IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.10.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.24261 of 2006 A.J.S.Paul .. Petitioner Vs. The Managing Director Anglo French Textiles A Unit of Pondicherry Textiles Corporation Ltd., Cuddalore Road, Mudaliarpet Pondicherry – 605 004. .. Respondent PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the records relating to the issue of charge sheet to the petitioner in reference No.PTC/2006/88, dated 21.4.2006 of the respondent, to quash the same and to direct the respondent to release to the petitioner the retirement benefits and other dues payable to him with interest at 12% per annum together with cost. For Petitioner : Mr.Bharathachakravarthy for M/s.Sai, Bharath & Ilan For Respondents : Ms.N.Mala Government Pleader (Pondy) ORDER The writ petitioner, who was working as a Manager in the respondent Corporation, which is a public sector undertaking, retired from service on 31.12.2002, on attaining the age of superannuation. It appears that based on certain criminal case filed against him, in which he was cited as second accused, the respondent has passed an order of suspension against the petitioner on 16.11.2002. By an order dated 18.11.2002, having taken note of the fact that the petitioner attains the age of superannuation on 31.12.2002, in terms of the Pondicherry Textile Corporation Limited Employees (Conduct, Discipline and Appeal) Rules, which came into force from 10.6.2000, the petitioner, who was placed under suspension, was allowed to retire with effect from 31.12.2002, however stating that his terminal benefits will be settled depending upon the final outcome of the https://hcservices.ecourts.gov.in/hcservices/ criminal proceedings initiated against him and accordingly, the petitioner was allowed to retire on 31.12.2002. 2. In the criminal case filed against the petitioner, it appears that the petitioner was discharged by the Criminal Court as per the order dated 15.3.2005 made in Crl.M.P.No.352 of 2005. Thereafter, on 17.2.2006, the petitioner has made a representation to the respondent for payment of terminal benefits as per the order dated 18.11.2002. It was after receiving the said representation, the respondent has framed the impugned charge memo against the petitioner dated 21.4.2006. The charges framed against the petitioner include that as an employee of the respondent Corporation, in respect of the coal supplied by M/s.Suresh Enterprises, the quality of which is stated to be of 'F' Grade, which costs ` 650/- per MT, amounts were paid to the said supplier at ` 1900/- per MT, being the cost of 'C' Grade coal, thereby causing loss to the respondent Corporation to the extent of ` 18,80,586/-, apart from other misconducts, which are elicited in the impugned charge memo. 3. The charge memo is challenged by the petitioner on the ground that when once the petitioner was allowed to retire on attaining the age of superannuation on 31.12.2002, after retirement, the respondent cannot frame the charge on 21.4.2006, since by that time there was no relationship of employer and employee. 4. It is the case of the respondent, as it is seen in the counter affidavit, that inasmuch as in the order of suspension dated 16.11.2002 the misconduct on the part of the petitioner has been attributed, that date should be deemed to be the date of commencement of the disciplinary proceedings and the subsequent framing of charges on 21.4.2006 is only a continuation of the earlier order dated 16.12.2002, viz., the date on which the petitioner was in service, and therefore, according to the respondent, the impugned charge memo is a continuation of the earlier order of suspension dated 16.11.2002 and there is no bar on the respondent from proceeding with the disciplinary proceedings. 5. It is the contention of the learned counsel for the petitioner that as the petitioner was allowed to retire from service on the attainment of the age of superannuation, there is no relationship of employer and employee and therefore, the charge memo issued on 21.4.2006 has no basis and the respondent has no jurisdiction, especially when there was no positive order against the petitioner retaining him in service so as to enable him to face the charges. 6. Per contra, it is the contention of the learned Government Advocate appearing for the respondent that even in the suspension order dated 16.11.2002, the conduct of the petitioner in having made over payment to a supplier has been explicitly explained and it was https://hcservices.ecourts.gov.in/hcservices/ in fact based on the said complaint a criminal case has been filed against the petitioner and therefore, the order of suspension dated 16.11.2002 should be deemed to be the commencement of the disciplinary proceedings. 7. It is her contention that even in the communication of the respondent dated 18.11.2002, the respondent has only stated that the terminal benefits of the petitioner will be settled depending upon the final outcome of the criminal proceedings initiated against him and when once it is brought to the notice of the respondent that the petitioner was discharged in the criminal case, there was absolutely no bar for the respondent as per the Pondicherry Textile Corporation Limited Employees (Conduct, Discipline and Appeal) Rules to proceed departmentally for the misconduct committed by the petitioner, which is a distinct and independent proceeding. 