IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.10.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.29471 OF 2008 AND M.P.NOS.1 AND 2 OF 2008 M.Gurunathan .. Petitioner Vs. 1.The Revenue Divisional Officer, Virudhachalam, Cuddalore District. 2.The District Revenue Officer, Cuddalore District, Cuddalore. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the impugned order in reference A1/6770/08, dated 31.10.2008 on the file of the first respondent herein and to quash the same and to direct the first respondent to permit the petitioner to retire on the date of superannuation i.e., 31.10.2008 AN. For Petitioner : Mr.J.R.K.Bhavanantham For Respondents: Mr.R.Neelakantan, GA - - - - ORDER Heard the arguments of Mr.J.R.K.Bhavananthan, learned counsel appearing for the petitioner and Mr.R.Neelakantan, learned Government Advocate, taking notice for respondents and perused the records. 2.The petitioner, who was working as a Village Administrative Officer in Marungur Village, has come forward to challenge the order, dated 31.10.2008, wherein and by which his services were retained by the order of the first respondent Revenue Divisional Officer, Virudhachalam, beyond the age of superannuation, i.e. on 31.10.2008. The petitioner had filed an appeal against the said order to the second respondent. Since he did not get any reply, he has filed the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 3.Pending the writ petition, the petitioner did not get the benefit of any interim order. The learned Government Advocate was directed to take notice and get instructions about the quantum of monetary benefits payable to the petitioner, by an order, dated 22.1.2009. 4.The respondents have filed a counter affidavit, dated 28.1.2009. It was noted that the petitioner was a part time Village Officer and was in service on 14.11.1980, the date on which an Ordinance 10/80 was promulgated by the Government and he lost his employment. Subsequently, on direction from the Supreme Court, the Government took a policy decision to restore such of those persons, who were qualified to hold the new posts of Village Administrative Officers. The petitioner was given one such appointment. He joined as a Village Administrative Officer in Marungur Village on 24.10.2005. 5.It was stated that within four days from his joining as the Village Administrative Officer, he was asked by the higher officials to prepare a list of those beneficiaries whose crops were damaged due to heavy floods during that year. As per the guidelines and norms laid by the Agricultural Extension Officer, Kavanur, the petitioner prepared a list of beneficiaries and relief amount was claimed and disbursed to those beneficiaries. Subsequently, a petition came against the petitioner that he had indulged in malpractices in the distribution of crop damage relief money to the beneficiaries. Charges were levelled against the petitioner. 6.One Muthukumaran, who made a complaint against the petitioner also filed a writ petition before this Court being W.P.No.7498 of 2006. This Court, by an order, dated 16.3.2006, ordered an investigation and action within three months. It was thereafter, an Enquiry Officer was appointed by the first respondent, i.e. Special Tahsildar (DRS), Vridhachalam. The said officer had submitted his findings. On the basis of the report, it was realized that an amount of Rs.40,726/- was paid in excess. A copy of the enquiry officer's report was communicated to the petitioner. He was asked to offer his explanation. Since the petitioner claimed that he was not well-versed with the accounts and as it had happened within four days of his joining, such mistakes had crept in. It was also claimed by him that the amounts should be recovered from the beneficiaries only. However, the first respondent had ordered recovery of amounts and remitted the same to the Government account. Since the petitioner was to retire from service on 31.10.2008, by an order, dated 31.10.2008, he was not allowed to retire. 7.The defence that he was not familiar with such accounts was not believed, as he had already worked as a Karnam for long years before the Ordinance abolished the post. By a memo, dated 19.7.2006, the petitioner was directed to submit his explanation https://hcservices.ecourts.gov.in/hcservices/ and the Special Tahsildar (Adi Dravidar Welfare) was appointed as an Enquiry Officer on 10.8.2007. The petitioner had also submitted his explanation on 18.6.2008. The first respondent accepted the findings of the Enquiry Officer. Therefore, by an order, dated 31.10.2008, he was not allowed to retire and the amount was sought to be recovered from him. 8.The only contention raised by the petitioner was that the order, dated 31.10.2008 was not served on him during office hours and it was served on him only on 4.11.2008. Therefore, the petitioner having reached the age of superannuation must deemed to have retired on 31.10.2008 and any proceedings initiated thereafter was not valid. 