T.Subbaiah v. Government of Tamil Nadu, rep. By Secretary to Government, Environment and Forests Department, Secretariat, Chennai-600 009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.29582 of 2008andM.P.NOS.1 AND 2 OF 2008T.Subbaiah.. Petitioner Vs.1.Government of Tamil Nadu, rep. By Secretary to Government, Environment and Forests Department, Secretariat, Chennai-600 009.2.The Principal Chief Conservator of Forests, Panagal Buildings, Chennai-600 015.3.The District Forest Officer, Theni.4.The Tribunal for Disciplinary Proceedings, Madurai.5.The Principal Accountant-General(A&E), Tamil Nadu, Chennai-600 018... Respondents This 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 theentire Disciplinary proceedings against the petitioner that hasculminated in the order in G.O.(2D) No.7, Environment & Forest(FR1)Department, dated 28.01.2008 of the first respondent, quashthe same in its entirety and to declare to have peacefully retiredfrom service on 30.09.1988 AN with all consequential pensionary andretirement benefits and to direct the respondents to disburse thearrears thereof from 1.10.1988 onwards till the date ofdisbursement with interest at 18% p.a. on such delayeddisbursement. For Petitioner : Mr.M.RaviFor Respondents : Mr.S.N.KirubanandamORDERHeard Mr.M.Ravi, learned counsel appearing for thepetitioner and Mr.S.N.Kirubanandam taking notice for therespondents and perused the records. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner, who is at present aged 79 years, hasfiled the writ petition, seeking to challenge the order of thefirst respondent State Government made in G.O.(2D) No.7,Environment and Forest Department, dated 28.01.2008 and aftersetting aside the same, it should be declared that he had retiredfrom service with effect from 30.09.1988 with all consequentialbenefits together with interest at the rate of 18% per annum.3.It is seen from the records that the petitioner wasworking as a Forester. The petitioner was to retire on reaching theage of superannuation on 30.09.1988. Just two days before hisretirement, he was placed under suspension, by an order, dated28.9.1988 by the third respondent, the District Forest Officer,Theni. Thereafter, a charge memo, dated 28.6.1991 was issued by theTribunal for disciplinary proceedings in TDP No.28 of 1991. TheTribunal submitted its report on 25.9.1998. The Tribunal held thatthe charges against the petitioner for forging the muster roll,connivance and misappropriate were proved. The said report wascommunicated by the State Government on 11.11.1998. The petitionersent a representation against the report of the Tribunal. 4.On 18.2.2003, the State Government issued a show causenotice, asking why punishment of pension of Rs.50/- should not becut for a period of six months. The petitioner gave his reply,dated 21.2.2003. Once again, the Government asked the petitioner tosubmit his reply to the Government. The petitioner, thereafter,submitted his reply, dated 12.2.2005. It was thereafter, the firstrespondent issued an order in G.O.(2D)No.7, Environment and Forest(FR I) Department, dated 28.1.2008 imposing a cut of Rs.50/- permonth in the petitioner's pension for a period of six months anddirected the recovery of Rs.360/- from his DCRG. The petitioner hascome forward to challenge the said penalty order. 5.It is the stand of the petitioner that just two daysprior to his reaching the age of superannuation, the petitioner wassuspended. But, there was no order passed denying him permission toretire from service and also retaining his service beyond30.09.1988 until the conclusion of enquiry in terms of FR 56(1)(c).Therefore, since no orders have been passed on or before30.09.1988, the petitioner is deemed to have retired from service.It is the case of the petitioner that without fulfilling therequirement of FR 56(1)(c) which is mandatory, the disciplinaryproceedings initiated against him on 28.6.1991 was not sustainable. 6.In the present case, it is seen from the records that theGovernment had issued an order in G.O.650, Environment and ForestDepartment, dated 2.7.1991 stating that he was placed undersuspension with effect from 28.09.1988 pending enquiry into gravecharges. On a subsequent review of his suspension, the Governmentalso decided to continue the suspension till the finalisation ofthe proceedings. Thereafter, a review was done and the Governmentcontinued his suspension by G.O.Rt.No.144, Environment and ForestDepartment, dated 21.2.1992. The petitioner thereafter participatedin the proceedings before the Disciplinary Tribunal and also gave a https://hcservices.ecourts.gov.in/hcservices/ representation against the show cause notice. The State Governmentalso consulted the TNPSC in terms of Article 320(3) of theConstitution and obtained an opinion on 1.8.2007. The TNPSC hadstated that it had agreed of the Government’s proposal to imposethe penalty. The Government thereafter examined his case andconfirmed the provisional conclusion and imposed the penaltyaccordingly. 7.The petitioner instead of challenging the penalty orderdirectly, has chosen to question the very initiation of thedisciplinary proceedings in terms of FR 56(1)(c). This writpetition was not admitted by this Court. The Special GovernmentPleader (Forest) was directed to take notice. Along with the writpetition, the petitioner took out two applications, i.e. M.P.Nos.1and 2 of 2008. One for dispensing with the production of theoriginal order and the second one for the grant of an interimdirection. Even in those applications, no notice was ordered. 