IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 24.06.2010 Coram: The Honourable Mr.M.Y.EQBAL, CHIEF JUSTICE and The Honourable Mr.Justice T.S.SIVAGNANAM Writ Appeal No. 695 of 2008 Aziz Ahmed …. Appellant/Petitioner vs. The Government of Tamil Nadu, Rep. by its Chief Secretary, Public (Special –A) Department, Secretariat, Chennai -600 009. …. Respondent/Respondent Appeal filed under Clause 15 of the Letters Patent against the order passed in W.P.No.28837of 2005 dated 19.12.2007. WP.28837/2005:Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records pertaining to the impugned order passed by the Respondent in GO(2-D) No.29 Public (Special-A) Department, dated.4.7.2005 and quash the same and direct the respondent to pay all the service benefits including the monetary benefits. For Appellant : Mr.M.Muthuppan For Respondent : Mr.J.Raja Kalifulla, Govt. Pleader assisted by Ms.M.Sneha, GA J U D G M E N T THE HON’BLE CHIEF JUSTICE This appeal is directed against the judgment dated 19th December, 2007 passed in W.P.No. 28837 of 2005 whereby the learned single Judge dismissed the writ petition and refused to interfere with the order passed in a departmental proceeding pursuant to a departmental enquiry. 2. The facts of the case lie in a narrow compass. The appellant was appointed as a Junior Assistant in the Secretariat in the Agricultural Department in the year 1964. By https://hcservices.ecourts.gov.in/hcservices/ virtue of promotions, the petitioner finally joined as Under Secretary (Mining) in the Industries Department, Secretariat, some time in the year 1994. Later on, he was promoted as Deputy Secretary to Government and posted in the same department. When the appellant was due to retire on 30th June, 1996, he was put under suspension on 18th June, 1996 in contemplation of a departmental proceedings. The appellant challenged the said order of suspension before the Tamil Nadu State Administrative Tribunal in O.A.No.4087 of 1996, and the Tribunal eventually set aside the suspension order on the ground that the order of suspension cannot survive after the date of superannuation of the appellant i.e., 30th June, 1996. However, pending application before the Tribunal, the Government framed a charge memo against the appellant and appointed an Enquiry Officer to inquire into the alleged charges. In the meantime, based on the tribunal’s order setting aside the order of suspension, the Government revoked the order of suspension and allowed the appellant to retire from service on 30th June, 1996 without imposing any condition. 3. After superannuation of the appellant, some time in the year 1997, the Government framed the following charges against the appellant:- “Charge 1:That you, Thiru Aziz Ahmed, while functioning as Deputy Secretary to Government, during the period 22.12.1996 to 18.06.1996, had caused the issue of orders leasing minor and major minerals in 35 cases dating from 21.03.1996 to 10.04.1996, during the period when the General Election 1996 process was on. You, being a Deputy Secretary to Government should have been well aware of the Model Code of Conduct and that no public interest was served by issuing those orders to benefit certain individuals with undue pecuniary gain. You should have waited till the election process was over. You did not even consider it necessary to submit the files relating to the above matters to the then Principal Secretary to Government, Industries Department before issue of orders, though all the Government orders were issued in the name of the Principal Secretary to Government. Charge 2: That you, Thiru Aziz Ahmed, as Deputy Secretary to Government in charge of the subject mining during the aforesaid period had issued orders in 23 cases after recording in the files that the orders be issued immediately as desired by the (then) Minister for Industries. You should have obtained clear written orders from the Secretary concerned as to whether orders need to be issued then in view of the election process. In the alternative you should have obtained clearance from the Chief Electoral Officer, Public (Elections) Department, which you https://hcservices.ecourts.gov.in/hcservices/ failed to do so with malafide intention and ulterior motive of hurrying up to issue of orders. Moreover, no written orders of the Minister had been obtained in any case. In certain cases, the originals of the Government orders granting mining leases were handed over to the individuals on the date of issue of orders itself as against the prescribed mode of despatch of Government correspondence. It is clear that you showed favouritism and had interest in helping those private lessees. Thus, you failed to safeguard the interest of the Government. This was in clear violation of Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973.” 