K.durairajan vs the Secretary to Government on 17 March, 2010

DATED : 17.03.2010

CORAM

THE HONOURABLE MR.JUSTICE K.N.BASHA

W.P.Nos.27474 & 27475/2009

MP.Nos.2&3/2009 in WP.No.27474/2009 &

MP Nos.1/2009 in WP.No.27475/09

K.Durairajan .. Petitioner in both WPs

Vs

1.The Secretary to Government

Commercial Taxes and Registration

Department, Chennai 600 009.

2.The Inspector General of Registration

Chennai 600 028. .. Respondents in both WPs

Prayer in WP.No.27474/2009:- Writ petition filed under Article 226 of the Constitution of India praying for awrit of certiorarified mandamus to call for the records comprised in the proceedings of the charge memo ofthe 2nd respondent herein in his reference No.50828/A2/2007 dated 19.10.2007 and quash the same andconsequently direct the respondents herein to promote the petitioner as Additional Inspector General ofRegistration with all monetary and service benefits and privileges. Prayer in WP.No.27475/2009:- Writpetition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified mandamuscalling for the records comprised in the proceedings of the 1st respondent in G.O.[D] No.567 CommercialTaxes and Registration [H1] Department dated 31.12.2009 and quash the proceedings of the 1st respondentdated 31.12.009 insofar as it relates to the direction to proceed against the petitioner under Rule 17[b] of theTamilnadu Civil Services [Discipline and Appeal] Rules in respect of the pending charges and consequentlyforbearing the respondents from proceeding against the petitioner under Rule 17[b] of the Tamilnadu CivilServices [Discipline and Appeal] Rules and to settle the pensionary and terminal benefits to the petitioner.[Prayer in WP.No.27475/2009 amended as per the order made in MP.No.1/2010 dated 03.03.2010].

For Petitioner in : Mr..V.Ramajagadeesan

both the petitions

For RR 1&2 in both : Mr.V.Arun, AGP

the petitions

COMMON ORDER

By mutual consent of both the learned counsel for the petitioner and the learned Additional GovernmentPleader, the main writ petitions are taken up for final disposal.

K.Durairajan vs The Secretary To Government on 17 March, 2010

Indian Kanoon - http://indiankanoon.org/doc/978264/ 1

2. It is seen that in both the writ petitions, the petitioner is one and the same and the impugned order dated31.12.2009 issued against the petitioner allowing him to retire from service on the due date of his retirement,i.e., on 31.12.2009 without prejudice to the disciplinary proceedings under Rule 17(b) of Tamil Nadu CivilService (Discipline & Appeal) Rules, (hereinafter referred to as "the Rules") pending against him in respect ofthe charge memos dated 19.10.2007 (challenged in W.P.No.27474 of 2009) and 21.12.2009 (challenged inW.P.No.27475 of 2009) and as such, both the writ petitions have been taken together for hearing and disposedof by the following common order.

3. The petitioner, in W.P.No.27475 of 2009 had initially come forward with a prayer to quash the chargememo dated 21.12.2009 with a consequential relief of promoting him as Assistant Inspector General ofRegistration with all monetary and service benefits and privileges, but subsequently, the said prayer wasamended, as per the order of this Court dated 03.03.2010 in view of issuance of the order dated 31.12.2009allowing the petitioner to retire without prejudice to the pending disciplinary proceedings under Rule 17(b) ofthe rules, to the effect of seeking the relief of quashing the order of the first respondent in G.O.[D] No.567Commercial Taxes and Registration [H1] Department dated 31.12.2009 insofar as it relates to the direction toproceed against the petitioner under Rule 17[b] of the Rules in respect of the pending charges andconsequently forbearing the respondents from proceeding against the petitioner under Rule 17[b] of theTamilnadu Civil Services [Discipline and Appeal] Rules and to settle the pensionary and terminal benefits tothe petitioner.

