IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.4422 of 2009 and M.P.Nos.1 and 2 of 2009 E.Krishnamoorthy ...Petitioner Vs. 1.Tamil Nadu Electricity Board, Rep. By its Superintending Engineer, Chennai Electricity Distribution Circle/South, K.K.Nagar, Chennai - 600 078. 2.Assistant Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Thorapakkam, Chennai - 600 097. ... Respondents Writ Petition preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, calling for the concerned records from the respondents quash the charge memo bearing Ku.No.001347/031/Nepe-1/U4/Ko.Frame Charge/09 dated 30.01.2009 issued by the 1st respondent and the order of the 2nd respondent bearing Memo No.AE/O&M/TPKM/F2/D34/09 dated 31.01.2009 in so far retiring the petitioner without prejudice to the charge memo and consequently direct the respondent to release pay the terminal benefits along with interest at the rate of 18% per annum from the date when it became payable award cost. For Petitioner : Mr.Balan Haridas For Respondents : Ms.R.Varalakshmi ORDER The petitioner who was employed by the respondent Tamil Nadu Electricity Board, as an Inspector of Assessment, has come forward to file the present writ petition challenging a charge memo, dated 30.1.2009. 2.By the charge memo, the petitioner was accused of not taking enough care while taking cash collection to the bank deposit and not arranging proper security. It was found out that while he was working as an Inspector of Assessment at Chembakkam in Doraipakkam office of the Executive Engineer, Chennai Electricity Distribution https://hcservices.ecourts.gov.in/hcservices/ Circle (South), a cash amount of Rs.4,97,271/- and cheque value of Rs.38,421/- were taken to the Indian Bank, Rajakeelpakkam Branch for deposit. But the money was taken away by some miscreants. Hence it was alleged that the petitioner who was responsible for the loss, had committed misconduct in terms of the Standing Order 19(i) applicable to the clerical cadre of the respondent Board and that he had not taken proper care and caution in arranging appropriate security. 3.The contention of the petitioner was that he had already reached the age of superannuation on 31.1.2009 and was allowed to retire, but no order was passed retaining him in service though it is stated in the said order that the retirement was without prejudice to the charges pending against him. The contention of the counsel for the petitioner was that under the Standing Orders, there is no power to retain an employee in service for the purpose of inflicting penalty pursuant to the disciplinary action. Hence the order is illegal. 4.When the writ petition came up on 2.4.2009, the Standing Counsel for the Electricity Board was directed to take notice. Subsequently, in the interim applications for grant of direction and interim stay, no orders were passed. On notice from this court, the respondents have filed a counter affidavit, dated 22.10.2009. 5.In the counter affidavit, it is stated that at no point of time, the Board had directed any person to go in two wheeler to remit the huge sums of amount and merely because the Standing Orders do not provide, it cannot be said that there is no power. Since it is already indicated that it is subject to disciplinary action taken against him and that the charge memo, dated 30.01.2009 was already pending, there is no illegality. Even otherwise, it was stated that under Rule 9 of the Tamil Nadu Pension Rules, if the departmental proceedings are initiated when a Government servant is in service, it will be deemed to be a proceedings under the rule and it shall be continued and concluded in the same manner as if the government servant had continued in service. Since the employment in the Electricity Board has been brought under pensionable establishment and the Tamil Nadu Pension Rules has been made applicable, the contention of the petitioner cannot be countenanced. 6.Though the counsel for the petitioner wanted to reply upon certain decisions of this court, the issue raised by the petitioner has been squarely covered by a judgment of this court in T.K.K.Tharmar Vs. Registrar, Central Administrative Tribunal, Chennai Bench, Chennai and others reported in (2008) 3 MLJ 877 and in paragraphs 8, 21 to 28, it was observed as follows: "8.Alternatively, he submitted that since the petitioner was allowed to retire by an order dated 29.4.2005, no further proceedings can be initiated against him and his superannuation will terminate all further proceedings. For this purpose, reliance was placed on the following three Division Bench judgments of this Court:- https://hcservices.ecourts.gov.in/hcservices/ (a)N.M. Somasundaram v. The Director General of Police, Madurai - 4 and others [1997 W.L.R. 120]; (b)State of Tamil Nadu v. R. Karuppiah [2005 (3) CTC 4]; and (c)P. Muthusamy v. Tamil Nadu Cements Ltd. [2006 (4) M.L.J. 504] 21.With reference to the second contention regarding the bar on taking disciplinary action, we must consider the relevant