IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.10.2010 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI Writ Petition No.8852 of 2010 V.Dorairaj .. Petitioner Vs. 1. The Secretary to Government Forest Department Fort St. George Chennai 600 009. 2. The Principal Chief Conservator of Forest Forest Department Panagal Building Saidapet, Chennai. 3. The Chairman cum Managing Director Tamil Nadu Tea Plantation Corporation Ltd. Coonoor, Nilgiri District. 4. The District Forest Officer Nilgiri South Division Uthagamandalam Nilgiri District. .. Respondents Petition under Article 226 of the Constitution of India praying for a writ of Mandamus seeking a direction to the fourth respondent to send a clear sanction of Pension order to the District Treasury Officer, District Treasury Office, Uthagamandalam as per the letter No.8053/FR-1/2006-43 dated 29.8.2008 on the file of the first respondent and as well as the order made in W.P.No.18277 of 2008 dated 15.02.2010. For Petitioner : Mr.S.Kumaradevan For Respondent : Mr.P.Sathish Govt. Advocate (Forest) https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner was appointed in the year 1957 in the respondent Department and subsequently, promoted as Superintendent in the year 1975. It appears that the petitioner was kept under suspension by the second respondent in the year 1982, based on certain irregularities stated to have been committed during the year 1978 and 1979. Subsequently, a charge memo came to be passed on 30.7.1983 and the petitioner has submitted his explanation. However, without conducting any enquiry, the petitioner was removed from service, by order dated 21.8.1987. 2. Aggrieved by the same, the petitioner approached the Tamil Nadu Administrative Tribunal and the Tribunal has set aside the order of removal dated 21.8.1987 and directed the respondents to conduct a de novo enquiry. Accordingly, the second respondent conducted de novo enquiry and without passing any order on the enquiry, placed the petitioner under suspension on 19.11.1992 and issued another charge memo against the petitioner on 29.12.1993 framing 46 charges. 3. In the meantime, on 31.12.1993, the petitioner attained the age of superannuation and he was not permitted to retire. However, it is not in dispute that on 29.7.2002, the petitioner was allowed to retire from service without prejudice to the disciplinary proceedings, nearly after nine years from the date of the order passed by the second respondent not allowing him to retire from service. 4. The petitioner has again approached the Tribunal by filing O.A.Nos.437 and 1800 of 1994, challenging both the charge memos dated 30.7.1983 and 29.12.1993. The Tribunal dismissed the O.As. on 13.9.2001 with a direction to the second respondent to conduct an enquiry and to pass appropriate orders. 5. It appears that the respondents have issued final show cause notice on 30.7.2002 in respect of earlier charge memo dated 30.7.1983 and the petitioner has also given his explanation on 21.8.2002. Thereafter, the second respondent has passed final order on 06.01.2003 on the second charge memo dated 29.12.1993, treating the period of suspension as the period on leave. However, no order was passed in respect of the first charge memo dated 30.7.1983, even though a final show cause notice was issued on 30.7.2002. 6. The petitioner filed a writ petition in W.P.No.33404 of 2006 for a direction to the first respondent to pass orders on the first charge memo and this Court directed the first respondent to pass orders within a period of four weeks. It was only thereafter, the first respondent passed final orders on 12.12.2006 on the charge memo dated 30.7.1983, directing stoppage of full pension for five years. https://hcservices.ecourts.gov.in/hcservices/ 7. Again, the petitioner filed a writ petition in W.P.No.12169 of 2007 seeking regularisation of the period of suspension and this Court, by order dated 01.10.2007, directed the fourth respondent to regularise the suspension period of the petitioner. 8. As against the final orders passed by the respondents on 06.01.2003 and 12.12.2006 in respect of the charge memos dated 29.12.1993 and 30.7.1983, treating the period of suspension as the period on leave and stoppage of full pension for five years, respectively, the petitioner again approached this Court by way of writ petition in W.P.No.18277 of 2008. This Court, by order dated 15.02.2010, considering the legal position regarding the recovery of subsistence allowance already paid to the petitioner, by relying on the judgment of the Supreme Court in Syed Abdul Qadir and Others v. State of Bihar and Others [(2009) 3 SCC 475], held that the subsistence allowance cannot be recovered. However, in respect of the penalty amount stated to have been imposed on the petitioner by order dated 12.12.2006, this Court directed that no interference is called for, since the liability was fixed on the petitioner after conducting proper enquiry and giving reasonable opportunity and accordingly, the punishment of withholding the pension for five years is sustainable. The operative portion of the order of this Court dated 15.02.2010 reads as under: "In the light of the above, the order of recovery of amount already paid towards subsistence allowance from the petitioner cannot be sustained in the light of the judgment referred to above. With reference to the recovery of the penalty amount from the terminal benefits, no interference is called for since the petitioner's liability was fixed in a properly conducted enquiry. It is only after affording reasonable opportunities to the petitioner, the Government had imposed the punishment of withholding the pension for five years. The recovery of loss sustained by the Government servant is covered by the relevant rules." 