K.Durairajan v. The Secretary to Government Commercial Taxes and Registration Department, Chennai 600 009 & Ors.

For RR 1&2 in both:Mr.V.Arun, AGP the petitionsCOMMON ORDERBy mutual consent of both the learned counsel for the petitionerand the learned Additional Government Pleader, the main writpetitions are taken up for final disposal.2. It is seen that in both the writ petitions, the petitioner isone and the same and the impugned order dated 31.12.2009 issuedagainst the petitioner allowing him to retire from service on the duedate of his retirement, i.e., on 31.12.2009 without prejudice to thedisciplinary proceedings under Rule 17(b) of Tamil Nadu Civil Service(Discipline & Appeal) Rules, (hereinafter referred to as "the Rules")pending against him in respect of the charge memos dated 19.10.2007(challenged in W.P.No.27474 of 2009) and 21.12.2009 (challenged inW.P.No.27475 of 2009) and as such, both the writ petitions have beentaken together for hearing and disposed of by the following commonorder.3. The petitioner, in W.P.No.27475 of 2009 had initially comeforward with a prayer to quash the charge memo dated 21.12.2009 witha consequential relief of promoting him as Assistant InspectorGeneral of Registration with all monetary and service benefits andprivileges, but subsequently, the said prayer was amended, as per theorder of this Court dated 03.03.2010 in view of issuance of the orderdated 31.12.2009 allowing the petitioner to retire without prejudiceto the pending disciplinary proceedings under Rule 17(b) of therules, to the effect of seeking the relief of quashing the order ofthe first respondent in G.O.[D] No.567 Commercial Taxes andRegistration [H1] Department dated 31.12.2009 insofar as it relatesto the direction to proceed against the petitioner under Rule 17[b]of the Rules in respect of the pending charges and consequentlyforbearing the respondents from proceeding against the petitionerunder Rule 17[b] of the Tamilnadu Civil Services [Discipline andAppeal] Rules and to settle the pensionary and terminal benefits tothe petitioner.4. The case of the petitioner is that at the time of hisretirement he was working as Assistant Inspector General ofRegistration, Chennai, and he retired from his service on 31.12.2009.During his tenure, he was issued with charge memos dated 24.06.2005,19.10.2007 and 21.12.2009. In respect of the first charge memo dated24.06.2005, the proceedings were dropped and as such, the petitionerchallenged the remaining two charge memos dated 19.10.2007 and21.12.2009 in the above two writ petitions.5. The petitioner reached the age of superannuation on https://hcservices.ecourts.gov.in/hcservices/

31.12.2009 and on the same day, the first respondent passed theimpugned order dated 31.12.2009 permitting the petitioner to retireon the afternoon on 31.12.2009 without prejudice to the disciplinaryproceedings under Rule 17(b) of the rules in respect of pendingcharges.6. The petitioner stated that once the Government allowed him toretire from service without invoking their powers under 56(1)(c) ofthe Fundamental Rules to suspend the petitioner from his service andto extend the services of the petitioner beyond the date of hisretirement so as to enable the Government to proceed with the pendingdisciplinary action, the Government thereafter cannot proceed againstthe delinquent Government servant and the mere wordings in theimpugned order, viz., without prejudice to the disciplinaryproceedings under Rule 17(b) of the Rules pending against him, willnot empower the Government to proceed against the petitioner afterhis retirement. It is also stated that under Rule 56(1)(c) of theFundamental Rules, the Government can suspend the Government servantbefore the last date of his retirement and can extend the services ofthe Government servant beyond the date of his retirement facilitatingthe Government to complete the departmental proceedings as per thecharges under Rule 17(b) of the Rules for imposing a major penalty.Therefore, the Government cannot continue the departmentalproceedings under Rule 17(b) of the Rules without invoking its powerunder rule 56(1)(c) of the Fundamental Rules. The first respondent bythe impugned order permitted the petitioner to retire from theservices from the afternoon of 31.12.2009 and as such, therelationship of employer and employee ceased from 01.01.2010 and thefirst respondent or the second respondent have no disciplinarycontrol over the petitioner after 31.12.2009 unless and until theyhave exercised their power under