4. The case of the petitioner is that at the time of his retirement he was working as Assistant Inspector Generalof Registration, Chennai, and he retired from his service on 31.12.2009. During his tenure, he was issued withcharge memos dated 24.06.2005, 19.10.2007 and 21.12.2009. In respect of the first charge memo dated24.06.2005, the proceedings were dropped and as such, the petitioner challenged the remaining two chargememos dated 19.10.2007 and 21.12.2009 in the above two writ petitions.

5. The petitioner reached the age of superannuation on 31.12.2009 and on the same day, the first respondentpassed the impugned order dated 31.12.2009 permitting the petitioner to retire on the afternoon on 31.12.2009without prejudice to the disciplinary proceedings under Rule 17(b) of the rules in respect of pending charges.

6. The petitioner stated that once the Government allowed him to retire from service without invoking theirpowers under 56(1)(c) of the Fundamental Rules to suspend the petitioner from his service and to extend theservices of the petitioner beyond the date of his retirement so as to enable the Government to proceed with thepending disciplinary action, the Government thereafter cannot proceed against the delinquent Governmentservant and the mere wordings in the impugned order, viz., without prejudice to the disciplinary proceedingsunder Rule 17(b) of the Rules pending against him, will not empower the Government to proceed against thepetitioner after his retirement. It is also stated that under Rule 56(1)(c) of the Fundamental Rules, theGovernment can suspend the Government servant before the last date of his retirement and can extend theservices of the Government servant beyond the date of his retirement facilitating the Government to completethe departmental proceedings as per the charges under Rule 17(b) of the Rules for imposing a major penalty.Therefore, the Government cannot continue the departmental proceedings under Rule 17(b) of the Ruleswithout invoking its power under rule 56(1)(c) of the Fundamental Rules. The first respondent by theimpugned order permitted the petitioner to retire from the services from the afternoon of 31.12.2009 and assuch, the relationship of employer and employee ceased from 01.01.2010 and the first respondent or thesecond respondent have no disciplinary control over the petitioner after 31.12.2009 unless and until they haveexercised their power under rule 56(1)(c) of the Fundamental Rules and as such, they have no power toproceed with the disciplinary proceedings under Rule 17(b) of the Rules. Therefore, the petitioner has beenconstrained to approach this Court seeking the above said relief of quashing the impugned order dated31.12.2009 to the limited extent as indicated above. 7.1. Mr.V.Ramajegadeesan, learned counsel for thepetitioner, vehemently contended that after allowing the petitioner to retire from service, the question ofproceeding with the disciplinary proceedings does not arise as the relationship of employer and employeeceased to exist. The learned counsel would submit that the impugned order dated 31.12.2009 was passed in



respect of two charge memos dated 19.10.2007 and 21.12.2009. It is contended that pursuant to the issuanceof the charge memo dated 19.10.2007, there is no progress in the disciplinary proceedings and the same waskept pending and as far as the second charge memo dated 21.12.2009 is concerned, the said charge memo wasissued at the verge of the retirement of the petitioner. 7.2. The learned counsel for the petitioner would furthercontend that the Government can suspend the petitioner before the last date of his retirement by invoking theRule 56(1)(c) of the Fundamental Rules. Invoking the provision under Rule 56(1)(c) of the FundamentalRules enables the Government to extend the services of the delinquent officer beyond the date of hisretirement facilitating the Government to complete the departmental proceedings. In the case on hand, suchpower under Rule 56(1)(c) of the Fundamental Rules was not exercised by the first respondent before passingthe impugned order dated 31.12.2009. It is contended that mere wordings of "without prejudice to thedisciplinary proceedings" will not empower the Government to proceed with the disciplinary enquiry againstthe petitioner as the master and servant relationship ceased to exist. Therefore, it is contended that theimpugned order dated 31.12.2009 is liable to be quashed. 7.3. In support of his contention he would also placereliance on the following decisions :

(1)A Division Bench Judgment of this court in N.M.SOMASUNDARAM Vs. THE DIRECTOR GENERALOF POLICE, MADRAS-4 reported in 1997 W.L.R. 120 ;

(2)Another Division Bench judgment of this Court in N.KUNNAI GOWDER Vs. THE COIMBATOREDISTRICT CO-OP MILK PRODUCERS' UNION LIMITED AND ANOTHER reported in 2008 Writ L.R.104 ; and

(3)an unreported Judgment of this court made in WP.No.19707/2008 dated 02.02.2010.

