Judgment 1. The petitioner, after completing 30 years of service with the respondent department, was due to retire on 31.01.1994, as Executive Engineer. On the date of his retirement, the petitioner was suspended from service and was not permitted to retire, on the ground that on the date of retirement, charges were pending against the petitioner. 2. It was after more than one year of the date of superannuation, that the petitioner was issued a charge memo on 12.10.1995 on the following charges: CHARGE NO.1:- ThiruS.Thirumalai Kumarasamy, Executive Engineer (Under suspension) in his former capacity as Executive Engineer, P.W.D. Madurai Division, Madurai made payments to a tune of Rs.1,91,105/-to the contractor Thiru S.M.Pandian based on bogus measurements for the works of (i) Special Repair to Flood bank to feed sadachipatti tank supply odai in Sadachapatti village of Usilampatti Taluk in reach L.S.O M to 250 M and 1250 M to 1500 M which is in gross-violation of Article 4 of TNFC Vol.I. CHARGE NO.2:- In gross violation of para-25 of P.W.'D' code he had failed to manage the said works, but colluded with his subordinate and defrauded the Government to a tune of Rs.1,91,105/- being the payment made to the contractor, Thiru S.M.Pandian, based on bogus and fictitious measurements. CHARGE NO.3:- That by committing the said grave irregularities he had failed to maintain absolute integrity and devotion to duty and thereby violated rule.20 of TNGSC rules." 3. The charges relate to occurrence of the year 1992 and 1993, therefore, the submission of petitioner was that framing of charges after one year of date of superannuation, suffers from legal malice. 4. It was also submitted that the petitioner could not be responsible for the alleged charges for reason that the entire division comes under the control of the Exective Engineer concerned, and it is on the recommendation of the subordinates, that the bills are sanctioned. It is, therefore, practically impossible for the Executive Engineer to check and measure the entire works under his control along with other routine responsibilities. 5. It was submission of petitioner that the Public Works accounts code makes it mandatory for the Executive Engineer to check measure only in the event of value consists of two estimates for two reaches, both of them not exceeding one lakh. 5. It was submission of petitioner that the Public Works accounts code makes it mandatory for the Executive Engineer to check measure only in the event of value consists of two estimates for two reaches, both of them not exceeding one lakh. Since the distance between the two reaches is more than 1000 metres, they could not be done unitedly, therefore, was treated as different reaches. The case of petitioner is that it is only to frame charges, that above estimates of two reaches have been added to value estimates of Rs.1,91,105/-. 6. The petitioner submitted a detailed reply to the charge memo on 04.05.1996, but because of various ailments, with which petitioner was suffering, he could not effectively participate in the enquiry. The enquiry was held exparte, and the charges were held to have been proved against petitioner. 7. The enquiry officer in the enquiry report accepted that as per the provisions of Public Works accounts code, that the Executive Engineer was not to supercheck works estimated below Rs.1 lakhs. 8. The petitioner filed detailed objections to the enquiry report. Being dissatisfied with the explanation, the petitioner was removed from service. The petitioner has challenged the impugned order of removal by invoking the writ jurisdiction of this Court. 9. Learned counsel for the petitioner has challenged the impugned order; i) firstly on the ground that, the order of removal from service is null and void, as no order of removal could be passed after the date of superannuation, in absence of order of retention in service; ii) secondly on the ground that, the order of removal is arbitrary and discriminatory, therefore, is violative of Article 14 & 16 of the Constitution of India, as the person, who was responsible for recommending payment of bill, was not punished; iii) thirdly that, the report of enquiry officer is perverse, being outcome of misreading of evidence. iv) finally on the ground that, in absence of charge memo on the date of retirement, it was not open to the respondents either to suspend the petitioner or hold departmental enquiry under Rule 17(b) of the Tamilnadu Civil Services (Discipline & Appeal) Rules. 10. iv) finally on the ground that, in absence of charge memo on the date of retirement, it was not open to the respondents either to suspend the petitioner or hold departmental enquiry under Rule 17(b) of the Tamilnadu Civil Services (Discipline & Appeal) Rules. 