IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.11.2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NOS.18981 OF 2009 AND 3700 OF 2011 AND CONNECTED MISCELLANEOUS PETITIONS D.Venkata Perumal ... Petitioner in both WPs' VS. 1.The Secretary to the Government of Tamil Nadu Handlooms, Handicrafts, Textiles and Khadi Department Fort St. George, Chennai – 600 009. 2.The Chief Executive Officer T.N. Khadi and Village Industries Board Chennai – 600 108. 3.The President Tamil Nadu Khadi and Village Industries Board Secretariat, Chennai – 600 009. ... Respondents in both WPs' PRAYER IN W.P.NO.18981/2009: Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to call for the records of the 2nd respondent bearing proceeding RC No.29329/Pension/1/04 dated 16.04.2009 and quash the same and direct the 3rd respondent to dispose of the appeal No.1 of 2007 preferred against the order dated 05.10.2007, G.O.Ms.No.147, passed by the first respondent. PRAYER IN W.P.NO.3700/2011: Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, directing the 2nd respondent to refund the excess amount of Rs.1,40,000/- deducted from the death – cum – retirement gratuity and the commuted value of the pension payable to the petitioner in pursuant to the order dated 05.10.2007 passed by the 1st respondent. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.L.Dhamodaran in both W.Ps. For Respondent-1 : Mr.RM.Mutthukumar in both W.Ps. Government Advocate For Respondents 2&3: Mr.S.Packiaraj in both W.Ps. COMMON ORDER The petitioner joined service as Clerk in 1964 in the respondent Board. He reached the age of superannuation on 30.09.1995. At that time of retirement, he served as Additional Director of the respondent Board. Before retirement, disciplinary proceedings was initiated and pending against him based on vigilance enquiry. The petitioner was permitted to retire from service by an order dated 30.09.1995, but however, his entire terminal benefits were withheld. 2.In these circumstances, the first respondent passed an order in G.O.Ms.No.141, Handlooms, Handicrafts, Textiles and Khadi (F1) Department, dated 24.08.2000 dropping the disciplinary proceedings initiated against the petitioner. 3.Though the disciplinary proceedings was dropped by the first respondent, the terminal benefits were not settled and pension was not paid to the petitioner. Hence, the petitioner filed a writ petition in W.P.No.15866 of 2005 before this Court seeking a direction for disbursement of terminal benefits. The said writ petition was disposed on 10.05.2005 directing the respondents therein to pass orders on the petitioner's representation dated 28.01.2005 within a period of eight weeks from the date of receipt of a copy of the said order. 4.The second respondent in his letter addressed to the petitioner, enclosed the letter dated 17.06.2005 of the first respondent, wherein it is stated that a fresh disciplinary proceedings was initiated against the petitioner under Rule 9(2)(b) of the Tamil Nadu Pension Rules on certain irregularities in the purchase of Silk Cotton. 5.Challenging the order dated 17.06.2005 of the first respondent, the petitioner filed a writ petition in W.P.No.4501 of 2006. The said writ petition was disposed on 09.03.2007 directing the respondents therein to complete the disciplinary proceedings within a period of three months from the date of receipt of a copy of the said order. 6.In these circumstances, the disciplinary proceedings came to an end and the first respondent passed an order in G.O.Ms.No.147, https://hcservices.ecourts.gov.in/hcservices/ Handlooms, Handicrafts, Textiles and Khadi (F1) Department, dated 05.10.2007 imposing the penalty of cut in pension at the rate of Rs.800/- per month permanently and also ordered recovery of Rs.1,00,000/- from the DCRG of the petitioner. 7.Against the aforesaid order dated 05.10.2007 passed in G.O.Ms.No.147, the petitioner preferred an appeal dated 28.10.2007. 8.Subsequently, another order dated 16.04.2009 was passed by the second respondent ordering recovery of Rs.3,50,736/- from the terminal benefits payable to the petitioner on the ground that the said amount was kept in suspense account towards K6 Silk counter dues relating to petitioner. 9.The petitioner filed the present writ petition in W.P.No.18981 of 2009 seeking to quash the aforesaid order dated 16.04.2009 of the second respondent and for a consequential direction to dispose of his appeal preferred against G.O.Ms.No.147, referred to above. 