IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 08..02..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 23294 & 23295 of 2001, 25422 of 2006 and 14101 of 2007 and M.P. Nos. 1 and 2 of 2006 in W.P. No. 25422 of 2006 and W.P.M.P. Nos. 34332 and 34337 of 2001 in respective W.Ps. W.P. No. 23294 of 2001: U. Balasubramaniam Petitioner is same in all WPs. Vs. 1. The Chief Executive Officer Tamil Nadu Khadi and Village Industries Board Kuralagam Buildings, Chennai.108 Sole Respondent in WPs.23294 & 23295/01 and R2 in WP.25422/06 & 14101/07 2. State of Tamil Nadu, rep. by its Secretary to Government, Hand loom, Handicrafts, Textiles and Khadi Department, Secretariat, Chennai 9. R1 in WP.25422/06 and WP.14101/07 Prayer in WP.23294 and 23295/2001 : Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the respondent in the impugned charge memo in Rc. No. 48256/E3(2)/99 dated 23.01.1999, EC 5820/E3(2)/96 dated 04.02.2000 and quash the same. Prayer in WP.14101/07 : Petition filed under Article 226 of the Constitution of India seeking for issuance of Writ of Mandamus directing the 1st and 2nd respondents to pass appropriate orders, permitting the petitioner to retire from service, without prejudice to the disciplinary proceedings pending and to pass such further or other orders. https://hcservices.ecourts.gov.in/hcservices/ Prayer in WP.25422/06 : Petition filed under Article 226 of the Constitution of India to issue a Writ of certiorarified Mandamus, calling for the order passed by the Second Respondent in proceeding RC.No.71210/95/E5(2) dated 29.09.1995 and to quash the said order and consequently directing the Second Respondent to pass appropriate orders permitting the petitioner to retire from service and to disburse the retirement benefits in accordance to law. For Petitioners : Mrs. Malarvizhi Udayakumar (in all WPs) For Respondent : Mr. Packiaraj (W.P. Nos. 25422 of 2006 & 14101 of 2007) Mr. B. Dinesh Kumar (W.P. Nos. 23294 & 23295 of 2001) COMMON ORDER Heard the arguments of Mrs. Malarvizhi Udayakumar, learned counsel appearing for the petitioner and Mr. Packiaraj and Mr. B. Dinesh Kumar, learned counsels for the respondents and have perused the records. 2. All these writ petitions are filed by the very same person and he is at present 71 years old. He was working as an Assistant Director in the Tamil Nadu Khadi and Village Industries Board [for short, 'TNKVIB'] at Dharapuram. 3. In W.P. No. 14101 of 2007, the petitioner sought for a direction to the respondent to permit him to retire from service without prejudice to the disciplinary proceedings pending against him. When this writ petition came up for hearing on 19.4.2007, all the other connected writ petitions were directed to be posted for hearing and hence, all the writ petitions are grouped together and posted for hearing. 4. In W.P. No. 25422 of 2006, the prayer was to quash the proceedings dated 29.9.1995 by which the petitioner was suspended under the orders of the Government in public interest. It is stated in the said order that the petitioner was to retire from service on 30.9.1995 on reaching the age of superannuation. But, however, in terms of Regulation 31(a)(ii) of the TNKVIB Service Regulations, he was placed under suspension. It is this order which is under challenge in this writ petition. https://hcservices.ecourts.gov.in/hcservices/ 5. Even before the said writ petition, the petitioner had filed W.P. Nos. 23294 of 2001 to 23296 of 2001 challenging the charge memos dated 23.01.1999, 04.02.2000 and 19.10.2000 respectively. Notice of motion was ordered in these writ petitions on 28.01.2001. Subsequently, in the interim applications, W.M.P. Nos. 31797 to 31800 of 2001, by an order dated 24.02.2003, this Court directed the respondent to complete the enquiry against the petitioner within five months from the date of the order and if the enquiry is not completed, the Chief Executive Officer of the TNKVIB was directed to revoke the order of suspension. It is the case of the petitioner that even after that order was passed by this Court, no Enquiry Officer was appointed to enquire into the charge memo dated 23.01.1999. The three charges dated 03.3.1997, 23.01.1999 and 04.02.2000 were issued against the petitioner after he had reached the age of superannuation. Even though the charges are serious, the short question that arises in these writ petitions is whether the respondent Board has power to frame charges after the petitioner had reached the age of superannuation. 