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 a
writ of certiorarified mandamus to call for the records comprised in the proceedings of the charge memo of
the 2nd respondent herein in his reference No.50828/A2/2007 dated 19.10.2007 and quash the same and
consequently direct the respondents herein to promote the petitioner as Additional Inspector General of
Registration with all monetary and service benefits and privileges. Prayer in WP.No.27475/2009:- Writ
petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified mandamus
calling for the records comprised in the proceedings of the 1st respondent in G.O.[D] No.567 Commercial
Taxes and Registration [H1] Department dated 31.12.2009 and quash the proceedings of the 1st respondent
dated 31.12.009 insofar as it relates to the direction to proceed against the petitioner under Rule 17[b] of the
Tamilnadu Civil Services [Discipline and Appeal] Rules in respect of the pending charges and consequently
forbearing the respondents from proceeding against the petitioner under Rule 17[b] of the Tamilnadu Civil
Services [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 Government
Pleader, the main writ petitions are taken up for final disposal.
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 K.Durairajan vs The Secretary To Government on 17 March, 2010

2. It is seen that in both the writ petitions, the petitioner is one and the same and the impugned order dated
31.12.2009 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 Civil
Service (Discipline & Appeal) Rules, (hereinafter referred to as "the Rules") pending against him in respect of
the charge memos dated 19.10.2007 (challenged in W.P.No.27474 of 2009) and 21.12.2009 (challenged in
W.P.No.27475 of 2009) and as such, both the writ petitions have been taken together for hearing and disposed
of 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 charge
memo dated 21.12.2009 with a consequential relief of promoting him as Assistant Inspector General of
Registration with all monetary and service benefits and privileges, but subsequently, the said prayer was
amended, as per the order of this Court dated 03.03.2010 in view of issuance of the order dated 31.12.2009
allowing the petitioner to retire without prejudice to the pending disciplinary proceedings under Rule 17(b) of
the rules, to the effect of seeking the relief of quashing the order of the first respondent in G.O.[D] No.567
Commercial Taxes and Registration [H1] Department dated 31.12.2009 insofar as it relates to the direction to
proceed against the petitioner under Rule 17[b] of the Rules in respect of the pending charges and
consequently forbearing the respondents from proceeding against the petitioner under Rule 17[b] of the
Tamilnadu Civil Services [Discipline and Appeal] Rules and to settle the pensionary and terminal benefits to
the petitioner.

4. The case of the petitioner is that at the time of his retirement he was working as Assistant Inspector General
of Registration, Chennai, and he retired from his service on 31.12.2009. During his tenure, he was issued with
charge memos dated 24.06.2005, 19.10.2007 and 21.12.2009. In respect of the first charge memo dated
24.06.2005, the proceedings 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.

5. The petitioner reached the age of superannuation on 31.12.2009 and on the same day, the first respondent
passed the impugned order dated 31.12.2009 permitting the petitioner to retire on the afternoon on 31.12.2009
without 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 their
powers under 56(1)(c) of the Fundamental Rules to suspend the petitioner from his service and to extend the
services of the petitioner beyond the date of his retirement so as to enable the Government to proceed with the
pending disciplinary action, the Government thereafter cannot proceed against the delinquent Government
servant and the mere wordings in the impugned order, viz., without prejudice to the disciplinary proceedings
under Rule 17(b) of the Rules pending against him, will not empower the Government to proceed against the
petitioner after his retirement. It is also stated that under Rule 56(1)(c) of the Fundamental Rules, the
Government can suspend the Government servant before the last date of his retirement and can extend the
services of the Government servant beyond the date of his retirement facilitating the Government to complete
the 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 Rules
without invoking its power under rule 56(1)(c) of the Fundamental Rules. The first respondent by the
impugned order permitted the petitioner to retire from the services from the afternoon of 31.12.2009 and as
such, the relationship of employer and employee ceased from 01.01.2010 and the first respondent or the
second respondent have no disciplinary control over the petitioner after 31.12.2009 unless and until they have
exercised their power under rule 56(1)(c) of the Fundamental Rules and as such, they have no power to
proceed with the disciplinary proceedings under Rule 17(b) of the Rules. Therefore, the petitioner has been
constrained to approach this Court seeking the above said relief of quashing the impugned order dated
31.12.2009 to the limited extent as indicated above. 7.1. Mr.V.Ramajegadeesan, learned counsel for the
petitioner, vehemently contended that after allowing the petitioner to retire from service, the question of
proceeding with the disciplinary proceedings does not arise as the relationship of employer and employee
ceased to exist. The learned counsel would submit that the impugned order dated 31.12.2009 was passed in
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 K.Durairajan vs The Secretary To Government on 17 March, 2010