8. Mr.V.Arun, learned Additional Government Pleader, would submit that there is no illegality or infirmity inpassing the impugned order dated 31.12.2009. It is contended that the impugned order was passed on the dateof retirement of the petitioner and not after his retirement. It is pointed out by the learned AdditionalGovernment Pleader that the Government, while allowing the petitioner to retire, retained its power tocontinue with the disciplinary proceedings pending against him under Rule 17(b) of the rules. It is contendedthat the charge memos dated 19.10.2007 and 21.12.2009 were issued prior to the date of retirement of thepetitioner and as such, the first respondent passed the impugned order dated 31.12.2009 without prejudice tothe disciplinary proceedings under Rule 17(b) of the Rules. It is further contended that non-exercise of thepower under Rule 56(1)(c) of the Fundamental Rules would not invalidate the impugned order dated31.12.2009.

9. I have given my careful and anxious consideration to the rival contentions put forward by either side andalso perused the entire materials available on record including the impugned order dated 31.12.2009.

10. The crux of the question involved in this matter is whether the respondents are empowered to continuewith the disciplinary proceedings under Rule 17(b) of the Rules after allowing the petitioner to retire onreaching the age of superannuation.

11. It is seen that the petitioner has been issued with the charge memos dated 19.10.2007 and 21.12.2009 andthe fact remains that till the date of filing the writ petitions, there is absolutely no progress whatsoeverpursuant to the issuance of the charge memo dated 19.10.2007 and the second charge memo dated 21.12.2009was passed just 10 days prior to the date of the retirement of the petitioner.

12. A perusal of the impugned order dated 31.12.2009 reveals that the petitioner was allowed to retire withoutprejudice to the pending disciplinary proceedings under Rule 17(b) of the Rules. In the impugned order dated31.12.2009, references were made in respect of three charge memos dated 24.06.2005, 19.10.2007 and21.12.2009. It is stated by the petitioner in the affidavit in writ petition in W.P.No.27475 of 2009 that theproceedings in respect the first charge memo dated 24.06.2005 were dropped and as such, the petitioner



challenged the remaining two charge memos dated 19.10.2007 and 21.12.2009 in the above two writ petitions.Therefore, it is clear that the impugned order dated 31.12.2009 was passed without prejudice to the pendingdisciplinary proceedings under Rule 17(b) of the Rules pursuant to the charge memos dated 19.10.2007 and21.12.2009.

13. It is pertinent to note that in the impugned order itself a reference was made to the provision under Rule56(1)(c) of the Fundamental Rules which enables the Government to place the delinquent officer undersuspension and not allowing him to retire beyond the superannuation with a view to continue with thedisciplinary proceedings. It is further revealed from the impugned order that the Government has not resortedto exercise its power under rule 56(1)(c) of the Fundamental Rules with a view to avoid payment ofsubsistence allowance mainly on the ground that in the event of charges ultimately proved against thedelinquent officer action may be taken against the petitioner under the Tamil Nadu Pension Rules forwithholding the entire amount of pension payable to him. Considering such aspect, the Government thought itfit to pass the impugned order dated 31.12.2009 permitting the petitioner to retire from service on attaining theage of superannuation on the afternoon of 31.12.2009 without prejudice to the disciplinary proceedings underRule 17(b) of the Rules.

14. At the outset, it is to be stated that there is absolutely no provision of any law or regulation enabling thefirst respondent to keep the disciplinary proceedings alive even after allowing the government servantconcerned to retire. If the disciplinary authority decides to continue the disciplinary proceedings even beyondthe due date of retirement the only option is to invoke Rule 56(1)(c) of the Fundamental Rules.

