Rule 9(2)(a) of the Tamil Nadu Pension Rules, 1978

Y.Raja vs The Joint Registrar Of ... on 2 December, 2010

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02/12/2010
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.A.(MD).No.698 of 2010
and
W.A.(MD).No.721 of 2010
and
M.P.No.2 of 2010
W.A.(MD).No.698 of 2010
Y.Raja ... Appellant
Vs.
The Joint Registrar of Co-operative Societies,
Madurai Region, Madurai. ... Respondent
PRAYER
Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 13.09.2010 made in W.P.(MD).No.9580 of 2010 on the file of this Court.
!For Appellant ... Mr.S.Visvalingam
^For Respondent ... Mr.K.Balasubramanian
Additional Government Pleader
W.A.(MD).No.721 of 2010
1.The District Collector,
Madurai.
2.The Revenue Divisional Officer,
Madurai. ... Appellants
Vs.
V.P.Sankaran ... Respondent
PRAYER
Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 21.12.2009 made in W.P.(MD).No.6402 of 2009 on the file of this Court.
!For Appellants ... Mr.K.Balasubramanian
Additional Government Pleader
^For Respondent ... S.Visvalingam
:COMMON JUDGMENT
***********************
S.NAGAMUTHU J.
Challenge in Writ Appeal (MD).No.698 of 2010 is to the order dated 13.09.2010 made in W.P.(MD).No.9580 of 2010 and challenge in Writ Appeal (MD).No.721 of 2010 is to the order dated 21.12.2009 made in W.P.(MD).No.6402 of 2009. Since common issues are involved, both the Writ Appeals were heard together and they are disposed of by means of this Common Judgment.
2. The appellant herein was working as a Sub-Registrar in the Co-operative Department of the Government. The respondent herein, by his proceedings in Na.Ka.No.3508/2010/gbjh, dated 31.05.2010, permitted the appellant to retire from service on attaining the age of superannuation without prejudice to the pending disciplinary action and other statutory actions. In pursuance of the said order, the appellant has retired from service, but he has not been paid the monetary benefits arising out of such retirement. The appellant was informed that because of the pendency of the disciplinary proceedings and since his retirement was subject to the pendency of the said disciplinary action, he is not entitled for the payment of the monetary benefits. In those circumstances, he filed W.P.(MD).No.9580 of 2010 seeking to quash the said order of the respondent dated 31.05.2010, insofar as it relates to the continuance of the disciplinary action even after the retirement of the appellant. In other words, according to the appellant, the clause "without prejudice to the pending disciplinary action and other statutory actions" is without jurisdiction and the same is liable to be quashed. The Writ Court, by order dated 13.09.2010, dismissed the Writ Petition. Challenging the same, the appellant has come up before this Court with the present Writ Appeal.
3. In this Writ Appeal, it is contended by the appellant that there is no statutory service rule, regulation, etc., which empowers the respondent to preserve the disciplinary proceedings and to continue the same even after the retirement of the appellant. For this proposition, the learned counsel for the appellant has relied on few Judgments of this Court as well as the Hon'ble Supreme Court, about which, we would make reference at the appropriate stages of this Judgment.
4. The learned Additional Government Pleader appearing for the respondent would submit that such power flows from Rule 9(2)(a) of the Tamil Nadu Pension Rules, 1978, [hereinafter referred to as "the Pension Rules"], which empowers the respondent to continue the disciplinary proceedings even after the retirement of the Government Servant. The learned Additional Government Pleader would, therefore, submit that the order of the Writ Court does not require any interference at the hands of this Court.
5. We have considered the above submissions. Admittedly, charges have been framed against the appellant under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, [hereinafter referred to as "the Rules"]. While he was in service, he was not placed under suspension and there was also no order made under Rule 56(1)(c) of the Fundamental Rules extending the service in the interest of the public and to continue the suspension. The learned Additional Government Pleader is not in a position to point out any statutory Service Rule, Regulation, etc., which would empower the respondent to continue the disciplinary proceedings even after the retirement of the appellant, except citing Rule 9(2)(a) of the Pension Rules. Therefore, we have to now analyze as to whether under Rule 9(2)(a) of the Pension Rules, the disciplinary proceedings initiated when the appellant was in service, could be continued. For this purpose, it would be appropriate to extract Rules 9(2)(a) and 9(2)(b) of the Pension Rules, which read as follows;-
"9(2)(a) The departmental proceeding referred to in sub-rule (1), if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service; provided that where the departmental proceedings are instituted by an authority subordinate to the Government, that authority shall submit a report recording its findings to the Government.
9(2)(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re- employment;-
(i).shall not be instituted save with the sanction of the Government; (ii) shall not be in respect of any event which took place more than four years before such institution; and
(iii).shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service."
6. Insofar as Rule 9(2)(b) is concerned, it empowers the department to institute a disciplinary proceeding after the retirement of a Government Servant. However, it goes with two pre-conditions, such as, the departmental proceedings shall not be instituted except with the sanction of the Government and shall not be in respect of any event which took place more than four years before such institution.