rule before proceeding to deal with the legal submissions. As per the proceedings dated 29.4.2005 issued by the second respondent, a decision was taken to deal with the case in terms of Rule 9 of the CCS (Pension) Rules. Rule 9 of the said Rules reads as follows: "9.Right of President to withhold or withdraw pension [(1)The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement : Provided that the Union Public Service Commission shall be consulted before any final orders are passed : Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five (Rupees One thousand nine hundred and thirteen from 1-4-2004 - see GID below Rule 49) per mensem.] (2)(a)The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were https://hcservices.ecourts.gov.in/hcservices/ commenced in the same manner as if the Government servant had continued in service : Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President. (b)The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, - (i)shall not be instituted save with the sanction of the President, (ii)shall not be in respect of any event which took place more than four years before such institution, and (iii)shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (3)Deleted (4)In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned. (5)Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one- third of the pension admissible on the date of retirement of a Government servant. 6)For the purpose of this rule, - (a)departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date ; and (b)judicial proceedings shall be deemed to be instituted - (i)in the case of criminal proceedings, on the date on which the complaint or report of a https://hcservices.ecourts.gov.in/hcservices/ police officer, of which the Magistrate takes cognizance, is made, and (ii)in the case of civil proceedings, on the date the plaint is presented in the court. In the light of the above Rule, there will be no difficulty for the respondents to proceed with the enquiry. 22.Of the three Division Bench judgments cited by the petitioner, the first decision went on the interpretation to Rule 56(1)(c) of the Fundamental Rules made by the Tamil Nadu Government. The third decision related to an employee working in a Government company. 23.In the second decision, while dealing with F.R. 56 (1)(c), this Court also relied upon the judgment of the Supreme Court reported in 1999 (3) SCC 666 [Bhagirathi Jena v. B.D.O.S.F. Corporation] and after referring to paragraphs 6 and 7, came to the conclusion that if an employee was permitted to retire on attaining the age of superannuation, then there was no power vested in the authority to proceed against an employee after attaining the age of superannuation until he was suspended from service pending further action. 24.But on a careful reading of the judgment of the Supreme Court in Bhagirathi Jena case (cited supra), it can be seen that the said case proceeded on the basis that in the absence of any specific provision in the relevant rule, the authority will have no legal power to reduce the retiral benefit or conduct of a disciplinary proceeding. 25.The Bhagirathi Jena's case was subsequently considered by the Supreme Court in Ramesh Chandra Sharma v. Punjab National Bank [2007 (9) SCC 15]. The following passages found in the paragraphs 16, 17 and 19 to 22 may be usefully extracted below: Para 16: "The question, thus, as to whether continuation of a disciplinary proceeding would be permissible or the employer will have to take recourse only to the pension rules, in our opinion, would depend upon the terms and conditions of the services of the employee and the power of the disciplinary authority conferred by reason of a statute or statutory rules. Para 17: We have noticed hereinbefore that the Bank has made Regulations which are statutory in nature. Regulation 20(3)( iii ) of the said Regulations reads thus: https://hcservices.ecourts.gov.in/hcservices/ “20.(3)( iii ) The officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The officer concerned will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for the payment of retirement benefits till the proceedings are completed and final order is passed thereon except his own contribution to CPF.” The said Regulation clearly envisages continuation of a disciplinary proceeding despite the officer ceasing to be in service on the date of superannuation. For the said purpose a legal fiction has been created providing that the delinquent officer would be deemed to be in service until the proceedings are concluded and final order is passed thereon. The said Regulation being statutory in nature should be given full effect." 