, College Road, Nungambakkam, Chennai 3. The Principal The Accountant General (A&E) (Pension) Tamilnadu Teynampet, Chennai-600 018. https://hcservices.ecourts.gov.in/hcservices/ 4. The Principal Arignar Anna Government Arts College Cheyyar-604 407 1 cc to Mr.S.Rajeni Ramadass, Advocate, Sr.No.15649 W.P.No.21631 of 2010 & M.P.No.1 of 2010 VSV {CO} TP/7.4.2011. https://hcservices.ecourts.gov.in/hcservices/