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

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

(2)Another Division Bench judgment of this Court in N.KUNNAI GOWDER Vs. THE COIMBATORE
DISTRICT 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 in
passing the impugned order dated 31.12.2009. It is contended that the impugned order was passed on the date
of retirement of the petitioner and not after his retirement. It is pointed out by the learned Additional
Government Pleader that the Government, while allowing the petitioner to retire, retained its power to
continue with the disciplinary proceedings pending against him under Rule 17(b) of the rules. It is contended
that the charge memos dated 19.10.2007 and 21.12.2009 were issued prior to the date of retirement of the
petitioner and as such, the first respondent passed the impugned order dated 31.12.2009 without prejudice to
the disciplinary proceedings under Rule 17(b) of the Rules. It is further contended that non-exercise of the
power under Rule 56(1)(c) of the Fundamental Rules would not invalidate the impugned order dated
31.12.2009.

9. I have given my careful and anxious consideration to the rival contentions put forward by either side and
also 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 continue
with the disciplinary proceedings under Rule 17(b) of the Rules after allowing the petitioner to retire on
reaching 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 and
the fact remains that till the date of filing the writ petitions, there is absolutely no progress whatsoever
pursuant to the issuance of the charge memo dated 19.10.2007 and the second charge memo dated 21.12.2009
was 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 without
prejudice to the pending disciplinary proceedings under Rule 17(b) of the Rules. In the impugned order dated
31.12.2009, references were made in respect of three charge memos dated 24.06.2005, 19.10.2007 and
21.12.2009. It is stated by the petitioner in the affidavit in writ petition in W.P.No.27475 of 2009 that the
proceedings in respect the first charge memo dated 24.06.2005 were dropped and as such, the petitioner
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 K.Durairajan vs The Secretary To Government on 17 March, 2010

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 pending
disciplinary proceedings under Rule 17(b) of the Rules pursuant to the charge memos dated 19.10.2007 and
21.12.2009.

13. It is pertinent to note that in the impugned order itself a reference was made to the provision under Rule
56(1)(c) of the Fundamental Rules which enables the Government to place the delinquent officer under
suspension and not allowing him to retire beyond the superannuation with a view to continue with the
disciplinary proceedings. It is further revealed from the impugned order that the Government has not resorted
to exercise its power under rule 56(1)(c) of the Fundamental Rules with a view to avoid payment of
subsistence allowance mainly on the ground that in the event of charges ultimately proved against the
delinquent officer action may be taken against the petitioner under the Tamil Nadu Pension Rules for
withholding the entire amount of pension payable to him. Considering such aspect, the Government thought it
fit to pass the impugned order dated 31.12.2009 permitting the petitioner to retire from service on attaining the
age of superannuation on the afternoon of 31.12.2009 without prejudice to the disciplinary proceedings under
Rule 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 the
first respondent to keep the disciplinary proceedings alive even after allowing the government servant
concerned to retire. If the disciplinary authority decides to continue the disciplinary proceedings even beyond
the 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 in
N.M.Somasundaram v. The Director General of Police, Madras -4 and Ors. reported in 1997 W.L.R.120 in
which it was held as hereunder : "A reading of Rule 56(a) and (c) together would lead to an irresistible
conclusion that in order to retain a public servant or a Government servant in service on attaining his age of
superannuation, a positive order in writing shall have to be passed by the Government giving the reasons as to
on what grounds which should be on public grounds, a Government servant is retained in service. No doubt
Rule 56(c) says that a Government servant under suspension on a charge of misconduct should not be required
or permitted to retire of his reaching the date of compulsory retirement. It further says that he should be
retained in service until the enquiry into the charge is conducted and a final order passed thereon by the
Competent Authority. Therefore, even though it may not be necessary to permit to Government servant
against whom a disciplinary proceeding is pending, to retire from service, in order to retain him in service for
the purpose of disciplinary proceedings, a positive order in writing is required to be passed. The public ground
for passing the said order is the pendency of the disciplinary proceeding. But, what is necessary is that there
should 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 under
suspension on a charge of misconduct, after his retirement, the fulfilling of the requirements under Rule
56(1)(c) of the Fundamental Rules is a mandatory one, otherwise, the competent authority cannot have any
jurisdiction on the retired Government servant to proceed against him and the non-compliance of the said rule
is vitiated all the proceedings initiated against the first respondent and therefore, the same are not sustainable
under law and are liable to be set aside."

