K.Marimuthu v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.29138 OF 2006(O.A.NO.4226 OF 1998)K.Marimuthu.. PetitionerVs.1.Government of Tamil Nadu, rep. By the Secretary to Government, Rural Development Dept., Fort St. George, Chennai-600 009.2.The Commissioner for Rural Development, Panagal Building, Saidapet, Chennani-600 015.3.The Collector of Tiruvallur District, Tiruvallur... 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 G.O.(D)No.568, Rural Development Dept., dated 12.11.97 and to quash thesame and to direct the first respondent to issue a fresh G.O,revoking the order of suspension of the applicant made inG.O.Ms.No.535, RD Dept., dated 26.6.90 and allowing the applicantto retire from service on the afternoon of 30.6.90 on reaching theage of superannuation, by dropping all further action pursuant tothe alleged loss of Rs.58,076/- to the Panchayats of MinjurPanchayat Union in the matter of purchase of Formsand Registersfor the use of panchayats and also to direct the respondents to payto the applicant immediately death-cum-retirement gratuity amountdue by way of encashment of leave, family benefit fund, specialprovident fund-cum-gratuity and GPF amount together with interestat 15% per annum compounded annually as on 1st April of each yearto the date of actual payment and also to direct the respondents topay the applicant interest at 18% per annum on the interest amountpayable in respect of payments covered by item 3 above and todirect the Chief Secretary to Government of Tamil Nadu to initiatedisciplinary action against Thiru Sameer Vyas, IAS then Collecor ofChengai, Anna District for having issued illegal order inproceedings Rc.No.97334/89/PA.1 dated 20.3.90 and RcNo.97334/89/PA.1 dated 22.6.90 and the officers in the RuralDevelopment department for having issued illegal orders in https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.535, dated 26.6.90 and G.O.(D) No.568, dated 12.11.97 andto award costs.For Petitioner : Mr.K.V.SrinivasaraghavanFor Respondents : Mr.R.Neelakantan, GA- - - - ORDERHeard both sides.2.The petitioner filed OA No.4226 of 1998 before the Tribunalafter seven years after his retirement. The petitioner was workingas a Block Development Officer. He challenged the Government orderin G.O.(D) No.568, Rural Development Department, dated 12.11.1997.By the said order, the petitioner was imposed with the penalty ofdeduction of three years' incremental value in monetary terms fromthe retirement benefit and also withholding of Rs.58,076/- from theretirement benefits till the disposal of the appeal of thepetitioner. However, the balance amount was directed to be paid tohim. 3.This case has got chequered history. The charge against thepetitioner was that he had purchased Forms and Registers while hewas working as the BDO in Minjur Union to the extent ofRs.1,20,007/- for the use by the Village panchayat. It was foundthat it was not his duty to make purchase. It was also found thathe did not adhere to the tender rules and did not assess the actualrequirements of the said panchayat. Subsequently, charges wereframed under Rule 17(b) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules. The petitioner was also placed undersuspension by an order, dated 26.6.1990. The petitioner was imposedwith a penalty of deduction of three years increment value inmonetary terms and also deduction of Rs.58,076/- from hisretirement benefits, by the order of the District Collector (thethird respondent), dated 22.6.90. The petitioner filed a reviewapplication and thereafter, filed an appeal to the secondrespondent. 4.When the matter was taken up with the State Government, itpassed an order in G.O.Ms.No.899, Rural Development Department,dated 7.11.1990. It was stated that the District Collector has noauthority to pass such an order of recovery and imposition ofpenalty. It was only the second respondent who could have passedsuch an order. Therefore, the proceedings of the District Collectorwas set aside and he was directed to forward the papers to thesecond respondent who in turn was directed to initiate freshaction. The petitioner was to retire from service on 30.6.90.Therefore, he filed O.A.No.3903 of 1991, challenging the chargememo. https://hcservices.ecourts.gov.in/hcservices/

5.The said OA came to be disposed of by a final order, dated17.10.1994. In the operative portion of the order, the Tribunalstated as follows:"If any proceedings other than that dealtwith by the Collector and by Government inG.O.Ms.No.899, RD Department dated 7-11-90 isthe basis for suspension, the proceedingstherein should be concluded without undue delay.Such proceedings should have been concluded inthe course of 4 years after the suspension. Noreply has been filed inspite of such delay. Wetherefore direct that the applicant should bepermitted to retire, unless there are any otherpending proceedings warranting his continuedsuspension, subject to recovery of the amountsdue from him from the superannuatin benefits andother payments due to him in accordance with therules, pending a decision on his appeal toDirector of Rural Development which should bedealt with on merits and orders issued within 3months. Other proceedings, if any, whichconstituted the basis for suspension in 1990,should also be concluded before 31-3-1995. Ifnot, the applicant should be allowed to retire,without prejudice to the proceedings to be dealtwith under the Pension Rules."6.The petitioner did not question the direction of theTribunal, which permitted recovery of amounts from the petitioner.Subsequently, on the basis of an enquiry, the petitioner'sexplanation was called for. Thereafter, the impugned order came tobe passed by the State Government. 