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K.

Rajendran vs Senior District Collector on 2 February, 2010

DATED:02.02.2010

CORAM

THE HONOURABLE Mr. JUSTICE T.RAJA

W.P.No.19707 of 2008 and

M.P.No.1 of 2008

K.Rajendran ... Petitioner

Vs.

Senior District Collector,

Tiruvellore District, Tiruvellore. ... Respondent

PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorarified
mandamus calling for the proceedings of the respondent in R.C.No.6441(08)/PA1 dated 31.07.2008 and quash
the said proceedings of the respondent dated 31.07.2008 in so far as it relates to the words "without prejudice
to the disciplinary proceedings pending against him" and the proceedings Na.Ka.No.29785/07/PA1 dated
31.07.2008 and pass such further orders. For Petitioner :Mr.R.Muthukumarasamy, Senior Counsel

For Respondent :Mrs.Malarvizhi Udayakumar, Spl.G.P.

ORDER

The petitioner K.Rajendran has filed the present writ petition seeking to issue writ of certiorari calling for the
proceedings of the respondent in R.C.No.6441(08)/PA1 dated 31.07.2008 and quash the said proceedings of
the respondent dated 31.07.2008 in so far as it relates to the words "without prejudice to the disciplinary
proceedings pending against him" and the proceedings Na.Ka.No.29785/07/PA1 dated 31.07.2008.

2. The petitioner entered in Government service as Gram Sewak i.e., Rural Welfare Officer in March 1975.
Subsequently, he was promoted to higher posts and ultimately came to be promoted as Block Development
Officer on 07.04.2003. After serving in various places, the petitioner retired from service on 31.07.2008, on
which date, the petitioner reached the age of superannuation. On the date of his retirement, the petitioner was
given a farewell party by all the colleagues and other officers and staffs working in his department. The
farewell party which was given to the petitioner went on till 9 p.m. on 31.7.2008 and in the said farewell
party, the petitioner handed over the official charge to the incoming Block Development Officer and
thereafter, the incoming Block Development Officer took over the office charges from the petitioner. Whileso,
till 9 p.m. on 31.07.2008, it is an admitted fact that, there was no whisper of any adverse remarks from any
quarters. Whileso, on 06.08.2008, the petitioner was served with the impugned order dated 31.07.2008 to the
effect that the petitioner has been permitted to retire on the afternoon of 31.07.2008 without prejudice to the
disciplinary proceedings against him.

3. The issues raised in the present writ petition, according to the learned Senior counsel appearing for the
petitioner, is that six days after the date of retirement of the petitioner i.e., on 06.08.2008, whether the
respondent was right in issuing the impugned order dated 31.07.2008 to the effect that the petitioner is
permitted to retire on the afternoon of 31.07.2008 without prejudice to the disciplinary proceedings pending
against him. The second contention is that the service of charge memo dated 31.07.2008, issued on
06.08.2008 upon the petitioner is not valid in law, particularly in view of the settled legal position as held by
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K.Rajendran vs Senior District Collector on 2 February, 2010

this Court in various judgements, namely 2005(3) CTC 4, 2008 Writ L.R. 104, 2007(3) CTC 518, ect.

4. While elaborating this submission, the learned Senior counsel appearing for the petitioner would submit
that the impugned order dated 31.07.2008 was admittedly signed by the respondent only on 31.07.2008.
Therefore, there is no proof of the communication of the impugned order dated 31.07.2008 being served on
the petitioner; that it has not been satisfactorily established that the same was served on the petitioner on the
date of his retirement. Hence, the learned Senior counsel submits that when a person retires on reaching the
age of superannuation, the relationship of employer-employee cease to exist and therefore, as held by this
Court in the above said judgements, the department has no authority to proceed against the petitioner and as a
result, no disciplinary proceeding could be initiated against the petitioner. Thirdly, it was also contended that
as per the ratio laid down by this Court in the decision reported in 2008 Writ L.R. 104, this Court has
categorically held that retiring a person with liberty to continue disciplinary proceedings after superannuation,
is also illegal and without jurisdiction, in the absence of any such provision in the service rules. On the above
said submissions, it was prayed to allow the writ petition by setting aside the impugned order.

