Tmt. D. Vijayalakshmi v. The Chairman,Tamil Nadu Slum Clearance Board,Chennai – 600 005

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27.08.2009CORAMTHE HONOURABLE Mr. JUSTICE M.M.SUNDRESHW.P.No.20229 of 2007 andW.P.No.18607 of 2008Tmt. D. Vijayalakshmi... Petitioner in both W.Ps.Vs.The Chairman,Tamil Nadu Slum Clearance Board,Chennai – 600 005. ... Respondent in both W.Ps.Prayer in W.P.No.20229 of 2007:Petitions filed under Article 226 of the Constitution ofIndia for the issuance of Writ of certiorari, calling for therecords relating to the Charge Memo No.A3/9345/02 dated 09.07.2002on the file of the respondent and the consequential notice issuedby respondent in Na.Ka.No.A3/9345/02 dated 07.03.2007.Prayer in W.P.No.18607 of 2008:Petitions filed under Article 226 of the Constitution ofIndia for the issuance of Writ of mandamus, directing therespondent to settle all service and retiral benefits on the basisof the order of retirement dated 31.07.2007, made inNa.Ka.No.A3/12235/2007, dated 31.07.2007.For Petitioner in W.P. No. 20229 of 2007: Mr. V. ElangovanFor Petitioner in W.P.No.18607 of 2008: Mr. ChandrakumarFor Respondents in both W.P.Nos.: Mr. Y. Bhuvanesh Kumar, TNSC Board.O R D E RIn view of the fact that the petitioner in both the writpetitions being the same and the subject matter is also the same,they have been taken up together for disposal. The petitionerherein, while working with the respondent, Tamil Nadu SlumClearance Board, as Assistant, was placed under suspension, on08.05.2002, on the allegation that he has handed over fakeallotment orders in Okkiam Thoraipakkam Scheme. The respondentalso gave a complaint to the Commissioner of Police, Chennai and on https://hcservices.ecourts.gov.in/hcservices/ the basis of the said complaint, a criminal case has beenregistered against the petitioner on 06.06.2002 for the allegedoffence under Sections 415, 417 and 420 IPC r/w. 466, 468 and 471IPC . In pursuance of the same, the charge sheet was filed inC.C.No.10290 of 2002. The respondent has also proceeded againstthe petitioner departmentally. As the criminal case filed againstthe petitioner ended in conviction, the petitioner has filed anappeal. In the appeal, the Appellate Court has set aside theconviction. The petitioner was acquitted from all the charges. Inthe mean while, the respondent has dismissed the petitioner inpursuance of the order of conviction granted by the Trial Court.Therefore, challenging the said order of the respondent, dated03.09.2004 and 20.03.2005, the petitioner had filed a writ petitionin W.P.No.12161 of 2006, seeking the relief of certiorarifiedmandamus to quash the said orders with the consequential relief ofreinstatement with back wages as well as the incidental benefits.2. The Honourable Court by its order dated 06.07.2009 waspleased to set aside the order passed by the respondent on theground that the proceedings were initiated by the respondent onlyon the basis of the criminal case. Therefore, while setting asidethe order and granting all the benefits, the Honourable Court hasobserved that the liberty is given to the respondent to proceed inthe manner known to law.3. Taking advantage of the said observation, the respondenthas initiated the fresh proceedings by issuing a charge memo, dated09.07.2002. In pursuance of the same, an enquiry was conducted andthe enquiry officer filed a report, on 09.11.2006, exonerating thepetitioner of all the charges levelled against him. However, thefirst respondent being the disciplinary authority did not concurwith the same and issued the memo proceedings dated 07.03.2007, asto why the petitioner should not be punished for the chargeslevelled against him. Challenging the same, the petitioner hasfiled W.P.No.20229/2009.4. The petitioner has also filed another writ petition inW.P.No.18607/2008 seeking the relief of the writ of mandamus,directing the respondents to settle all the service and retirementbenefits on the basis of the order of retirement dated 31.07.2007.The said writ petition has been filed on the ground that thepetitioner has been allowed to retire by the proceedings, dated31.07.2007, and thereafter another order was passed on 07.02.2008permitting the petitioner to make certain payment. Since bysubsequent memo, the petitioner's request for payments ofretirement benefits was rejected, on 12.03.2008, on the ground thatthe writ petition filed in W.P.No.20229 of 2007 is pending, thepetitioner has filed W.P.No.18607/08. https://hcservices.ecourts.gov.in/hcservices/

