IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.01.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.20054 of 2009 and M.P.NOs.1 and 2 OF 2009 K.Sarangapani .. Petitioner Vs. 1.The Superintending Engineer, CEDC/Central, Tamilnadu Electricity Board, Valluvarkottam, S.S.Complex, Chennai. 2.The Superintending Engineer, Chennai EDC South, K.K.Nagar, S.S.Complex, Tamil Nadu Electricity Board, K.K.Nagar, Chennai. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the second respondent herein made in his proceedings Ku.No.001347/031-1NB-1/U4/Ko Frame Charge/09, dated 30.01.2009 and to quash the same. For Petitioner : Mr.R.Shanmugam, Senior Counsel for Ms.Bala Sharmila For Respondents : Mr.M.Vaidyanathan - - - - ORDER Heard both sides. The petitioner has come forward to challenge the charge memo, dated 30.01.2009 issued by the second respondent. 2.When the matter came up on 05.10.2009, notice was directed to be given to the Standing Counsel for the Electricity Board. In view of the notice issued, Mr.M.Vaidyanathan, learned counsel for THEB takes notice. A counter affidavit, dated 22.10.2009 has also been filed. https://hcservices.ecourts.gov.in/hcservices/ 3.It is seen from the records that the petitioner was employed as a Revenue Supervisor under the control of the second respondent. On 16.10.2003 when he went to the Indian Bank, Rajakilpakkam in a vehicle along with the Inspector of Assessment to deposit the collected amount of Rs.4,97,271/- as well as cheques worth Rs.38,421/-, the money bag which he was having was snatched away by unknown persons. The petitioner did not notice the number of his vehicle. The Assistant Engineer, Sembakkam when informed gave a police complaint, which was registered in crime No.677 of 2003 on the same day. However, the petitioner was issued with a charge memo. The conduct of the petitioner was contrary to the circular issued by the Board wherein at times of heavy deposit of money, they were requested to call for police escort. The petitioner was issued with a show cause notice, dated 11.11.2003 asking him to explain his conduct in causing grave loss to the Board. 4.The petitioner stated that on several dates they have gone to deposit money without police escort and the Board had not framed any specific guidelines in this regard. The board had issued an order, dated 3.1.2008 in which it was indicated a list of persons who are to be retired in the year 2009. In that communication, the petitioner's name finds a place as Sl.No.29 and his date of retirement was indicated as 31.7.2009. But, in the very same communication, the Executive Engineers were directed that if any individual involved in any disciplinary proceedings or Vigilance enquiry, it should be finalised. The petitioner was also provisionally selected to the post of Assessment Officer Class-II vide Board's proceedings No.7, Administrative Branch, dated 19.01.2009 and his name found a place in Sl.No.51. Even the Annexure-I contained the names of persons who were facing disciplinary action. The petitioner's name did not find place in Annexure I. But, however, the petitioner was not issued with any promotion order as charges levelled against him were grave in nature. 5.In the meanwhile on 30.01.2009, the petitioner was issued with a charge memo for having caused loss of Rs.5,35,692/- due to his negligence and for not following the guidelines issued by the Board. The petitioner by his communication, dated 19.6.2009 requested for an enquiry. On 25.7.2009, the petitioner was issued with an order, stating that he will be permitted to retire from the Board service without prejudice to the outcome of the charges pending against him. He was also informed that he will be sanctioned and paid all the retirement benefits except regular pension and commutation and a sum of Rs.2,48,636/- being 50% of the loss will be retained from out of his terminal benefits. The petitioner though was in receipt of the said order as early as 27.7.2009 did not choose to challenge the said order. The petitioner was also given a consequential order, dated 29.8.2009. In the meanwhile, the petitioner was relieved from his post on 31.7.2009. Therefore, the petitioner has come forward to challenge https://hcservices.ecourts.gov.in/hcservices/ the order, dated 30.1.2009 by which charges were framed against the petitioner. 6.In the counter affidavit filed, the respondents had stated that as per the Board regulations, the board has got power to continue the enquiry even after superannuation. In the case of the petitioner, he had caused loss to the board by his negligent act. A reference to Regulation 9(2)(A) of the Tamil Nadu Pension Rules was also made as to the authority for proceeding with the enquiry. 7.Mr.R.Shanmugam, learned Senior Counsel leading for Ms.Bala Sharmila for petitioner contended that there is no power vested with the Board to continue an enquiry after reaching the age of superannuation. He also submitted that no departmental proceedings can be conducted without retaining him in service. In support of his contention, he relied upon a judgment of the division bench of this court in The State of Tamil Nadu and others Vs. R.Karuppiah and another reported in 2005 (3) CTC 4. The said case arose under FR 56(1)(c) and it was held that to proceed with an enquiry, there should be an order retaining a person in service. If no such order was passed, no disciplinary action can be proceeded against a Government servant after he had reached the age of supeannuation. 8.The judgment cited by the petitioner had only placed heavy reliance upon an earlier judgment of this court in N.M.Somasundaram Vs. The Director General of Police, Madras-4 and others reported in 1997 WLR 120. However, all these cases have been subsequently considered by an another division bench of this court presided by P.K.Misra, J. (as he then was) vide judgment in T.K.K.Tharmar Vs. Registrar, Central Administrative Tribunal, Chennai Bench, Chennai-104 and others reported in 2008 (3) MLJ 877. In that judgment, the decision relied upon by the petitioner as well as the earlier order passed by this court were considered. In paragraphs 27 and 28 this court had observed as follows: "27.Therefore, in the light of the above, it has to be held that even after retirement, if there are statutory Rules providing for continuation of the disciplinary proceedings, no exception can be taken for continuing a disciplinary action by an employer. 28.In the present case, Rule 9 is a complete answer for the contention raised by the petitioner. It must also be noted that very recently, the Supreme Court in the judgment in U.P. State Sugar Corporation Ltd. and others Vs. Kamal Swaroop Tondon (2008) 2 SCC 41 dealt with a case of the employer's right to initiate action even after retirement. The following passage found in paragraphs 27 and 28 may be https://hcservices.ecourts.gov.in/hcservices/ usefully reproduced: Para 27:"In UCO Bank v. Sanwar Mal (2004) 4 SCC 412, the Court held that two concepts: (i) resignation; and (ii) retirement were different and employed for different purposes and in different contexts. Resignation brings about complete cessation of master and servant relationship, but retirement does not do so. In case of retirement, master and servant relationship continues for grant of retiral benefits. Para 28:If it is so, the appellant Corporation, in our opinion, is right in submitting that the proceedings could have been continued after the retirement of the respondent employee as far as the financial loss caused to the Corporation because of negligence on the part of employee and the benefit claimed by the respondent workman on his terminal benefits are concerned. 9.In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions also stand dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Superintending Engineer, CEDC/Central, Tamilnadu Electricity Board, Valluvarkottam, S.S.Complex, Chennai. 2.The Superintending Engineer, Chennai EDC South, K.K.Nagar, S.S.Complex, Tamil Nadu Electricity Board, K.K.Nagar, Chennai. 1 cc To Mr.M.Vaidyanathan, Advocate, SR.4553 W.P.NO.20054 of 2009 AR(CO) sra 01.02.2010 https://hcservices.ecourts.gov.in/hcservices/