K.Srinivasan v. The Secretary to Government, Municipal Administration and Water Supply (MC.III) Department, Fort

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 03.12.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.15715 of 2009and M.P.NO.1 OF 2009K.Srinivasan.. Petitioner Vs.

The Secretary to Government, Municipal Administration and Water Supply (MC.III) Department, Fort St. George, Chennai-9.

The Commissioner, Corporation of Chennai, Chennai-3. .. RespondentsThis writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to thefirst respondent herein in G.O.(2D)No.68, Municipal Administrationand Water Supply (MC.III) Department, dated 29.7.2009 and theconsequential order by not permitting to retire from service by thefirst respondent herein in G.O.(2D) No.71, Municipal Administrationand Water Supply (MC.III) Department, dated 31.7.2009 and to quashthe same and consequently, to direct the respondents herein toretire the petitioner from service with effect from 31.7.2009 andconfer all attendant and pensionary benefits with due regard to thepetitioner's seniority. For Petitioner : Mr.Anand for M/S. Anand & SuryasFor Respondents : Mr.R.Neelakantan, GA for R1 Mr.T.Mathi for R2ORDERHeard both sides. The petitioner has come forward to filethe present writ petition seeking to challenge G.O.(2D)No.68,Municipal Administration and Water Supply Department, dated29.7.2009 and G.O.(2D)No.71, Municipal Administration and Water https://hcservices.ecourts.gov.in/hcservices/ Supply Department, dated 31.7.2009 and after setting aside thesame, he seeks permission to retire from service with effect from31.7.2009. 2. The writ petition was not admitted and merely notice wasdirected to be issued to the Standing Counsel for the first andsecond respondents. By the impugned orders, the State Governmentdirected that petitioner, who was working as a Zonal Officer in thesecond respondent Corporation, is prevented from retiring fromservice by the exercise of his power under FR 56(1)(c). It wasstated that his services are to be retained till grave chargespending against him are concluded and that final orders are passedby the competent authority. The petitioner was also kept undersuspension by an another order, dated 29.7.2009.

It is the case of the petitioner that the petitioner wasinitially enrolled as a lawyer. After practice for three years andafter intimation to the Bar Council, he joined as a Assistant LawOfficer. Subsequently, he was promoted as a Secretary to the secondrespondent Council on 30.5.1991. He was also confirmed in thatpost. He was thereafter appointed as a Zonal Officer on 10.5.1995and worked in various capacities. The petitioner was issued with acharge memo, dated 10.11.2008. He submitted his explanation on5.12.2008. An Enquiry Officer was appointed. Thereafter, he went onmedical leave with effect from 18.12.2008. Subsequently, when heresumed duty, he was kept under compulsory wait. In the meanwhile, the impugned order came to be passed.

The stand of the petitioner was that the impugned orderwas served on the petitioner on 31.7.2009 at 7.10 p.m. and sincethe same was served after his date of retirement, i.e. On31.7.2009, such a suspension was illegal. Further, since the officewas closed at 5.45 p.m. and he was served at 7.10 p.m., theimpugned order is invalid as he was no longer in service at thattime. The contentions raised by the petitioner regarding belatedservice of notice and the lack of jurisdiction to take action aftersupeannuation lack merits.

In this context, it is necessary to refer to the judgmentof the Supreme Court in U.P. State Sugar Corpn. Ltd. v. KamalSwaroop Tondon reported in (2008) 2 SCC 41. The following passagefound in paragraph 40 may be usefully referred below:40. Considering the facts andcircumstances in their entirety, in ourconsidered opinion, the High Court was wrongin holding that the proceedings were initiatedafter the respondent retired and there was nopower, authority or jurisdiction with the Corporation to take any action against thewrit petitioner and in setting aside theorders passed against him. In our judgment, proceedings could have been taken for the https://hcservices.ecourts.gov.in/hcservices/ recovery of financial loss suffered by the Corporation due to negligence and carelessnessattributable to the respondent employee. Theimpugned action, therefore, cannot be said tobe illegal or without jurisdiction and the High Court was not right in quashing theproceedings as also the orders issued by the Corporation. The appeal, therefore, deservesto be allowed by setting aside the order ofthe High Court.

A similar view was taken by the Supreme Court in Secretary, Forest Department and others Vs. Abdur Rasul Chowdhuryreported in 2009 (7) SCC 305. The following passage found inparagraph 15 may be usefully extracted below: "15. In the present case, while thedelinquent employee was in service, thedepartmental enquiry proceedings had beeninstituted by the employer by issuing thecharge memo and the proceedings could not becompleted before the government servantretired from service on attaining the age ofsuperannuation and in view of Rule 10(1) ofthe 1971 Rules, the employer can proceed withthe departmental enquiry proceedings thoughthe government servant has retired fromservice for imposing only punishmentcontemplated under the Rules. "7. The Supreme Court in National Textile Corpn. (M.P.) Ltd.v. M.R. Jadhav reported in (2008) 7 SCC 29 has categoricallystated that communication of an order of suspension is notnecessary if the order goes our of control of the appointingauthority. The following passage found in paragraphs 23 and 24 maybe usefully extracted below:23. In MCD v. Qimat Rai Gupta9 this Court opined: (SCC p.319, para 27)

27. An order passed by a competent authoritydismissing a government servant from servicesrequires communication thereof as has beenheld in State of Punjab v. Amar Singh Harika6but an order placing a government servant onsuspension does not require communication ofthat order. (See State of Punjab v. KhemiRam.)

24. Therefore, there cannot be any doubt whatsoeverthat communication of the acceptance of offer wasnecessary. An internal noting does not constitute acommunication. Even in a case of order ofsuspension, only when the case goes out of the https://hcservices.ecourts.gov.in/hcservices/ control of the appropriate authority, actualcommunication may not be necessary. 8. In the light of the above, arguments are not available tothe petitioner. Hence the writ petition will stand dismissed. Nocosts. Consequently, connected miscellaneous petition also standdismissed. Sd/ Asst. Registrar /true copy/Sub Asst. RegistrarvvkTo1.The Secretary to Government, Municipal Administration and Water Supply (MC.III) Department, Fort St. George, Chennai-9.2.The Commissioner, Corporation of Chennai, Chennai-3.+ 1 cc to M/S.Anand & Surgas, Advocates, SR 65621 ORDER INW.P.NO.15715 OF 2009DM (CO)RH (9.12.09)