7.On direction from this court, the respondents have filed acounter affidavit, dated Nil (2009), justifying the action takenagainst the petitioner. In paragraph 11 of the counter affidavit,in reply to the averment of the petitioner, it was averred asfollows:"11.It is submitted that the contention ofthe petitioner in para No.6.11 of the affidavit,that the petitioner is to be allowed to retirefrom service without prejudice to thedisciplinary proceedings was adhered to videG.O.(D) No.568, Rural Development (E6)Department, dated 12.11.97. As per thedirections of the Hon'ble TamilnaduAdministrative Tribunal, Chennai, thepetitioner's suspension was revoked and he wasallowed to retire from service on the afternoonof 30.06.90 without prejudice to thedisciplinary action pending against him vide bythe G.O.(D)No.568/ Rural Development Department, https://hcservices.ecourts.gov.in/hcservices/ dated 12.11.97. It was also ordered that the 3years increment salary should be calculated anddeducted from retirement benefits of theindividual and also to deduct the recovery of asum of Rs.58,076/- from the retirement benefitsof the individual and the balance should be paidto the individual after the disposal of theappeal petition. At this juncture the petitionerhas filed in OA No.4226/96 before the Hon'bleT.A.T and hence his retirement benefits couldnot be released."8.The only contention raised by the petitioner was that hecannot be mulct with two punishments, i.e. recovery from salary aswell as recovery of monetary equivalent of stoppage of increments.In essence, the counsel for the petitioner contended that thiswould amount to a "double jeopardy" which is not contemplated inlaw.9.In this context, it is necessary to refer to the judgment ofthe Supreme Court in Depot Manager, A.P.S.R.T. Corporation Vs.N.Ramulu and another reported in 1997 (11) SCC 319. In that case,the Supreme Court upheld the imposition of such punishments, i.e.punishment arising out of disciplinary action as well as recoveryof loss sustained by the State. In paragraph 3 of the saidjudgment, it was held as follows:3.We think that the entire approach of theDivision Bench of the High Court is incorrect.The driver had caused pecuniary loss to theappellant and that was estimated to be Rs.500. Itwas this pecuniary loss which was ordered to berecovered from the delinquent. In addition tothat, the delinquent was punished for misconductand it is that punishment with which the LabourCourt interfered and so also did the learnedJudge of the High Court. The learned Single Judgecame to the conclusion that 50 percent of backwages should be refunded to the delinquentbesides reinstatement. Against that order boththe delinquent and the management went up inappeal. The High Court modified the order of thelearned Single Judge and directed payment of fullback wages. In other words, the only order thatsurvived was the reimbursement of the lossoccasioned to the appellant on account of the actof the delinquent driver. It is true that thathas been shown to be a penalty under Regulation 8(v) of the Regulations. But the penalty for theact of negligence was removal fro service. Theexplanation to Regulation 8, however, enumeratesvarious penalties which are not to be treated aspenalties and one of them is as clause (5)thereof says : "The penalty of recovery from pay https://hcservices.ecourts.gov.in/hcservices/ of the whole or part of any pecuniary loss causedto the Corporation by an employee's negligence orbreach of orders, may be imposed in addition toany other penalty which may be inflicted inrespect of the same act of negligence or breachof orders." This clause clearly says that thepenalty of recovering loss caused to themanagement under Regulation (1)(v) shall notpreclude the management from imposing any otherpenalty. The High Court was, therefore, wrong inthinking that this was a case of double jeopardy.We think that the order passed by the learnedSingle Judge was eminently just and fair and theDivision Bench of the High Court should not haveinterfered with that order."10.The Supreme Court in State of U.P. v. Harihar Bholenathreported in (2006) 13 SCC 460 had upheld such recovery from thepensionary benefits pursuant to the disciplinary action takenagainst a Government servant. The following passages found inparagraphs 14 and 17 may be usefully extracted below:14. The proceedings for recovery of theamount from a government servant can be passedin the event he is held to be guilty of gravemisconduct or caused pecuniary loss to theGovernment by his misconduct or negligenceduring his service. Some procedural safeguards,however, have been laid down in terms ofproviso appended thereto, including therequirement to obtain an order