IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA W.P.Nos.27474 & 27475/2009 MP.Nos.2&3/2009 in WP.No.27474/2009 & MP Nos.1/2009 in WP.No.27475/09 K.Durairajan .. Petitioner in both WPs Vs 1.The Secretary to Government Commercial Taxes and Registration Department, Chennai 600 009. 2.The Inspector General of Registration Chennai 600 028. .. Respondents in both WPs Prayer in WP.No.27474/2009:- Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus to call for the records comprised in the proceedings of the charge memo of the 2nd respondent herein in his reference No.50828/A2/2007 dated 19.10.2007 and quash the same and consequently direct the respondents herein to promote the petitioner as Additional Inspector General of Registration with all monetary and service benefits and privileges. Prayer in WP.No.27475/2009:- Writ petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified mandamus calling for the records comprised in the proceedings of the 1st respondent in G.O.[D] No.567 Commercial Taxes and Registration [H1] Department dated 31.12.2009 and quash the proceedings of the 1st respondent dated 31.12.009 insofar as it relates to the direction to proceed against the petitioner under Rule 17[b] of the Tamilnadu Civil Services [Discipline and Appeal] Rules in respect of the pending charges and consequently forbearing the respondents from proceeding against the petitioner under Rule 17[b] of the Tamilnadu Civil Services [Discipline and Appeal] Rules and to settle the pensionary and terminal benefits to the petitioner. [Prayer in WP.No.27475/2009 amended as per the order made in MP.No.1/2010 dated 03.03.2010]. For Petitioner in : Mr..V.Ramajagadeesan both the petitions https://hcservices.ecourts.gov.in/hcservices/ For RR 1&2 in both : Mr.V.Arun, AGP the petitions COMMON ORDER By mutual consent of both the learned counsel for the petitioner and the learned Additional Government Pleader, the main writ petitions are taken up for final disposal. 2. It is seen that in both the writ petitions, the petitioner is one and the same and the impugned order dated 31.12.2009 issued against the petitioner allowing him to retire from service on the due date of his retirement, i.e., on 31.12.2009 without prejudice to the disciplinary proceedings under Rule 17(b) of Tamil Nadu Civil Service (Discipline & Appeal) Rules, (hereinafter referred to as "the Rules") pending against him in respect of the charge memos dated 19.10.2007 (challenged in W.P.No.27474 of 2009) and 21.12.2009 (challenged in W.P.No.27475 of 2009) and as such, both the writ petitions have been taken together for hearing and disposed of by the following common order. 3. The petitioner, in W.P.No.27475 of 2009 had initially come forward with a prayer to quash the charge memo dated 21.12.2009 with a consequential relief of promoting him as Assistant Inspector General of Registration with all monetary and service benefits and privileges, but subsequently, the said prayer was amended, as per the order of this Court dated 03.03.2010 in view of issuance of the order dated 31.12.2009 allowing the petitioner to retire without prejudice to the pending disciplinary proceedings under Rule 17(b) of the rules, to the effect of seeking the relief of quashing the order of the first respondent in G.O.[D] No.567 Commercial Taxes and Registration [H1] Department dated 31.12.2009 insofar as it relates to the direction to proceed against the petitioner under Rule 17[b] of the Rules in respect of the pending charges and consequently forbearing the respondents from proceeding against the petitioner under Rule 17[b] of the Tamilnadu Civil Services [Discipline and Appeal] Rules and to settle the pensionary and terminal benefits to the petitioner. 4. The case of the petitioner is that at the time of his retirement he was working as Assistant Inspector General of Registration, Chennai, and he retired from his service on 31.12.2009. During his tenure, he was issued with charge memos dated 24.06.2005, 19.10.2007 and 21.12.2009. In respect of the first charge memo dated 24.06.2005, the proceedings were dropped and as such, the petitioner challenged the remaining two charge memos dated 19.10.2007 and 21.12.2009 in the above two writ petitions. 5. The petitioner reached the age of superannuation on https://hcservices.ecourts.gov.in/hcservices/ 31.12.2009 and on the same day, the first respondent passed the impugned order dated 31.12.2009 permitting the petitioner to retire on the afternoon on 31.12.2009 without prejudice to the disciplinary proceedings under Rule 17(b) of the rules in respect of pending charges. 