5. The learned counsel for the petitioner submitted that inas much as the petitioner had been allowed to retire without anorder of suspension, the retirement benefits cannot be withheld andtherefore, it should be deemed that the proceedings against thepetitioner have come to an end in pursuance of her superannuation.It is further submitted that the enquiry officer has exonerated thepetitioner of all the charges and without any basis, the respondenthas concluded that the charges are proved. According to thelearned counsel, the said order passed by the respondent is alsoliable to be a set aside, since he has predetermined the entireissue. The learned counsel further submitted that instead ofdiffering with the enquiry officer finding, the respondent has cometo a conclusion on his own which is impremissible in law. 6.The counsel for the respondent per contra had submitted that in asmuch as the power is conferred upon the respondent to set aside andanalyse the enquiry officer's report the same can not bequestioned. Moreover, the writ petition cannot be entertained,when the respondent has issued only a show cause notice for theproposed punishment. The learned counsel further submitted thateven a perusal of the order passed by the respondent dated31.07.2007 shows that the petitioner was allowed to retire withoutprejudice to the pending case. It is further submitted that theproceedings has been initiated in view of the liberty given by theHonourable Court and therefore, the writ petition is liable to be aset aside.7. It is no doubt true that the petitioner has beenacquitted by the competent criminal court in the present case.Apart from the same, the enquiry officer has also exonerated thepetitioner of all charges. However, mere fact that the petitionerhas been superannuated and he has been made to suffer for number ofyears from 2002 onwards since the proceedings have not beenconcluded cannot be a ground by itself to set aside the entireproceedings. Moreover, the respondent has initiated the proceedingsbased upon the observations made by this Honourable Court.Thereafter, the petitioner got superannuated and she was permittedto retire without prejudice to the pendency of the proceedings.8. The learned counsel for the petitioner has relied uponthe judgement of the Division Bench of this Court reported in(2005)2 M.L.J.555 (State of Tamil Nadu v. R. Karuppiah) to submitthat the competent authority does not have the power to proceedagainst the retired Government servant, without complying with rule56(1)(c) of the Fundamental Rules. According to the learnedcounsel, the proceedings under Fundamental Rules is mandatory andtherefore, in the absence of the same, it should be deemed that theproceedings against the petitioner has come to an end. It isfurther submitted that the relationship of the employers andemployee is no longer available against the Government servant. https://hcservices.ecourts.gov.in/hcservices/

9. The said contention of the learned counsel cannot beaccepted for the reason that in the present case, the applicationof Rule 56(1)(c) of the Fundamental Rules is not involved.Moreover, the Division Bench was dealing with the case in whichproceedings have been initiated by the Competent Authority, afterthe retirement of the Government Servant. However, in the presentcase, there is no dispute, that the proceedings have been initiatedeven while the petitioner was in service. Further, the charge memohas been given and enquiry has been concluded. The enquiry officerhas also filed a report. No doubt it is true that the show causenotice issued by the competent authority itself, would not amountto initiation of proceedings. However in a case where charge memohas been issued, it is to be concluded that the proceedings havebeen initiated and in such a case if the delinquent officer retiredsubsequently, the proceedings due to have been continued. 10. In the Judgment report (2007) 6 Supreme Court Cases 694(UCO Bank and Another v. Rajinder Lal Capoor) in order to theHonourable Supreme Court in paragraph 21 has observed as follows."21. The aforementioned Regulation, however, couldbe invoked only when the disciplinary proceedings hadclearly been initiated prior to the respondent's ceasingto be in service. The terminologies used therein are ofseminal importance. Only when a disciplinary proceedinghas been initiated against an officer of the bank despitehis attaining the age of superannuation, can thedisciplinary proceeding be allowed on the basis of thelegal fiction created thereunder i.e. Continue "as if hewas in service". Thus, only when a valid departmentalproceeding is initiated by reason of the legal fictionraised in terms of the said provision, the delinquentofficer would be