rule 56(1)(c) of the FundamentalRules and as such, they have no power to proceed with thedisciplinary proceedings under Rule 17(b) of the Rules. Therefore,the petitioner has been constrained to approach this Court seekingthe above said relief of quashing the impugned order dated 31.12.2009to the limited extent as indicated above.7.1. Mr.V.Ramajegadeesan, learned counsel for the petitioner,vehemently contended that after allowing the petitioner to retirefrom service, the question of proceeding with the disciplinaryproceedings does not arise as the relationship of employer andemployee ceased to exist. The learned counsel would submit that theimpugned order dated 31.12.2009 was passed in respect of two chargememos dated 19.10.2007 and 21.12.2009. It is contended that pursuantto the issuance of the charge memo dated 19.10.2007, there is noprogress in the disciplinary proceedings and the same was keptpending and as far as the second charge memo dated 21.12.2009 isconcerned, the said charge memo was issued at the verge of theretirement of the petitioner. https://hcservices.ecourts.gov.in/hcservices/

7.2. The learned counsel for the petitioner would furthercontend that the Government can suspend the petitioner before thelast date of his retirement by invoking the Rule 56(1)(c) of theFundamental Rules. Invoking the provision under Rule 56(1)(c) ofthe Fundamental Rules enables the Government to extend the servicesof the delinquent officer beyond the date of his retirementfacilitating the Government to complete the departmental proceedings.In the case on hand, such power under Rule 56(1)(c) of theFundamental Rules was not exercised by the first respondent beforepassing the impugned order dated 31.12.2009. It is contended thatmere wordings of "without prejudice to the disciplinary proceedings"will not empower the Government to proceed with the disciplinaryenquiry against the petitioner as the master and servant relationshipceased to exist. Therefore, it is contended that the impugned orderdated 31.12.2009 is liable to be quashed.7.3. In support of his contention he would also place relianceon the following decisions :(1)A Division Bench Judgment of this court inN.M.SOMASUNDARAM Vs. THE DIRECTOR GENERAL OF POLICE,MADRAS-4 reported in 1997 W.L.R. 120 ;(2)Another Division Bench judgment of this Court inN.KUNNAI GOWDER Vs. THE COIMBATORE DISTRICT CO-OP MILKPRODUCERS' UNION LIMITED AND ANOTHER reported in 2008Writ L.R. 104 ; and(3)an unreported Judgment of this court made inWP.No.19707/2008 dated 02.02.2010.8. Mr.V.Arun, learned Additional Government Pleader, wouldsubmit that there is no illegality or infirmity in passing theimpugned order dated 31.12.2009. It is contended that the impugnedorder was passed on the date of retirement of the petitioner and notafter his retirement. It is pointed out by the learned AdditionalGovernment Pleader that the Government, while allowing the petitionerto retire, retained its power to continue with the disciplinaryproceedings pending against him under Rule 17(b) of the rules. It iscontended that the charge memos dated 19.10.2007 and 21.12.2009 wereissued prior to the date of retirement of the petitioner and as such,the first respondent passed the impugned order dated 31.12.2009without prejudice to the disciplinary proceedings under Rule 17(b) ofthe Rules. It is further contended that non-exercise of the powerunder Rule 56(1)(c) of the Fundamental Rules would not invalidate theimpugned order dated 31.12.2009.9. I have given my careful and anxious consideration to therival contentions put forward by either side and also perused theentire materials available on record including the impugned order https://hcservices.ecourts.gov.in/hcservices/ dated 31.12.2009.10. The crux of the question involved in this matter is whetherthe respondents are empowered to continue with the disciplinaryproceedings under Rule 17(b) of the Rules after allowing thepetitioner to retire on reaching the age of superannuation.11. It is seen that the petitioner has been issued with thecharge memos dated 19.10.2007 and 21.12.2009 and the fact remainsthat till the date of filing the writ petitions, there is absolutelyno progress whatsoever pursuant to the issuance of the charge memodated 19.10.2007 and the second charge memo dated 21.12.2009 waspassed just 10 days prior to the date of the retirement of thepetitioner.12. A perusal of the impugned order dated 31.12.2009 revealsthat the petitioner was allowed to retire without prejudice to thepending disciplinary proceedings