IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.06.2010 CORAM TH HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P. No.6775 of 2009 Narayana Shankaran ... Petitioner vs. 1. The Chairman and Managing Director, Tamil Nadu Cement Corporation Ltd., No.7, Anna Salai, Chennai – 600 002. 2. The Special Secretary to Government, Industries Department, Fort. St. George, Chennai-9. ... Respondents Prayer: Writ petition has been filed under Article 226 of the Constitution of India to issue a writ of mandamus directing the first respondent to regularise the pay and settle the terminal benefits like gratuity, P.F., back wages, leave salary of the petitioner with interest and all other consequential benefits. For petitioner : Mr.V.Gangatharan For Respondent-1 : Mr.Karthick, For M/s. T.S.Gopalan & Co. For Respondent-2 : Mrs.Lita Srinivasan Government Advocate O R D E R The petitioner was appointed as a Regional Marketing Inspector Grade-I in the year 1972. He was promoted as Marketing Officer and further he was promoted as Deputy Manager Marketing. 2. While the petitioner was working as Deputy Manager Marketing, a criminal case was registered against the petitioner and 9 other employees of the Tamil Nadu Cement Corporation Ltd., first respondent herein, regarding the supply of imported cement from North Korea and South Korea. A charge sheet was filed in C.C.No.17 of 1987 under Section 120(b) read with 468, 471, 467 and 420 IPC read with Section 5(1)(a) and (d) and 5(2) of Prevention of Corruption Act, 1947 before the IV Additional Sessions Judge, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 3. In the mean time, the petitioner was placed under suspension from service in the year 1987, pending criminal case. Later, the suspension order was revoked and he was reinstated in service. The Criminal Court acquitted the petitioner on 16.04.2008. 4. However, on reaching the age of superanuation, the petitioner was allowed to retire from service on 31.01.1994 without prejudice to the disciplinary and criminal proceedings pending against him. No terminal benefits was paid to him. 5. According to the petitioner, since no order imposing any punishment was passed before he retired from service, the first respondent could not withhold the terminal benefits. Furthermore, the petitioner was acquitted by the criminal court. 6. It is also stated that no disciplinary action was taken. The petitioner is now 73 years old. Since no terminal benefits was paid, he made a representation dated 08.08.2008 to the first respondent to settle the terminal benefits as no order was passed. 7. Thereafter, he approached this court by filing the present writ petition seeking for a direction to the first respondent to regularise the pay and settle the terminal benefits like gratuity, P.F., backwages, leave salary, etc. 8. Notice of motion was ordered on 17.4.2009. 9. Heard Mr.Gangatharan, learned counsel appearing for the petitioner; Mr.Karthick, learned counsel appearing for the first respondent and Mrs.Lita Srinivasan, learned Government Advocate for the second respondent. 10. As rightly contended by the learned counsel appearing for the petitioner, after permitting the petitioner to retire from service, the first respondent shall not withhold the terminal benefits. As per the TANCEM Service Rules, the first respondent employer has no power to retain an employee beyond the date of superannuation. It is stated that only on 18.01.2007, the TANCEM Service Rules was amended providing for retention of an employee beyond superannuation on the ground of pendency of departmental action. As held by the Hon'ble Apex Court in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. And others reported in (1999) 3 SCC 666, in the absence of Rules governing the conditions of service providing for retaining an employee beyond the date of superannuation, the employer cannot validly retain an employee in service beyond the date of superannuation. In this case, in fact, the petitioner was permitted to retire from service. It is pointed out, the criminal case ended in acquittal and that there was no departmental action. The learned counsel appearing for the first respondent does not https://hcservices.ecourts.gov.in/hcservices/ dispute the factual position. 11. In these circumstances, the first respondent is not justified in not settling the terminal benefits of the petitioner immediately after his retirement on 31.01.1994. Even, the learned counsel for the first respondent states that the petitioner is entitled to terminal benefits. Therefore, the first respondent has to settle the terminal benefits payable to the petitioner along with interest at the rate of 10% for the belated payment, as per the Judgment of the Division Bench of this Court in Govt. of Tamil Nadu rep. by the Secretary to Government, Revenue Department, Chennai and another Vs. M.Deivasigamani reported in (2009) 3 MLJ 1. 12. In these circumstances, the first respondent is directed to settle the terminal benefits to the petitioner within a period of four weeks from the date of receipt of a copy of this order along with interest at the rate of 10% per annum from 31.01.1994 till the payment is made. 13. The writ petition is ordered on the above terms. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar r n s To 1. The Chairman and Managing Director, Tamil Nadu Cement Corporation Ltd., No.7, Anna Salai, Chennai – 600 002. 2. The Special Secretary to Government, Industries Department, Fort. St. George, Chennai-9. + 2 CC to M/s.T.S.Gopalan & Co.,Advocate,SR.45613 + 1 CC to Government Pleader,SR.45484 + 1 CC to Mr.V.Gangatharan,Advocate,SR.45522 W.P.No.6775 of 2009 KJI(CO) EM/30.6.10 https://hcservices.ecourts.gov.in/hcservices/