15. At this juncture, it is relevant to refer to a decision of the Division Bench of this Court inN.M.Somasundaram v. The Director General of Police, Madras -4 and Ors. reported in 1997 W.L.R.120 inwhich it was held as hereunder : "A reading of Rule 56(a) and (c) together would lead to an irresistibleconclusion that in order to retain a public servant or a Government servant in service on attaining his age ofsuperannuation, a positive order in writing shall have to be passed by the Government giving the reasons as toon what grounds which should be on public grounds, a Government servant is retained in service. No doubtRule 56(c) says that a Government servant under suspension on a charge of misconduct should not be requiredor permitted to retire of his reaching the date of compulsory retirement. It further says that he should beretained in service until the enquiry into the charge is conducted and a final order passed thereon by theCompetent Authority. Therefore, even though it may not be necessary to permit to Government servantagainst whom a disciplinary proceeding is pending, to retire from service, in order to retain him in service forthe purpose of disciplinary proceedings, a positive order in writing is required to be passed. The public groundfor passing the said order is the pendency of the disciplinary proceeding. But, what is necessary is that thereshould be an order passed by the Government not permitting a Government Servant to retire from service."

16. Again a Division Bench of this Court in The State of Tamil Nadu V. R.Karuppiah reported in 2005(3)CTC 4 has held hereunder :

"29. From the above note it is also clear that to proceed against a Government servant, who is undersuspension on a charge of misconduct, after his retirement, the fulfilling of the requirements under Rule56(1)(c) of the Fundamental Rules is a mandatory one, otherwise, the competent authority cannot have anyjurisdiction on the retired Government servant to proceed against him and the non-compliance of the said ruleis vitiated all the proceedings initiated against the first respondent and therefore, the same are not sustainableunder law and are liable to be set aside."

17. In yet another Division Bench decision in P.Muthusamy V. Tamil Nadu Cements Corporation Limitedreported in (2006) 4 M.L.J. 504 this Court has held hereunder :

8. In view of the admitted factual position that there is no specific enabling provision in the TANCEM ServiceRules and of the legal position as referred to above, we hold that the order of the first respondent, reserving



http://indiankanoon.org/doc/1167055/






















the right to continue the disciplinary proceedings after superannuation, is illegal and without jurisdiction."

18. Another Division Bench of this Court in N.Kunnai Gowder V. The Coimbatore District Co-op. MilkProducers' Union Limited & Another reported in 2008 Writ L.R. 104 has held that,

"6. A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinaryproceeding is kept pending by the employer, the employee cannot be made to retire. In the instant case, norule has been brought to our notice providing for continuation of such proceeding despite permitting theemployee concerned to retire. There has to be a specific provision of law or regulation or a by-law governingthe service conditions of the person in question for continuing a departmental enquiry, initiated before the dateof 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 retirementfrom service cannot be sustained in the eye of law."

19. The Hon'ble Apex Court in Bhagirathijena v. B.D., O.S.F. Corporation reported in (1999) 3 SCC 666,while dealing with the effect of continuance of disciplinary proceedings after superannuation in the absence ofspecific provisions, held as hereunder :

"7. In view of the absence of such a provision in the above said regulations, it must be held that theCorporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is alsono provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provisionstating that in case misconduct is established, a deduction could be made from retiral benefits. Once theappellant had retired from service on 30-6-1995, there was no authority, vested in the Corporation forcontinuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefitspayable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed andthe appellant was entitled to full retiral benefits on retirement."

20. A similar view is also taken by a learned Single Judge of this Court in a similar and identical matter in anunreported order made in W.P.No.19707 of 2008 dated 02.02.2010 (K.Rajendran V. Senior District Collector,Tiruvellore District, Tiruvellore).

21. The principles laid down in the decisions cited supra are squarely applicable to the facts of the instant caseas in this case also the petitioner was allowed to retire on the date of his superannuation on 31.12.2009without prejudice to the pending disciplinary proceedings under Rule 17(b) of the Rules and such impugnedorder was passed without invoking the power under Rule 56(1)(c) of the Fundamental Rules and without anyspecific provision. As the petitioner was allowed to retire, the relationship of employer and employee cannotsurvive and as such, continuation of disciplinary proceedings cannot be sustained in law.