under Rule 17(b) of the Rules. Inthe impugned order dated 31.12.2009, references were made in respectof three charge memos dated 24.06.2005, 19.10.2007 and 21.12.2009.It is stated by the petitioner in the affidavit in writ petition inW.P.No.27475 of 2009 that the proceedings in respect the first chargememo dated 24.06.2005 were dropped and as such, the petitionerchallenged the remaining two charge memos dated 19.10.2007 and21.12.2009 in the above two writ petitions. Therefore, it is clearthat the impugned order dated 31.12.2009 was passed without prejudiceto the pending disciplinary proceedings under Rule 17(b) of the Rulespursuant to the charge memos dated 19.10.2007 and 21.12.2009.13. It is pertinent to note that in the impugned order itself areference was made to the provision under Rule 56(1)(c) of theFundamental Rules which enables the Government to place thedelinquent officer under suspension and not allowing him to retirebeyond the superannuation with a view to continue with thedisciplinary proceedings. It is further revealed from the impugnedorder that the Government has not resorted to exercise its powerunder rule 56(1)(c) of the Fundamental Rules with a view to avoidpayment of subsistence allowance mainly on the ground that in theevent of charges ultimately proved against the delinquent officeraction may be taken against the petitioner under the Tamil NaduPension Rules for withholding the entire amount of pension payable tohim. Considering such aspect, the Government thought it fit to passthe impugned order dated 31.12.2009 permitting the petitioner toretire from service on attaining the age of superannuation on theafternoon of 31.12.2009 without prejudice to the disciplinaryproceedings under Rule 17(b) of the Rules.14. At the outset, it is to be stated that there is absolutelyno provision of any law or regulation enabling the first respondentto keep the disciplinary proceedings alive even after allowing the https://hcservices.ecourts.gov.in/hcservices/ government servant concerned to retire. If the disciplinaryauthority decides to continue the disciplinary proceedings evenbeyond the due date of retirement the only option is to invoke Rule56(1)(c) of the Fundamental Rules.15. At this juncture, it is relevant to refer to a decision ofthe Division Bench of this Court in N.M.Somasundaram v. The DirectorGeneral of Police, Madras -4 and Ors. reported in 1997 W.L.R.120 inwhich it was held as hereunder :"A reading of Rule 56(a) and (c) together would leadto an irresistible conclusion that in order to retain apublic servant or a Government servant in service onattaining his age of superannuation, a positive order inwriting shall have to be passed by the Government givingthe reasons as to on what grounds which should be onpublic grounds, a Government servant is retained inservice. No doubt Rule 56(c) says that a Governmentservant under suspension on a charge of misconduct shouldnot be required or permitted to retire of his reaching thedate of compulsory retirement. It further says that heshould be retained in service until the enquiry into thecharge is conducted and a final order passed thereon bythe Competent Authority. Therefore, even though it may notbe necessary to permit to Government servant against whoma disciplinary proceeding is pending, to retire fromservice, in order to retain him in service for the purposeof disciplinary proceedings, a positive order in writingis required to be passed. The public ground for passingthe said order is the pendency of the disciplinaryproceeding. But, what is necessary is that there should bean order passed by the Government not permitting aGovernment Servant to retire from service." 16. Again a Division Bench of this Court in The State of TamilNadu V. R.Karuppiah reported in 2005(3) CTC 4 has held hereunder :"29. From the above note it is also clear that toproceed against a Government servant, who is undersuspension on a charge of misconduct, after hisretirement, the fulfilling of the requirements under Rule56(1)(c) of the Fundamental Rules is a mandatory one,otherwise, the competent authority cannot have anyjurisdiction on the retired Government servant to proceedagainst him and the non-compliance of the said rule isvitiated all the proceedings initiated against the firstrespondent and therefore, the same are not sustainableunder law and are liable to be set aside."17. In yet another Division Bench decision in P.Muthusamy V. https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Cements Corporation Limited