1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/9/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR W.P.(MD)No.10802 of 2011 M. Nedunchelian ...Petitioner Vs 1. The Director of Treasuries and Accounts Chennai. 2. The Treasury Officer District Treasury Pudukottai Pudukottai District. ...Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ ofcertiorari to call for the records pertaining to the impugned charge memo issued by the second respondent in his proceedings in Na.Ka.No.10971/2010/B1 dated 30/12/2010 and quash the same. For petitioner ... Mr.K.N.Govardhanan O R D E R Seeking to quash a charge memorandum dated 30/12/2010, the petitioner has filed the present writ petition. 2. According to the petitioner, a false case has been registered against the petitioner, in Crime No.434 of 2010 on the file of Ganesh Nagar Police Station, Pudukottai. Charge memorandum has also been issued on 30/12/2010 by the Director of Treasuries and Accounts, Chennai, first respondent herein, just a day prior to his retirement. However, on 31/12/2010, the first respondent has issued an order permitting the petitioner to retire from service on attaining the age of super annuation, without prejudice to the disciplinary proceedings. To support the writ of certiorari, he invited the attention of this Court and placing reliance on a decision of this Court in 2009 1 MLJ – 761 (KOOTHA PILLAI Vs. COMMISSIONER, MUNICIPAL ADMINISTRATION, CHENNAI AND OTHERS), Mr.K.N.Govardhanan, counsel appearing for the petitioner further submitted that, without retaining the petitioner in service, as mandated in Rule 56 (1) (c) of the Fundamental Rules, the respondents have no jurisdiction to proceed with the departmental proceedings, after the cessation of master and servant relationship. Except the above, no other grounds have been urged. 3. Heard the learned counsel appearing for the petitioner and perused the materials available on record. 4. Admittedly, a criminal case has been registered against the petitioner in Crime No.434 of 2010 on the file of Ganesh Nagar Police Station, Pudukottai. Only after the completion of investigation and report, it would be known as to whether the Registration of a criminal case is false or not? Nevertheless, the charges have been framed against the https://hcservices.ecourts.gov.in/hcservices/ 2 petitioner on 30/12/2010, by a Treasury Officer, District Treasury, Pudukottai District, second respondent herein on 30/12/2010, while he was in service. 5. The contention that no disciplinary proceedings can be inducted after the retirement, has reported in (2009) 1 MLJ – 761 (KOOTHA PILLAI Vs. COMMISSIONER, MUNICIPAL ADMINISTRATION, CHENNAI AND OTHERS), cannot be countenanced. In V.PADMANABHAM Vs. GOVERNMENT OF ANDHRA PRADESH AND OTHERS reported in (2009) 15 SCC – 537, the appellant therein, was a Deputy Tahsildar, Director of Civil Supplies, Punganoor in the District of Chithoor. For certain irregularities in dealing with essential commodities meant for public distribution, he was placed under suspension. A departmental proceeding was initiated. He was found guilty and was dismissed from service. The litigation went up to the Supreme Court, where the point for consideration was as to whether the State is empowered to continue the disciplinary proceedings after the charged official was allowed to superannuate. 6. In the reported judgment, disciplinary proceedings were initiated against the charged official in terms of the provisions of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules. Considering, the rival submissions and Rule 9 (2) (a) of Andhra Pradesh Pension Code which deals with the power of the Government to withold or withdraw pension, the Supreme Court declined to quash the disciplinary proceedings on the ground of delay and further held that Rule 9 (2) of Andhra Pradesh Pension Code raises a legal fiction and the departmental proceedings initiated against the charged official can be continued. The Supreme Court held that the continuation of the disciplinary proceedings which were pending against the charged official is not illegal, even after the retirement. 7. Rule 9 (2) (a) of Andhra Pradesh Pension Code considered in the above reported judgment is extracted hereunder:- "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 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 State Government, that authority shall submit a report recording its findings to the State Government" 8. The said provision is parimateria to the Tamil Nadu Pension Rules, 1978 and therefore, there is no difficulty in applying V.Padmanabham's case to the case on hand. It is well settled that if there is judgment in another enactment, on the same subject, where there is a provision, parimateria, the judgment can be applied while considering a case, arising out of a similar rule on the same subject. https://hcservices.ecourts.gov.in/hcservices/ 3 9. Rule 60 of the Tamil Nadu Pension Rules, 1978, deals with the case of payment of provisional Pension where departmental or judicial proceedings may be pending and it is extracted hereunder:- (1) (a) In respect of Government servant, referred to in sub-rule (4) of Rule 9, the Audit Officer shall authorise the payment of provisional pension not exceeding the maximum pension which would have been admissible on the basis of the qualifying service upto the date of retirement of the Government servant. (b). The provisional pension shall be authorised by the Audit Officer during the period commencing from the date of retirement to the date on which, upon conclusion of the departmental or judicial proceedings, final orders are passed by the competent authority. (c). No gratuity shall be authorised to the Government servant until the conclusion of such proceedings and issue of final orders thereon: Provided that no such gratuity, shall be withheld in respect of a Government Servant, who has been permitted to retire without prejudice to the departmental or judicial proceedings pending against him, where such departmental or judicial proceedings are only for administrative lapses not involving any pecuniary loss to the Government: Provided further that where a Government servant against whom a departmental or judicial proceedings involving pecuniary loss to Government is pending, is permitted to retire without prejudice to such departmental or judicial proceedings, a portion of gratuity may be authorized, after deducting the maximum computed financial loss to the Government for which the Government servant is held liable, along with un-recovered Government dues if any, of such Government servant with interest." 10. Following the decision of the Supreme Court stated supra and in view of the statutory provision under Rule 60 of the Tamil Nadu Pension Rules, 1978, there is no embargo in continuing disciplinary proceedings initiated against the petitioner, under Rule 9 (2) of the Tamil Nadu Pension Rules, 1978, in view of the legal fiction. However, the petitioner is entitled to payment of provisional pension as per sub-rule 1 of Rule 60 of the Tamil Nadu Pension Rules, 1978. 11. In the result, the writ petition is disposed of. No costs. SD/- Assistant Registrar (AS) /True copy/ Sub Assistant Registrar(C.S) https://hcservices.ecourts.gov.in/hcservices/ 4 To 1. The Director of Treasuries and Accounts Chennai. 2. The Treasury Officer District Treasury Pudukottai Pudukottai District. +1 CC to Mr.K.N.Govardhan, Advocate, Sr.No.32637 +1 CC to the Special Government Pleader, SR.No.32895 mvs W.P.(MD) No.10802 of 2011 22/09/2011 TR : 30.09.2011 : 4p/5c : IT https://hcservices.ecourts.gov.in/hcservices/