6. The petitioner stated that once the Government allowed him to retire from service without invoking their powers under 56(1)(c) of the Fundamental Rules to suspend the petitioner from his service and to extend the services of the petitioner beyond the date of his retirement so as to enable the Government to proceed with the pending disciplinary action, the Government thereafter cannot proceed against the delinquent Government servant and the mere wordings in the impugned order, viz., without prejudice to the disciplinary proceedings under Rule 17(b) of the Rules pending against him, will not empower the Government to proceed against the petitioner after his retirement. It is also stated that under Rule 56(1)(c) of the Fundamental Rules, the Government can suspend the Government servant before the last date of his retirement and can extend the services of the Government servant beyond the date of his retirement facilitating the Government to complete the departmental proceedings as per the charges under Rule 17(b) of the Rules for imposing a major penalty. Therefore, the Government cannot continue the departmental proceedings under Rule 17(b) of the Rules without invoking its power under rule 56(1)(c) of the Fundamental Rules. The first respondent by the impugned order permitted the petitioner to retire from the services from the afternoon of 31.12.2009 and as such, the relationship of employer and employee ceased from 01.01.2010 and the first respondent or the second respondent have no disciplinary control over the petitioner after 31.12.2009 unless and until they have exercised their power under rule 56(1)(c) of the Fundamental Rules and as such, they have no power to proceed with the disciplinary proceedings under Rule 17(b) of the Rules. Therefore, the petitioner has been constrained to approach this Court seeking the above said relief of quashing the impugned order dated 31.12.2009 to the limited extent as indicated above. 7.1. Mr.V.Ramajegadeesan, learned counsel for the petitioner, vehemently contended that after allowing the petitioner to retire from service, the question of proceeding with the disciplinary proceedings does not arise as the relationship of employer and employee ceased to exist. The learned counsel would submit that the impugned order dated 31.12.2009 was passed in respect of two charge memos dated 19.10.2007 and 21.12.2009. It is contended that pursuant to the issuance of the charge memo dated 19.10.2007, there is no progress in the disciplinary proceedings and the same was kept pending and as far as the second charge memo dated 21.12.2009 is concerned, the said charge memo was issued at the verge of the retirement of the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 7.2. The learned counsel for the petitioner would further contend that the Government can suspend the petitioner before the last date of his retirement by invoking the Rule 56(1)(c) of the Fundamental Rules. Invoking the provision under Rule 56(1)(c) of the Fundamental Rules enables the Government to extend the services of the delinquent officer beyond the date of his retirement facilitating the Government to complete the departmental proceedings. In the case on hand, such power under Rule 56(1)(c) of the Fundamental Rules was not exercised by the first respondent before passing the impugned order dated 31.12.2009. It is contended that mere wordings of "without prejudice to the disciplinary proceedings" will not empower the Government to proceed with the disciplinary enquiry against the petitioner as the master and servant relationship ceased to exist. Therefore, it is contended that the impugned order dated 31.12.2009 is liable to be quashed. 7.3. In support of his contention he would also place reliance on the following decisions : (1)A Division Bench Judgment of this court in N.M.SOMASUNDARAM Vs. THE DIRECTOR GENERAL OF POLICE, MADRAS-4 reported in 1997 W.L.R. 120 ; (2)Another Division Bench judgment of this Court in N.KUNNAI GOWDER Vs. THE COIMBATORE DISTRICT CO-OP MILK PRODUCERS' UNION LIMITED AND ANOTHER reported in 2008 Writ L.R. 104 ; and (3)an unreported Judgment of this court made in WP.No.19707/2008 dated 02.02.2010. 8. Mr.V.Arun, learned Additional Government Pleader, would submit that there is no illegality or infirmity in passing the impugned order dated 31.12.2009. It is contended that the impugned order was passed on the date of retirement of the petitioner and not after his retirement. It is pointed out by the learned Additional Government Pleader that the Government, while allowing the petitioner to retire, retained its power to continue with the disciplinary proceedings pending against him under Rule 17(b) of the rules. It is contended that the charge memos dated 19.10.2007 and 21.12.2009 were issued prior to the date of retirement of the petitioner and as such, the first respondent passed the impugned order dated 31.12.2009 without prejudice to the disciplinary proceedings under Rule 17(b) of the Rules. It is further contended that non-exercise of the power under Rule 56(1)(c) of the Fundamental Rules would not invalidate the impugned order dated 31.12.2009. 