In view of the fact that the petitioner in both the writ petitions being the same and the subject matter is also the same, they have been taken up together for disposal. The petitioner herein, while working with the respondent, Tamil Nadu Slum Clearance Board, as Assistant, was placed under suspension, on 08.05.2002, on the allegation that he has handed over fake allotment orders in Okkiam Thoraipakkam Scheme. The respondent also gave a complaint to the Commissioner of Police, Chennai and on the basis of the said complaint, a criminal case has been registered against the petitioner on 06.06.2002 for the alleged offence under Sections 415, 417 and 420 IPC r/w. 466, 468 and 471 IPC . In pursuance of the same, the charge sheet was filed in C.C.No.10290 of 2002. The respondent has also proceeded against the petitioner departmentally. As the criminal case filed against the petitioner ended in conviction, the petitioner has filed an appeal. In the appeal, the Appellate Court has set aside the conviction. The petitioner was acquitted from all the charges. In the mean while, the respondent has dismissed the petitioner in pursuance of the order of conviction granted by the Trial Court. Therefore, challenging the said order of the respondent, dated 03.09.2004 and 20.03.2005, the petitioner had filed a writ petition in W.P.No.12161 of 2006, seeking the relief of certiorarified mandamus to quash the said orders with the consequential relief of reinstatement with back wages as well as the incidental benefits.
2. The Honourable Court by its order dated 06.07.2009 was pleased to set aside the order passed by the respondent on the ground that the proceedings were initiated by the respondent only on the basis of the criminal case. Therefore, while setting aside the order and granting all the benefits, the Honourable Court has observed that the liberty is given to the respondent to proceed in the manner known to law.
3. Taking advantage of the said observation, the respondent has initiated the fresh proceedings by issuing a charge memo, dated 09.07.2002. In pursuance of the same, an enquiry was conducted and the enquiry officer filed a report, on 09.11.2006, exonerating the petitioner of all the charges levelled against him. However, the first respondent being the disciplinary authority did not concur with the same and issued the memo proceedings dated 07.03.2007, as to why the petitioner should not be punished for the charges levelled against him. Challenging the same, the petitioner has filed W.P.No.20229/2009.
4. The petitioner has also filed another writ petition in W.P.No.18607/2008 seeking the relief of the writ of mandamus, directing the respondents to settle all the service and retirement benefits on the basis of the order of retirement dated 31.07.2007. The said writ petition has been filed on the ground that the petitioner has been allowed to retire by the proceedings, dated 31.07.2007, and thereafter another order was passed on 07.02.2008 permitting the petitioner to make certain payment. Since by subsequent memo, the petitioner's request for payments of retirement benefits was rejected, on 12.03.2008, on the ground that the writ petition filed in W.P.No.20229 of 2007 is pending, the petitioner has filed W.P.No.18607/08.
5. The learned counsel for the petitioner submitted that in as much as the petitioner had been allowed to retire without an order of suspension, the retirement benefits cannot be withheld and therefore, it should be deemed that the proceedings against the petitioner have come to an end in pursuance of her superannuation. It is further submitted that the enquiry officer has exonerated the petitioner of all the charges and without any basis, the respondent has concluded that the charges are proved. According to the learned counsel, the said order passed by the respondent is also liable to be a set aside, since he has predetermined the entire issue. The learned counsel further submitted that instead of differing with the enquiry officer finding, the respondent has come to a conclusion on his own which is impremissible in law. 6. The counsel for the respondent per contra had submitted that in as much as the power is conferred upon the respondent to set aside and analyse the enquiry officer's report the same can not be questioned. Moreover, the writ petition cannot be entertained, when the respondent has issued only a show cause notice for the proposed punishment. The learned counsel further submitted that even a perusal of the order passed by the respondent dated 31.07.2007 shows that the petitioner was allowed to retire without prejudice to the pending case. It is further submitted that the proceedings has been initiated in view of the liberty given by the Honourable Court and therefore, the writ petition is liable to be a set aside.
7. It is no doubt true that the petitioner has been acquitted by the competent criminal court in the present case. Apart from the same, the enquiry officer has also exonerated the petitioner of all charges. However, mere fact that the petitioner has been superannuated and he has been made to suffer for number of years from 2002 onwards since the proceedings have not been concluded cannot be a ground by itself to set aside the entire proceedings. Moreover, the respondent has initiated the proceedings based upon the observations made by this Honourable Court. Thereafter, the petitioner got superannuated and she was permitted to retire without prejudice to the pendency of the proceedings.