10.It is now stated that during the pendency of the writ petition in W.P.No.18981 of 2009, the Government rejected the appeal preferred by the petitioner. 11.When the first respondent passed the order in G.O.Ms.No.147, Handlooms, Handicrafts, Textiles and Khadi (F1) Department, dated 05.10.2007 ordering recovery of Rs.1,00,000/- from the DCRG and imposing the penalty of cut in pension at the rate of Rs.800/- per month permanently, the second respondent, without any order, deducted Rs.1,40,000/- more than the amount that was ordered to be recovered in G.O.Ms.No.147. 12.Hence, the petitioner filed the present writ petition in W.P.No.3700 of 2011 seeking a direction to the second respondent to refund the excess amount of Rs.1,40,000/- deducted from the DCRG and the commuted value of the pension payable to the petitioner in pursuant to the order dated 05.10.2007 passed by the first respondent in G.O.Ms.No.147. 13.Heard both sides. 14.At the time of hearing, the learned counsel for the respondent Board has produced an order dated 04.11.2011 of the second respondent refunding the amount that was recovered in excess of G.O.Ms.No.147. https://hcservices.ecourts.gov.in/hcservices/ 15.At this juncture, the learned counsel for the petitioner submits that the writ petition in W.P.No.3700 of 2011 could be closed with liberty to challenge the aforesaid order dated 04.11.2011 of the second respondent, if need be. 16.Recording the said statement made by the learned counsel for the petitioner, the writ petition in W.P.No.3700 of 2011 is closed, with liberty to the petitioner to challenge the order dated 04.11.2011 passed by the second respondent, if he is so advised. 17.As far as the writ petition in W.P.No.18981 of 2009 is concerned, the learned counsel for the respondent Board has produced a memo dated 18.04.2005 directing the petitioner to remit Rs.3,50,736.25 as the said amount was not settled by the petitioner, which stood in his name, in suspense account, in spite of the notice dated 26.02.2001 issued to the petitioner asking him to show cause as to why he could not be directed to pay the said amount. 18.The learned counsel for the respondent Board admits that the petitioner gave a reply to the notice dated 26.02.2001 denying the allegations. In spite of the reply sent by the petitioner, the said memo dated 18.04.2005 was passed. According to the learned counsel, the impugned order dated 16.04.2009 was passed based on the aforesaid order dated 18.04.2005. 19.The order dated 16.04.2009 does not reflect the aforesaid memo dated 18.04.2005. Further, when the petitioner denied the allegations made in the memo dated 26.02.2001, in my view, the respondent Board could not straight away direct the petitioner to pay the said amount, without holding any enquiry. Admittedly, the notice was given after 26.02.2001. The petitioner retired from service on 30.09.2005. Hence, no action could be taken against the petitioner as per Rule 9(2)(b) of the Tamil Nadu Pension Rules for certain events that took place four years before the retirement. 20.Hence, in my view, the impugned order dated 16.04.2009 is without jurisdiction and is liable to be quashed and accordingly, the same is quashed in so far as the recovery of Rs.3,50,736.25 alone. As far as the recovery of Rs.1,00,000/- from the DCRG and the penalty of cut in pension at the rate of Rs.800/- per month permanently, the learned counsel for the petitioner states that the order rejecting his appeal is yet to be served on him and as soon as the order is served, he could challenge the same. https://hcservices.ecourts.gov.in/hcservices/ 21.The writ petition in W.P.No.18981 of 2009 is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. TK To 1.The Secretary to the Government of Tamil Nadu Handlooms, Handicrafts, Textiles and Khadi Department Fort St. George, Chennai – 600 009. 2.The Chief Executive Officer T.N. Khadi and Village Industries Board Chennai – 600 108. 3.The President Tamil Nadu Khadi and Village Industries Board Secretariat, Chennai – 600 009. +2CCS. To Mr.L.Dhamodaran, Advocate SR.70389,70390 +1CC to Mr.S.Packiaraj, Advocate SR.70871 +1CC to the Government Pleader SR.70591 W.P.NOS.18981 OF 2009 AND 3700 OF 2011 GR(CO) KSA(21/12/2011) https://hcservices.ecourts.gov.in/hcservices/