9. I have given my careful and anxious consideration to the rival contentions put forward by either side and also perused the entire materials available on record including the impugned order https://hcservices.ecourts.gov.in/hcservices/ dated 31.12.2009. 10. The crux of the question involved in this matter is whether the respondents are empowered to continue with the disciplinary proceedings under Rule 17(b) of the Rules after allowing the petitioner to retire on reaching the age of superannuation. 11. It is seen that the petitioner has been issued with the charge memos dated 19.10.2007 and 21.12.2009 and the fact remains that till the date of filing the writ petitions, there is absolutely no progress whatsoever pursuant to the issuance of the charge memo dated 19.10.2007 and the second charge memo dated 21.12.2009 was passed just 10 days prior to the date of the retirement of the petitioner. 12. A perusal of the impugned order dated 31.12.2009 reveals that the petitioner was allowed to retire without prejudice to the pending disciplinary proceedings under Rule 17(b) of the Rules. In the impugned order dated 31.12.2009, references were made in respect of three charge memos dated 24.06.2005, 19.10.2007 and 21.12.2009. It is stated by the petitioner in the affidavit in writ petition in W.P.No.27475 of 2009 that the proceedings in respect the first charge memo dated 24.06.2005 were dropped and as such, the petitioner challenged the remaining two charge memos dated 19.10.2007 and 21.12.2009 in the above two writ petitions. Therefore, it is clear that the impugned order dated 31.12.2009 was passed without prejudice to the pending disciplinary proceedings under Rule 17(b) of the Rules pursuant to the charge memos dated 19.10.2007 and 21.12.2009. 13. It is pertinent to note that in the impugned order itself a reference was made to the provision under Rule 56(1)(c) of the Fundamental Rules which enables the Government to place the delinquent officer under suspension and not allowing him to retire beyond the superannuation with a view to continue with the disciplinary proceedings. It is further revealed from the impugned order that the Government has not resorted to exercise its power under rule 56(1)(c) of the Fundamental Rules with a view to avoid payment of subsistence allowance mainly on the ground that in the event of charges ultimately proved against the delinquent officer action may be taken against the petitioner under the Tamil Nadu Pension Rules for withholding the entire amount of pension payable to him. Considering such aspect, the Government thought it fit to pass the impugned order dated 31.12.2009 permitting the petitioner to retire from service on attaining the age of superannuation on the afternoon of 31.12.2009 without prejudice to the disciplinary proceedings under Rule 17(b) of the Rules. 14. At the outset, it is to be stated that there is absolutely no provision of any law or regulation enabling the first respondent to keep the disciplinary proceedings alive even after allowing the https://hcservices.ecourts.gov.in/hcservices/ government servant concerned to retire. If the disciplinary authority decides to continue the disciplinary proceedings even beyond the due date of retirement the only option is to invoke Rule 56(1)(c) of the Fundamental Rules. 15. At this juncture, it is relevant to refer to a decision of the Division Bench of this Court in N.M.Somasundaram v. The Director General of Police, Madras -4 and Ors. reported in 1997 W.L.R.120 in which it was held as hereunder : "A reading of Rule 56(a) and (c) together would lead to an irresistible conclusion that in order to retain a public servant or a Government servant in service on attaining his age of superannuation, a positive order in writing shall have to be passed by the Government giving the reasons as to on what grounds which should be on public grounds, a Government servant is retained in service. No doubt Rule 56(c) says that a Government servant under suspension on a charge of misconduct should not be required or permitted to retire of his reaching the date of compulsory retirement. It further says that he should be retained in service until the enquiry into the charge is conducted and a final order passed thereon by the Competent Authority. Therefore, even though it may not be necessary to permit to Government servant against whom a disciplinary proceeding is pending, to retire from service, in order to retain him in service for the purpose of disciplinary proceedings, a positive order in writing is required to be passed. The public ground for passing the said order is the pendency of the disciplinary proceeding. But, what is necessary is that there should be an order passed by the Government not permitting a Government Servant to retire from service." 