9.In reply to this allegation, it was stated that the decision to retain him in service was taken on 31.10.2008 itself and the order was passed to that effect and not on 4.11.2008 as contended by the petitioner. It was also stated that till recovery of amount from the writ petitioner, he cannot be allowed to retire as per the Government rules. The petitioner filed M.P.No.1 of 2008 for dispensing with the production of the original copy of the impugned order, dated 31.10.2008. In that affidavit, he has stated that the original was sent along with the appeal and therefore, he had enclosed a photostat copy. The copy of the order clearly shows that the order was signed by the first respondent on 31.10.2008 and also forwarded by the Tahsildar, Virudhachalam on the very same day. The mere fact that the petitioner claims to have received it on 4.11.2008 will not make the order any way invalid. The contention raised by the petitioner was that as per FR 56(1) (c), the petitioner reached the age of superannuation and unless the order is served during office time, he is deemed to have retired from service. 10.In this context, it is necessary to refer to the judgment of the Supreme Court in U.P. State Sugar Corpn. Ltd. v. Kamal Swaroop Tondon reported in (2008) 2 SCC 41. The following passage found in paragraph 40 may be usefully referred below: 40. Considering the facts and circumstances in their entirety, in our considered opinion, the High Court was wrong in holding that the proceedings were initiated after the respondent retired and there was no power, authority or jurisdiction with the Corporation to take any action against the writ petitioner and in setting aside the orders passed against him. In our judgment, proceedings could have been taken for the recovery of financial loss suffered by the Corporation due to negligence and carelessness attributable to the respondent employee. The impugned action, https://hcservices.ecourts.gov.in/hcservices/ therefore, cannot be said to be illegal or without jurisdiction and the High Court was not right in quashing the proceedings as also the orders issued by the Corporation. The appeal, therefore, deserves to be allowed by setting aside the order of the High Court. 11.A similar view was taken by the Supreme Court in Secretary, Forest Department and others Vs. Abdur Rasul Chowdhury reported in 2009 (7) SCC 305. The following passage found in paragraph 15 may be usefully extracted below: "15.In the present case, while the delinquent employee was in service, the departmental enquiry proceedings had been instituted by the employer by issuing the charge memo and the proceedings could not be completed before the government servant retired from service on attaining the age of superannuation and in view of Rule 10(1) of the 1971 Rules, the employer can proceed with the departmental enquiry proceedings though the government servant has retired from service for imposing only punishment contemplated under the Rules." 12.The Supreme Court in National Textile Corpn. (M.P.) Ltd. v. M.R. Jadhav reported in (2008) 7 SCC 29 has categorically stated that communication of an order of suspension is not necessary if the order goes our of control of the appointing authority. The following passage found in paragraphs 23 and 24 may be usefully extracted below: 23. In MCD v. Qimat Rai Gupta9 this Court opined: (SCC p. 319, para 27) “27. An order passed by a competent authority dismissing a government servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika6 but an order placing a government servant on suspension does not require communication of that order. (See State of Punjab v. Khemi Ram.)” 24. Therefore, there cannot be any doubt whatsoever that communication of the acceptance of offer was necessary. An internal noting does not constitute a communication. Even in a case of order of suspension, only when the case goes out of the control of the appropriate authority, actual communication may not be necessary. https://hcservices.ecourts.gov.in/hcservices/ 13.In the light of the above, there is no case made out. Hence the writ petition stands dismissed. No costs. Consequently, the connected MPs shall also stand dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Revenue Divisional Officer, Virudhachalam, Cuddalore District. 2.The District Revenue Officer, Cuddalore District, Cuddalore. RSM(CO) km/10.11. W.P.NO.29471 OF 2008 https://hcservices.ecourts.gov.in/hcservices/