9. Therefore, by virtue of the said order passed in W.P.No.18277 of 2008, which is stated to be final as on date, it is clear that the order of the second respondent dated 06.01.2003, treating the period of suspension as the period on leave and directing recovery of the subsistence allowance already paid, stood set aside, while the other order dated 12.12.2006, imposing penalty and stopping of full pension for five years, stood confirmed. 10. Since the petitioner has attained superannuation on 31.12.1993 and was allowed to retire without prejudice to the enquiry on 29.7.2002 and the final order has come to be passed by virtue of the order of this Court dated 15.02.2010, pension proposals in https://hcservices.ecourts.gov.in/hcservices/ respect of the petitioner were submitted to the Government on 21.01.2008. However, the first respondent, by order dated 07.02.2008, directed the fourth respondent to furnish "no due certificate". 11. In spite of the order passed by this Court in W.P.No.18277 of 2008, it is seen that the third respondent has directed the second respondent to recover the subsistence allowance to the extent of Rs.7,34,849/- and direct and indirect loss to the extent of Rs.4,72,562.57. However, by communication dated 29.8.2008, the Government directed the second respondent to disburse the pensionary benefits to the petitioner. In the meantime, the fourth respondent has requested the District Treasury Officer to recover the subsistence allowance paid to the petitioner, based on the final order dated 06.01.2003. 12. Contending that after the order passed by this Court in W.P.No.18277 of 2008 holding that the recovery of subsistence allowance already paid to the petitioner cannot be made, there is no question of any further direction with respect to the subsistence allowance to be paid by the petitioner and since no charge is pending as on date and that the pension has not been paid, the petitioner has come up with this writ petition for a direction against the fourth respondent to sanction the pension order by sending it to the District Treasury in accordance with the order passed by this Court in W.P.No.18277 of 2008 dated 15.02.2010. 13. The learned counsel for the petitioner would submit that the conduct of the respondents in not settling the pensionary benefits in spite of categoric orders passed by this Court in the writ petitions stated above would amount to disobedience of the Court order and it is a case of harassment. 14. On the face of the records, it is clear that the charge memos dated 30.7.1983 and 29.12.1993 have culminated into final orders of punishment dated 06.01.2003 and 12.12.2006 respectively. In W.P.No.18227 of 2008 filed by the petitioner, the final order of punishment passed on 06.01.2003 came to be set aside, while the final order dated 12.12.2006 imposing penalty stood confirmed. In spite of the categoric finding given by this Court, the conduct of the fourth respondent and the third respondent in requesting the first respondent to recover the amount of subsistence allowance paid to the petitioner during the period of suspension, on the face of it, is without any legal ground. Even in the prayer in this writ petition, the petitioner has restricted his claim as per the order passed by this Court in W.P.No.18277 of 2008, based on which, the respondents are bound to settle the pensionary benefits due to the petitioner, without insisting for the recovery of subsistence allowance already paid to him which is to the extent of 7,34,849/-. https://hcservices.ecourts.gov.in/hcservices/ 15. As far as the amount of Rs.4,72,562.57 is concerned, the petitioner is bound to pay the penalty amount, since there is a finding given by the competent Court that the recovery of amount towards subsistence allowance cannot be sustained. Therefore, it is the duty on the part of the respondents to settle the entire pensionary benefits due to the petitioner, of course, after deducing the penalty of Rs.4,72,562.57. 16. In such view of the matter, the writ petition stands allowed with direction to the respondents, particularly, fourth respondent, to send proposal for pension to the Accountant General, within a period of four weeks from the date of receipt of a copy of this order. Thereafter, the Accountant General shall pass appropriate order releasing the pensionary benefits due to the petitioner within a period of four weeks. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar kpl To 1. The Secretary to Government Forest Department Fort St. George, Chennai 600 009. 2. The Principal Chief Conservator of Forest Forest Department, Panagal Building Saidapet, Chennai. 3. The Chairman cum Managing Director Tamil Nadu Tea Plantation Corporation Ltd. Coonoor, Nilgiri District. 4. The District Forest Officer Nilgiri South Division Uthagamandalam, Nilgiri District. + 1 cc to Mr. S. Kumaradevan, Advocate Sr.77524 + 1 cc to Special Government Pleader SR.8852 W.P.No.8852 of 2010. MBS(CO) EU 29.10.10 https://hcservices.ecourts.gov.in/hcservices/