10. The writ petition is contested by the respondents on the ground that the petitioner, while working as Executive Engineer in Madurai Division from 26.09.1991 to 31.05.193, in collusion with his subordinates, made payment to the tune of Rs.1,91,105/- (Rupees One Lakh Ninety One Thousand and One Hundred Five only) to a contractor based on bogus and fictitious measurements, thereby defrauded Government. The petitioner was, therefore, served with charge memo under Rule 17(b) of the Tamilnadu Civil Services (Discipline & Appeal) Rules, vide memo dated 12.10.1995, after passing order of retention in service, that order of removal, thereafter, was passed by following the procedures enshrined in the Rules. 11. Learned counsel for the petitioner vehemently contended that the impugned order of removal cannot be sustained in law, as it is the duty of the Government, to pass specific order, directing that the employee is not permitted to retire on attaining the age of 58, in public interest, as failure to do so renders the proceedings, to be null and void and without jurisdiction. 12. In support of this contention, learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Division Bench of this Court in the case of N.M.Somasundaram vs. The Director General of Police, 1997 Writ L.R.120, wherein it was held that; "A reading of Rule 56(a) and (c) of the Fundamental Rules together would lead to irresistable conclusion that in order to retain a public servant or a Government Servant in service on attaining his age of superannuation, a positive order in writing shall have to be passed by the Government giving the reasons as to what grounds which should be on public grounds, a Government servant is retained in service. No doubt, Rule 56(c) says that a Government servant under suspension on a charge of misconduct should not be required or permitted to retire on his reaching the date of compulsory retirement. It further says that he should be retained in service until the enquiry into the charge is conducted and a final order passed thereon by the competent authority. No doubt, Rule 56(c) says that a Government servant under suspension on a charge of misconduct should not be required or permitted to retire on his reaching the date of compulsory retirement. It further says that he should be retained in service until the enquiry into the charge is conducted and a final order passed thereon by the competent authority. Therefore, even though it may not be necessary to permit the 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 proceeding, 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. The instruction under Rule 56(c) also docs not help the State Government. The instruction only takes away the effect, if any, of the order passed by the State Government in writing, retaining a Government servant even after attaining the age of superannuation. Therefore, it states that even retention does not help him for obtaining any service benefits and those service benefits will freeze on the date he attains the age of superannuation. It is clear in this case that in the absence of any order being passed before 31.10.1984, the competent authority loses the jurisdiction to continue the disciplinary proceedings." 13. This contention of learned counsel for the petitioner cannot be accepted, as the specific order, vide G.O.3 (D) No.14 dated 31.01.1994, was passed by the competent authority, retaining the petitioner in service. 14. The order reads as under: Public Servants - Public Works Department - Thiru S.Thirumalai-kumarasamy, Executive Engineer, under suspension -Not permitted to retire from service on 31.1.94 on attaining the age of superannuation - Orders issued. Public Works (E1) Department G.O.3(D) No.14Dated 31.1.94. Read: G.O.3(D) No.263 Public Works Department dt.11.11.93. Order: Whereas Thiru S.Thirumalaikumarasamy, Executive Engineer has been placed under suspension from service in the G.O.read above. Public Works (E1) Department G.O.3(D) No.14Dated 31.1.94. Read: G.O.3(D) No.263 Public Works Department dt.11.11.93. Order: Whereas Thiru S.Thirumalaikumarasamy, Executive Engineer has been placed under suspension from service in the G.O.read above. And whereas the said Thiru S.Thirumalaikumarasamy, Executive Engineer attains the age of superannuation on 31.1.94 afternoon and enquiries into allegations of criminal misconduct against him are pending besides certain departmental charges pending against him And where in the circumstances of the case, it is necessary that the said Thiru S.Thirumalaikumarasamy shall not be permitted to retire on his reaching the date of retirement on 31.1.94 A.N. but shall be retained in service; Now, THEREFORE, it is hereby ordered under F.R.56(1)(c) that the said Thiru S.Thirumalaikumarasamy, Executive Engineer (now under suspension) shall not be permitted to retire on his reaching the date of retirement i.e. on 31.1.94 A.N. but shall be retained in service till the enquiries of allegations of criminal misconduct and the departmental pending charges against him are concluded and final orders are passed thereon by the competent authority. 