IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.06.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.No.6776 of 2009 P.Damodaran ... 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 pay the salary after 28.02.2005 and 5% benefits on upgradation of petitioner as per F.R.22.0 with 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 Junior Assistant in the year 1971. He was promoted as Assistant in the year 1974. He was again promoted as Accountant in the year 1978. He was further promoted as Accountant Executive in the year 1986. 2. While the petitioner was working as Accountant Executive in the year 1987, a criminal case was registered against him regarding the supply of imported cement from North Korea and South Korea. The criminal case was registered against the petitioner and 9 other employees of the Tamil Nadu Cement Corporation Ltd., first respondent herein. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner was placed under suspension from service on 25.06.1987. The suspension order was revoked on 29.12.1997 and he was reinstated in service as Accountant Executive. The petitioner reached the age of superannuation on 28.02.2005. The second respondent herein passed an order dated 28.02.2005 retaining the petitioner in service, pending the outcome of the Criminal Case No.17/87 on the file of the IV Additional Sessions Judge, Chennai. The petitioner states that he was acquitted by the IV Additional Sessions Judge, Chennai on 16.04.2008. 4. In these circumstances, the petitioner has filed the present writ petition praying for direction to first respondent to pay salary after 28.02.2005. 5. Notice of motion was ordered on 17.04.2009. 6. Heard Mr.V.Gangatharan, learned counsel for the petitioner and Mr.Karthick, learned counsel for the first respondent and Mrs.Lita Srinivasan, learned Government Advocate for the second respondent. 7. The learned counsel for the petitioner states that since the petitioner was retained in service, he is entitled to salary beyond 28.02.2005. He further states that the petitioner was not allowed to retire on 28.02.2005, by retaining him service beyond his date of superannuation, and hence, the petitioner is entitled to salary. 8. On the other hand, the learned counsel for the first respondent Corporation states that as per the TANCEM Service Rules, the employees could not be retained in service after their retirement, pending disciplinary action / criminal proceedings. The Service Rules were amended only on 18.01.2007 giving power to Corporation to retain the employees in service beyond the date of superannuation pending disciplinary action. However, he submits that the petitioner is entitled to terminal benefits. 9. In these circumstances, the learned counsel for the first respondent states that the petitioner cannot claim salary and he is entitled only to the terminal benefits. 10. I have considered the submissions on either side. 11. It is not disputed by the learned counsel for the petitioner that the TANCEM Service Rules do not provide for retaining an employee in service beyond the date of superannuation pending disciplinary action or criminal proceedings at the relevant point of time. That is, on 28.02.2005, an employee of TANCEM could not be retained in service as per the Service Rules on the ground that the criminal proceedings is pending. Even as per the amended Rule that is shown to me, there is no provision to keep an employee beyond the https://hcservices.ecourts.gov.in/hcservices/ date of superannuation during the pendency of the criminal proceedings. In any event, I am not going into the amended Rule, as the same comes into effect only from 18.01.2007. Admittedly, the petitioner reached the age of superannuation on 28.02.2005. 12. The learned counsel for the first respondent relied on the judgment of the Hon'ble Apex Court in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. And others reported in (1999) 3 SCC 666, wherein it has been held as follows : "In view of the absence of such a provision in the above said 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 30.06.1995, 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 beheld that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement." 13. It is well settled that an employee cannot be retained beyond the date of superannuation, if the Service Rules do not provide for the same, as held by the Hon'ble Apex Court. Therefore, the very order of the second respondent retaining the petitioner from service is without jurisdiction. Based on such an order, the petitioner could not seek salary. 14. However, the first respondent is not justified in not settling the terminal benefits of the petitioner immediately after his retirement on 28.02.2005. 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. 15. 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 28.02.2005 till the payment is made. https://hcservices.ecourts.gov.in/hcservices/ 16. 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. + 1 CC to Mr.V.Gangatharan,Advocate,SR.45523 + 1 CC to Government Pleader,SR.45840 W.P.No.6776 of 2009 RSI(CO) EM/30.6.10 https://hcservices.ecourts.gov.in/hcservices/