22. Accordingly, the impugned order passed by the first respondent dated 31.12.2009 in G.O.[D] No.567Commercial Taxes and Registration [H1] Department is hereby set aside insofar as it relates to the portion tothe effect of continuing with the proceedings against the petitioner in respect of pending charges byspecifically stating "without prejudice to the disciplinary proceedings under rule 17(b) of the rules.W.P.No.27475 of 2009 is allowed. Consequently, W.P.No.27474 of 2009 is also allowed and all connectedmiscellaneous petitions are closed.

23. After the dictation of the above said order in the open court on 09.03.2010 and before signing the order,the matter is posted today (17.03.2010) "For Being Mentioned" at the instance of the learned AdditionalGovernment Pleader.

24. Mr.V.Arun, learned Additional Government Pleader would now contend that the disciplinary proceedingsagainst the petitioner can very well continue even after his retirement and in support of his contention, the

















learned Additional Government Pleader would place reliance on the decision of the Division Bench of thisCourt in The Registrar of Co-operative Societies V. G.Manoharan (W.A.Nos.256 and 257 of 2008) reported inMANU/TN/2827/2009.

25. Mr.V.Ramajegadeesan, learned counsel for the petitioner, on the other hand, would once again reiteratehis contention to the effect that the question of continuing with the disciplinary proceedings after allowing thepetitioner to retire would not at all arise. In support of his contentions, apart from the decisions cited supra, thelearned counsel would also place reliance on the following decisions : (1)An unreported Division Benchjudgment in Chengam Co-operative Primary Agricultural and Rural Development Bank, Chengam,Tiruvannamalai District, represented by its Special Officer V. N.Panchatsharam and others (W.A.No.103 of2005 dated 08.04.2009) ; and

(2)A learned Single Judge decision in P.S.Kasthuri V. Commissioner, Municipal Administration reported in(2009) 3 MLJ 583 ;

26. As far as the Division Bench decision of this Court in The Registrar of Co-operative Societies V.G.Manoharan (W.A.Nos.256 and 257 of 2008) reported in MANU/TN/2827/2009 is concerned, it is seen thatthe said decision is in respect of surcharge proceedings initiated under Section 87 of the Tamil NaduCo-operatives Act and as per Section 87 proceedings can be initiated even in respect of a person who hasretired. It is pointed out by the Division Bench in the said decision as hereunder : "13. Section 87 is animportant provision which deals with surcharge proceedings and it can be initiated if, "it appears that anyperson who is or was entrusted with the organisation or management of the society or any past or presentofficer or servant of the society has misappropriated or fraudulently retained any money or other property orbeen guilty of breach of trust in relation to the society or has caused any deficiency in the assets of the societyby breach of trust or willful negligence or has made any payment which is not in accordance with this Act".The facts relating to misappropriation, fraudulent retention of money or breach of trust may have come tolight either in the course of an audit under Section 80 or during the course of the inquiry under Section 81 oran inspection and investigation under Sections 82 or 83. If such fraudulent retention of money,misappropriation, breach of trust or willful negligence becomes apparent, the Registrar or a person authorisedby him is empowered to frame charges against such person and after giving opportunity, an order can be madeto repay or restore the money and such action cannot be commenced after the expiry of seven years from thedate of the Act or omission. This section empowers the Registrar to proceed against a person who is or wasentrusted with the organisation or management of the society, a past or a present officer of the society, and apast or present servant of the society. In fact, even the representative who inherits the estate of such a personwho is deceased shall answer the charges. The retirement of such person or officer or servant is not a deterrentto the proceedings that can be initiated under Section 87. Section 87 is only to recover and make good thefinancial loss caused to the society by the individual concerned by his fraudulent retention of money,misappropriation, willful negligence or breach of trust, as the case may be. ...." (emphasis supplied by thisCourt)