2.) The subsistence allowance of the said Thiru Thiru S.Thirumalaikumarasamy shall not be reduced with effect from 1.2.94 to the amount of provisional pension which would have been admissible to him. 3.) The said Thiru S.Thirumalaikumarasamy, Executive Engineer (now under suspension) shall be deemed to be on extension of service for the period beyond 31.1.94 A.N. the date on which he attained the age of superannuation, till the enquiries of allegations of criminal misconduct and the departmental pending charges against him are concluded and final orders are passed thereon by the competent authority. During such extension of service, the service rights which would have accrued to the said Thiru S.Thirumalaikumarasamy shall freeze at the level reached on the date of superannuation i.e.31.1.94 and the salary during that period shall not exceed the pension which would have accrued to him on that date. (By order of the Governor) (R.ARUMUGAM) SECRETARY TO GOVERNMENT" 15. Learned counsel for the petitioner vehemently contended, that even in absence of petitioner, documents placed before the enquiry officer showed, that estimates were prepared by the Assistant Executive Engineer, which were approved by the Executive Engineer. The estimate prepared was for Rs.94,000/-(Rupees Ninety Four Thousand only). Similarly for another work, estimate was prepared and approved by the same officer as per file D.R.No.810(I)/92-93. The estimate prepared was for Rs.94,000/-(Rupees Ninety Four Thousand only). Similarly for another work, estimate was prepared and approved by the same officer as per file D.R.No.810(I)/92-93. The agreement of execution of work was also produced as also M.Book No.4331 containing measurement for the said work. The tender register and the inspection report of Thiru N.Chinnappan, then Executive Engineer, S.M. & R. Division, Chennai dated 26.05.1993, was also placed before the enquiry officer. The report of Thiru V.Manickavasagam, Village Administrative Officer, dated 10.05.1994, was also placed on record. 16. The enquiry file shows that estimates were prepared by Thiru R.Ramasubramaniam, Assistant Engineer, which was counter signed by Thiru K.Muniyandi, Assistant Executive Engineer, and approved by petitioner at 4.80% of tender rate. 17. It was also proved before enquiry officer that Thiru R.Ramasubramaniam, Assistant Engineer recorded measurement of the said two works, which were check measure by the Assistant Executive Engineer Thiru K.Muniyandi and thereafter, bills were passed for payment by petitioner. 18. It was on verification that work was not actually executed, that the payment was released. The enquiry officer, on the basis of material reproduced above, framed the following questions for determination: 1.) "It has to be determined whether the said two works under question were actually executed according to estimate provisions and agreement conditions or not? 2.) It has to be determined whether the absence of Tvl.S.Thirumalaikumarasamy, Exe.Engr.(A.O.1) and R.Ramasubramaniam, Asst. Engr.(A.O.3) during the supercheck conducted by Thiru N.Chinnappan, Exe.Engr. of the above two special repair works had affected the validity of the supercheck report? 3.) It has to be determined whether the Accused Officer No.2 was threatened by the Superintending Engineer, PWD Madurai Circle, Madurai to sign the supercheck report of Thiru N.Chinnappan, Executive Engineer, blindly without going through the report in the last page of the report. 1. ix. Assessment of the evidence in respect of each point set out for determination and the finding thereon." 19. In respect of the charges, local villagers were examined as witnesses, who made oral statement that no repair work was carried out till May, 1993, but in May 1994, some work was done to a limited extent. 20. The statement of official witness was also recorded. 21. In respect of the charges, local villagers were examined as witnesses, who made oral statement that no repair work was carried out till May, 1993, but in May 1994, some work was done to a limited extent. 20. The statement of official witness was also recorded. 21. On the basis of evidence, enquiry officer came to the conclusion that no work was executed at the said two sites and false measurements were recorded by the Assistant Engineer and false check measurement certificate was recorded by the Assistant Executive Engineer, though payment was released by the petitioner. 