17. In yet another Division Bench decision in P.Muthusamy V. Tamil Nadu Cements Corporation Limited
reported 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 Service
Rules and of the legal position as referred to above, we hold that the order of the first respondent, reserving
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 K.Durairajan vs The Secretary To Government on 17 March, 2010

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. Milk
Producers' 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 disciplinary
proceeding 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 by-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."

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 of
specific provisions, held as hereunder :

"7. In view of the absence of such a provision in the above said regulations, it must be held that the
Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also
no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision
stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the
appellant had retired from service on 30-6-1995, there was no authority, vested in the Corporation for
continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits
payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and
the 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 an
unreported 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 case
as in this case also the petitioner was allowed to retire on the date of his superannuation on 31.12.2009
without prejudice to the pending disciplinary proceedings under Rule 17(b) of the Rules and such impugned
order was passed without invoking the power under Rule 56(1)(c) of the Fundamental Rules and without any
specific provision. As the petitioner was allowed to retire, the relationship of employer and employee cannot
survive 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.567
Commercial Taxes and Registration [H1] Department is hereby set aside insofar as it relates to the portion to
the effect of continuing with the proceedings against the petitioner in respect of pending charges by
specifically 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 connected
miscellaneous 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 Additional
Government Pleader.

24. Mr.V.Arun, learned Additional Government Pleader would now contend that the disciplinary proceedings
against the petitioner can very well continue even after his retirement and in support of his contention, the
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 K.Durairajan vs The Secretary To Government on 17 March, 2010

learned Additional Government Pleader would place reliance on the decision of the Division Bench 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.

25. Mr.V.Ramajegadeesan, learned counsel for the petitioner, on the other hand, would once again reiterate
his contention to the effect that the question of continuing with the disciplinary proceedings after allowing the
petitioner to retire would not at all arise. In support of his contentions, apart from the decisions cited supra, the
learned counsel would also place reliance on the following decisions : (1)An unreported Division Bench
judgment 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 of
2005 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 that
the said decision is in respect of surcharge proceedings initiated under Section 87 of the Tamil Nadu
Co-operatives Act and as per Section 87 proceedings can be initiated even in respect of a person who has
retired. It is pointed out by the Division Bench in the said decision as hereunder : "13. Section 87 is an
important provision which deals with surcharge proceedings and it can be initiated if, "it appears that any
person who is or was entrusted with the organisation or management of the society or any past or present
officer or servant of the society has misappropriated or fraudulently retained any money or other property or
been guilty of breach of trust in relation to the society or has caused any deficiency in the assets of the society
by 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 to
light either in the course of an audit under Section 80 or during the course of the inquiry under Section 81 or
an 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 authorised
by him is empowered to frame charges against such person and after giving opportunity, an order can be made
to repay or restore the money and such action cannot be commenced after the expiry of seven years from the
date of the Act or omission. This section empowers the Registrar to proceed against a person who is or was
entrusted with the organisation or management of the society, a past or a present officer of the society, and a
past or present servant of the society. In fact, even the representative who inherits the estate of such a person
who is deceased shall answer the charges. The retirement of such person or officer or servant is not a deterrent
to the proceedings that can be initiated under Section 87. Section 87 is only to recover and make good the
financial 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 this
Court)

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

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

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

"A Division Bench of the Andhra Pradesh High Court, relying on Bhagirathi Jena (supra), held that the
retirement benefits cannot be withheld. In the present case, however, the first respondent was not permitted to
retire. He was instead suspended from service on the eve of his retirement. In fact, in the above case, the
Andhra Pradesh High Court observed that if disciplinary action is sought to be taken, it must be done before
he retires. This has been done in the case on hand. The Division Bench held that in view of the authoritative
pronouncements of the Apex Court, the right of the employer to continue the disciplinary proceedings after
the employee had been allowed to retire was not permissible. The Division Bench observed, "The only course
open to the authorities is not to allow the petitioner to retire on superannuation". In the case on hand, no order
permitting the first respondent to retire has been passed. The Division Bench also observed that proceedings
can be initiated against a retired employee for the purpose of withholding the whole or part of his pension
amount, 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 Chandra
Sharma V. Punjab National Bank reported in (2007) 9 SCC 15. The relevant portion in the said paragraph is to
be incorporated as hereunder : "The Supreme Court held that the question whether the departmental
proceedings can continue after the officer reaches the age of superannuation will depend on the applicability
of the extant rules."