deemed to be in service although he hasreached his age of superannuation. The departmentalproceeding, it is trite law, is not initiated merely byissuance of a show-cause notice. It is initiated onlywhen a charge-sheet is issued (see Union of Indiav.K.V.Jankiraman) . This aspect of the matter has alsobeen considered by this Court recently in Coal India Ltd,V.Saroj Kumar Mishra wherein it was held that date ofapplication of mind on the allegations levelled againstan officer by the competent authority as a result whereofa charge-sheet is issued would be the date on which thedisciplinary proceedings are said to have been initiatedand not prior thereto. Pendency of a preliminary enquiry,therefore, by itself can not be a ground for invokingClause 20 of the Regulations. Albeit in a different factsituation but involving a similar question of law in CoalIndia Ltd. this Court held: https://hcservices.ecourts.gov.in/hcservices/

13. It is not the case of the appellants thatpursuant to or in furtherance of the complaint receivedby the Vigilance Department, the competent authority hadarrived at a satisfaction as is required in terms of thesaid circulars that a charge-sheet was likely to beissued on the basis of a preliminary enquiry held in thatbehalf or otherwise.14. The circular letters issued by the appellantsput restrictions on a valuable right of an employee.They, therefore, are required to be construed strictly.So construed there cannot be any doubt whatsoever thatthe conditions precedent contained therein must besatisfied before any action can be taken in that regard".It was furthermore observed that:20. A departmental proceeding is ordinarily said tobe initiated only when a charge-sheet is issued".(See also Union of India V. Sangram Keshari Nayak.)11. Similarly in other Judgement Reported in (2007) 3 MLJ 873(SC) (State of U.P. and others v. R.C. Misra), the HonourableSupreme Court has observed as follows."6. Regulations 351-A and 470 of Civil ServiceRegulations read as under:351-A. The Governor reserves to himself the rightof withholding or withdrawing a pension or any part ofit, whether permanently or for a specified period and theright of ordering the recovery from a pension of thewhole or part of any pecuniary loss caused to Government,if the pensioner is found in departmental or judicialproceedings to have been guilty of grave misconduct, orto have caused pecuniary loss to Government by misconductor negligence, during his service, including servicerendered on re-employment after retirement:Provided that-(a) Such departmental proceedings, if notinstituted while the officer was on duty either beforeretirement or during reemployment-i) shall not be instituted save with the sanctionof the Governor.ii) shall be in respect of an event which tookplace not more than four years before the institution ofsuch proceedings; and https://hcservices.ecourts.gov.in/hcservices/ iii) shall be conducted by such authority and insuch place or places as the Governor may direct and inaccordance with the procedure applicable to proceedingson which an order of dismissal from service may be made.(b) Judicial proceedings, if not instituted whilethe officer was on duty either before retirement orduring re-employment, shall have been instituted inaccordance with sub-clause (ii) of Clause (a); and(c) The Public Service Commission, Up shall beconsulted before final orders are passed.(Provided further that if the order passed by theGovernor relates to a case dealt with under the UttarPradesh Disciplinary Proceedings (AdministrativeTribunal) Rules, 1947, it shall not be necessary toconsult Public Service Commission)Explanation – For the purpose of this article-(a) departmental proceedings shall be deemed tohave been instituted when the charges framed against thepensioner are issued to him or, if the officer has beenplaced under suspension from an earlier date, on suchdate; and(b) judicial proceedings shall be deemed to havebeen instituted:(i) in the case of criminal proceedings, on thedate on which complaint is made, or a charge-sheet issubmitted, to a criminal Court; and(ii) in the case of civil proceedings, on the dateon which the plaint is presented or, as the case may be,an application is made to a Civil Court.470. (a) The full pension admissible under theRules is not to be given as a matter of course, or unlessthe service rendered has been really approved (SeeAppendix 9)(b) If the service has not been thoroughlysatisfactory the authority sanctioning the pension shouldmake such reduction in the amount as it thinks proper.Provided that in cases where the authority sanctioningpension is