4. In reply, learned Special Government Pleader appearing for the respondent submits that the petitioner was
to retire on 31.07.2008, but before the completion of office hours, the petitioner had gone out of the office
and, therefore, the impugned order dated 31.07.2008 could not be served on the petitioner on 31.07.2008
itself. However, when an officer from the respondent office was deputed with the impugned order to serve the
same on the petitioner at his residence, the same also could not be served on him, since the petitioner
deliberately absconded till 06.08.2008 and only after the Personal Assistant to the Collector had spoken to the
petitioner over phone to receive the retirement order, the petitioner has received the same. Therefore, the
impugned order permitting the petitioner to retire without prejudice to the disciplinary proceedings pending
against him cannot be put against the department. Secondly, it was also urged that for the lapse committed by
the staff/officer in the department for non service of the impugned order dated 31.07.2008 upon the petitioner
on 31.07.2008, an explanation has been called for from the concerned officer to show cause as to why the
petitioner was not served with the impugned order dated 31.07.2008 on the date of his retirement itself, for
which a detailed explanation has been given mentioning that the petitioner was evading the receipt of the
order. Finally, it was served on the petitioner on 06.08.2008 and on that basis, learned Special Government
Pleader appearing for the respondent submits that the department is entitled to proceed against the petitioner
after his retirement from service.

5. Heard the learned counsel appearing on either side.

6. The broader question advanced by the learned senior counsel appearing for the petitioner is that, when the
petitioner retired on 31.07.2008, the impugned order dated 31.07.2008 was not served upon the petitioner till
06.08.2008, which clearly indicates that the respondent has allowed the petitioner to retire on 31.07.2008
without serving the impugned order. Once the petitioner was allowed to retire from the service on 31.07.2008,
and subsequently, after six days from the date of retirement, the impugned order dated 31.07.2008 was passed
and the respondent has come forward to say that the impugned order dated 31.07.2008 could not be served
due to non availability of the petitioner and it was served only after a few days viz. on 06.08.2008. From the
relevant Rules and pronouncements of this Court and Apex Court, it is clear that without 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 taking any
action against a person after his retirement from service cannot be sustained in the eye of law. The same view
has found favour of the Apex Court in Bhagirathi Jena v. Board of Directors, O.S.F.C.(1999) 3 SCC 666,
wherein it is held as under: "7. In view of the absence of such a provision in the abovesaid 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
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benefits. Once the appellant had retired from service on 30.06.1995, 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." 7.3. A Division Bench of this
Court in State of Tamil Nadu v. R.Karuppiah, (2005) 2 MLJ 555, also held as under:

"29. From the above note it is also clear that to proceed against the 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
has 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." 7.4. Again a Division Bench of this Court in P.Muthusamy v. Tamil
Nadu Cements Corporation Ltd., (2006) 4 MLJ 504, wherein taking note of the service rules of Tamil Nadu
Cements Corporation Limited, it was held that retiring a person with liberty to continue disciplinary
proceedings, after superannuation, is illegal and without jurisdiction, in the absence of such a provision in the
service rules."

7. Admittedly, the petitioner retired from the service of the respondent on 31.07.2008. After six days of his
retirement, a proceeding under Rule 17(b) of Tamilnadu Civil Services (Classification, Control and Appeal)
Rules was issued stating that the petitioner was allowed to retire without prejudice to the disciplinary
proceedings pending against him. Admittedly, after the petitioner retired from service on 31.07.2008, the
respondent had no jurisdiction to initiate the proceedings under Rule 17(b) of Tamilnadu Civil Services
(Classification, Control and Appeal) Rules. A charge memo relating to one incident to the effect that a gift
deed in respect of a road laying work has been obtained on the basis of a resolution passed by the Panchayat
Union Council without an approval granted by the Chennai Metropolitan Development Authority for such
layout and the said subject having not been included in the agenda for the Panchayat Union Council, a
resolution was passed to accept the gift of the roads. The petitioner, who is only an Executive Authority, is not
the deciding authority either to have a subject as "Table Subject' or not or in the matter of deciding to accept
the gift of road donated by the people for the people by passing a resolution. The Chairman, Panchayat Union
Council has got every right to decide as to any change that could be taken for consideration as table subject
and the Panchayat Union has every right to pass a resolution on the said subject. Further, the entire facts
would go to show that the petitioner has nothing to do with the decision to table the subject or in the matter of
passing resolution. More so, if we look into the nature of charge, it is disturbing me, because a road has been
given to a local body for the benefit of road users, therefore, absolutely there is no wrong or illegality in
gifting the road to the local body by plot owners by passing a resolution, and accepting the same by the
petitioner as Block Development Officer.