27. It is seen that in the Division Bench decision cited supra, the delinquent officer was suspended before thedate of his superannuation and he was also not permitted to retire, it is better to incorporate the relevantportion in paragraph 16 of the Division Bench decision as hereunder : "16. In the present case, we have foundthat a charge memo had been issued to the first respondent and he had also given a reply thereto before thedate of his superannuation. Therefore, the disciplinary proceedings had already commenced. The firstrespondent was not permitted to retire. He was suspended. But no order was passed permitting him to retireeither. Further, the language of Section 87 of the Act clearly shows that proceedings can be initiated even inrespect of a person who has retired, if he has committed the acts specified in Section 87 or is guilty ofmisconduct as mentioned in the same section, then we cannot restrain the appellants from proceeding with theaction against the first respondent. ...." (emphasis supplied by this Court)


















28. In paragraph 25, the Division Bench referred to a Division Bench decision of the Andhra Pradesh HighCourt as hereunder :

"A Division Bench of the Andhra Pradesh High Court, relying on Bhagirathi Jena (supra), held that theretirement benefits cannot be withheld. In the present case, however, the first respondent was not permitted toretire. He was instead suspended from service on the eve of his retirement. In fact, in the above case, theAndhra Pradesh High Court observed that if disciplinary action is sought to be taken, it must be done beforehe retires. This has been done in the case on hand. The Division Bench held that in view of the authoritativepronouncements of the Apex Court, the right of the employer to continue the disciplinary proceedings afterthe employee had been allowed to retire was not permissible. The Division Bench observed, "The only courseopen to the authorities is not to allow the petitioner to retire on superannuation". In the case on hand, no orderpermitting the first respondent to retire has been passed. The Division Bench also observed that proceedingscan be initiated against a retired employee for the purpose of withholding the whole or part of his pensionamount, provided there exists any provision there for." (emphasis supplied by this Court)

29. In paragraph 26, the Division Bench referred to a decision of the Hon'ble Apex Court in Ramesh ChandraSharma V. Punjab National Bank reported in (2007) 9 SCC 15. The relevant portion in the said paragraph is tobe incorporated as hereunder : "The Supreme Court held that the question whether the departmentalproceedings can continue after the officer reaches the age of superannuation will depend on the applicabilityof the extant rules."

30. The above portions incorporated from the Division Bench decision cited supra make it crystal clear thatthe said decision is rendered mainly in respect of the surcharge proceedings initiated against the delinquentofficer under Section 87 of the Tamil Nadu Co-operatives Act, 1983 and the provision under Section 87 givesthe power to proceed against a past or retired employee for recovery and restoration of financial loss caused tothe society. It is also pertinent to note that in the said Division Bench decision, the delinquent officer wassuspended before reaching the age of superannuation and he was not permitted to retire. It is also specificallymade clear by the Division Bench in paragraphs 16 and 30 to the effect that no orders were passed permittingthe delinquent officer to retire. As far as the case on hand is concerned, the service of the petitioner has notbeen extended by suspending the petitioner and not allowing him to retire and on the other hand, he wasallowed to retire and as such, the Division Bench decision cited supra is not at all helpful to advance thecontentions of the learned Additional Government Pleader.

31. Another Division Bench of this Court in M.K.S.Balasubramanian V. Kancheepuram Central Co-op. BankLtd in W.A.No.1297 of 2008 by order dated 25.02.2010 by referring the above said Division Bench of thisCourt in The Registrar of Co-operative Societies V. G.Manoharan (W.A.Nos.256 and 257 of 2008 dated21.10.2009) reported in MANU/TN/2827/2009 held as hereunder : "12. Thus, the respondent is not justified inimposing the condition namely reserving its right to proceed Disciplinary Proceedings while allowing theappellant to retire from service on 31.3.2005. The direction given by the learned Single Judge to therespondent to retain the amount of Rs.2.69.938/- from terminal benefits payable to the appellant is perfectlyjustified as the respondent can effect recovery of the loss sustained after initiating surcharge proceedingsunder Section 87 of the Tamil Nadu Co-operative Societies Act, 1983. ....

13. A Division Bench of this Court in W.A.Nos.256 and 257 of 2008 analyzed various judgments on this issuein its judgment dated 21.10.2009 and upheld the right of the society insofar as initiation of surchargeproceedings under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 even though the respondentin those cases also retired from service insofar as the loss sustained to the society. We are in entire agreementwith the above said judgment.