of sanction ofthe Governor. Such order of sanction, however,would not be necessary if the departmentalproceedings have been initiated while thedelinquent was on duty. Proviso appended toRegulation 351-A merely controls the mainproceedings. The same would apply in theexigencies of the situation envisaged therein,namely, even (sic when) the proceedings wereinitiated after retirement and not priorthereto.........17. In both the situations, a regularproceeding is required to be initiated whichwould include issuance and service of show-cause notice and in the event, cause is shown,application of mind thereupon. On initiation ofdepartmental proceedings the principles ofnatural justice must be complied with. In theinstant case, the procedures laid down underthe statute have been complied with. A reportwas submitted by the enquiry officer andconsequent orders have been passed on the basis https://hcservices.ecourts.gov.in/hcservices/ thereof, in accordance with the procedure laiddown therefor by the disciplinary authority.11.The Supreme Court in State of U.P. v. Brahm Datt Sharmareported in (1987) 2 SCC 179 has held in paragraph 8 a follows:8. A plain reading of the regulationindicates that full pension is not awarded asa matter of course to a government servant onhis retirement instead; it is awarded to himif his satisfactory service is approved. Ifthe service of a government servant has notbeen thoroughly satisfactory the authoritycompetent to sanction the pension is empoweredto make such reduction in the amount ofpension as it may think proper. Proviso to theregulation lays down that no order regardingreduction in the amount of pension shall bemade without the approval of the appointingauthority. Though the Regulations do notexpressly provide for affording opportunity tothe government servant before order for thereduction in the pension is issued, but theprinciples of natural justice ordain thatopportunity of hearing must be afforded to thegovernment servant before any order is passed.Article 311(2) is not attracted, nonethelessthe government servant is entitled toopportunity of hearing as the order ofreduction in pension affects his right toreceive full pension. It is no more in disputethat pension is not bounty; instead it is aright, to property earned by the governmentservant on his rendering satisfactory serviceto the State. In State of Punjab v. K.R. Erry1this Court held that the State Governmentcould not direct cut in the pension ofofficers without giving a reasonableopportunity of hearing to them. In DeokinandanPrasad v. State of Bihar2 it was held thatpension is not bounty payable at the sweetwill and pleasure of the Government; insteadthe right to pension is valuable right vestedin a government servant. Again in D.S. Nakarav. Union of India3 this Court held thatpayment of pension does not depend upon thediscretion of the Government but it isgoverned by the rules and government servantcoming under those rules is entitled to claimpension. A government employee earns hispension by rendering long and efficientservice; the claim of pension is regulated byrules, which provide for reduction in theamount of pension if the government servant https://hcservices.ecourts.gov.in/hcservices/ has failed to render efficient service. In M.Narasimhachar v. State of Mysore4 this Courtupheld the order of the State Government inreducing pension of a government employee asthe rules regulating the grant of pension madeprovision for reduction of pension on accountof his having rendered unsatisfactory service.Rule 6.4 of Punjab Civil Pension Rulesprovides for the reduction in the amount ofpension if the service of the governmentemployee has not been thoroughly satisfactory.The State Government’s order directingreduction of pension of the employee of Stateof Punjab were set aside by this Court inState of Punjab v. K.R. Erry1 and in State ofPunjab v. Iqbal Singh5 on the ground that theorders imposing deduction in the pension hadbeen passed in violation of principles ofnatural justice as the affected employees hadnot been afforded opportunity of hearing.These decisions leave no scope for any doubtthat the State Government is competent todirect reduction in pension after affordingopportunity of hearing to the governmentservant.12.The monetary equivalent of increments stopped were came tobe made only because the petitioner had retired by then. Thecontention of the petitioner that once a person had retired, Rule 9of the Tamil Nadu Pension Rule alone will apply cannot be accepted.In the present case, the petitioner was allowed to retire withoutprejudice to the disciplinary action initiated against him.Therefore, arguments advanced by the counsel for the petitionercannot be accepted. Hence this writ petition stands dismissed. Nocosts.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarvvkTo1.The Secretary to Government, Government of Tamil Nadu, Rural Development Dept., Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

2.The Commissioner for Rural Development, Panagal Building, Saidapet, Chennani-600 015.3.The Collector of Tiruvallur District, Tiruvallur.1 cc To Mr.K.V.Srinivasaraghavan, Advocate, SR.54814W.P.NO.29138 OF 2006PKB(CO)SRA(24/10/2009)