22. The plea that the supercheck report could not be relied on, as the Officials were not associated, was rejected. It was on the basis of evidence, that charges were proved. The submission of the petitioner that in absence of primary evidence, the finding of enquiry officer cannot be sustained, as direct evidence was led to show that no work was carried out. 23. Reliance on the judgment of the Hon'ble Supreme Court in the case of Roop Singh Negi vs. Punjab National Bank and others, (2009) 2 SCC 470, therefore, is misplaced, as it has no relevance to the facts of the present case, as in the said case, the Hon'ble Supreme Court had rejected confession made before Police in absence of any other evidence. 24. This judgment is based on settled principles of law and the statement made before the Police is not per se admissible in evidence. It cannot be said that proceedings of the enquiry officer stood vitiated, specially when this Court cannot sit in appeal over finding, recorded by the enquiry officer. 25. The finding recorded by the enquiry officer is based on appreciation of evidence. 26. However, finding of the enquiry officer, holding petitioner along is guilty, is totally arbitrary. The enquiry officer has blindly accepted the statement of the co-accused, that they had done so on the instructions of petitioner. This could not be the ground to exonerate others, by making petitioner as scapegoat. The co-accused of petitioner were not illiterate, and were holding the rank of Assistant Engineer and Assistant Executive Engineer, who recommended the payment in writing and falsified the record. This could not be the ground to exonerate others, by making petitioner as scapegoat. The co-accused of petitioner were not illiterate, and were holding the rank of Assistant Engineer and Assistant Executive Engineer, who recommended the payment in writing and falsified the record. It cannot be accepted that they could fabricate the record only on the asking of petitioner, that the enquiry finding, therefore, suffers from vice of discrimination, thus, is hit by Article 14 & 16 of the Constitution of India. 27. Learned counsel for the petitioner also contended that the whole proceedings are vitiated, as no enquiry under Section 17(b) of the Tamilnadu Civil Service (Discipline & Appeal) Rules could be held against petitioner, as on the date of his superannuation, no charge memo was pending against him. In support of this contention, learned counsel for the petitioner referred to the Fundamental Rule 56, which was in force on the date of superannuation, which reads as under: "56.(a) The date of compulsory retirement of Government servant, whether he holds a substantive or officiating post, is the date on which he attains the age of Fifty-eight years. He shall not be retained in service after that age except with the sanction of the Government on public grounds, which must be recorded in writing, but he shall not be retained after the age of sixty years except in very special circumstances:- Provided that this clause shall not apply to Government servants who are treated as in superior service for the purpose of these rules but as in basic service for the purpose of pension such Government servants as well as all basic Government servants shall retire oh attaining the age of sixty years. (c) A Government servant under suspension on a charge of misconduct should not be required or permitted to retire on his reaching the date of compulsory retirement but should be retained in service until the enquiry into the charge is conducted and a final order passed thereon by the competent authority 28. The contention of learned counsel for the petitioner was that the power under Fundamental Rule 56(c) could only be exercised, if there was charge of misconduct pending and not on anticipated charge sheet. Admittedly, on the date of retirement of petitioner, no charge memo was pending against petitioner and the order of suspension was passed on the last date of superannuation. 29. Admittedly, on the date of retirement of petitioner, no charge memo was pending against petitioner and the order of suspension was passed on the last date of superannuation. 29. Learned counsel for the petitioner, therefore, contended that it was not open to the respondents to hold departmental enquiry under Section 17(b) of the Tamilnadu Civil Services (Discipline & Appeal) Rules, as there was no charge pending on the date of superannuation. 