1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/08/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.8754 of 2011 V.Saroja W/o.O.Periyakaruppan No.3 Thalaiyari Gurunathan Kovil Street Madurai – 625 001 ... Petitioner Vs 1. The Secretary to Government Social Welfare and Nutritious Scheme Department Chief Secretariat,Chennai – 600 009. 2. The Commissioner of Social Welfare Chepauk,Chennai 600 005. ... Respondents Prayer : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records of the first respondent relating to G.O.(1-D) No.107 Social Welfare and Nutritious Scheme Department dated 30.06.2009 and quash the condition alone imposed in the impugned government order and consequently direct the respondents to make payment of the pension and other retirement benefits within a specified time frame. For petitioner ...Mr.S.Visvalingam For respondents ...Mr.S.Chandrasekar Government Advocate ORDER Being aggrieved with the condition imposed in G.O.(1-D).No.107 Social Welfare and Mid day Meals Programme Department, dated 30.06.2009, imposing a condition that the petitioner would be permitted to retire without prejudice to the disciplinary proceedings, the writ petition for certiorarified mandamus has sought for to quash the same and for consequently a direction to the respondents to make payment of the pension and other retirement benefits within a specified time frame. 2. Pleadings disclose that the petitioner, who joined as Grama Sevika, on 21.08.1978, was gradually promoted to higher posts and while she was serving as Child Development Project Officer at Vembakottai Block of Virudhunagar District, she attained the age of superannuation and was allowed to retire on 30.06.2009 without prejudice to the disciplinary proceedings initiated against her. It is the further case of the petitioner that disciplinary proceedings were initiated by the second respondent in his letter No.R.C.63116/Admn/5-1/2007, dated 16.07.2008, and after completion of the enquiry of all the process, orders were not passed by the Government. 3. Materials on record disclose that there was another proceeding initiated by the Commissioner of Social Welfare Department, in R.C.No.29488/Admn 5-1/2008-14, dated 18.06.2009, and as against the same, the petitioner has filed a writ petition in W.P.No.5036 of 2011, https://hcservices.ecourts.gov.in/hcservices/ 2 and by order dated 28.04.2011, this Court, by considering the limited scope of the writ petition without expressing any opinion, has directed the Government to pass final orders on the basis of the proceedings initiated against the petitioner within a period of eight weeks from the date of receipt of the copy of the said order. 4. It is the contention of the petitioner that after the order passed by this Court, the respondents have no jurisdiction to proceed against the petitioner under Tamil Nadu Civil Services (Discipline and Appeal) Rules and the Government has to proceed only under the Pension Rules. 5. In support of the above, the petitioner placed reliance on the decisions reported in 2009 (1) MLJ 761 (Koothapillai vs. Commissioner, Municipal Administration, Chennai and others) and 2011 (1) CTC 18 (Y.Raja vs. he Joint Registrar of Co-operative Societies, Madurai Region, Madurai). Similar view has also be taken in W.P.No.14905 of 2010 on 15.06.2011 in the matter of P.Pennarasi vs. The Special Commissioner and Secretary to Government, Social Welfare and Nutritious Scheme Department, Secretariat, Chennai, wherein, the learned Single Judge by taking note of the Division Bench judgment reported in 2011 (1) CTC 18, has set aside the order impugned therein, insofar as it relates to the expression “without prejudice to the disciplinary case pending against her”, however, directed the respondents therein to proceed against the petitioner under the Pension Rules, if they chooses to do so within one month from the date of receipt of a copy of the said order. The learned Single Judge while adjudicating the correctness of the order, has further held that unless and until by invoking the powers under Rule 56(1)(c) of the Fundamental Rules, the Government passes an order retaining the services of the Government servants even after attaining the age of superannuation for the purpose of facing disciplinary proceedings, the authority has no power to proceed with the disciplinary proceedings. 