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

31. Another Division Bench of this Court in M.K.S.Balasubramanian V. Kancheepuram Central Co-op. Bank
Ltd in W.A.No.1297 of 2008 by order dated 25.02.2010 by referring the above said Division Bench of this
Court in The Registrar of Co-operative Societies V. G.Manoharan (W.A.Nos.256 and 257 of 2008 dated
21.10.2009) reported in MANU/TN/2827/2009 held as hereunder : "12. Thus, the respondent is not justified in
imposing the condition namely reserving its right to proceed Disciplinary Proceedings while allowing the
appellant to retire from service on 31.3.2005. The direction given by the learned Single Judge to the
respondent to retain the amount of Rs.2.69.938/- from terminal benefits payable to the appellant is perfectly
justified as the respondent can effect recovery of the loss sustained after initiating surcharge proceedings
under 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 issue
in its judgment dated 21.10.2009 and upheld the right of the society insofar as initiation of surcharge
proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 even though the respondent
in those cases also retired from service insofar as the loss sustained to the society. We are in entire agreement
with the above said judgment.

14. In view of the above findings, the order of the learned single Judge is modified holding that the condition
to continue the disciplinary proceedings after retirement against the appellant is set aside and the respondent is
granted liberty to proceed with the surcharge proceedings to be initiated under Section 87 of the Tamil nadu
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 K.Durairajan vs The Secretary To Government on 17 March, 2010

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 of
reserving the right to proceed disciplinary proceedings while allowing the delinquent officer to retire from his
service is far beyond the power of the disciplinary authority and the said decision is squarely applicable to the
facts of the instant case as in this case also, the petitioner was allowed to retire, but without prejudice to the
disciplinary 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. Punjab
National Bank reported in (2007) 9 SCC 15 relied by the earlier Division Bench of this court in the decision
cited supra (The Registrar of Co-operative Societies V. G.Manoharan (W.A.Nos.256 and 257 of 2008 dated
21.10.2009) reported in MANU/TN/2827/2009). In the said decision the Hon'ble Apex Court dealt with the
rules and regulations of the Punjab National Bank and held as hereunder : "13. The question as to whether a
departmental proceeding can continue despite the delinquent officer's reaching the age of superannuation
would depend upon the applicability of the extant rules. It may be true that the question of imposition of
dismissal of the delinquent officer from service when he has already reached the age of superannuation would
not ordinarily arise. However, as the consequences of such an order are provided for in the service rule, in our
opinion, it would not be correct to contend that imposition of such a punishment would be wholly
impermissible in law." ....

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

"Regulation 20(3)(iii) envisages continuation of a disciplinary proceeding despite the officer ceasing to be in
service on the date of superannuation. For the said purpose a legal fiction has been created providing that the
delinquent officer would be deemed to be in service until the proceedings are concluded and final order is
passed thereon. The said Regulation being statutory in nature should be given full effect. When a legal fiction
is 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 proceedings
relying 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 under
Regulation 20(3)(iii) enabling the bank to continue with the disciplinary proceedings despite the officer ceases
to be in service on the date of superannuation. But as far as the case on hand is concerned, it is to be reiterated
that there is no other specific provision or rules except to invoke rule 56(1)(c) of the Fundamental Rules by
passing an order not permitting the petitioner to retire and to continue with the disciplinary proceedings. But
the respondents have not chosen to exercise the power under the said provision and on the other hand, the
petitioner was allowed to retire. Therefore, it goes without saying that the disciplinary proceedings under rule
17(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 per
Rules 9(2)(a) read with 9(1)(b) of the said Rules as per the terms and conditions of the services of the
petitioner 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 in
W.P.Nos.27474 & 27475 of 2009 are deserved to be allowed as concluded by this Court in paragraph 22 of
this order.
Indian Kanoon - http://indiankanoon.org/doc/978264/ 8
 K.Durairajan vs The Secretary To Government on 17 March, 2010

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

Indian Kanoon - http://indiankanoon.org/doc/978264/ 9