6. It is stated that by G.O. Ms. No. 45 dated 21.7.2003, the State Government had sanctioned prosecution against the petitioner and a criminal case was pending. In the present case, this Court is not concerned about the said prosecution which may take its own time for its completion. As to the power of the respondent Board in continuing the a disciplinary action even after reaching the age of superannuation, the respondent had filed a counter affidavit dated 26.4.2007 in W.P. No.14101 of 2007 and in paragraph 4, it is stated as follows: "I state that the petitioner attained superannuation on 30.9.1995. Since he was suspended from service one day prior to his retirement, no separate orders were passed to retain him into service beyond the date of retirement till the disciplinary proceeding is over as per F R 56(1)(C). The petitioner never raised this plea for the past 12 years. He is receiving subsistence allowance till date. If he is very conscious about the ruling under F R 56 (1)(C) he ought to have refunded the subsistence allowance." 7. Therefore, the respondents are only relying upon the power under the Fundamental Rules (FR) even though the servants and officers of the respondent are covered by a separate Statutory Regulation known as TNKVIB Service Regulations framed under the Tamil Nadu Khadi and Village Industries Act. The respondents are unable to delineate the power under which the charge memos have been framed. In the absence of any specific power to continue the disciplinary proceedings against an employee, who had reached the age of superannuation, the respondents cannot rely upon the Fundamental Rules, which are https://hcservices.ecourts.gov.in/hcservices/ applicable to Government servants and not to the employees of the TNKVIB. May the FR be followed by the Board for administrative purposes. In the Service Regulations, there is no specific power vested on the TNKVIB to continue the disciplinary proceedings even after retirement. 8. In Bhagirathi Jena v. Board of Directors, O.S.F.C. [(1999) 3 SCC 666], the Supreme Court has held that in the absence of any specific provisions in the Services Rules, the disciplinary action against an employee cannot be continued beyond his age of superannuation. In this context, it is relevant to extract paragraphs 6 and 7 of the said judgment. Para 6: "It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation. Para 7: In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement." 9. It is only the respondents, despite the opportunity given to them, were unable to substantiate their power of suspension except placing reliance upon Rule 56(1)(C) of the Fundamental Rules which are applicable to Government servants. Unless the TNKVIB, created under the TNKVIB Act in the exercise of its power to frame Service Regulations, frame a rule and pass appropriate orders, the respondents cannot rely upon the Fundamental Rules applicable to Government servants. In fact, even in the order dated 29.9.1995, which is impugned in W.P. No. 25422 of 2006, there is only a reference to Regulation 31(a)(ii) of the Regulations. A perusal of the said https://hcservices.ecourts.gov.in/hcservices/ Regulations produced by the respondent does not show any such power conferred on the TNKVIB to continue a disciplinary action beyond the age of superannuation. In the absence of any such power, necessarily W.P. No. 25422 of 2006 will have to be allowed and the order placing the petitioner under suspension beyond his age of superannuation has to be quashed. 10. Once the legal provision is clear that there is no power to continue the disciplinary proceedings, the three writ petitions being W.P. Nos. 23294 to 23296 of 2001 challenging the three charge memos will have to be allowed. The respondent Board did not take advantage of the interim order passed by this Court on 24.02.2003 to complete the enquiry within a period of five months. Now that more than 12 years have elapsed since the date of the issuance of the charge memos and that the continuance of the disciplinary action beyond the age of superannuation was found to be lacking in jurisdiction, they cannot fall back on that interim order. 11. In the light of the above, W.P. No. 14101 of 2007 will have to be allowed and the petitioner is permitted to retire from service on reaching the age of superannuation on 30.9.1995. Since this order has been passed only in terms of the Service Rules, the judgment rendered herein will have no bearing on the criminal case initiated against the petitioner. 12. In the light of the above, all the five writ petitions will stand allowed. Considering the fact that the petitioner is already 71 years old, the respondents are directed to comply with this order within a period of eight weeks from the date of receipt of a copy of this order. However, the parties are allowed to bear their own costs. Connected Miscellaneous Petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri To 1. The Chief Executive Officer Tamil Nadu Khadi and Villalge Industries Board Kuralagam Buildings, Chennai https://hcservices.ecourts.gov.in/hcservices/ 2. The Secretary to Government, Hand loom, Handicrafts, Textiles and Khadi Department, Secretariat, Chennai 9. 1 cc To Mr.S.Packiaraj, Advocate, SR.6639. W.P. Nos. 23294 & 23295 of 2001, 25422 of 2006 and 14101 of 2007 SKV(CO) RVL 26.02.2008 https://hcservices.ecourts.gov.in/hcservices/