M.Gurunathan v. Virudhachalam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.29471 OF 2008ANDM.P.NOS.1 AND 2 OF 2008M.Gurunathan.. Petitioner Vs.1.The Revenue Divisional Officer, Virudhachalam, Cuddalore District.2.The District Revenue Officer, Cuddalore District, Cuddalore... RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to theimpugned order in reference A1/6770/08, dated 31.10.2008 on thefile of the first respondent herein and to quash the same and todirect the first respondent to permit the petitioner to retire onthe date of superannuation i.e., 31.10.2008 AN.For Petitioner : Mr.J.R.K.BhavananthamFor Respondents: Mr.R.Neelakantan, GA- - - - ORDERHeard the arguments of Mr.J.R.K.Bhavananthan, learned counselappearing for the petitioner and Mr.R.Neelakantan, learnedGovernment Advocate, taking notice for respondents and perused therecords.2.The petitioner, who was working as a Village AdministrativeOfficer in Marungur Village, has come forward to challenge theorder, dated 31.10.2008, wherein and by which his services wereretained by the order of the first respondent Revenue DivisionalOfficer, Virudhachalam, beyond the age of superannuation, i.e. on31.10.2008. The petitioner had filed an appeal against the saidorder to the second respondent. Since he did not get any reply, hehas filed the present writ petition. https://hcservices.ecourts.gov.in/hcservices/

3.Pending the writ petition, the petitioner did not get thebenefit of any interim order. The learned Government Advocate wasdirected to take notice and get instructions about the quantum ofmonetary benefits payable to the petitioner, by an order, dated22.1.2009. 4.The respondents have filed a counter affidavit, dated28.1.2009. It was noted that the petitioner was a part timeVillage Officer and was in service on 14.11.1980, the date onwhich an Ordinance 10/80 was promulgated by the Government and helost his employment. Subsequently, on direction from the SupremeCourt, the Government took a policy decision to restore such ofthose persons, who were qualified to hold the new posts of VillageAdministrative Officers. The petitioner was given one suchappointment. He joined as a Village Administrative Officer inMarungur Village on 24.10.2005. 5.It was stated that within four days from his joining as theVillage Administrative Officer, he was asked by the higherofficials to prepare a list of those beneficiaries whose cropswere damaged due to heavy floods during that year. As per theguidelines and norms laid by the Agricultural Extension Officer,Kavanur, the petitioner prepared a list of beneficiaries andrelief amount was claimed and disbursed to those beneficiaries.Subsequently, a petition came against the petitioner that he hadindulged in malpractices in the distribution of crop damage reliefmoney to the beneficiaries. Charges were levelled against thepetitioner.6.One Muthukumaran, who made a complaint against thepetitioner also filed a writ petition before this Court beingW.P.No.7498 of 2006. This Court, by an order, dated 16.3.2006,ordered an investigation and action within three months. It wasthereafter, an Enquiry Officer was appointed by the firstrespondent, i.e. Special Tahsildar (DRS), Vridhachalam. The saidofficer had submitted his findings. On the basis of the report, itwas realized that an amount of Rs.40,726/- was paid in excess. Acopy of the enquiry officer's report was communicated to thepetitioner. He was asked to offer his explanation. Since thepetitioner claimed that he was not well-versed with the accountsand as it had happened within four days of his joining, suchmistakes had crept in. It was also claimed by him that the amountsshould be recovered from the beneficiaries only. However, thefirst respondent had ordered recovery of amounts and remitted thesame to the Government account. Since the petitioner was to retirefrom service on 31.10.2008, by an order, dated 31.10.2008, he wasnot allowed to retire. 7.The defence that he was not familiar with such accounts wasnot believed, as he had already worked as a Karnam for long yearsbefore the Ordinance abolished the post. By a memo, dated19.7.2006, the petitioner was directed to submit his explanation https://hcservices.ecourts.gov.in/hcservices/ and the Special Tahsildar (Adi Dravidar Welfare) was appointed asan Enquiry Officer on 10.8.2007. The petitioner had also submittedhis explanation on 18.6.2008. The first respondent accepted thefindings of the Enquiry Officer. Therefore, by an order, dated31.10.2008, he was not allowed to retire and the amount was soughtto be recovered from him.8.The only contention raised by the petitioner was that theorder, dated 31.10.2008 was not served on him during office hoursand it was served on him only on 4.11.2008. Therefore, thepetitioner having reached the age of superannuation must deemed tohave retired on 31.10.2008 and any proceedings initiatedthereafter was not valid.9.In reply to this allegation, it was stated that thedecision to retain him in service was taken on 31.10.2008 itselfand the order was passed to that effect and not on 4.11.2008 ascontended by the petitioner. It was also stated that till recoveryof amount from the writ petitioner, he cannot be allowed to retireas per the Government rules. The petitioner filed M.P.No.1 of 2008for dispensing with the production of the original copy of theimpugned order, dated 31.10.2008. In that affidavit, he has statedthat the original was sent along with the appeal and therefore, hehad enclosed a photostat copy. The copy of the order clearly showsthat the order was signed by the first respondent on 31.10.2008and also forwarded by the Tahsildar, Virudhachalam on the verysame day. The mere fact that the petitioner claims to havereceived it on 4.11.2008 will not make the order any way invalid.The contention raised by the petitioner was that as per FR 56(1)(c), the petitioner reached the age of superannuation and unlessthe order is served during office time, he is deemed to haveretired from service. 10.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 wereinitiated after the respondent retired andthere was no power, authority orjurisdiction with the Corporation to take anyaction against the writ petitioner and insetting aside the orders passed against him.In our judgment, proceedings could have beentaken for the recovery of financial losssuffered by the Corporation due to negligenceand carelessness attributable to therespondent employee. The impugned action, https://hcservices.ecourts.gov.in/hcservices/ therefore, cannot be said to be illegal orwithout jurisdiction and the High Court wasnot right in quashing the proceedings as alsothe orders issued by the Corporation. Theappeal, therefore, deserves to be allowed bysetting aside the order of the High Court.11.A similar view was taken by the Supreme Court inSecretary, 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 proceedwith the departmental enquiry proceedingsthough the government servant has retiredfrom service for imposing only punishmentcontemplated under the Rules."12.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 doubtwhatsoever that communication of the acceptanceof offer was necessary. An internal noting doesnot constitute a communication. Even in a case oforder of suspension, only when the case goes outof the control of the appropriate authority,actual communication may not be necessary. https://hcservices.ecourts.gov.in/hcservices/

13.In the light of the above, there is no case made out.Hence the writ petition stands dismissed. No costs. Consequently,the connected MPs shall also stand dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Revenue Divisional Officer, Virudhachalam, Cuddalore District.2.The District Revenue Officer, Cuddalore District, Cuddalore.RSM(CO)km/10.11.W.P.NO.29471 OF 2008