U. Balasubramaniam v. Tamil Nadu Khadi and Village Industries Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 08..02..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. Nos. 23294 & 23295 of 2001, 25422 of 2006 and 14101 of 2007andM.P. Nos. 1 and 2 of 2006 in W.P. No. 25422 of 2006andW.P.M.P. Nos. 34332 and 34337 of 2001in respective W.Ps.W.P. No. 23294 of 2001:U. BalasubramaniamPetitioner is same in all WPs.Vs.1. The Chief Executive OfficerTamil Nadu Khadi and Village Industries BoardKuralagam Buildings, Chennai.108Sole Respondent in WPs.23294 & 23295/01 and R2 in WP.25422/06 & 14101/072. State of Tamil Nadu,rep. by its Secretary to Government,Hand loom, Handicrafts, Textiles and Khadi Department,Secretariat, Chennai 9.R1 in WP.25422/06 and WP.14101/07Prayer in WP.23294 and 23295/2001 :Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorari calling for the records ofthe respondent in the impugned charge memo in Rc. No. 48256/E3(2)/99dated 23.01.1999, EC 5820/E3(2)/96 dated 04.02.2000 and quash thesame.Prayer in WP.14101/07 :Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of Writ of Mandamus directing the 1st and 2ndrespondents to pass appropriate orders, permitting the petitioner toretire from service, without prejudice to the disciplinary proceedingspending and to pass such further or other orders. https://hcservices.ecourts.gov.in/hcservices/ Prayer in WP.25422/06 :Petition filed under Article 226 of the Constitution of India toissue a Writ of certiorarified Mandamus, calling for the order passedby the Second Respondent in proceeding RC.No.71210/95/E5(2) dated29.09.1995 and to quash the said order and consequently directing theSecond Respondent to pass appropriate orders permitting the petitionerto retire from service and to disburse the retirement benefits inaccordance to law.For Petitioners : Mrs. Malarvizhi Udayakumar (in all WPs)For Respondent : Mr. Packiaraj (W.P. Nos. 25422 of 2006 & 14101 of 2007) Mr. B. Dinesh Kumar (W.P. Nos. 23294 & 23295 of 2001)COMMON ORDERHeard the arguments of Mrs. Malarvizhi Udayakumar, learnedcounsel appearing for the petitioner and Mr. Packiaraj and Mr. B.Dinesh Kumar, learned counsels for the respondents and have perusedthe records. 2.All these writ petitions are filed by the very same personand he is at present 71 years old. He was working as an AssistantDirector in the Tamil Nadu Khadi and Village Industries Board [forshort, 'TNKVIB'] at Dharapuram. 3.In W.P. No. 14101 of 2007, the petitioner sought for adirection to the respondent to permit him to retire from servicewithout prejudice to the disciplinary proceedings pending against him.When this writ petition came up for hearing on 19.4.2007, all theother connected writ petitions were directed to be posted for hearingand hence, all the writ petitions are grouped together and posted forhearing.4.In W.P. No. 25422 of 2006, the prayer was to quash theproceedings dated 29.9.1995 by which the petitioner was suspendedunder the orders of the Government in public interest. It is statedin the said order that the petitioner was to retire from service on30.9.1995 on reaching the age of superannuation. But, however, interms of Regulation 31(a)(ii) of the TNKVIB Service Regulations, hewas placed under suspension. It is this order which is underchallenge in this writ petition. https://hcservices.ecourts.gov.in/hcservices/

5.Even before the said writ petition, the petitioner had filedW.P. Nos. 23294 of 2001 to 23296 of 2001 challenging the charge memosdated 23.01.1999, 04.02.2000 and 19.10.2000 respectively. Notice ofmotion was ordered in these writ petitions on 28.01.2001.Subsequently, in the interim applications, W.M.P. Nos. 31797 to 31800of 2001, by an order dated 24.02.2003, this Court directed therespondent to complete the enquiry against the petitioner within fivemonths from the date of the order and if the enquiry is not completed,the Chief Executive Officer of the TNKVIB was directed to revoke theorder of suspension. It is the case of the petitioner that evenafter that order was passed by this Court, no Enquiry Officer wasappointed to enquire into the charge memo dated 23.01.1999. Thethree charges dated 03.3.1997, 23.01.1999 and 04.02.2000 were issuedagainst the petitioner after he had reached the age of superannuation.Even though the charges are serious, the short question that arises inthese writ petitions is whether the respondent Board has power toframe charges after the petitioner had reached the age ofsuperannuation. 6.It is stated that by G.O. Ms. No. 45 dated 21.7.2003, theState Government had sanctioned prosecution against the petitioner anda criminal case was pending. In the present case, this Court is notconcerned about the said prosecution which may take its own time forits completion. As to the power of the respondent Board incontinuing the a disciplinary action even after reaching the age ofsuperannuation, the respondent had filed a counter affidavit dated26.4.2007 in W.P. No.14101 of 2007 and in paragraph 4, it is stated asfollows:"I state that the petitioner attained superannuation on30.9.1995. Since he was suspended from service oneday prior to his retirement, no separate orders werepassed to retain him into service beyond the date ofretirement till the disciplinary proceeding is over asper F R 56(1)(C). The petitioner never raised thisplea for the past 