7. Insofar as the case on hand is concerned, Rule 9(2)(b) has got no role to play. A close reading of Rule 9(2)(a) would go to show that the departmental proceeding, which was initiated while the Government Servant was in service, shall, after the final retirement of the Government Servant, be deemed to be a proceeding under this Rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service.

8. From the above, it could be understood that for the purpose of continuing such proceedings, it shall be treated as if the Government Servant has been continuing in service. It also states that the departmental proceedings instituted under the relevant Rule applicable to the Government Servant shall be deemed to be a proceeding issued under Rule 9 of the Pension Rules. In the case on hand, the departmental proceedings against the appellant was instituted under Section 17(b) of the Rules, which provides for various punishments, such as dismissal, removal from service etc., Now on account of his retirement, as per the impugned order, there can be no impediment to continue the proceedings, but it shall be deemed that it is a proceeding initiated under Rule 9 of the Pension Rules. In effect, on completion of such enquiry, the respondent cannot impose any punishment upon the appellant, as provided in Rule 17(b) of the Rules. Instead, the Government can withhold or withdraw the pension as provided in Rule 9(1)(a) of the Rules, which reads as follows;-
9(1)(a);- the Government reserve to themselves the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement, and such withholding or withdrawing the pension may be effected irrespective of the fact whether or not any pecuniary loss on account of such grave misconduct or negligence was caused to the Government, to any local body or to any co- operative society comprising of government servants and registered under the Tamil Nadu co-operative Societies Act, 1961;
[provided that before passing an order under this sub-rule withholding or withdrawing the pension of a pensioner, the Tamil Nadu Public Service Commission shall be consulted if the pensioner does not agree to such withholding or withdrawal of the pension. The Tamil Nadu Public Service Commission need not be consulted in cases where the pensioner agrees to withholding or withdrawal of the pension but a copy of the order passed by the Government in such cases shall be sent to the commission.
9. In view of the above provision of the Pension Rules, the impugned clause in the order of the respondent viz., "without prejudice to the pending disciplinary action and other statutory actions", shall only mean that the pending disciplinary proceedings against the appellant shall be continued as though it is a proceeding instituted under Rule 9 of the Pension Rules. But, the learned counsel appearing for the appellant would rely on a Judgment of a Division Bench of this Court in N.M.Somasundaram v. The Director General of Police etc., reported in 1997 WRL 120, wherein, after having reference to Rule 56(a) and (c) of the Tamil Nadu Government Fundamental Rules, this Court has held as follows;-
"Therefore, it is clear that in the absence of any order being passed before 31.10.1984, the competent authority loses the jurisdiction to continue the disciplinary proceedings."
10. Relying on the above Judgment, the learned counsel for the appellant would submit that in the case on hand, since there was no order passed under Rule 56 of the Fundamental Rules extending the period of service beyond the age of 58 years, the respondent has lost his jurisdiction to continue the disciplinary proceedings. Though the said argument of the learned counsel for the appellant appears to be attractive, it cannot be accepted, for the simple reason that in the said case, the Division Bench had an occasion to consider the case of the Government Servant therein, who was under suspension on the date of his attaining the age of superannuation. In this regard, the Division Bench has referred to Rule 56(a)&(c) of the Tamil Nadu Government Fundamental Rules, which reads as follows;-
"56(a) The date of compulsory retirement of Government servant, whether he holds a substantive or officiating post, is the date on which he attains the age of Fifty-eight years. He shall not be retained in service after that age except with the sanction of the government on public grounds, which must be recorded in writing, but he shall not be retained after the age of sixty years except in very special circumstances;-
Provided that this clause shall not apply to Government Servants, who are treated as in superior service for the purpose of these rules but as in Basic Service for the purpose of pension such Government Servants as well as Basic Government Servants shall retire on attaining the age of sixty years. (c).A Government Servant under suspension on a charge of misconduct should not be required or permitted to retire on his reaching the date of compulsory retirement but should be retained in service until the enquiry into the charge is conducted and a final order passed thereon by the competent authority."
11. In the said case, referring to Rule 56(c) of the Tamil Nadu Government Fundamental Rules, since the Government Servant was on suspension on the date of his attaining the age of superannuation, the Division Bench held that such proceedings cannot be continued after his retirement, because there was no order passed retaining him in service. But, in the case on hand, the appellant was not under suspension, and therefore, question of retaining him in service and continuing his suspension does not arise. If only the appointing authority decides to continue to deal with the charges under Rule 17(b) of the Rules, it is necessary to retain the Government Servant in service by passing an order required under Rule 56(c) of the Fundamental Rules and to keep him under suspension. When it is otherwise proposed to continue the proceedings under Rule 9(2)(a) of the Pension Rules, there is no need to pass any order retaining the Government Servant in service and to continue to place him under suspension.