14. In view of the above findings, the order of the learned single Judge is modified holding that the conditionto continue the disciplinary proceedings after retirement against the appellant is set aside and the respondent isgranted liberty to proceed with the surcharge proceedings to be initiated under Section 87 of the Tamil nadu






















Cooperative Societies Act, 1983 for the alleged loss." (emphasis supplied by this Court)

The above said Division Bench decision also makes it crystal clear that imposing such a condition ofreserving the right to proceed disciplinary proceedings while allowing the delinquent officer to retire from hisservice is far beyond the power of the disciplinary authority and the said decision is squarely applicable to thefacts of the instant case as in this case also, the petitioner was allowed to retire, but without prejudice to thedisciplinary proceedings under Rule 17(b) of the Rules as per the impugned order.

32. It is worthwhile to refer to the decision of the Hon'ble Apex Court in Ramesh Chandra Sharma V. PunjabNational Bank reported in (2007) 9 SCC 15 relied by the earlier Division Bench of this court in the decisioncited supra (The Registrar of Co-operative Societies V. G.Manoharan (W.A.Nos.256 and 257 of 2008 dated21.10.2009) reported in MANU/TN/2827/2009). In the said decision the Hon'ble Apex Court dealt with therules and regulations of the Punjab National Bank and held as hereunder : "13. The question as to whether adepartmental proceeding can continue despite the delinquent officer's reaching the age of superannuationwould depend upon the applicability of the extant rules. It may be true that the question of imposition ofdismissal of the delinquent officer from service when he has already reached the age of superannuation wouldnot ordinarily arise. However, as the consequences of such an order are provided for in the service rule, in ouropinion, it would not be correct to contend that imposition of such a punishment would be whollyimpermissible in law." ....

"16. The question, thus, as to whether continuation of a disciplinary proceeding would be permissible or theemployer will have to take recourse only to the pension rules, in our opinion, would depend upon the termsand conditions of the services of the employee and the power of the disciplinary authority conferred by reasonof a statute or statutory rules. .....

"Regulation 20(3)(iii) envisages continuation of a disciplinary proceeding despite the officer ceasing to be inservice on the date of superannuation. For the said purpose a legal fiction has been created providing that thedelinquent officer would be deemed to be in service until the proceedings are concluded and final order ispassed thereon. The said Regulation being statutory in nature should be given full effect. When a legal fictionis created under a statute, it must be given its full effect." .....

In view of the above position, it was permissible for the Bank to continue with the disciplinary proceedingsrelying on or on the basis of Regulation 20(3)(iii)."

(emphasis supplied by this Court)

33. The Hon'ble Apex Court pointed out in the decision cited supra that there is a specific provision underRegulation 20(3)(iii) enabling the bank to continue with the disciplinary proceedings despite the officer ceasesto be in service on the date of superannuation. But as far as the case on hand is concerned, it is to be reiteratedthat there is no other specific provision or rules except to invoke rule 56(1)(c) of the Fundamental Rules bypassing an order not permitting the petitioner to retire and to continue with the disciplinary proceedings. Butthe respondents have not chosen to exercise the power under the said provision and on the other hand, thepetitioner was allowed to retire. Therefore, it goes without saying that the disciplinary proceedings under rule17(b) cannot be continued against the petitioner as he had already been allowed to retire on 31.12.2009 itself.

34. However, it is open to the respondents to take recourse to the Tamil Nadu Pension Rules, 1978 as perRules 9(2)(a) read with 9(1)(b) of the said Rules as per the terms and conditions of the services of thepetitioner as observed by the Hon'ble Apex Court in the decision cited supra.

35. With the above said additional reasons, this Court is constrained to reiterate that the writ petitions inW.P.Nos.27474 & 27475 of 2009 are deserved to be allowed as concluded by this Court in paragraph 22 ofthis order.



















ap/gg

To

1.The Secretary to Government

Commercial Taxes and Registration

Department, Chennai 600 009.

2.The Inspector General of Registration

Chennai 600 028



Documents

K.durairajan vs the Secretary to Government on 17 March, 2010