Rule 56(1)(c) of the Tamil Nadu Government Fundamental Rules.

V.Murugan vs The Commissioner on 31 January, 2008

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31/01/2008
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.P(MD)No.10550 of 2007
and
M.P(MD).No.1 of 2007
V.Murugan ... Petitioner
Vs
The Commissioner,
Madurai Corporation,
Madurai. ... Respondent
PRAYER
Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, call for the records relating to the impugned order issued by the respondent in his reference in No.VO2/40595/2006, dated 28.12.2006 and quash the same and to direct the respondent to pay the pension and all the terminal benefits to the petitioner arising out of his retirement payable to the petitioner.
!For Petitioner ... Mr.K.Vellaiswamy
^For Respondent ... Mr.M.Suresh Kumar
:ORDER
By consent of both the counsel, the Writ Petition is taken up for final disposal.

2. The petitioner was a Health Assistant working under the respondent corporation and later on, he was re-designated as Sanitary Inspector. His due date of retirement, on attaining the age of superannuation, was 31.12.2006. But, he was placed under suspension by the respondent by order dated 28.12.2006 on the ground that an enquiry into the grave charges against him is contemplated and such suspension is necessary in the public interest. The petitioner seeks to quash the said order.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
4. It is the main contention of the learned counsel for the petitioner that though the order of suspension was passed by the respondent on 28.12.2006, no order was passed by the respondent retaining him in service beyond 31.12.2006, and therefore, the order of suspension has got extinguished as on 31.12.2006, and after that, no order of suspension is in force in the eye of, law and therefore, he is entitled for pension and all other terminal benefits.
5. The contention of the respondent in the counter is that there are certain grave charges contemplated against the petitioner and on that ground and also having regard to the necessity to place him under suspension, the impugned order came to be passed. The learned counsel for the respondent would submit that though no order, retaining the petitioner in service, was passed by the respondent, such an order was passed by the Secretary to Government by his proceedings in VO2/40595/06, dated 28.12.2006. Since the Government is the higher Authority over the Appointing Authority i.e., the respondent herein, the said order of the Government satisfies the requirement of Rule 56(1)(a) of the Tamil Nadu Government Fundamental Rules, and thus, the order of suspension holds-good, which does not require any interference at the hands of this Court.
6. I have considered the rival contentions.
7. A perusal of the Tamil Nadu Municipal Corporation Service Rules, 1996, would go to show that in respect of the employees of the Corporation, the Tamil Nadu Government Fundamental Rules is also applicable. Rule 36 of the Tamil Nadu Municipal Corporation Service Rules, 1996 reads as follows:- "Application of Government rules to the Corporation employees:- In matters of settlement of pension, regulation of pay and other allowances, leave benefits claiming of Traveling allowances and daily allowances and other allowances and control of conduct of the Corporation employees, the Tamil Nadu Pension Rules, the Fundamental Rules, the Tamil Nadu Travelling allowance Rules, the manual on Special Pay and Allowances and the Tamil Nadu Government Servants Conduct Rules shall apply to the corporation employees as nearly as possible to the Governments Servants of similar status and standing. In matters in respect of which no provision has been made in these rules, every member of the service shall as nearly as possible be governed by the provisions applicable to Government Servants similar status, and standing".
8. Thus, a plain reading of the said Rule would go to show that there can be no controversy at all that the Tamil Nadu Fundamental Rules, is applicable to the Corporation employees.
9. Now, I have to see whether in the case of the petitioner, Rule 56(1)(c) of the Tamil Nadu Government Fundamental Rules has been complied with or not. The said Rule reads as follows:-
"Retirement on Superannuation- (a) Every Government servant in the superior service shall retire from service on the afternoon of the last day of the month in 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 the Tamil Nadu Basic Service for the purpose of pension. Such Government servants as well as all basic servants shall retire on attaining the age of sixty years: Provided further that on and from the 1st January 1993, a District Judge, Chief Judicial Magistrate, Sub-ordinate Judge or District Munsif-cum-Judicial Magistrate, who, in the opinion of the High Court, Madras, has potential for continued useful service beyond the age of fifty-eight years, shall retire from service on attaining the age of sixty years.
Notwithstanding anything contained in clause (a), a Government servant who is under suspension,
(i) on a charge of misconduct; or
(ii) against whom an enquiry into grave charges of criminal misconduct or allegations of criminal misconduct, is pending; or
(iii) against whom an enquiry into grave charges is contemplated or is pending; or
(iv) against whom a complaint of criminal offence is under investigation or trial;