16. Again a Division Bench of this Court in The State of Tamil Nadu V. R.Karuppiah reported in 2005(3) CTC 4 has held hereunder : "29. From the above note it is also clear that to proceed against a Government servant, who is under suspension on a charge of misconduct, after his retirement, the fulfilling of the requirements under Rule 56(1)(c) of the Fundamental Rules is a mandatory one, otherwise, the competent authority cannot have any jurisdiction on the retired Government servant to proceed against him and the non-compliance of the said rule is vitiated all the proceedings initiated against the first respondent and therefore, the same are not sustainable under law and are liable to be set aside." 17. In yet another Division Bench decision in P.Muthusamy V. https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Cements Corporation Limited reported in (2006) 4 M.L.J. 504 this Court has held hereunder : 8. In view of the admitted factual position that there is no specific enabling provision in the TANCEM Service Rules and of the legal position as referred to above, we hold that the order of the first respondent, reserving the right to continue the disciplinary proceedings after superannuation, is illegal and without jurisdiction." 18. Another Division Bench of this Court in N.Kunnai Gowder V. The Coimbatore District Co-op. Milk Producers' Union Limited & Another reported in 2008 Writ L.R. 104 has held that, "6. A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer, the employee cannot be made to retire. In the instant case, no rule has been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. There has to be a specific provision of law or regulation or a by-law governing the service conditions of the person in question for continuing a departmental enquiry, initiated before the date of superannuation, even after the employee had retired from service. Without such a provision being available, there cannot be an employer- employee relationship surviving after the employee retires from service. Therefore, continuing the enquiry proceedings or conducting an action against the person after his retirement from service cannot be sustained in the eye of law." 19. The Hon'ble Apex Court in Bhagirathijena v. B.D., O.S.F. Corporation reported in (1999) 3 SCC 666, while dealing with the effect of continuance of disciplinary proceedings after superannuation in the absence of specific provisions, held as hereunder : "7. In view of the absence of such a provision in the above said regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority, vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any https://hcservices.ecourts.gov.in/hcservices/ reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement." 20. A similar view is also taken by a learned Single Judge of this Court in a similar and identical matter in an unreported order made in W.P.No.19707 of 2008 dated 02.02.2010 (K.Rajendran V. Senior District Collector, Tiruvellore District, Tiruvellore). 21. The principles laid down in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also the petitioner was allowed to retire on the date of his superannuation on 31.12.2009 without prejudice to the pending disciplinary proceedings under Rule 17(b) of the Rules and such impugned order was passed without invoking the power under Rule 56(1) (c) of the Fundamental Rules and without any specific provision. As the petitioner was allowed to retire, the relationship of employer and employee cannot survive and as such, continuation of disciplinary proceedings cannot be sustained in law. 22. Accordingly, the impugned order passed by the first respondent dated 31.12.2009 in G.O.[D] No.567 Commercial Taxes and Registration [H1] Department is hereby set aside insofar as it relates to the portion to the effect of continuing with the proceedings against the petitioner in respect of pending charges by specifically stating "without prejudice to the disciplinary proceedings under rule 17(b) of the rules. W.P.No.27475 of 2009 is allowed. Consequently, W.P.No.27474 of 2009 is also allowed and all connected miscellaneous petitions are closed. 23. After the dictation of the above said order in the open court on 09.03.2010 and before signing the order, the matter is posted today (17.03.2010) "For Being Mentioned" at the instance of the learned Additional Government Pleader. 24. Mr.V.Arun, learned Additional Government Pleader would now contend that the disciplinary proceedings against the petitioner can very well continue even after his retirement and in support of his contention, the learned Additional Government Pleader would place reliance on the decision of the Division Bench of this Court in The Registrar of Co-operative Societies V. G.Manoharan (W.A.Nos.256 and 257 of 2008) reported in MANU/TN/2827/2009. 