8. The learned counsel for the petitioner has relied upon the judgement of the Division Bench of this Court reported in (2005)2 M.L.J.555 (State of Tamil Nadu v. R. Karuppiah) to submit that the competent authority does not have the power to proceed against the retired Government servant, without complying with rule 56(1)(c) of the Fundamental Rules. According to the learned counsel, the proceedings under Fundamental Rules is mandatory and therefore, in the absence of the same, it should be deemed that the proceedings against the petitioner has come to an end. It is further submitted that the relationship of the employers and employee is no longer available against the Government servant.
9. The said contention of the learned counsel cannot be accepted for the reason that in the present case, the application of Rule 56(1)(c) of the Fundamental Rules is not involved. Moreover, the Division Bench was dealing with the case in which proceedings have been initiated by the Competent Authority, after the retirement of the Government Servant. However, in the present case, there is no dispute, that the proceedings have been initiated even while the petitioner was in service. Further, the charge memo has been given and enquiry has been concluded. The enquiry officer has also filed a report. No doubt it is true that the show cause notice issued by the competent authority itself, would not amount to initiation of proceedings. However in a case where charge memo has been issued, it is to be concluded that the proceedings have been initiated and in such a case if the delinquent officer retired subsequently, the proceedings due to have been continued.
10. In the Judgment report (2007) 6 Supreme Court Cases 694 (UCO Bank and Another v. Rajinder Lal Capoor) in order to the Honourable Supreme Court in paragraph 21 has observed as follows.
"21. The aforementioned Regulation, however, could be invoked only when the disciplinary proceedings had clearly been initiated prior to the respondent's ceasing to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder i.e. Continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show-cause notice. It is initiated only when a charge-sheet is issued (see Union of India v.K.V.Jankiraman) . This aspect of the matter has also been considered by this Court recently in Coal India Ltd, V.Saroj Kumar Mishra wherein it was held that date of application of mind on the allegations levelled against an officer by the competent authority as a result whereof a charge-sheet is issued would be the date on which the disciplinary proceedings are said to have been initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself can not be a ground for invoking Clause 20 of the Regulations. Albeit in a different fact situation but involving a similar question of law in Coal India Ltd. this Court held:
13. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the Vigilance Department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a charge-sheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.
14. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard".
It was furthermore observed that:
20. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued".
(See also Union of India V. Sangram Keshari Nayak.)
11. Similarly in other Judgement Reported in (2007) 3 MLJ 873 (SC) (State of U.P. and others v. R.C. Misra), the Honourable Supreme Court has observed as follows.
"6. Regulations 351-A and 470 of Civil Service Regulations read as under:
351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement:
Provided that-
(a) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment-
i) shall not be instituted save with the sanction of the Governor.
ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and
iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.
(b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of Clause (a); and
(c) The Public Service Commission, Up shall be consulted before final orders are passed.
(Provided further that if the order passed by the Governor relates to a case dealt with under the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission) Explanation For the purpose of this article-
(a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to have been instituted:
(i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal Court; and
(ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a Civil Court.
470. (a) The full pension admissible under the Rules is not to be given as a matter of course, or unless the service rendered has been really approved (See Appendix 9)
(b) If the service has not been thoroughly satisfactory the authority sanctioning the pension should make such reduction in the amount as it thinks proper. Provided that in cases where the authority sanctioning pension is other than the appointing authority, no order regarding reduction in the amount of pension shall be made without the approval of the appointing authority.
Note: For the purpose of this Article 'appointing authority' shall mean the authority which is competent to make substantive appointment to the post or service from which the officer concerned retires."
The substantive part of Regulation 351-A confers the power upon the Government of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement. There is a proviso appended to the Regulation which circumscribes the power conferred by the substantive part of the Regulation. Clause (a) of the proviso with which we are concerned here uses the expression if not instituted while the officer was on duty either before retirement or during re-employment. Clause (a) of the proviso will, therefore, get attracted only when the departmental proceedings are instituted against the officer after his retirement or when he is not in re-employment. If the departmental proceedings are instituted before an officer has attained the age of superannuation and before his retirement, proviso (a) can have no application. In order to remove any doubt regarding the date of institution of enquiry or the judicial proceedings an Explanation has been appended after the proviso. According to Explanation (a), departmental proceedings shall be deemed to have been instituted (i) when the charges framed against the officer are issued to him, or (ii) if the officer has been placed under suspension from an earlier date, on such date. By incorporating the explanation, the rule framing authority has notionally fixed two dates as the date on which the departmental proceedings shall be deemed to have been instituted against an officer. A combined reading of the proviso and the explanation would show that there is no fetter or limitation of any kind for instituting departmental proceedings against an officer if he has not attained the age of superannuation and has not retired from service. If an officer is either placed under suspension or charges are issued to him prior to his attaining the age of superannuation, the departmental proceedings so instituted can validly continue even after he has attained the age of superannuation and has retired and the limitations imposed by sub-clause (i) or sub-clause (ii) of clause (a) of proviso to Regulation 351-A will not apply. It is only where an officer is not placed under suspension or charges are not issued to him while he is in service and departmental proceedings are instituted against him under Regulation 351-A after he has attained the age of superannuation and has retired from service and is not under re-employment that the limitations imposed by sub-clauses (i) and (ii) of proviso (a) shall come into play.
