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THE SECRETARY TO GOVERNMENT versus M.PADMANABHAN

High Court of Madras

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The Secretary to Government v. M.Padmanabhan - Writ Petition No.4093 of 1999 [2003] RD-TN 470 (26 June 2003)



In the High Court of Judicature at Madras

Dated: 26/06/2003

Coram

The Honourable Mr.Justice V.S.SIRPURKAR
and
The Honourable Mr.Justice A.K.RAJAN

Writ Petition No.4093 of 1999
and
W.M.P.No.5877 of 1999

1. The Secretary to Government
Rural Development Department
Fort St.George
Chennai.9.

2. The Director of Rural Development
Saidapet
Chennai.15.

3. The District Collector
Thoothukudi. ..... Petitioners

-Vs-

1. M.Padmanabhan

2. The Registrar
Tamilnadu Administrative Tribunal
High Court Buildings
Chennai.104. ..... Respondents


Petition filed under Article 226 of the Constitution of India
for the issue of a writ of Certiorari to call for the records in Original
Application No.7332 of 1993 on the file of the Tamil Nadu Administrative
Tribunal and quash the order dated 19.08.1997 made in Original Application
No.7332 of 1993.

For petitioners : Mr.S.P.S.Murthy
Special Government Advocate

For respondents : Mr.V.Suthakar for R1

:O R D E R



A.K.RAJAN,J.

This writ petition has been filed by the State against the order of the Tamil Nadu Administrative Tribunal, Chennai.104 made in O.A.No.7 332 of 1993 dated 19.08.1997.

2. The case in brief is as follows: The first respondent herein entered service as Gramasevak Grade II on 04.10.1954 and retired as Divisional Development Officer on 31.08.1992 on attaining the age of superannuation. He was allowed to retire without prejudice to an enquiry into allegations pending against him. He was sanctioned only a provisional pension and 75 of the Death cum Retirement Gratuity and also the commuted value of pension on the basis of G.O.(2D)No.195, Rural Development Department dated 27.0 8.1992. Aggrieved by the same, the first respondent filed O.A.No.7332 of 1993 before the Tamil Nadu Administrative Tribunal and the Tribunal directed the petitioners herein to disburse all the balance of pensionary benefits due to the first respondent with interest at 18 per annum from the expiry of two months from the date of retirement and the disbursement should be made within a period of twelve weeks from the date of that order. Aggrieved by the said order, the petitioners have filed the writ petition to quash the s aid order of the Tamil Nadu Administrative Tribunal, Chennai.

3. The first respondent herein filed counter-affidavit stating that when he was working as Additional Block Development Officer, Sengottai, Tirunelveli District, he had placed orders on 25.01.1990 for the supply and erection of 3 Publicity Boards for National Rural Employment Programme and Rural Landless Employment Guarantee Scheme works, two publicity board for Jawahar Velaivaippu Thittam and seven publicity board for social forestry scheme, through one A.Ayothiraman, the Assistant Director of Khadi and Village Industries, Tirunelveli only in the official capacity and not in connivance with the said A. Ayothiraman. The first respondent had made payment since the amount including the transport charges and erection charges were found to be reasonable. The petitioners herein framed charges against the first respondent that he had made excess payment of Rs.8680/- for the twelve boards. But no details were given as to how this amount was arrived at. There is no excess payment made by him. Further, excess amount has been noted as Rs.10540/-in the charge memo whereas in the petition, it is mentioned as Rs.8680/- A.Ayothiaraman was not known to him nor the firm M/s Sri Seetha Traders Ambasambudram. The first respondent placed orders to the Assistant Director of Khadi and Village Industries, Tirunelveli, who in turn directed their society. No disciplinary action was pending against him on the date of retirement. The government framed charges only on 17.03.1994. It is against the rules. The amounts alleged to have been specified in the charge is different from the amounts specified in the vigilance enquiry report. This shows that the petitioners' authorities have not applied their minds while initiating disciplinary proceedings. Further, the delay caused in initiating disciplinary proceedings vitiates entire proceedings. Though charges were framed on 17.03.1994 till now no final orders have been passed. The Government did not file counter affidavit before the Tribunal. The Director of Local Fund Accounts, Chennai in his letter No.D. Dis.79847/92/A6 dated 14.10.1997 has sent no objection certificate to the Director of Rural Development, Chennai for the release of 25 of the Death cum Retirement Gratuity. As such Rs.10,000/-withheld at the time of his retirement (ie) on 31.08.1992 and Rs.12,500/- being the 25 of the DCRG have to be released. He is eligible to get interest for that Rs.10,000/-

4. Heard learned counsel appearing for the parties.

5. Learned Government Advocate appearing for the petitioners would submit that the order of the Tamil Nadu Administrative Tribunal, Chennai is not sustainable and hence, the impugned order is liable to be set aside.

6. The Tribunal has passed the following Order: " .... However, it is not the case of the respondents that any charge memo has been issued to the applicant in this connection so far. Government have the right to with-hold pension only under rule 9(1)(a) of Tamil Nadu Pension Rules, for the reason that any departmental or Judicial Proceedings on the pensioner is pending on grave misconduct or negligence during the period of his service. And Rule 9(2)(b)is to the effect that the departmental proceedings referred to in subrule (1) if not instituted by the Government Servant was in service.

i) shall not be instituted without the sanction of the Government; ii) shall not be in respect of an event which took place more than four years before suit institution.