6. In a recent decision, made in Writ Appeal in W.A.No.669 of 2011 dated 22.07.2011, the writ petitioner/respondent therein has challenged the order of the learned Single Judge made in W.P.No.8460 of 2010, wherein the writ petitioner has been permitted to retire on attaining the age of superannuation “without prejudice to the disciplinary proceedings”. The Division Bench in W.A.(MD) No.669 of 2011, placing reliance on a decision of this Court in T.Muthusamy v. Tamil Nadu Cements Corporation Limited reported in 2006(4) MLJ 504, held that permission to retire an employee without prejudice to the disciplinary proceedings is not authorised under any rule and the decision reported in 2009 (1) MLJ 761 (Koothapillai vs. Commissioner, Municipal Administration, Chennai and others) has also been considered. After referring to Rule 56(1)(c) of the Fundamental Rules and the judgments stated supra, in addition to a decision reported in the State of Tamil Nadu vs. R.Karuppiah reported in 2005(3) CTC 4, the Division Bench in W.A.No.69 of 2011, sustained the order of the learned Single Judge, and at paragraph No.3 of the order, held as follows: “3. The contents of the said Note to Rule 32 of the Tamil Nadu Pension Rules is the re- production of what is contained in Rule 56(1)(c) https://hcservices.ecourts.gov.in/hcservices/ 3 of the Fundamental Rules. It was in the light of such Note available under the Tamil Nadu Pension Rules, the Division Bench has held that even under the Tamil Nadu Pension Rules, unless and until an order under Rule 56(1)(c) is passed, no further proceedings can be continued under the Tamil Nadu Pension Rules also. While so, we see no reason to interfere with the order of the learned Single Judge. It is also brought to the notice of this Court that even the Government in G.O.(2D).No.604, Revenue (Ser.10-2) Department, dated 02.12.2009 in another case, which is similar to that of the present case, has stated that the delinquent was allowed to retire without prejudice to the disciplinary proceedings and it was, in categoric terms, stated by the Government that no such order shall be passed, since the word "without prejudice" does not confer any power on the Government from proceeding further.” 7. However, 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. 8. On behalf of the State, it was submitted that, despite superannuation, departmental proceeding pending against him, must be held to be continued in terms of the provisions of Andhra Pradesh Pension Code, unless there was no legal impediment in imposing any punishment, so as to enable the State to recover the amount which it suffered owing to the acts of omission and commission, on the part of the charged official. 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. 9. 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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" 10. The said provision is parimateria to the Tamil Nadu Pension Rules, 1978 and therefore, there is no difficulty in applying V.Padmanabhan'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. 11. 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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." 12. A perusal of the charge memorandum shows that the petitioner has caused loss to the Government. 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. The loss alleged to have been caused to the Government, can be withheld and the remaining amounts and other retiral benefits may be paid to the petitioner and accordingly, respondents are directed to send proposals to the Principal Accountant General (A & E), Chennai. It is made clear that the loss assessed can be withheld, till the disposal of the disciplinary proceedings and proposals can be sent to the Accountant General, for disbursement. Till the proceedings are completed, the petitioner is entitled to provisional pension as per Rule 60 of the Pension Rules. The disciplinary proceedings shall be expedited and orders may be passed as and when the proceedings are completed. Insofar as the payment of retiral benefits are concerned, proposals can be sent and appropriate orders may be passed, within three months. In the result, the writ petition is disposed of. No costs. Sd/- Deputy Registrar(Writ) /TRUE COPY/ Assistant Registrar To 1. The Secretary to Government Social Welfare and Nutritious Scheme Department Chief Secretariat,Chennai – 600 009. 2. The Commissioner of Social Welfare, Chepauk,Chennai 600 005. +1cc to The Special Govt.Pleader SR.No.26558 +1cc to Mr.S.Visvalingam, Advocate SR.No.29187 Writ Petition No.8754 of 2011 05.08.2011 RR PA/05.09.2011/5P/5C https://hcservices.ecourts.gov.in/hcservices/