8.When the matter came up after service of notice,Mr.M.Ravi, learned counsel for the petitioner placed heavy relianceupon the Division Bench judgment of this Court in State of TamilNadu Vs. R.Karuppiah reported in 2005 (3) CTC 4. In that judgment,this court followed the earlier judgment of another Division Benchin N.M.Somasundaram Vs. The Director General of Police, Madras 4and others reported in 1997 W.L.R. 120. The sum and substance ofthe judgment is expressed in paragraph 29 of the said judgment,which is as follows:"29.From the above note it is alsoclear that to proceed against a Governmentservant, who is under suspension on a chargeof misconduct, after his retirement, thefulfilling of the requirements under Rule 56(1)(c) of the Fundamental Rules is a mandatoryone, otherwise, the competent authority cannothave any jurisdiction on the retiredGovernment servant to proceed against him andthe non-compliance of the said rule isvitiated all the proceedings initiated againstthe first respondent and therefore, the sameare not sustainable under law and are liableto be set aside."9.However, another Division Bench of this Court vide itsjudgment in T.K.K.Tharmar Vs. Registrar, Central AdministrativeTribunal, Chennai Bench, Chennai-104 and others reported in 2008(3) MLJ 877, after reviewing all the previous cases including thesubsequent pronouncements of the Supreme Court held in paragraphs27 and 28 as follows:"27.Therefore, in the light of theabove, it has to be held that even afterretirement, if there are statutory Rulesproviding for continuation of the disciplinaryproceedings, no exception can be taken forcontinuing a disciplinary action by an employer. https://hcservices.ecourts.gov.in/hcservices/

28.In the present case, Rule 9 is acomplete answer for the contention raised by thepetitioner. It must also be noted that veryrecently, the Supreme Court in the judgment inU.P. State Sugar Corporation Ltd. and others Vs.Kamal Swaroop Tondon (2008) 2 SCC 41 dealt witha case of the employer's right to initiateaction even after retirement. The followingpassage found in paragraphs 27 and 28 may beusefully reproduced:Para 27:"In UCO Bank v. Sanwar Mal(2004) 4 SCC 412, the Court held that twoconcepts: (i) resignation; and (ii)retirement were different and employedfor different purposes and in differentcontexts. Resignation brings aboutcomplete cessation of master and servantrelationship, but retirement does not doso. In case of retirement, master andservant relationship continues for grantof retiral benefits.Para 28:If it is so, the appellantCorporation, in our opinion, is right insubmitting that the proceedings couldhave been continued after the retirementof the respondent employee as far as thefinancial loss caused to the Corporationbecause of negligence on the part ofemployee and the benefit claimed by therespondent workman on his terminalbenefits are concerned.10.Similar view was taken by a subsequent decision of theSupreme Court inU.P. State Sugar Corpn. Ltd. v. KamalSwaroop Tondon reported in (2008) 2 SCC 41. In paragraph 27, it wasobserved as follows: 27. In UCO Bank v. Sanwar Mal2, the Courtheld that two concepts: (i) resignation; and(ii) retirement were different and employed fordifferent purposes and in different contexts.Resignation brings about complete cessation ofmaster and servant relationship, but retirementdoes not do so. In case of retirement, masterand servant relationship continues for grant ofretiral benefits.11.After referring to the UCO Bank case (cites supra), inparagraphs 28 to 30, the Supreme Court further observed as follows:"28. If it is so, the appellantCorporation, in our opinion, is right insubmitting that the proceedings could havebeen continued after the retirement of therespondent employee as far as the financial https://hcservices.ecourts.gov.in/hcservices/ loss caused to the Corporation because ofnegligence on the part of employee and thebenefit claimed by the respondent workman onhis terminal benefits are concerned.29. Strong reliance was placed by the learnedcounsel for the respondent on P.V. Mahadevanv. MD, T.N. Housing Board13. In that case,there was inordinate delay of ten years ininitiating departmental proceedings against anemployee. In absence of convincing explanationby the employer for such inordinate delay,this Court held that the proceedings wereliable to be quashed.30. In our opinion, Mahadevan13 does not helpthe respondent. No rigid, inflexible orinvariable test can be applied as to when theproceedings should be allowed to be continuedand when they should be ordered to be dropped.In such cases there is neither lower limit norupper limit. If on the facts and in thecircumstances of the case, the Court issatisfied that there was gross, inordinate andunexplained delay in initiating departmentalproceedings and continuation of suchproceedings would seriously prejudice theemployee and would result in miscarriage ofjustice, it may quash them. We may, however,hasten to add that it is an exception to thegeneral rule that once the proceedings areinitiated, they must be taken to the logicalend. It, therefore, cannot be laid down as aproposition of law or a rule of universalapplication that if there is delay ininitiation of proceedings for a particularperiod, they must necessarily be quashed."12.In a latest decision of the Supreme Court in Secretary,Forest Department and others Vs. Abdur Rasul Chowdhury reported in2009 (7) SCC 305, once again this question was considered. Thesupreme Court has held in paragraph 15 as follows:"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." https://hcservices.ecourts.gov.in/hcservices/

13.In the light of the above, this writ petition standsdismissed. No costs. Consequently, the connected MPs also standdismissed.vvkSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to Government, Government of Tamil Nadu, Environment and Forests Department, Secretariat, Chennai-600 009.2.The Principal Chief Conservator of Forests, Panagal Buildings, Chennai-600 015.3.The District Forest Officer, Theni.4.The Tribunal for Disciplinary Proceedings, Madurai.5.The Principal Accountant-General(A&E), Tamil Nadu, Chennai-600 018.+1 cc to the Special Government Pleader(Forests), SR.No.57420.PRE DELIVERY ORDER INW.P.NO.29582 OF 2008mrd(co)ar/9.11.2009.