8. It is also her submission that the criminal court has discharged the petitioner by order dated 15.3.2005 made in Crl.M.P.No.352 of 2005 and it was thereafter the impugned charge memo came to be issued on 21.4.2006 and therefore, the same is well within the jurisdiction of the respondent. 9. I have heard the learned counsel for the petitioner and the respondent and given my anxious thought to the issue involved in this case. 10. On facts, it is clear that there is no positive order passed by the respondent against the petitioner in not allowing the petitioner to retire from service so as to enable the respondent to proceed with the disciplinary proceedings. On the other hand, it is an admitted fact that the respondent by its proceedings dated 18.11.2002 has permitted the petitioner to retire from service on attaining the age of superannuation. In the said letter, which is as follows: "You will be completing 60 years of age on 08.12.2002 and as per the terms of Rule 33(i) of the Pondicherry Textile Corporation Limited Employees (Conduct, Discipline and Appeal) Rules, which has come into force from 10.06.2000, you are eligible to continue in service till the end of the month in which you complete 60 years of age and as such you will be superannuated from the Company's service after the closing hours of 31.12.2002. However as you have been placed under suspension vide memo No.PTC/ 2002/841 dated 16.11.2002, pending the criminal proceedings against you in Crime No.RC MA1 2002 A 0041 registered by the Superintendent of Police, CBI/ACB, Chennai, your terminal benefits will be settled depending upon the final outcome of the aforesaid criminal proceedings initiated against you.", https://hcservices.ecourts.gov.in/hcservices/ the respondent has only stated that the terminal benefits due to the petitioner by virtue of the services rendered by the petitioner in the Corporation will be paid only after the criminal case initiated against him comes to an end. It is not even an order wherein the respondent has allowed the petitioner to retire without prejudice to any disciplinary proceedings contemplated. 11. The contention of the learned Government Advocate that the suspension order passed by the respondent against the petitioner on 16.11.2002 should be treated as commencement of disciplinary proceedings is absolutely baseless. It is no doubt true that the suspension order came to be passed by the respondent by virtue of the powers conferred under the Pondicherry Textile Corporation Limited Employees (Conduct, Discipline and Appeal) Rules and in the suspension order, the reason for suspension has also been stated to the effect that a criminal case has been filed against the petitioner in respect of the over payment regarding the supply of coal to a supplier. But, in disciplinary proceedings, the said proceedings starts from the framing of charges which are to be definite and crisp, so as to enable the delinquent to give his explanation, which is the first principle of natural justice. By reading the memo of suspension dated 16.11.2002, it can never be stated to be a charge memo framed against the petitioner. Therefore, the contention that the charges were anticipated against the petitioner even as on 16.11.2002 for the purpose of enabling the respondent to frame charges four years after the retirement cannot be sustained. 12. It is not the case of the respondent that the Pondicherry Textile Corporation Limited Employees (Conduct, Discipline and Appeal) Rules enable the Corporation to proceed against its employees even after allowing such employee to retire on attainment of the age of superannuation. In such circumstances, when once an employee is allowed to retire from service and when such retirement is not subject to or without prejudice to the disciplinary proceedings against the delinquent, law is well settled that the employer has no jurisdiction thereafter either to initiate or to continue disciplinary proceedings unless either the regulations governing the service conditions of the employee enable the employer to proceed so or the employer has passed a positive order not allowing the employee to retire from service. Either of these conditions are not confirmed on the facts of the present case. 13. It was in Bhagirathi Jena v. Board of Directors, O.S.F.C. and others, [1999] 3 SCC 666, while referring to the Orissa Financial State Corporation Staff Regulations, 1975, the Hon'ble Apex Court having found there are no such provisions enabling the employer to continue the disciplinary proceedings even after allowing the delinquent to retire from service on attaining superannuation, has https://hcservices.ecourts.gov.in/hcservices/ held that the Corporation has no legal authority to proceed with the disciplinary proceedings. The operative portion of the judgment of the Apex Court in this regard is as follows: "7. In view of the absence of such provision in the abovesaid 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 30.6.95, there was no authority vested in the Corporation or continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement." 