12. The learned counsel appearing for the appellant would place reliance on a Judgment of a Division Bench of this Court in N.K.Gowder v. C.D.Co-op Milk Producers Ltd., reported in 2008 (1) MLJ 119, wherein in paragraph No.6, it has been held as follows;-
"A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceedings is kept pending by the employer, the employee cannot be made to retire. In the instant case, no rule has been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. There has to be a specific provision of law or regulation or a bye-law governing the service conditions of the person in question for continuing a departmental enquiry, initiated before the date of superannuation, even after the employee had retired from service. Without such a provision being available, there cannot be an employer-employee relationship surviving after the employee retires from service. Therefore, continuing the enquiry proceedings or conducting an action against the person after his retirement from service cannot be sustained in the eye of law.
13. A perusal of the above Judgment would go to indicate that in a case where there has been a Rule providing for continuation of such proceeding despite permitting the employee concerned to retire from service, the proceedings can go on. This is what we have already concluded in the earlier paragraphs of this Judgment, as, such rule providing for continuation of the proceeding is found in Rule 9(2)(a) of the Pension Rules.
14. The learned counsel for the appellant, nextly relied on a Judgment of the Hon'ble Supreme Court in UCO Bank v. Rajinder Lalcapoor reported in 2008 (5) SCC 257, wherein in paragraph No.29, the Hon'ble Supreme Court, after analyzing various Judgments has ultimately held as follows;-
"We have noticed in para 15 of our Judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceeding despite the officers reaching the age of superannuation must be a statutory rule. A fortiori it must be a rule applicable to disciplinary proceedings."
15. The above Judgment of the Hon'ble Supreme Court also sets at rest doubt, if any, on this aspect. As we have already concluded, in the case on hand, as per the Pension Rules, which enables the respondent to continue the proceedings, there is no bar for the respondent to do so. The learned counsel for the appellant has cited many more Judgments on this aspect, which we do not propose to reproduce, as the same would only add to the length of this Judgment.
16. In view of all the above, in our considered opinion, the expression "without prejudice to the pending disciplinary action and other statutory actions" found in the impugned order should be construed to mean that the disciplinary proceeding initiated under Section 17(b) of the Rules shall be deemed to be a proceeding initiated under Rule 9(2)(a) of the Pension Rules and the same may be continued, which may result in any order under Rule 9(1) of the Pension Rules.
17. In view of the above legal position, we have to state that the appellant shall be entitled for provisional pension as provided in the Pension Rules and the monetary benefits arising out of his retirement subject to the continuance of the departmental proceedings. Therefore, the respondent shall settle all his monetary benefits arising out of his retirement including the provisional pension as provided in the Pension Rules. Except the above clarification and direction, the appellant is not entitled for any other relief in this Writ Appeal.
18. W.A.(MD).No.721 of 2010:-
The respondent in W.A.(MD).No.721 of 2010 was a Deputy Tahsildar, attached to Taluk Office, Vadipatti. He retired from service on 30.04.2009. While he was in service, a charge memorandum was issued on 03.04.2009. While allowing him to retire from service, in the order, it is stated that his retirement is without prejudice to the disciplinary proceeding pending against him. Based on the said order, the respondent was not paid the terminal benefits on account of his retirement. Therefore, the respondent filed a Writ Petition (MD).No.6402 of 2009, challenging the said clause in the order, which states that the retirement is subject to the pendency of the disciplinary proceedings. A learned Single Judge of this Court, by order dated 21.12.2009, allowed the Writ Petition and quashed that part of the order and consequently directed the District Collector, Madurai, to disburse the retirement benefits to the respondent within a period of twelve months from the date of receipt of a copy of the Order. Against the said order, the District Collector and the Revenue Divisional Officer, Madurai, have come up with this Writ Appeal.
19. As we have already held in W.A.(MD).No.698 of 2010, the clause in the retirement order, which states that the retirement shall be subject to the pendency of the disciplinary proceeding should be construed to mean that such proceeding shall be deemed to be a proceeding initiated under Rule 9(2)(a) of the Pension Rules and the same may be continued. However, the respondent shall be entitled for all the terminal benefits including the provisional pension as provided in the Pension Rules. But, the learned Single Judge has quashed the entire order, and therefore, as of now, it will not be possible for the appellants to proceed with the disciplinary proceedings even under Rule 9(2)(a) of the Pension Rules. Therefore, the order of the learned Single Judge needs to be interfered with to the limited extent, as indicated above.
20. In view of the above, this Writ Appeal must succeed and the order of the learned Single Judge should be set aside to the limited extent. However, with clarification that the pending disciplinary proceedings against the respondent shall be deemed to be a proceeding initiated under Rule 9(2)(a) of the Pension Rules and the same may be continued, which may result in any order under Rule 9(1) of the Pension Rules. However, pending the said disciplinary proceedings, the appellants shall disburse all the retirement benefits to the respondent including the provisional pension as provided in the Pension Rules.
21. In the result, W.A.(MD).No.698 of 2010 is dismissed with the clarification and direction as mentioned in Paragraph No.17 of this Judgment. W.A.(MD).No.721 of 2010 is allowed in part with the clarification and direction as mentioned in Paragraph No.20 of this Judgment. No costs. Consequently, connected Miscellaneous Petition is closed.