reported in (2006) 4 M.L.J.504 this Court has held hereunder :8. In view of the admitted factual position thatthere is no specific enabling provision in the TANCEMService Rules and of the legal position as referred toabove, we hold that the order of the first respondent,reserving the right to continue the disciplinaryproceedings after superannuation, is illegal and withoutjurisdiction."18. Another Division Bench of this Court in N.Kunnai Gowder V.The Coimbatore District Co-op. Milk Producers' Union Limited &Another reported in 2008 Writ L.R. 104 has held that,"6. A departmental proceeding can continue so long asthe employee is in service. In the event, a disciplinaryproceeding is kept pending by the employer, the employeecannot be made to retire. In the instant case, no rule hasbeen brought to our notice providing for continuation ofsuch proceeding despite permitting the employee concernedto retire. There has to be a specific provision of law orregulation or a by-law governing the service conditions ofthe person in question for continuing a departmentalenquiry, initiated before the date of superannuation, evenafter the employee had retired from service. Without sucha provision being available, there cannot be an employer-employee relationship surviving after the employee retiresfrom service. Therefore, continuing the enquiryproceedings or conducting an action against the personafter his retirement from service cannot be sustained inthe eye of law."19. The Hon'ble Apex Court in Bhagirathijena v. B.D., O.S.F.Corporation reported in (1999) 3 SCC 666, while dealing with theeffect of continuance of disciplinary proceedings aftersuperannuation in the absence of specific provisions, held ashereunder :"7. In view of the absence of such a provision inthe above said regulations, it must be held that theCorporation had no legal authority to make any reductionin the retiral benefits of the appellant. There is alsono provision for conducting a disciplinary enquiry afterretirement of the appellant and nor any provision statingthat in case misconduct is established, a deduction couldbe made from retiral benefits. Once the appellant hadretired from service on 30-6-1995, there was noauthority, vested in the Corporation for continuing thedepartmental enquiry even for the purpose of imposing any https://hcservices.ecourts.gov.in/hcservices/ reduction in the retiral benefits payable to theappellant. In the absence of such an authority, it mustbe held that the enquiry had lapsed and the appellant wasentitled to full retiral benefits on retirement."20. A similar view is also taken by a learned Single Judge ofthis Court in a similar and identical matter in an unreported ordermade in W.P.No.19707 of 2008 dated 02.02.2010 (K.Rajendran V. SeniorDistrict Collector, Tiruvellore District, Tiruvellore).21. The principles laid down in the decisions cited supra aresquarely applicable to the facts of the instant case as in this casealso the petitioner was allowed to retire on the date of hissuperannuation on 31.12.2009 without prejudice to the pendingdisciplinary proceedings under Rule 17(b) of the Rules and suchimpugned order was passed without invoking the power under Rule 56(1)(c) of the Fundamental Rules and without any specific provision. Asthe petitioner was allowed to retire, the relationship of employerand employee cannot survive and as such, continuation of disciplinaryproceedings cannot be sustained in law. 22. Accordingly, the impugned order passed by the firstrespondent dated 31.12.2009 in G.O.[D] No.567 Commercial Taxes andRegistration [H1] Department is hereby set aside insofar as itrelates to the portion to the effect of continuing with theproceedings against the petitioner in respect of pending charges byspecifically stating "without prejudice to the disciplinaryproceedings under rule 17(b) of the rules. W.P.No.27475 of 2009 isallowed. Consequently, W.P.No.27474 of 2009 is also allowed and allconnected miscellaneous petitions are closed.23. After the dictation of the above said order in the opencourt on 09.03.2010 and before signing the order, the matter isposted today (17.03.2010) "For Being Mentioned" at the instance ofthe learned Additional Government Pleader.24. Mr.V.Arun, learned Additional Government Pleader would nowcontend that the disciplinary proceedings against the petitioner canvery well continue even after his retirement and in support of hiscontention, the learned Additional Government Pleader would placereliance on the decision of the Division Bench of this Court