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Medicinal Plant Farms v. K.Shivaraj - WA.197 of 2005  RD-TN 2971 (12 September 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
The Hon'ble Mr. Justice S.J.MUKHOPADHAYA
The Hon'ble Mr. Justice N.PAUL VASANTHAKUMAR Writ Appeal No.197 of 2005
The Managing Director,
Tamil Nadu Medicinal Plant Farms
and Herbal Medicine Corpn. Ltd.,
Anna Hospital Campus,
Arumbakkam, Chennai-106. ... Appellant vs.
K.Shivaraj ... Respondent Appeal under Clause 15 of the Letters Patent as against the order of the learned single Judge, dated 23.11.2004, passed in W.P. No.601 of 2000.
For Appellant : Mr.P.S.Raman, Additional Advocate General. For Respondent : Mr.V.Selvaraj - - - - - - -
(Judgment of the Court was delivered by S.J.Mukhopadhaya, J.) This Writ Appeal has been preferred by the Managing Director of the Tamil Nadu Medicinal Plant Farms and Herbal Medicine Corporation Limited, Anna Hospital Campus, Arumbakkam, Chennai, as against the order of the learned single Judge, dated 23.11.2004, passed in W.P. No.601 of 2000. In the said Order, the learned Judge discussed the charges individually on merits and, by holding that the writ petitioner is not guilty, set aside the order of dismissal dated 25th August, 1999.
2. The case was earlier heard by this Court on 5th September, 2007, and having noticed certain relevant facts, the following order was passed:- " Heard in part. The respondent, who was in the service of Tamil Nadu Medicinal Plant Corporation Ltd. (hereinafter referred to as the Corporation), a Public Sector Undertaking of the Government of Tamil Nadu, was proceeded departmentally. The enquiry officer while held that certain charges were proved, exonerated him from other charges. However, without differing with the findings of the enquiry officer with respect to the charges not proved, the Board of Directors held such charges are proved and dismissed the respondent on 25th August, 1999.
2. The aforesaid order of dismissal was challenged and in the meantime the respondent attained the age of superannuation. The writ petition was allowed on 23rd November, 2004 on account of the aforesaid infirmity.
3. We have noticed the submission made by the counsel for the appellant that the learned single Judge after setting aside the order should have remitted the matter back to the authorities for fresh decision. But, he was not in a position to state as to what penal order can be passed if the matter is remitted.
4. It is settled law that if an order of dismissal is set aside, the employee stands reinstated. In the meantime, if he has attained the age of superannuation, such employee, on reinstatement, will deemed to have retired from the service from the date he attains the age of superannuation. After such superannuation no order of punishment can be passed dismissing or removing him from service or inflicting any other major or minor punishment. However, if there is any other provision for continuing such proceeding, for the purpose of curtailment of other benefits such as pension, gratuity, etc, it is always open to the authorities to continue with such proceedings nor for the purpose of punishment but for the purpose of deciding other issues such as those retirement benefits.
5. Admittedly, there is no rule framed by Corporation for passing any penal order after retirement. Counsel for the Corporation referred to Government Order contained in letter No: 820/CFC/81-1 Finance (CFC) Department dt. 10.12.1981 issued from Finance (DFC) Department, Government of Tamil Nadu, particularly para 3 therein to suggests that the Government Rules and guidelines are also applicable for Corporation employees. Though such submission has been made, there is nothing on record to suggest that the rules for pension, gratuity, etc. which is applicable to the Government employee are also applicable to the employees of the Corporation in question.
6. Learned counsel for the appellant Corporation prays for and allowed time to obtain instructions and file an affidavit in this regard. Let the case be listed for hearing under the caption "For Orders" on 12.09.2007. Let a copy of this order be handed over the learned counsel on either side."
3. Subsequent to the above order, an affidavit, dated 7th September, 2007, has been filed by the Corporation, wherein, it is informed that the respondent was placed under suspension on 28.6.1996 , accompanied by a charge memo issued on the same day. It is also stated that an Enquiry Officer was appointed. It appears that subsequently, a sub-committee found the charges against the respondent proved though there is nothing on record to show that the respondent was asked to appear before any sub-committee or such sub-committee was entrusted with the task of holding departmental enquiry. The appellant/corporation has not disputed that the Enquiry officer, while holding that certain charges were proved, exonerated the respondent from other charges. But, without differing with the findings of the Enquiry Officer with respect to the charges not proved, the Board of Directors, by holding that such charges have been proved, dismissed the respondent on 25th August, 1999.
4. Learned Additional Advocate General appearing on behalf of the Corporation fairly accepted that the Tamil Nadu Pension Rules, 1978, is not applicable to the employees of the appellant/Corporation.
5. We have noticed that, under Rule-9 of the aforesaid Rules, the State Government has a right to withhold or withdraw a pension or part thereof permanently or for a specified period if the pensioner is found guilty of grave misconduct or negligence in any departmental or judicial proceeding. Such proceeding, if instituted while a Government servant is in service, continues even after retirement. But, in respect of employees of the Corporation, there is no such Rule for continuation of proceedings after retirement. Further, even if the case is remitted back to the authorities, it will be a futile exercise as the Corporation cannot recover the amount from pension or other retiral benefits of the individual.
6. We agree with the submission made by the learned Additional Advocate General that the learned single Judge should not have rendered findings with respect to individual charges as under Article 226 of the Constitution it is not for the Court to substitute the findings of the Enquiry Officer. Admittedly, the order of dismissal was passed without differing with the findings of the Enquiry Officer with respect to the charges not proved, therefore, we are not inclined to interfere with the order passed by the learned single Judge.
7. So far as payment of consequential benefits to the respondent is concerned, since the respondent retired from service on 31st August, 2002, the Corporation should immediately pay the benefits after adjusting the subsistence allowance or other amount, if any paid already. Writ Appeal is dismissed with the aforesaid observations. There shall be no order as to costs. (SJMJ) (NPVJ) 12.09.2007. Index : yes / no.
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