1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:29/07/2011 CORAM THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.8438 of 2011 in MP(MD)No.1 of 2011 R.Subbaraj :Petitioner -Vs- The District Elementary Educational Officer, Virudhunagar District, Virudhunagar. :Respondent Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the impugned records in relating with the order in Na.Ka.No.3918/A1/2007 dated 30.06.2011 issued by the respondent and to quash the same and consequently direct the respondent to permit the petitioner to retire from service and give all retirement benefits. For petitioner ...Mr.F.Deepak For respondents...Mr.T.S.Mohammed Mohideen, Addl.Govt.Pleader ORDER Being aggrieved by the order dated 30.06.2011, passed by the District Elementary Educational Officer, Virudhunagar, suspending the petitioner on the verge of his retirement and not allowing him to retire from service from the said date, the petitioner has come forward with this writ petition seeking for a certiorarified mandamus. 2.Material on record shows that while the petitioner was working as a Jeep Driver in the office of the District Elementary Educational Officer, Virudhunagar, the vehicle met with an accident with a motor cycle causing death of one Sundarapandian. In this regard, a criminal case has been registered against the petitioner in crime No.163/2007 under Sections 279, 337 and 304(A) of the Indian Penal Code and that the petitioner has been charge sheeted in C.C.No.224 of 2007 before the learned Judicial Magistrate No.III, Virudhunagar. The accident victims, claiming compensation, have filed a claim petition in MCOP No.152 of 2007 on the file of the Motor Accident Claims Tribunal, Sub Court, Virudhunagar. As the criminal case is yet to be disposed of and taking note of the above said claim petition, vide order in Mu.Mu.No.39158/A1/2007 dated 30.06.2011, the District Elementary Educational Officer, Virudhunagar, by invoking Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, has placed the petitioner under suspension on 30.06.2011. Consequently, the respondent has also passed another order, as per Fundamental Rules 56(1)(c), by not allowing the petitioner to retire from service with a direction to the effect that he would be entitled for provisional pension, as per the said Rules. 3.Assailing the correctness of the orders, learned counsel for the petitioner submitted that no suspension can be made at the fag-end of retirement and that suspension should be made only after conducting enquiry. The learned counsel for the petitioner is not able to substantiate the above contentions, under any provision of law or Rules and regulations. It is well settled that no show cause notice need be issued or enquiry to be conducted, before resorting to suspension. Such contention is wholly untenable, in view of the decision of the Supreme Court in Prathap Singh Vs State of Punjab reported in AIR 1964 SC 72 followed by me, in C.Shaju vs The District Collector, Coimbatore District, Coimbatore-2 and another reported in 2011 (1) CWC 628 and T.Chandrakala vs Block Development https://hcservices.ecourts.gov.in/hcservices/ 2 Officer/Commissioner, Mugaiyur Panchayat Union, Villupuram District and another, reported in (2011) 3 MLJ 540, 4. Rule 56(1)(c) of the Fundamental Rules states that, “not withstanding anything contained in clause (a), a Government servant who is under suspension, (i)on a charge of misconduct; or (ii)against whom an enquiry into grave charges of criminal misconduct or allegations of criminal misconduct, is pending; or (iii)against whom an enquiry into grave charges is contemplated or is pending; or (iv)against whom a complaint of criminal offence is under investigation or trial. shall not be permitted by the “appointing authority o retire on his reaching the date of retirement, but shall be retained in service until the enquiry into the charge of misconduct or criminal misconduct or the enquiry into allegations of criminal misconduct or the enquiry into contemplated charges or disciplinary proceeding taken under rule 17(c)of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or rule 3(c) of the Tamil Nadu Police Sub-ordinate service (Discipline and Appeal) Rules, as the case may be, in respect of item (iv) above is concluded and a final order passed thereon by the competent authority or by any higher authority.” 5.There is no restriction that the power under Fundamental Rule 56 (1)(c), cannot be invoked on the last date of retirement. Admittedly, a criminal case in C.C.No.224 of 2007 against the petitioner is pending before the learned Judicial Magistrate No.III, Virudhunagar. Therefore, the contentions of the learned counsel for the petitioner that Rule 56(1)(c) of the Fundamental Rules is not applicable and the only course open to the respondent is to take appropriate action under Tamil Nadu Pension Rules and the further submission that when there are no specific charges levelled as against the petitioner, he should not be placed under suspension and that he should be allowed to retire, are untenable. Suspension can be invoked under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, if there is an investigation or trial or contemplation into grave charges or pendency of charges. It is not necessary that only for specific charges, suspension can be invoked. 6.In the above said circumstances, this Court is not inclined to subscribe to the contentions stated supra. There are no merits in the writ petition and the same is dismissed and the impugned order is sustained. No costs. Consequently connected miscellaneous petition is closed. Sd/- Assistant Registrar (Writs) / TRUE COPY / Sub Assistant Registrar To: The District Elementary Educational Officer, Virudhunagar District,Virudhunagar. +1CC to M/s.F.Deepak, Advocate. SR.No.25174. +1CC to The Special Government Pleader. SR.No.25359. RR Writ Petition No.8438 of 2011 and M.P.No.1 of 2011 RP/19.08.2011/2P/4C. 29/07/2011 https://hcservices.ecourts.gov.in/hcservices/