in TheRegistrar of Co-operative Societies V. G.Manoharan (W.A.Nos.256 and257 of 2008) reported in MANU/TN/2827/2009.25. Mr.V.Ramajegadeesan, learned counsel for the petitioner, onthe other hand, would once again reiterate his contention to theeffect that the question of continuing with the disciplinaryproceedings after allowing the petitioner to retire would not at allarise. In support of his contentions, apart from the decisions citedsupra, the learned counsel would also place reliance on the following https://hcservices.ecourts.gov.in/hcservices/ decisions :(1)An unreported Division Bench judgment in Chengam Co-operative Primary Agricultural and Rural DevelopmentBank, Chengam, Tiruvannamalai District, represented byits Special Officer V. N.Panchatsharam and others(W.A.No.103 of 2005 dated 08.04.2009) ; and(2)A learned Single Judge decision in P.S.Kasthuri V.Commissioner, Municipal Administration reported in (2009)3 MLJ 583 ;26. As far as the Division Bench decision of this Court in TheRegistrar of Co-operative Societies V. G.Manoharan (W.A.Nos.256 and257 of 2008) reported in MANU/TN/2827/2009 is concerned, it is seenthat the said decision is in respect of surcharge proceedingsinitiated under Section 87 of the Tamil Nadu Co-operatives Act and asper Section 87 proceedings can be initiated even in respect of aperson who has retired. It is pointed out by the Division Bench inthe said decision as hereunder :"13. Section 87 is an important provision which dealswith surcharge proceedings and it can be initiated if, "itappears that any person who is or was entrusted with theorganisation or management of the society or any past orpresent officer or servant of the society hasmisappropriated or fraudulently retained any money or otherproperty or been guilty of breach of trust in relation tothe society or has caused any deficiency in the assets ofthe society by breach of trust or willful negligence or hasmade any payment which is not in accordance with this Act".The facts relating to misappropriation, fraudulentretention of money or breach of trust may have come tolight either in the course of an audit under Section 80 orduring the course of the inquiry under Section 81 or aninspection and investigation under Sections 82 or 83. Ifsuch fraudulent retention of money, misappropriation,breach of trust or willful negligence becomes apparent, theRegistrar or a person authorised by him is empowered toframe charges against such person and after givingopportunity, an order can be made to repay or restore themoney and such action cannot be commenced after the expiryof seven years from the date of the Act or omission. Thissection empowers the Registrar to proceed against a personwho is or was entrusted with the organisation or managementof the society, a past or a present officer of the society,and a past or present servant of the society. In fact,even the representative who inherits the estate of such aperson who is deceased shall answer the charges. Theretirement of such person or officer or servant is not a https://hcservices.ecourts.gov.in/hcservices/ deterrent to the proceedings that can be initiated underSection 87. Section 87 is only to recover and make good thefinancial loss caused to the society by the individualconcerned by his fraudulent retention of money,misappropriation, willful negligence or breach of trust, asthe case may be. ...."(emphasis supplied by this Court)27. It is seen that in the Division Bench decision cited supra,the delinquent officer was suspended before the date of hissuperannuation and he was also not permitted to retire, it is betterto incorporate the relevant portion in paragraph 16 of the DivisionBench decision as hereunder :"16. In the present case, we have found that a chargememo had been issued to the first respondent and he hadalso given a reply thereto before the date of hissuperannuation. Therefore, the disciplinary proceedings hadalready commenced. The first respondent was not permittedto retire. He was suspended. But no order was passedpermitting him to retire either. Further, the language ofSection 87 of the Act clearly shows that proceedings can beinitiated even in respect of a person who has retired, ifhe has committed the acts specified in Section 87 or isguilty of misconduct as mentioned in the same section, thenwe cannot restrain the appellants from proceeding with theaction against the first respondent. ...."