4. Subsequent thereto, the Government issued another charge memo to the appellant dated 28th November, 1997 formulating the following charges: - “Charge No.1: That you, Thiru Aziz Ahmed, while functioning as Deputy Secretary, Industries Department had originated and put up a misleading circulation note on 03.05.1996 which was approved by the then Minister for Industries on 04.05.1996. You had also illegally and intentionally recommended to the Government of India on 06.05.1996 for the renewal of limestone lease to M/s.Loga Minerals and Chemicals, Salem, violating the procedures and suppressing certain facts. When the results of the General Elections 1996 were about to be declared, you, being a Deputy Secretary should have been well aware of the Election by recommending the renewal in question but caused undue pecuniary gain to the private individual, overruling the Commissioner of Geology and Mining's recommendation for rejection of the application for renewal after giving 60 days notice. Charge No.2: That you, Thiru Aziz Ahmed, while you were a Deputy Secretary, Industries Department, had wilfully recommended to the Government of India for the renewal of limestone lease to M/s.Loga Minerals and Chemicals, Salem at the time when the General Elections 1996 results were to be announced and thereby caused undue pecuniary gain to private lease owner. You had shown undue favouritism to the individual. Thus, you had failed to safeguard the interest of the Government which was in clear violation of Rule 20 of the Tamil Nadu Government Servants Conduct Rules.” https://hcservices.ecourts.gov.in/hcservices/ 5. The appellant submitted his explanation and participated in the enquiry. The Enquiry Officer finally submitted the enquiry report holding that the charges leveled against the appellant were proved. The appellant thereafter was given a show cause notice by the disciplinary authority as to why punishment of 50% cut in pension per month for a period of 36 months should not be imposed against him. The appellant submitted explanation and finally the Government, after considering the explanation, passed the final order imposing punishment of 50% cut in pension per month for a period of 36 months for the proven charges. 6. The appellant challenged the said order of punishment by filing the aforementioned writ petition. The learned single Judge formulated the following points for consideration: - i.Whether the impugned order suffers from procedural irregularity? ii.Whether the impugned order is legally infirmed? and iii.Whether the punishment imposed on the petitioner is shockingly disproportionate to the charges leveled against him? 7. The learned single Judge, after considering the facts of the case, and after hearing the parties, came to the conclusion that the order of punishment is in accordance with law and the same needs no interference. Consequently, the writ petition was dismissed. 8. We have heard the learned counsel appearing for the appellant, and the learned counsel appearing for the respondent. 9. Learned counsel assailed the impugned order of punishment passed by the disciplinary authority, as also the judgment and order passed by the learned single Judge as being contrary to law, and is wholly without jurisdiction. Learned counsel submitted that, in any case, there cannot be punishment of 50% cut in pension for a period of 36 months. According to the learned counsel, the Government has no right to deduct or cut more than one-third of the pension amount. 10. The provision with regard to withholding or withdrawing pension has been provided in Rule 9 of the Tamil Nadu Pension Rules, 1978. For better appreciation Rule 9(5), which is relevant herein, is reproduced herein below: - “Rule 9. Right of Government to withhold or withdraw pension: - (1)(a) ………….. (b)……………. (2)(a)…………… (b)…………… (3) (4)………… (5) Where the Government decide not to withhold or withdraw pension but order recovery of https://hcservices.ecourts.gov.in/hcservices/ 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. It is, thus, evidently clear that when the Government decides not to withhold or withdraw pension, but order recovery of pecuniary loss from pension, or for any other purposes, 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. 11. In the instant case, it is seen that it was only few days before the date of superannuation of the appellant, he was put under suspension in contemplation of a departmental proceedings. The order of suspension was subsequently revoked pursuant to the order passed by the Tribunal and he was reinstated in service. Thereafter, a departmental proceeding was initiated against him, which concluded that the charges leveled against the appellant have been proved. The enquiry report and the order of punishment passed by the authority have been gone into detail by the learned single Judge, who came to the conclusion that the charges have been conclusively proved. Notwithstanding the said finding, we are of the opinion that, having regard to the unblemished service of the appellant, and the departmental proceeding initiated against him after superannuation of his service, the imposition of punishment by 50% cut in pension appears to be disproportionate and unjustified. The impugned punishment, therefore, needs to be modified to the extent that there shall be cut of one-third pension only, instead of 50%, for a period of 36 months and not more. 12. We, therefore, allow this appeal in part, and modify the order to the extent that there shall be one-third cut in pension, instead of 50%, for a period of 36 months, and not more than that. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To: The Chief Secretary, Government of Tamil Nadu, Public (Special –A) Department, Secretariat, Chennai -600 009. + 1 CC to Government Pleader,SR.45236 + 1 CC to M/s.M.Muthappan,Advocate,SR.45020 W.A.No.695 of 2008 CK(CO) EM/15.7.10 https://hcservices.ecourts.gov.in/hcservices/