30. This contention of learned counsel for the petitioner was opposed by learned counsel for the State, by placing reliance on the amended Fundamental Rule 56(1), which reads under: "[G.O.Ms.No.365, Personnel and Administrative Reforms (FR.IV) Department, dated 4th October 1996 - with effect from 1st January 1993] Explanation I. “When a Government servant is required to retire, revert or cease to be on leave on attaining a specific age, the day on which he attains that age is reckoned as a non-working day and the Government servant shall retire, revert or cease to be on leave, with effect on and from that day. Explanation II. “The grant under rule 86 or corresponding other rules of leave extending beyond the date on which a Government servant must retire or beyond the date upto which a Government servant has been permitted to remain in service shall not be treated as sanctioning an extension of service for the purpose of Pensionary or Contributory Provident Fund benefits or retention of lien. The Government servant shall, for purpose of pensionary benefits, be deemed to have retired from service on the date of retirement or on the expiry of the extension of service, if any, and shall become eligible to all pensionary benefits from the date of retirement or from the day following the date of termination of extension of service, as the case may be. (b) Omitted. (c) Notwithstanding anything contained in clause (a), a Government servant who is under suspension, (i) on a charge of misconduct; or (ii) against whom an enquiry into grave charges of criminal misconduct or allegations of criminal misconduct, is pending; or (iii) against whom an enquiry into grave charges is contemplated or is pending; or (iv) against whom a complaint of criminal offence is under investigation or trial. shall not be permitted by the *appointing authority to retire on his reaching the date of retirement, but shall be retained in service until the enquiry into the charge of misconduct or criminal misconduct or the enquiry into allegations of criminal misconduct or the enquiry into contemplated charges or disciplinary proceeding taken under rule 17 (c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or rule 3(c) of the Tamil Nadu Police Sub-ordinate service (Discipline and Appeal) Rules, as the case may be, in respect of item (iv) above is concluded and a final order passed thereon by the competent authority or by any higher authority. Explanation.’ For the purpose of this clause, the expression ‘criminal misconduct’ shall have the same meaning as in Section 13 of the Prevention of Corruption Act, 1988 (Central Act 49 of 1988)." 31. The contention of learned counsel for the State was that though this Rule was framed on 04.10.1996, but it was given retrospective effect with effect from 1st January, 1993. 32. Learned counsel for the petitioner vehemently contended that in view of fact that there was no charge memo issued to the petitioner till the date of his superannuation and that the order of suspension was passed on the last date of superannuation. The proceedings against him could only be initiated under the Tamil Nadu Pension Rules, 1978, which only gives power to the State Government to withhold or withdraw pension. 33. There is force in the contention raised by the learned counsel for the petitioner. It is well settled law that the rules cannot be applied retrospectively to take away the vested right of an employee. The petitioner, having acquired the right to retire, on attaining the age of superannuation in the year 1994, the said right could not be taken away by amending rules retrospectively. It is well settled law that rules apply prospectively and cannot apply retrospectively, except procedural rules. The amended rule on which reliance was placed by the State could not be applied to the petitioner, as it takes away substantive right of the petitioner to retire. 34. Once amended rule is not applicable, then it can safely be said that it was not open to the State Government to retain the petitioner in service after date of superannuation, on basis of contemplated enquiry, therefore, petitioner would be deemed to have retired from service. 35. 34. Once amended rule is not applicable, then it can safely be said that it was not open to the State Government to retain the petitioner in service after date of superannuation, on basis of contemplated enquiry, therefore, petitioner would be deemed to have retired from service. 35. The remedy with the respondents is to move under the Tamil Nadu Pension Rules, 1978, which gives power to the State Government to proceed against retiree under the Pension Rules. 36. For the reasons stated herein above, the impugned order cannot be sustained. Consequently, this writ petition is allowed. Writ in the nature of Certiorari is issued quashing the impugned order of punishment as also order of suspension and charge memo. 37. However, this judgment shall not bar the respondents to proceed under Tamil Nadu Pension Rules, 1978, against petitioner, if so permissible in law. No costs.