other than the appointing authority, no order https://hcservices.ecourts.gov.in/hcservices/ regarding reduction in the amount of pension shall bemade without the approval of the appointing authority.Note: For the purpose of this Article 'appointingauthority' shall mean the authority which is competent tomake substantive appointment to the post or service fromwhich the officer concerned retires."The substantive part of Regulation 351-A confersthe power upon the Government of withholding orwithdrawing a pension or any part of it, whetherpermanently or for a specified period and the right ofordering the recovery from a pension of the whole or partof any pecuniary loss caused to Government, if thepensioner is found in departmental or judicialproceedings to have been guilty of grave misconduct, orto have caused pecuniary loss to Government by misconductor negligence, during his service, including servicerendered on re-employment after retirement. There is aproviso appended to the Regulation which circumscribesthe power conferred by the substantive part of theRegulation. Clause (a) of the proviso with which we areconcerned here uses the expression if not institutedwhile the officer was on duty either before retirement orduring re-employment. Clause (a) of the proviso will,therefore, get attracted only when the departmentalproceedings are instituted against the officer after hisretirement or when he is not in re-employment. If thedepartmental proceedings are instituted before an officerhas attained the age of superannuation and before hisretirement, proviso (a) can have no application. Inorder to remove any doubt regarding the date ofinstitution of enquiry or the judicial proceedings anExplanation has been appended after the proviso.According to Explanation (a), departmental proceedingsshall be deemed to have been instituted (i) when thecharges framed against the officer are issued to him, or(ii) if the officer has been placed under suspension froman earlier date, on such date. By incorporating theexplanation, the rule framing authority has notionallyfixed two dates as the date on which the departmentalproceedings shall be deemed to have been institutedagainst an officer. A combined reading of the provisoand the explanation would show that there is no fetter orlimitation of any kind for instituting departmentalproceedings against an officer if he has not attained theage of superannuation and has not retired from service.If an officer is either placed under suspension orcharges are issued to him prior to his attaining the age https://hcservices.ecourts.gov.in/hcservices/ of superannuation, the departmental proceedings soinstituted can validly continue even after he hasattained the age of superannuation and has retired andthe limitations imposed by sub-clause (i) or sub-clause(ii) of clause (a) of proviso to Regulation 351-A willnot apply. It is only where an officer is not placedunder suspension or charges are not issued to him whilehe is in service and departmental proceedings areinstituted against him under Regulation 351-A after hehas attained the age of superannuation and has retiredfrom service and is not under re-employment that thelimitations imposed by sub-clauses (i) and (ii) ofproviso (a) shall come into play.7. The word used in proviso (a) is "institute".The dictionary meaning of the word "institute" is set up;cause to come into existence; to originate and getestablished; to commence. It obviously refers to theinitial action or the commencement of the action. It isentirely different from continuance of an action alreadyinitiated. If the intention of the rule making authorityhad been that an enquiry instituted against an officerwhile in service should not proceed after his retirement,save with the sanction of the Governor, then the proviso(a) would have been differently worded and instead of theword "instituted", the words "continue" or "proceed" or"go on" would have been used. This being not thelanguage of the proviso, there is absolutely no warrantfor holding that an enquiry validly instituted against anofficer while he was in service would, after retirementof the officer, require sanction of the Governor for itscontinuance and culmination.8. In the present case, the respondent had beenplaced under suspension and charges were also served uponhim while he was in service. In such circumstances,proviso (a) did not come into play at all and there wasno requirement of obtaining sanction of the Governor.The enquiry which had been instituted prior to theretirement of the respondent and was completed after hisretirement could not, therefore, be held to be