This writ petition has been filed for issuance of a Writ of Certiorari calling for the records relating to the impugned Charge Memo issued by the 4th respondent District Elementary Educational officer in Na.Ka.No.3568/Aa4/2015 dated 16.10.2015 and to quash the same.
2. Heard Mr. Isaac Mohanlal, learned senior counsel appearing for the petitioner.
3. Mr. J.Gunaseelan Muthiah, learned Government Advocate, takes notice for the respondents 1, 3, 4 and 5. By consent, the Writ petition itself is taken up for final disposal.
4.The facts that are necessary for the disposal of the writ petition are as follows:
4(1).The petitioner who appointed originally as a Secondary Grade teacher in Panchayat Union Primary School, V.Pudur, Pudukottai Range in the year 1986. The petitioner attained the age of superannuation on 14.10.2015 and also retired from service from the said school on 31.10.2015. It appears that the pension proposals were also sent by the 5th respondent, Assistant Elementary Educational Officer, on 12.08.2015. The pension to the petitioner was also sanctioned by proceedings dated 07.10.2015.
4(2).In the meantime, it appears that the 4th respondent has given a criminal complaint against the petitioner before the Palayamkottai Police Station on 10.10.2015, alleging that the petitioner trespassed into her office and prevented her from discharging her duty and that the petitioner also attempted to beat the 4th respondent?s husband. A case was registered in Crime No.772 of 2015 on 10.10.2015. Based on the criminal complaint given by the 4th respondent against the petitioner a charge memo was also issued to the petitioner on 16.10.2015.
4(3).On account of the pendency of criminal case, the pension proposals which were already sanctioned was withheld because of the communication received from the 4th respondent regarding the pendency of the criminal case against the petitioner.
4(4).The contention of the petitioner is that the petitioner was allowed to retire on 31.10.2015 and his service was not extended. A charge memo was also issued by the 4th respondent to the petitioner on 16.10.2015. Reading of the charge memo also indicate that the allegations against the petitioner are related to the criminal complaint given by the 5th respondent. Hence, it was contended that the 4th respondent has no jurisdiction to proceed further with the charge memo after the retirement of the petitioner and after the petitioner was relieved from service.
4(5).The learned senior advocate appearing for the petitioner urged that the writ petition can be allowed only on the short ground that the petitioner was allowed to retire on 31.10.2015 and that the impugned charge memo and the impugned proceedings cannot take off in view of the termination of relationship. The learned senior counsel for the petitioner would refer to the proceedings of the 4th respondent dated 03.02.2016 which reads as follows:
?ghisaq;Nfhl;il GwefH xd;wpak; re;ijg;Ngl;il Cuhl;rp xd;wpa njhlf;fg;gs;spapy; jiyik Mrpupauhfg; gzpGupe;J mfit Kjp;H;tpd; fhuzkhf 31.10.2015 gpw;gfy; Xa;T ngw;W md;Nw gzpapypUe;J Kw;wpYkhf tpLtpf;fg;gl;l jpU.,uh.[hz; Jiur;rhkp vd;ghH jkJ gzpg;gjpNtl;il rupghHf;f gzpg;gjpNtl;il je;J cjTkhW ghisaq;Nfhl;il Gwefu; cjtp njhlf;ff;fy;tp mYtyuplk; gyKiw NfhupAk; toq;fg;gl kWj;jjhfj; njuptpj;J ghu;it(1)y; fz;lthW Gfhu; kD mspj;Js;shu;. Xa;T ngw;w Mrpupaupd; eyd; fUjp md;dhuJ gzpg;gjpNtl;bid efy; vLj;J md;dhuplk; xg;Gif ngw;W toq;FkhW njhiyNgrp thapyhf jq;fsplk; gyKiw typAWj;jpAk; md;dhUf;F gzpg;gjpNtl;bd; efy; toq;fg;glhjJ kpfTk; tUe;jj;jf;f nrayhFk;. Mifahy; rk;ge;jg;gl;l Xa;Tngw;w jiyik MrpupaUf;F md;dhuJ gzpg;gjpNtl;bd; efiy cldbahf toq;fptpl;L mjw;Fupa mwp;f;ifapid kWmQ;rypy; ,tz; rku;g;gpf;FkhW ghisaq;Nfhl;il GwefH cjtp njhlf;ff;fy;tp mYtyH mwpTWj;jg;gLfpwhH.?
5.He would further submit that the 4th respondent has categorically admitted the factual position that the petitioner was relieved from service with effect from 31.10.2015. The learned senior counsel appearing for the petitioner also pointed out that the 4th respondent has not specifically denied in the counter affidavit regarding the specific stand taken by the petitioner that he was allowed to retire on 31.10.2015 and that there was no order retaining him in service specifically at any point of time. The counter affidavit filed by the 4th respondent, does not deal with the issue regarding the factual assertion that the petitioner was allowed to retire on 31.10.2015 and that he was not retained either by an express order or even by implication by any specific conduct or proceedings or a communication.
6.In such circumstances, this court, has to accept the case of the petitioner, based on the judgment reported in 2016 (3) CTC 374 (The Commissioner, Tiruvallore Municipality, Tiruvallore Vs. L.Krishnan, Town Planning Inspector, Trivallore Municipality, Tiruvallore and another), wherein after referring to the rules, this court in similar case has held as follows:
?Thus, the jural relationship between an employer, Master and the employee, Servant will continue to exist till the employee ceases to be an employee. Once he ceases so, the said relationship also ceases unless there is a provision in the Service Rule to the contrary or unless his services were extended. Such extension cannot be a matter of assumption or by way of a legal fiction or it cannot be a matter of his services being deemed to have been extended, in view of the continuation of the Disciplinary proceedings extending his services. However, without prejudice to such pending Disciplinary proceedings or any Criminal proceedings, if he is permitted to retire, the Enquiry proceedings may go on, but as per Rule 9(2) of the Tamil Nadu Pension Rules, 1978, only a portion of the Pension can be withheld or loss, if any, caused to the department can be recovered from the Gratuity after due enquiry, but no major penalty can be imposed because Employer and employee relationship has already been brought to an end.?
7.In the present case, the petitioner was not retained nor permitted to retire subject to the enquiry proceedings or disciplinary proceedings which is also permissible. Since, the petitioner was allowed to retire, the relationship between the master and the employee ceases. The continuation of disciplinary proceedings beyond the retirement age of the petitioner cannot be permitted unless the petitioner's retirement was without prejudice to the pending disciplinary proceedings or criminal proceedings by express order.
8.As it has been factually found in this case, the petitioner was allowed to retire on 31.10.2015, without reserving any right or subject to the pending disciplinary action or criminal case, this court has no option, but to allow the writ petition.
9.As a result, the impugned charge memo issued by the third respondent, dated 16.10.2015 is quashed and consequently, the respondents are directed to dispose of the terminal benefits of the petitioner as it was sanctioned earlier within a period of six weeks from the date of receipt of a copy of this order.
10. Accordingly, the Writ petition is allowed. No costs.
To
1.The State of Tamil Nadu Rep. by its Secretary, Department of School Education, Fort St.George, Chennai ? 600 009.
2.The Accountant General Office of the Accountant General Chennai, Tamil Nadu, 261, Anna salai, Chennai ? 600 0018.
3.The Director of Elementary Education College Road, Chennai ? 600 006.
4.The District Elementary Education Officer Tirunelveli, Tirunelveli District.
5.The Assistant Elementary Educational Officer Palayamkottai Rural, Tirunelveli District.