IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.12.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.15715 of 2009 and M.P.NO.1 OF 2009 K.Srinivasan .. Petitioner Vs. 1.The Secretary to Government, Municipal Administration and Water Supply (MC.III) Department, Fort St. George, Chennai-9. 2.The Commissioner, Corporation of Chennai, Chennai-3. .. 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 first respondent herein in G.O.(2D)No.68, Municipal Administration and Water Supply (MC.III) Department, dated 29.7.2009 and the consequential order by not permitting to retire from service by the first respondent herein in G.O.(2D) No.71, Municipal Administration and Water Supply (MC.III) Department, dated 31.7.2009 and to quash the same and consequently, to direct the respondents herein to retire the petitioner from service with effect from 31.7.2009 and confer all attendant and pensionary benefits with due regard to the petitioner's seniority. For Petitioner : Mr.Anand for M/S. Anand & Suryas For Respondents : Mr.R.Neelakantan, GA for R1 Mr.T.Mathi for R2 ORDER Heard both sides. The petitioner has come forward to file the present writ petition seeking to challenge G.O.(2D)No.68, Municipal Administration and Water Supply Department, dated 29.7.2009 and G.O.(2D)No.71, Municipal Administration and Water https://hcservices.ecourts.gov.in/hcservices/ Supply Department, dated 31.7.2009 and after setting aside the same, he seeks permission to retire from service with effect from 31.7.2009. 2.The writ petition was not admitted and merely notice was directed to be issued to the Standing Counsel for the first and second respondents. By the impugned orders, the State Government directed that petitioner, who was working as a Zonal Officer in the second respondent Corporation, is prevented from retiring from service by the exercise of his power under FR 56(1)(c). It was stated that his services are to be retained till grave charges pending against him are concluded and that final orders are passed by the competent authority. The petitioner was also kept under suspension by an another order, dated 29.7.2009. 3.It is the case of the petitioner that the petitioner was initially enrolled as a lawyer. After practice for three years and after intimation to the Bar Council, he joined as a Assistant Law Officer. Subsequently, he was promoted as a Secretary to the second respondent Council on 30.5.1991. He was also confirmed in that post. He was thereafter appointed as a Zonal Officer on 10.5.1995 and worked in various capacities. The petitioner was issued with a charge memo, dated 10.11.2008. He submitted his explanation on 5.12.2008. An Enquiry Officer was appointed. Thereafter, he went on medical leave with effect from 18.12.2008. Subsequently, when he resumed duty, he was kept under compulsory wait. In the meanwhile, the impugned order came to be passed. 4.The stand of the petitioner was that the impugned order was served on the petitioner on 31.7.2009 at 7.10 p.m. and since the same was served after his date of retirement, i.e. On 31.7.2009, such a suspension was illegal. Further, since the office was closed at 5.45 p.m. and he was served at 7.10 p.m., the impugned order is invalid as he was no longer in service at that time. The contentions raised by the petitioner regarding belated service of notice and the lack of jurisdiction to take action after supeannuation lack merits. 5.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 https://hcservices.ecourts.gov.in/hcservices/ recovery of financial loss suffered by the Corporation due to negligence and carelessness attributable to the respondent employee. The impugned action, 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. 6.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." 7.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 https://hcservices.ecourts.gov.in/hcservices/ control of the appropriate authority, actual communication may not be necessary. 8.In the light of the above, arguments are not available to the petitioner. Hence the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition also stand dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Secretary to Government, Municipal Administration and Water Supply (MC.III) Department, Fort St. George, Chennai-9. 2.The Commissioner, Corporation of Chennai, Chennai-3. + 1 cc to M/S.Anand & Surgas, Advocates, SR 65621 ORDER IN W.P.NO.15715 OF 2009 DM (CO) RH (9.12.09) https://hcservices.ecourts.gov.in/hcservices/