8. In these circumstances, after allowing the petitioner to retire from service as Block Development Officer,
that too, after six days from retirement, issuing a charge memo under Rule 17(b) of Tamilnadu Civil Services
(Classification, Control and Appeal) Rules as against the petitioner on 06.08.2008 i.e., after six days of the
date of his retirement is not valid in law. In this context, a judgement of this Court may usefully be referred as
follows:

9. A Division Bench of this Court in N.M.Somasundaram v. The Director General of Police, Madras-4 and
others, 1997 W.L.R.120 has held as follows:

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. In the present case, the impugned
order dated 31.07.2008 has been passed, that too, six days after the date of retirement of the petitioner stating
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that the petitioner is permitted to retire on the afternoon of 31.07.2008 without prejudice to the disciplinary
proceedings pending against him. As held by this Court in the above said judgement, to have disciplinary
control under the Rule 17(b) of Tamilnadu Civil Services (Classification, Control and Appeal) Rules, in order
to retain the petitioner in service for the purpose of disciplinary proceedings, no separate order in writing has
been passed by any competent authority. Therefore, the impugned order issued under the Rule 17(b) of
Tamilnadu Civil Services (Classification, Control and Appeal) Rules stating that the petitioner is permitted to
retire from service without prejudice to the disciplinary proceedings pending against him is not legally
sustainable for the simple reason that when the petitioner retired from service on 31.07.2008, the relationship
of master and servant ceased to exist between the department and the petitioner. Therefore, once again,
without any authority of law, the impugned order seeks to retain its disciplinary control against a retired
employee is not valid in law. Therefore, the impugned order without passing an independent order retaining
the petitioner in service for the purpose of disciplinary proceedings is without any jurisdiction.

10. In another judgement reported in 2008 Writ L.R. 104, a similar view has been expressed, the relevant
portion of the judgement is extracted hereunder:-

"6. A departmental proceedings 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 theperson 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." A mere reading of the above said judgement clearly
indicates that a departmental enquiry 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. When there
is no rule providing for continuation of such proceeding despite permitting the employee concerned to retire,
it has been held that even continuance of the enquiry proceedings or taking any action against the person after
his retirement from service cannot be sustained in law.

11. In the present case, admittedly, the petitioner had retired from service on 31.07.2008, but the order dated
31.07.2008 permitting the petitioner to retire from service without prejudice to the disciplinary proceedings
against the petitioner, was served only on 06.08.2008, and by the time the impugned order dated 31.07.2008
was served on the petitioner, the relationship of employer-employee ceased to exist. Therefore, the case of the
petitioner is fully covered by the above ratio laid down by this Court that, without there being a specific
provision of law or regulation or a by-law governing the service conditions of the person in question for
conducting a departmental enquiry, any attempt to retain the petitioner in service for the purpose of
proceedings against him departmentally, after his retirement from the service, cannot be sustained in the eye
of law.

11. In this view of the matter, I am of the considered opinion that the impugned order dated 31.07.2008,
served upon the petitioner on 06.08.2008, which is admittedly after the date of retirement of the petitioner,
cannot be sustained in the eye of law and accordingly, the impugned order is liable to be set aside and
accordingly, the impugned order so far as it relates to the words "without prejudice to the disciplinary
proceedings pending against him" is quashed.

12. With the above observation, the writ petition is allowed. No Costs. Consequently, connected M.P.No.1 of
2008 is closed.

rkm

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K.Rajendran vs Senior District Collector on 2 February, 2010

To

1.The Senior District Collector,

Tiruvellore District,

Tiruvellore

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