shall not be permitted by the appointing authority to retire on his reaching the date of retirement, but shall be retained in service until the enquiry into the charge of misconduct or criminal misconduct or the enquiry into allegations of criminal misconduct or the enquiry into contemplated charges or disciplinary proceeding taken under rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, or rule 3(e) of the Tamil Nadu Police Sub-ordinate Service (Discipline and Appeal) Rules, as the case may be, in respect of item (iv) above is concluded and a final order passed thereon by the competent authority or by any higher authority".
10. An analysis of the said Provision would go to show that there is a statutory requirement on the part of the Appointing Authority to pass such an order retaining a Government Servant in service beyond the due date of retirement on attaining the age of superannuation, if there are charges pending or charges are contemplated. But in this case, the respondent has not passed any such order as required under FR 56 (1)(c).
11. In this case, the learned counsel for the respondent would submit that though such an order was not passed by the respondent as required under Rule 56(1)(c) of the Tamil Nadu Government Fundamental Rules, the Secretary to Government has passed an order, which satisfies the requirement.
12. Per contra, the learned counsel for the petitioner would submit that the Government is not the Competent Authority to pass such an order. Even assuming that the Government is the Competent Authority, the order, on which the learned counsel for the respondent relies on, is not an order in the strict sense of law and as it is only a letter. The learned counsel would further submit that even assuming that it is an order, unless it is communicated to the petitioner, it is not an order in the eye of law. Thus, according to the learned counsel, Rule 56(1)(c) of the Tamil Nadu Government Fundamental Rules has not been complied with.
13. The learned counsel for the respondent relies on explanation 1 to Rule 56(3) of the Tamil Nadu Government Fundamental Rules to substantiate his contention that the term 'Appointing Authority' includes a Higher Authority. But, in my considered opinion, there is no such clause appended to Section 56(1)(c) of the Tamil Nadu Government Fundamental Rules or any explanation appended to the same. The explanation appended to Rule 56(3) of the Tamil Nadu Government Fundamental Rules cannot be imported to Rule 56(1)(c) of the Tamil Nadu Government Fundamental Rules. Thus is my considered opinion, the competent authority to retain a person in service is only the Appointing Authority and not any other Authority including the Higher Authority.
14. The contention of the learned counsel for the respondent is that when the Appointing Authority has got power to retain the employee in service beyond the due date of retirement, on attaining the age of superannuation, as a corollary, it shall be presumed that the Higher Authority has also got such a power. He would further submit that under the Common Law any power, which could be exercised by a Lower Authority, could be exercised by the Higher Authority. But, I am not in agreement with the said contention raised by the learned counsel for the respondent for the following reasons. There can be no doubt that under the Common Law, an employer has got the power to place a person under suspension, though there is no specific Rule or Regulation to do so. But, in the matter of respondent Corporation employees the field is occupied by a particular service Rule i.e., the Tamil Nadu Government Fundamental Rules which empowers only the appointing authority to pass an order under FR 56(1)(c).
15. Rule 56(1)(c) of the Tamil Nadu Government Fundamental Rules contemplate that if any Government Servant shall be retained in service, after the said age, except in certain circumstances, a deviation can be made by retaining a person in service only in the circumstances enumerated under Rule 56(1)(c) of the Tamil Nadu Government Fundamental Rules. The said Rule clearly says that the Appointing Authority is competent to retain any person in service beyond the said date. When there is such a specific Rule, which empowers an authority to exercise the said power, it cannot be presumed at all that the Higher Authority can also exercise the said power, since this power flows from the statute. Unless the said statute provides for such a power for the Higher Authority, in my considered opinion, such a liberal interpretation cannot be had at all.
16. Even assuming that the Higher Authority has got such power to exercise, in this case, as rightly pointed out by the learned counsel for the petitioner, the communication of the Government, on which the learned counsel for the respondent relies on, cannot be treated as an order at all. A plain reading of the same would go to show that it is only a letter communicated by the Government to the Commissioner of Corporation of Madurai to take further action in the matter so as to not to allow the petitioner to retire from service, but to extend his service beyond 31.12.2006.
17. At no such imagination, the letter could be construed as an order. Even assuming that it is an order passed by the Government, the next question arises as to whether it is valid under law or the same is non-est in the eye of law, since the same was not communicated to the petitioner. It is the settled law that unless an order is communicated to the person against whom it is made, it shall be non-est in the eye of law.