(emphasis supplied by this Court)28. In paragraph 25, the Division Bench referred to a DivisionBench decision of the Andhra Pradesh High Court as hereunder :"A Division Bench of the Andhra Pradesh High Court,relying on Bhagirathi Jena (supra), held that theretirement benefits cannot be withheld. In the presentcase, however, the first respondent was not permitted toretire. He was instead suspended from service on the eve ofhis retirement. In fact, in the above case, the AndhraPradesh High Court observed that if disciplinary action issought to be taken, it must be done before he retires. Thishas been done in the case on hand. The Division Bench heldthat in view of the authoritative pronouncements of theApex Court, the right of the employer to continue thedisciplinary proceedings after the employee had beenallowed to retire was not permissible. The Division Benchobserved, "The only course open to the authorities is notto allow the petitioner to retire on superannuation". Inthe case on hand, no order permitting the first respondentto retire has been passed. The Division Bench also observed https://hcservices.ecourts.gov.in/hcservices/ that proceedings can be initiated against a retiredemployee for the purpose of withholding the whole or partof his pension amount, provided there exists any provisionthere for."(emphasis supplied by this Court)29. In paragraph 26, the Division Bench referred to a decisionof the Hon'ble Apex Court in Ramesh Chandra Sharma V. PunjabNational Bank reported in (2007) 9 SCC 15. The relevant portion inthe said paragraph is to be incorporated as hereunder : "The Supreme Court held that the question whether thedepartmental proceedings can continue after the officerreaches the age of superannuation will depend on theapplicability of the extant rules."30. The above portions incorporated from the Division Benchdecision cited supra make it crystal clear that the said decision isrendered mainly in respect of the surcharge proceedings initiatedagainst the delinquent officer under Section 87 of the Tamil Nadu Co-operatives Act, 1983 and the provision under Section 87 gives thepower to proceed against a past or retired employee for recovery andrestoration of financial loss caused to the society. It is alsopertinent to note that in the said Division Bench decision, thedelinquent officer was suspended before reaching the age ofsuperannuation and he was not permitted to retire. It is alsospecifically made clear by the Division Bench in paragraphs 16 and 30to the effect that no orders were passed permitting the delinquentofficer to retire. As far as the case on hand is concerned, theservice of the petitioner has not been extended by suspending thepetitioner and not allowing him to retire and on the other hand, hewas allowed to retire and as such, the Division Bench decision citedsupra is not at all helpful to advance the contentions of the learnedAdditional Government Pleader.31. Another Division Bench of this Court inM.K.S.Balasubramanian V. Kancheepuram Central Co-op. Bank Ltd inW.A.No.1297 of 2008 by order dated 25.02.2010 by referring the abovesaid Division Bench of this Court in The Registrar of Co-operativeSocieties V. G.Manoharan (W.A.Nos.256 and 257 of 2008 dated21.10.2009) reported in MANU/TN/2827/2009 held as hereunder :"12. Thus, the respondent is not justified in imposingthe condition namely reserving its right to proceedDisciplinary Proceedings while allowing the appellant toretire from service on 31.3.2005. The direction given bythe learned Single Judge to the respondent to retain theamount of Rs.2.69.938/- from terminal benefits payable tothe appellant is perfectly justified as the respondent can https://hcservices.ecourts.gov.in/hcservices/ effect recovery of the loss sustained after initiatingsurcharge proceedings under Section 87 of the Tamil NaduCo-operative Societies Act, 1983. ....13. A Division Bench of this Court in W.A.Nos.256 and257 of 2008 analyzed various judgments on this issue in itsjudgment dated 21.10.2009 and upheld the right of thesociety insofar as initiation of surcharge proceedingsunder Section 87 of the Tamil Nadu Co-operative SocietiesAct, 1983 even though the respondent in those cases alsoretired from service insofar as the loss sustained to thesociety. We are in entire agreement with the above saidjudgment.14. In view of the above findings, the order of thelearned single Judge is modified holding that the conditionto continue the disciplinary proceedings after retirementagainst the appellant is set aside and the respondent isgranted liberty to proceed with the surcharge proceedingsto be initiated under Section 87 of the Tamil naduCooperative Societies Act, 1983 for the alleged loss."