12 years. He is receivingsubsistence allowance till date. If he is veryconscious about the ruling under F R 56 (1)(C) he oughtto have refunded the subsistence allowance."7.Therefore, the respondents are only relying upon the powerunder the Fundamental Rules (FR) even though the servants and officersof the respondent are covered by a separate Statutory Regulation knownas TNKVIB Service Regulations framed under the Tamil Nadu Khadi andVillage Industries Act. The respondents are unable to delineate thepower under which the charge memos have been framed. In the absenceof any specific power to continue the disciplinary proceedings againstan employee, who had reached the age of superannuation, therespondents cannot rely upon the Fundamental Rules, which are https://hcservices.ecourts.gov.in/hcservices/ applicable to Government servants and not to the employees of theTNKVIB. May the FR be followed by the Board for administrativepurposes. In the Service Regulations, there is no specific powervested on the TNKVIB to continue the disciplinary proceedings evenafter retirement.8.In Bhagirathi Jena v. Board of Directors, O.S.F.C. [(1999) 3SCC 666], the Supreme Court has held that in the absence of anyspecific provisions in the Services Rules, the disciplinary actionagainst an employee cannot be continued beyond his age ofsuperannuation. In this context, it is relevant to extractparagraphs 6 and 7 of the said judgment.Para 6:"It will be noticed from the abovesaid regulations thatno specific provision was made for deducting any amountfrom the provident fund consequent to any misconductdetermined in the departmental enquiry nor was anyprovision made for continuance of the departmentalenquiry after superannuation.Para 7: In view of the absence of such a provision in theabovesaid regulations, it must be held that theCorporation had no legal authority to make anyreduction in the retiral benefits of the appellant.There is also no provision for conducting adisciplinary enquiry after retirement of the appellantand nor any provision stating that in case misconductis established, a deduction could be made from retiralbenefits. Once the appellant had retired from serviceon 30-6-1995, there was no authority vested in theCorporation for continuing the departmental enquiryeven for the purpose of imposing any reduction in theretiral benefits payable to the appellant. In theabsence of such an authority, it must be held that theenquiry had lapsed and the appellant was entitled tofull retiral benefits on retirement." 9.It is only the respondents, despite the opportunity given tothem, were unable to substantiate their power of suspension exceptplacing reliance upon Rule 56(1)(C) of the Fundamental Rules which areapplicable to Government servants. Unless the TNKVIB, created underthe TNKVIB Act in the exercise of its power to frame ServiceRegulations, frame a rule and pass appropriate orders, the respondentscannot rely upon the Fundamental Rules applicable to Governmentservants. In fact, even in the order dated 29.9.1995, which isimpugned in W.P. No. 25422 of 2006, there is only a reference toRegulation 31(a)(ii) of the Regulations. A perusal of the said https://hcservices.ecourts.gov.in/hcservices/ Regulations produced by the respondent does not show any such powerconferred on the TNKVIB to continue a disciplinary action beyond theage of superannuation. In the absence of any such power,necessarily W.P. No. 25422 of 2006 will have to be allowed and theorder placing the petitioner under suspension beyond his age ofsuperannuation has to be quashed.10.Once the legal provision is clear that there is no power tocontinue the disciplinary proceedings, the three writ petitions beingW.P. Nos. 23294 to 23296 of 2001 challenging the three charge memoswill have to be allowed. The respondent Board did not takeadvantage of the interim order passed by this Court on 24.02.2003 tocomplete the enquiry within a period of five months. Now that morethan 12 years have elapsed since the date of the issuance of thecharge memos and that the continuance of the disciplinary actionbeyond the age of superannuation was found to be lacking injurisdiction, they cannot fall back on that interim order. 11.In the light of the above, W.P. No. 14101 of 2007 will haveto be allowed and the petitioner is permitted to retire from serviceon reaching the age of superannuation on 30.9.1995. Since thisorder has been passed only in terms of the Service Rules, the judgmentrendered herein will have no bearing on the criminal case initiatedagainst the petitioner.12.In the light of the above, all the five writ petitions willstand allowed. Considering the fact that the petitioner is already71 years old, the respondents are directed to comply with this orderwithin a period of eight weeks from the date of receipt of a copy ofthis order. However, the parties are allowed to bear their owncosts. Connected Miscellaneous Petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargriTo1. The Chief Executive OfficerTamil Nadu Khadi and Villalge Industries BoardKuralagam Buildings, Chennai https://hcservices.ecourts.gov.in/hcservices/

2. The Secretary to Government,Hand loom, Handicrafts, Textiles and Khadi Department,Secretariat, Chennai 9.1 cc To Mr.S.Packiaraj, Advocate, SR.6639.W.P. Nos. 23294 & 23295 of 2001, 25422 of 2006 and 14101 of 2007 SKV(CO)RVL 26.02.2008