7. The word used in proviso (a) is "institute". The dictionary meaning of the word "institute" is set up; cause to come into existence; to originate and get established; to commence. It obviously refers to the initial action or the commencement of the action. It is entirely different from continuance of an action already initiated. If the intention of the rule making authority had been that an enquiry instituted against an officer while in service should not proceed after his retirement, save with the sanction of the Governor, then the proviso (a) would have been differently worded and instead of the word "instituted", the words "continue" or "proceed" or "go on" would have been used. This being not the language of the proviso, there is absolutely no warrant for holding that an enquiry validly instituted against an officer while he was in service would, after retirement of the officer, require sanction of the Governor for its continuance and culmination.
8. In the present case, the respondent had been placed under suspension and charges were also served upon him while he was in service. In such circumstances, proviso (a) did not come into play at all and there was no requirement of obtaining sanction of the Governor. The enquiry which had been instituted prior to the retirement of the respondent and was completed after his retirement could not, therefore, be held to be illegal on the ground of want of sanction of the Governor. The view to the contrary taken by the Tribunal and by the High Court is, therefore, clearly erroneous in law and cannot be sustained.
12. The reading of the above judgment would make it clear that in a case where the charge memo has been issued and the proceedings have been followed thereafter and if the Government employee retires after the same, then the proceedings would be deemed to be continued. Therefore in consideration of the above judgment, this court is of the opinion that the proceedings cannot be continued in view of the superannuation of the petitioner cannot be accepted.
13. Further, it is to be seen in the present case that the petitioner has been allowed to retire without prejudice to the disciplinary proceedings. The absence of the provisions enabling the disciplinary authority to suspend and prevent the delinquent officer from retiring cannot be a ground to hold that the proceedings as against the said officer initiated and pending during his service would automatically come to an end.
14. In so far as the other contention of the learned counsel for the petitioner is concerned, this court is of the opinion that the said contention merits consideration. In the present case on hand, the enquiry officer has given a clear finding based upon the materials available exonerating the petitioner from all the charges. No doubt, the power is conferred upon the respondent to accept or defer the findings on the report of the enquiry officer. The disciplinary officer can differ with the findings of the enquiry officer and in that case, he has to point out the differences and on that basis consider and proceed to issue a show cause notice calling for the explanation from the delinquent officer. The disciplinary authority is exercising the power which is quasi judicial in nature.
15. The Respondent can not come to a predetermined conclusion and thereafter, issue a notice to the delinquent officer on the question of punishment. A reading of the impugned order would show that the respondent herein has come to the conclusion that all the charges against the petitioner are proved. In fact, the respondent has said that from the evidence it is proved that all the three charges are proved against the petitioner. This court is of the opinion that, even though the respondent has issued a show cause notice in question the same would amount to passing of a final order predetermining the entire issue against the petitioner. Therefore, this court of the opinion is that such an order cannot be sustained.
16. In the similar Judgment reported in (2009) 2 Supreme Court Cases (Cri) 793 (Aslam Mohammad Merchant V. Competent Authority and others), the Honourable Supreme Court was pleased to hold that when the show cause notice is found to be illegal, the same would vitiate all subsequent proceedings. Therefore, taking into consideration, the above said position of law this court of the opinion is that the impugned order passed by the respondent in W.P.20229 of 2007, dated 07.03.2007, is liable to be set aside and accordingly, the same is to be set aside. However, the respondent is at liberty to proceed in accordance with law. In such circumstances, the respondent will take into consideration the relevant facts such as the factum of superannuation of the petitioner, the continuation of the proceedings for number of years, the order referred by the competent Criminal Court and findings of the enquiry officer as well as the statements recorded by the witnesses. In so far as W.P.18607/08 is concerned it is made clear that in the absence of any proceedings to be initiated by the respondent, the petitioner will have to be given all the retirement benefits due to her. With these observations, the writ petition is ordered accordingly.
17. The learned counsel for the petitioner submitted that in pursuance the superannuation, she has not received any amount sofar. Hence, it was requested that in pursuance order passed by the Court, the petitioner shall be given monthly pensions. Taking into consideration, above said submission and also the order passed, this court of the opinion that the respondent should pay the pension due to the petitioner from the month of August 2007.
ogy To The Chairman, Tamil Nadu Slum Clearance Board, Chennai 600 005