(emphasis supplied by this Court)The above said Division Bench decision also makes it crystal clearthat imposing such a condition of reserving the right to proceeddisciplinary proceedings while allowing the delinquent officer toretire from his service is far beyond the power of the disciplinaryauthority and the said decision is squarely applicable to the factsof the instant case as in this case also, the petitioner was allowedto retire, but without prejudice to the disciplinary proceedingsunder Rule 17(b) of the Rules as per the impugned order.32. It is worthwhile to refer to the decision of the Hon'bleApex Court in Ramesh Chandra Sharma V. Punjab National Bank reportedin (2007) 9 SCC 15 relied by the earlier Division Bench of this courtin the decision cited supra (The Registrar of Co-operative SocietiesV. G.Manoharan (W.A.Nos.256 and 257 of 2008 dated 21.10.2009)reported in MANU/TN/2827/2009). In the said decision the Hon'ble ApexCourt dealt with the rules and regulations of the Punjab NationalBank and held as hereunder :"13. The question as to whether a departmentalproceeding can continue despite the delinquent officer'sreaching the age of superannuation would depend upon theapplicability of the extant rules. It may be true that thequestion of imposition of dismissal of the delinquentofficer from service when he has already reached the age ofsuperannuation would not ordinarily arise. However, as theconsequences of such an order are provided for in theservice rule, in our opinion, it would not be correct to https://hcservices.ecourts.gov.in/hcservices/ contend that imposition of such a punishment would bewholly impermissible in law."...."16. The question, thus, as to whether continuation ofa disciplinary proceeding would be permissible or theemployer will have to take recourse only to the pensionrules, in our opinion, would depend upon the terms andconditions of the services of the employee and the power ofthe disciplinary authority conferred by reason of a statuteor statutory rules......"Regulation 20(3)(iii) envisages continuation of adisciplinary proceeding despite the officer ceasing to bein service on the date of superannuation. For the saidpurpose a legal fiction has been created providing that thedelinquent officer would be deemed to be in service untilthe proceedings are concluded and final order is passedthereon. The said Regulation being statutory in natureshould be given full effect. When a legal fiction iscreated under a statute, it must be given its full effect.".....In view of the above position, it was permissible forthe Bank to continue with the disciplinary proceedingsrelying on or on the basis of Regulation 20(3)(iii)."(emphasis supplied by this Court)33. The Hon'ble Apex Court pointed out in the decision citedsupra that there is a specific provision under Regulation 20(3)(iii)enabling the bank to continue with the disciplinary proceedingsdespite the officer ceases to be in service on the date ofsuperannuation. But as far as the case on hand is concerned, it isto be reiterated that there is no other specific provision or rulesexcept to invoke rule 56(1)(c) of the Fundamental Rules by passing anorder not permitting the petitioner to retire and to continue withthe disciplinary proceedings. But the respondents have not chosen toexercise the power under the said provision and on the other hand,the petitioner was allowed to retire. Therefore, it goes withoutsaying that the disciplinary proceedings under rule 17(b) cannot becontinued against the petitioner as he had already been allowed toretire on 31.12.2009 itself.34. However, it is open to the respondents to take recourse tothe Tamil Nadu Pension Rules, 1978 as per Rules 9(2)(a) read with 9(1)(b) of the said Rules as per the terms and conditions of theservices of the petitioner as observed by the Hon'ble Apex Court inthe decision cited supra. https://hcservices.ecourts.gov.in/hcservices/

35. With the above said additional reasons, this Court isconstrained to reiterate that the writ petitions in W.P.Nos.27474 &27475 of 2009 are deserved to be allowed as concluded by this Courtin paragraph 22 of this order.Sd/-Asst. Registrar//true copy//Sub Asst.Registrarap/ggTo1.The Secretary to Government Commercial Taxes and Registration Department, Chennai 600 009.2.The Inspector General of Registration Chennai 600 028.1 cc to Mr.V.Ramajegadeesan, Advocate, Sr.No.159201 cc to Government Pleader, Sr.No.17893WP.Nos.27474 & 27475/2009MG {CO}TP/20.5.2010.