14. The facts of the present case are different in the sense that in this case there was no disciplinary proceeding initiated by the respondent during the time when the petitioner was in service. As stated above, the petitioner was allowed to retire on 31.12.2002 and the impugned charge memo came to be issued nearly after four years of his retirement, namely on 21.4.2006. 15. The said judgment of the Apex Court in Bhagirathi Jena v. Board of Directors, O.S.F.C. and others, supra, has been consistently followed by the Apex Court as well as the other Courts in India. In State of Tamil Nadu v. R.Karuppiah, [2005] 2 MLJ 342, a Division Bench of this Court headed by P.Sathasivam,J., as His Lordship then was, while referring to the Fundamental Rules, especially relating to Rules 56(1)(a) and 56(1)(c), which mandate that a government servant who attains the age of 58 years shall not be permitted to be retained in service except on public grounds and enables the disciplinary proceedings initiated against the government servant while in service to be continued by the department even after retirement in respect of misconduct respectively, in which Rule 56(1)(c) of the Fundamental Rules in categoric terms mandates that such employee shall be retained in service and shall not be allowed to retire until an enquiry into the charges of misconduct or criminal misconduct as contemplated under Rule 17(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules are concluded or final orders are passed by the competent authority, has held that when the employer failed to pass a positive order as contemplated under Rule 56(1)(c) of the Fundamental Rules, which is mandatory in nature, not allowing the government servant to retire from service so as to enable the employer to proceed with the enquiry, the relationship of employer https://hcservices.ecourts.gov.in/hcservices/ and employee comes to an end and thereafter, there is no jurisdiction or authority empowering the employer to proceed with the enquiry. In fact, the Division Bench by referring to Rule 9 of the Tamil Nadu Pension Rules, 1978, which enables the employer to proceed with the disciplinary proceedings in respect of government servants so as to pass orders regarding the pension payable to them, particularly with reference to Rule 9(2)(a) and Rule 9(6)(b) of the Tamil Nadu Pension Rules, which are as follows: "Rule 9(2)(a): The departmental proceedings referred to in Sub-rule(1), if instituted while the Governed 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. Rule 9(6)(b): departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner or if the Government servant has been placed under suspension from an earlier date, on such date;" and which are in effect similar to that of Rules 56(1)(a) and 56(1) (c) of the Fundamental Rules, and having taken note of Rule 32 of the Tamil Nadu Pension Rules, which contains a note as follows: "Note: A Government servant under suspension, on a charge of misconduct, shall not be required or permitted to retire but shall be retained in service until the enquiry into the charge is concluded and final order is passed by a competent authority.", has held that unless an order similar to that of Rule 56(1)(c) of the Fundamental Rules is passed, no proceedings under the Tamil Nadu Pension Rules, 1978 can also be initiated and continued against the government servant. 16. In P.Muthusamy v. Tamil Nadu Cements Corporation Ltd., [2006] 4 MLJ 504, another Division Bench of this Court has held that continuing disciplinary proceedings against an employee who has been allowed to retire after superannuation is illegal and without jurisdiction, unless it is shown that the relevant rules and regulations enable the employer to do so. That was also the view of yet another Division Bench of this Court in N.Kunnai Gowder v. The Coimbatore District Co-operative Milk Producers' Union Ltd., 2007 [5] CTC 491. https://hcservices.ecourts.gov.in/hcservices/ In view of the said categoric legal position and applying the same to the facts of the present case, I have no hesitation to conclude that the impugned charge memo issued by the respondent against the petitioner is without jurisdiction and liable to be set aside and accordingly, the writ petition stands allowed and the impugned charge memo stands quashed. It is needless to state that consequently the respondent shall disburse all the terminal benefits due to the petitioner within a period of eight weeks from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: The Managing Director Anglo French Textiles A Unit of Pondicherry Textiles Corporation Ltd., Cuddalore Road, Mudaliarpet Pondicherry – 605 004. 1 cc To MS.N.Mala, Government Pleader (Pondicherry), SR.75918 1 cc To M/s.Sai, Bharath & Ilan, Advocate, SR.75581 W.P.No.24261 of 2006 BKY (CO) RH (29.10.10) https://hcservices.ecourts.gov.in/hcservices/