26.It was further observed in the said judgment after reviewing all the case laws that in case of a pension retiree, the power always lies with an employer to take further action even after retirement. The following passages found in paragraphs 19 to 22 of the said judgment may be extracted: Para 19: "The issue is, thus, no longer res integra, which as would be evident from the ratio laid down by this Court from time to time. Para 20: In State Bank of India v. C.B. Dhall 6 it was held as under: (SCC p. 553, para 17) “ 17 . Under Rule 20-B disciplinary proceedings if initiated against an employee before he retires from service could be continued and concluded even after his retirement and for the purpose of conclusion of the disciplinary proceedings, the employee is deemed to have continued in service but for no other purpose.” Para 21: In Harihar Bhole Nath upon considering Regulations 351-A and 470 of the Civil Services Regulations, this Court following Brahm Datt Sharma opined as under: “ 21. The right to withhold or withdraw the https://hcservices.ecourts.gov.in/hcservices/ pension may arise in different situations. Two different contingencies are clearly envisaged under the Regulations viz. if the pensioner is found guilty of misconduct either in departmental proceedings or in judicial proceedings. Although, prima facie , the proviso appended to Regulation 351-A does not envisage continuation of the proceedings, the same must be held to be existing on a plain reading thereof. Regulations 351-A and 470 provide for a composite scheme; by emphasising that payment of pension is not automatic it can be withheld if the conditions laid down therein are satisfied. Undoubtedly, before an order of withholding the amount of pension or a part thereof is passed, the procedures laid down under the statute are required to be complied with. The procedural safeguards must be kept in mind. Limitations of application of the Rules again have to be borne in mind. 22. But the said Rules read with the proviso and the Explanation appended thereto construed in their entirety clearly postulate that the proceeding initiated before the delinquent officer reached his age of superannuation would be valid.# This Court therein distinguished this decision in State of U.P. v. Shri Krishna Pandey and Bhagirathi Jena v. Board of Directors, O.S.F.C. in the following terms: ( Harihar Bhole Nath case, SCC pp. 468-70, paras 20 & 25) “ 20. The High Court has placed strong reliance on State of U.P. v. Shri Krishna Pandey 7 wherein the departmental enquiry was initiated after the delinquent officer reached his age of superannuation. Noticing Regulation 351-A of the Civil Services Regulations and that the departmental proceeding was initiated after the retirement of the employee, the same was held to be impermissible in law. Although it was not necessary to pronounce upon the construction of Regulation 351-A involving a case where a departmental proceeding was initiated prior to reaching of the age of superannuation by the delinquent officer, it was observed that as the officer had retired on 31-3-1987 and proceedings were initiated against him on 12-4-1991, proviso appended to the rule would be applicable. * * * 25. Reliance has also been placed on Bhagirathi Jena v. Board of Directors, O.S.F.C. 8 wherein this Court was concerned with interpretation of https://hcservices.ecourts.gov.in/hcservices/ Regulation 17 of the Orissa State Financial Corporation Employees Provident Fund Regulations, 1959.” To the same vein is the decision of this Court in State of U.P. v. R.C. Misra. Para 22: We are, therefore, of the opinion that it was permissible for the Bank to continue with the disciplinary proceedings relying on or on the basis of Regulation 20(3)( iii ) of the Punjab National Bank (Officers) Service Regulations, 1979." 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 reported in U.P. State Sugar Corporation Ltd. and others v. Kamal Swaroop Tondon [2008 (2) SCC 41] dealt with a case of the employer's right to initiate action even after retirement. The following passages found in paragraphs 27 and 28 may be 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." 7.In the light of the above, there is no case made out to https://hcservices.ecourts.gov.in/hcservices/ entertain the writ petition. But, Mr.Balan Haridoss, learned counsel for the petitioner stated that subsequent to the order, dated 30.01.2009, there has been no progress in the enquiry. The counsel for the respondents stated that because of pendency of the writ petition, no action was possible. But, however, it is unnecessary to keep the person under suspended animation for ever. Therefore, it is for the Board to take action as expeditiously as possible and complete the process of enquiry within a period of six months from the date of receipt of copy of this order. With the above direction, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. vvk To 1.The Superintending Engineer, Tamil Nadu Electricity Board, Chennai Electricity Distribution Circle/South, K.K.Nagar, Chennai - 600 078. 2.The Assistant Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Thorapakkam, Chennai - 600 097. 1 cc To Mr.Balan Haridass, Advocate Sr 58505 1 cc To Mr.R.Varalakshmi, Advocate Sr 58982 W.P.No.4422 of 2009 dm[co] gp/10.10 https://hcservices.ecourts.gov.in/hcservices/