18. The learned counsel relies on a Judgment of a Division Bench of this Court in the State of Tamil Nadu v. R.Karuppiah reported in 2005 (3) CTC 4, wherein, the Division Bench in paragraph 19 has held as follows:- "As already stated above, though the first respondent was placed under suspension on certain grave charges, he was allowed to retire from service on 31.05.1990 without passing any order retaining him in service as required under Rule 56(1)(c) of the Fundamental Rules. Though it is mentioned in the affidavit filed by the petitioners that the first respondent was not allowed to retire on 31.05.1990, no material is available on record in regard thereto".
19. In State of Punjab vs Balbir Singh reported in AIR 1977 SC 629, the Hon'ble Supreme Court has held that it is the actual date of service, which is essential for the purpose of completing the communication.
20. In Union of India and another vs. Shardindu reported in 2007 6 SCC 276, the Hon'ble Supreme Court has held as follows:- "The doctrine of pleasure appointment received constitutional sanction under Article 310 but unlike in the United Kingdom, in India it is not subject to any law made by Parliament but is subject to only whatever expressly provided by the Constitution. Therefore, the distinction has to be borne in mind, the doctrine of pleasure appointment as it existed in feudal set-up and in the democratic set-up. Therefore, the concept of pleasure doctrine cannot be invoked in the present case. Every appointment made by the Central Government is in the name of the President but by that it does not mean that all the appointments are pleasure appointments de hors the Constitution or statutory rules bearing on the subject. In the present case, the appointment made was of statutory appointment and the service conditions of the Chairperson and members have been laid down, likewise their removal has also been laid down on incurring certain disqualifications.
Once the regulations have been framed and detailed procedure laid down therein, then in that case if the services of an incumbent are required to be terminated then that can only be done in the manner provided and none else".
21. The dictum laid down by the Hon'ble Supreme Court, as extracted above, would only confirm the correctness of the view taken by me that Rule 56(1)(c) of the Tamil Nadu Government Fundamental Rules prescribes that it is only for the Appointing Authority to pass an order retaining an employee in service and no other authority can exercise the said power, though the said authority happens to be the higher authority.
22. In this case, admittedly, the letter of the Government was not communicated to the petitioner. Thus, even construing the letter of the Government as an order, since the same was not communicated to the petitioner, it is non-est in the eye of law, which cannot be used against the petitioner for any purpose.
23. In view of the above position, in my considered opinion, since there is no order legally passed retaining the petitioner in service beyond 31.12.2006, he is deemed to have retired from service as on 31.12.2006. Since the Master and Servant relationship came to be extinguished on 31.12.2006, after that, there is no question of suspension order being in force and thus the impugned suspension order also got extinguished on 31.12.2006. After that, it has got no validity.

24. In the result, this Writ Petition is allowed and I declare that the petitioner is deemed to have retired from service on 31.12.2006 and further direct the respondent to pay all his retirement benefits including pension. It is made clear that this order will not stand in the way of the respondent from initiating any disciplinary proceedings against the petitioner under Rule 9(2)(b) of the Tamil Nadu Pension Rules and pass necessary orders as required under the same. Further, it is also made clear that the contemplation of such proceedings or pendency of such proceedings would not be a ground for the respondent to refuse to pay terminal benefits now. Therefore, the respondent is directed to pay all the terminal benefits including pension to the petitioner without any delay. Consequently, the connected M.P is closed. No costs.