illegal onthe ground of want of sanction of the Governor. The viewto the contrary taken by the Tribunal and by the HighCourt is, therefore, clearly erroneous in law and cannotbe sustained.12. The reading of the above judgment would make it clearthat in a case where the charge memo has been issued and theproceedings have been followed thereafter and if the Government https://hcservices.ecourts.gov.in/hcservices/ employee retires after the same, then the proceedings would bedeemed to be continued. Therefore in consideration of the abovejudgment, this court is of the opinion that the proceedings cannotbe continued in view of the superannuation of the petitioner cannotbe accepted.13. Further, it is to be seen in the present case that thepetitioner has been allowed to retire without prejudice to thedisciplinary proceedings. The absence of the provisions enablingthe disciplinary authority to suspend and prevent the delinquentofficer from retiring cannot be a ground to hold that theproceedings as against the said officer initiated and pendingduring his service would automatically come to an end.14. In so far as the other contention of the learned counselfor the petitioner is concerned, this court is of the opinion thatthe said contention merits consideration. In the present case onhand, the enquiry officer has given a clear finding based upon thematerials available exonerating the petitioner from all thecharges. No doubt, the power is conferred upon the respondent toaccept or defer the findings on the report of the enquiry officer.The disciplinary officer can differ with the findings of theenquiry officer and in that case, he has to point out thedifferences and on that basis consider and proceed to issue a showcause notice calling for the explanation from the delinquentofficer. The disciplinary authority is exercising the power whichis quasi judicial in nature. 15. The Respondent can not come to a predetermined conclusionand thereafter, issue a notice to the delinquent officer on thequestion of punishment. A reading of the impugned order would showthat the respondent herein has come to the conclusion that all thecharges against the petitioner are proved. In fact, the respondenthas said that from the evidence it is proved that all the threecharges are proved against the petitioner. This court is of theopinion that, even though the respondent has issued a show causenotice in question the same would amount to passing of a finalorder predetermining the entire issue against the petitioner.Therefore, this court of the opinion is that such an order cannotbe sustained. 16. In the similar Judgment reported in (2009) 2 SupremeCourt Cases (Cri) 793 (Aslam Mohammad Merchant V. CompetentAuthority and others), the Honourable Supreme Court was pleased tohold that when the show cause notice is found to be illegal, thesame would vitiate all subsequent proceedings. Therefore, takinginto consideration, the above said position of law this court ofthe opinion is that the impugned order passed by the respondent inW.P.20229 of 2007, dated 07.03.2007, is liable to be set aside and https://hcservices.ecourts.gov.in/hcservices/ accordingly, the same is to be set aside. However, the respondentis at liberty to proceed in accordance with law. In suchcircumstances, the respondent will take into consideration therelevant facts such as the factum of superannuation of thepetitioner, the continuation of the proceedings for number ofyears, the order referred by the competent Criminal Court andfindings of the enquiry officer as well as the statements recordedby the witnesses. In so far as W.P.18607/08 is concerned it ismade clear that in the absence of any proceedings to be initiatedby the respondent, the petitioner will have to be given all theretirement benefits due to her. With these observations, the writpetition is ordered accordingly.17. The learned counsel for the petitioner submitted that inpursuance the superannuation, she has not received any amountsofar. Hence, it was requested that in pursuance order passed bythe Court, the petitioner shall be given monthly pensions. Takinginto consideration, above said submission and also the orderpassed, this court of the opinion that the respondent should paythe pension due to the petitioner from the month of August 2007.ogySd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe Chairman,Tamil Nadu Slum Clearance Board,Chennai – 600 005. + 1 cc to Mr. Y.Bhuvaneshkumar, Advocate SR No.42412+ 1 cc to Mr. S. Doraisamy, Advocate SR No.42537+ 1 cc to Mr. L.Chandrakumar, Advocate SR No.42534SGL(CO)SR/5.10.2009W.P.No.20229 of 2007 andW.P.No.18607 of 2008