25. Mr.V.Ramajegadeesan, learned counsel for the petitioner, on the other hand, would once again reiterate his contention to the effect that the question of continuing with the disciplinary proceedings after allowing the petitioner to retire would not at all arise. In support of his contentions, apart from the decisions cited supra, the learned counsel would also place reliance on the following https://hcservices.ecourts.gov.in/hcservices/ decisions : (1)An unreported Division Bench judgment in Chengam Co- operative Primary Agricultural and Rural Development Bank, Chengam, Tiruvannamalai District, represented by its Special Officer V. N.Panchatsharam and others (W.A.No.103 of 2005 dated 08.04.2009) ; and (2)A learned Single Judge decision in P.S.Kasthuri V. Commissioner, Municipal Administration reported in (2009) 3 MLJ 583 ; 26. As far as the Division Bench decision of this Court in The Registrar of Co-operative Societies V. G.Manoharan (W.A.Nos.256 and 257 of 2008) reported in MANU/TN/2827/2009 is concerned, it is seen that the said decision is in respect of surcharge proceedings initiated under Section 87 of the Tamil Nadu Co-operatives Act and as per Section 87 proceedings can be initiated even in respect of a person who has retired. It is pointed out by the Division Bench in the said decision as hereunder : "13. Section 87 is an important provision which deals with surcharge proceedings and it can be initiated if, "it appears that any person who is or was entrusted with the organisation or management of the society or any past or present officer or servant of the society has misappropriated or fraudulently retained any money or other property or been guilty of breach of trust in relation to the society or has caused any deficiency in the assets of the society by breach of trust or willful negligence or has made any payment which is not in accordance with this Act". The facts relating to misappropriation, fraudulent retention of money or breach of trust may have come to light either in the course of an audit under Section 80 or during the course of the inquiry under Section 81 or an inspection and investigation under Sections 82 or 83. If such fraudulent retention of money, misappropriation, breach of trust or willful negligence becomes apparent, the Registrar or a person authorised by him is empowered to frame charges against such person and after giving opportunity, an order can be made to repay or restore the money and such action cannot be commenced after the expiry of seven years from the date of the Act or omission. This section empowers the Registrar to proceed against a person who is or was entrusted with the organisation or management of the society, a past or a present officer of the society, and a past or present servant of the society. In fact, even the representative who inherits the estate of such a person who is deceased shall answer the charges. The retirement of such person or officer or servant is not a https://hcservices.ecourts.gov.in/hcservices/ deterrent to the proceedings that can be initiated under Section 87. Section 87 is only to recover and make good the financial loss caused to the society by the individual concerned by his fraudulent retention of money, misappropriation, willful negligence or breach of trust, as the case may be. ...." (emphasis supplied by this Court) 27. It is seen that in the Division Bench decision cited supra, the delinquent officer was suspended before the date of his superannuation and he was also not permitted to retire, it is better to incorporate the relevant portion in paragraph 16 of the Division Bench decision as hereunder : "16. In the present case, we have found that a charge memo had been issued to the first respondent and he had also given a reply thereto before the date of his superannuation. Therefore, the disciplinary proceedings had already commenced. The first respondent was not permitted to retire. He was suspended. But no order was passed permitting him to retire either. Further, the language of Section 87 of the Act clearly shows that proceedings can be initiated even in respect of a person who has retired, if he has committed the acts specified in Section 87 or is guilty of misconduct as mentioned in the same section, then we cannot restrain the appellants from proceeding with the action against the first respondent. ...." (emphasis supplied by this Court) 28. In paragraph 25, the Division Bench referred to a Division Bench decision of the Andhra Pradesh High Court as hereunder : "A Division Bench of the Andhra Pradesh High Court, relying on Bhagirathi Jena (supra), held that the retirement benefits cannot be withheld. In the present case, however, the first respondent was not permitted to retire. He was instead suspended from service on the eve of his retirement. In fact, in the above case, the Andhra Pradesh High Court observed that if disciplinary action is sought to be taken, it must be done before he retires. This has been done in the case