In this case, in view of the fact that the applicant had retired on 31.08.1992 evidently, there could be no action beyond 31.08.1996 . Further, as per Rule 71(3)(a) of the Pension Rules efforts shall be made to assess and adjust the recoverable Government dues within a period or not exceeding twelve months from the date of retirement of the Government Servant and when no claim is made on Government Account against the Government Servant within such period, it shall be presumed that no government claim is outstanding against him. So, in any event, there is no reason for the respondents to withhold his pensionary benefits".

7. It is true that no affidavit had been filed and the Government had not brought to the notice of the Tribunal that the charge memo had been served on 17.03.1994. Therefore, the Tribunal has held that no charge can be framed. Further, the Tribunal has held that as per Rule 71(3)(a) of the Tamil Nadu Pension Rules, the authorities shall assess and adjust the amount recoverable from the applicant/first respondent within the period of twelve months from the date of his retirement. Since that was not done, on that ground also the Tribunal has allowed the O.A.No.7332 of 1993.

8. Learned Government Advocate submitted that as per pension rule 9(2)(b)(ii) of the Tamil Nadu Pension Rules, the Government can frame charges even after retirement with respect to an act of misconduct committed before the expiry of four years from the date of such act. In this case, he was permitted to retire on 31.08.1992; charges were framed on 17.03.1994 with reference to an act that was committed on 18.03.1990. The charges were framed within four years as per the rule. Hence, there is no illegality in framing of charges and therefore, enquiry can be continued and punishment may also be awarded.

9. It is to be noted that though enquiry concluded in the year 199 6, so far no final orders have been passed. It is true that under rule 9(2)(b)(ii) of Pension Rules, the Government has got a right to frame charges even after retirement, on an event which took place within four years from the date of framing of charges. But when a person is already retired from service, such a disciplinary proceedings cannot be initiated without the sanction of the Government as provided under rule 9(2)(b)(ii) of Pension Rules. The Rule is categoric that the departmental proceedings if not instituted while the Government servant was in service, whether before his retirement or during his reemployment shall not be instituted save with the sanction of the Government and shall not be in respect of any event which took place more than four years before such institution.

10. Therefore, when a person had already retired from service, though, there is power to frame charges within four years from the date of the event, yet, that can be done only with the prior sanction of the government.

11. In the affidavit filed in support of the writ petition, there is no reference that sanction has been obtained from the Government for the framing of the charges against the first respondent. But it is only stated that by the Government letter No.41086/E1/93-95, Rural Development Department dated 17.03.1994, charges were framed against the first respondent. Therefore, it is clear that no sanction was obtained from the government under Rule 9 (2)(b)(ii)of the Pension Rules. Grant of sanction is not an empty formality. Therefore, non obtaining sanction from the Government vitiates the entire proceedings. Therefore, even though charges were framed after the retirement of the government servant, within four years from the date of the event, since sanction was not obtained from the Government, the proceedings initiated is contrary to or not in conformity with the rules and hence, it is illegal.

12. The Tamil Nadu State Appellate Tribunal has observed "In this case in view of the fact that the applicant had retired on 31.8.1992 evidently there could be no action beyond 31.3.1996". It appears that, Tribunal is of the view that no action could continue beyond 31.8 .1996. Such a view is not correct. The four year period is only for the initiation of disciplinary proceedings not for the conclusion of such proceedings. Therefore, if any proceedings is initiated before the expiry of the four years, it can even continue beyond the four years period. Therefore this observation of the Tribunal is set aside.

13. The Tribunal also has stated that under rule 71(3)(a) of the Pension Rules, any amount due to Government from its employee can be adjusted within twelve months from the date of retirement and in this case,it is beyond twelve months and therefore no amount can be withheld and on this ground also the petitioner was held entitled to the relief and hence allowed the Original Application. But Rule 71(3)(a) has no application to matters relating to disciplinary proceedings. It deals only with furnishing of surety by retiring government servant. If any of the Government dues other than those referred to in Rule 70 remain unrealised and unassessed for any reason, the retiring government servant may be asked to furnish suitable surety. Further, under rule 71(3)(a), efforts shall be made to assess and adjust the recoverable government dues within a period not exceeding twelve months from the date of retirement of the government servant and if no claim is made on government account against the government servant within such a period it shall be presumed that no government claim is outstanding against him. Rule 70 refers to duty of every retiring government servant to clear all government dues before the date of his retirement. In this case, the amount presently retained cannot be said to be the "dues" payable to the government. Therefore, rule 71 has no application to a case where disciplinary proceedings are envisaged. Once disciplinary proceedings is legally initiated, all consequences flow and any order passed thereon is legally valid. Therefore, the order of the Tribunal that even as per rule 71(3)(a), the petitioner is entitled to the relief cannot be sustained; hence, the impugned order to that extent is set aside.

14. Inasmuch as no sanction was obtained for initiating disciplinary proceedings, the disciplinary proceedings become void and hence on that ground, the first respondent/claimant is entitled to the relief prayed. Though the reasons given by the Tribunal is not acceptable yet the conclusion arrived at by the Tribunal is correct and therefore it does not warrant any interference. But the award of 18 interest on the amount withheld by the Government appears to be on the higher side; we are of the view interest at the rate of 12 would be reasonable. To that extent the order of the Tribunal is modified.

15. In the result, the writ petition is partly allowed. In the circumstances of the case, the parties are to bear their own costs. Connected W.M.P. is closed

Index : Yes

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To

The Registrar

TamilNadu Administrative Tribunal

High Court Buildings

Chennai.104.




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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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