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2012 DIGILAW 492 (MAD)

K. Rajangam v. Transport Commissioner, Chennai

2012-02-01

V.RAMASUBRAMANIAN

body2012
Judgment :- 1. The petitioner has come up with the above writ petition, challenging two orders passed by the respondent, by one of which, the petitioner was placed under suspension and by the other, the petitioner was retained in service and not permitted to retire. 2. I have heard Mr.C.Selvaraju, learned Senior Counsel for the petitioner and Mr.N.Srinivasan, learned Additional Government Pleader for the respondent. 3. The petitioner was originally appointed as a Junior Assistant in the Revenue Department, way back in the year 1982. Later he was transferred to the Transport Department, got promotions to the posts of Assistant Superintendent and Motor Vehicles Inspector. He was due to retire on reaching the age of superannuation on 31.12.2010. 4. On 2.11.2010, a complaint was registered in Crime No.05/AC/ 2010/ER, on the file of the Inspector of Police, Vigilance and Anti-Corruption, Erode, in pursuance of a surprise check conducted on 1.11.2010 at the Transport Check Post, Bannari. The Police claimed that unaccounted money to the tune of Rs.6,490/-was recovered from the petitioner, who was employed as a Motor Vehicles Inspector. The Directorate of Vigilance and Anti-Corruption, forwarded a report to the Transport Commissioner and the Transport Commissioner, in turn passed two orders, one on 22.12.2010 and another on 28.12.2010. By the first order dated 22.12.2010, the petitioner was placed under suspension under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. By the second order dated 28.12.2010, the petitioner was not permitted to retire on reaching the age of superannuation on 31.12.2010, but retained in service, in contemplation of an enquiry into the grave charges. The second order was passed in terms of Fundamental Rule 56(1)(c). Challenging these two orders, the petitioner has come up with the above writ petition. 5. The main ground on which he challenges the impugned orders is that the impugned orders were not and could not have been passed on the dates indicated therein. According to the petitioner, he was not served with any order till the evening of 31.12.2010. The order dated 28.12.2010, retaining the petitioner in service, was served on the petitioner, only on 29.1.2011, much after the date of retirement. Therefore, the petitioner claims that he is deemed to have retired, as no order of suspension and no order of retention were served on him before the date of his retirement. 6. The respondent has filed a counter affidavit. Therefore, the petitioner claims that he is deemed to have retired, as no order of suspension and no order of retention were served on him before the date of his retirement. 6. The respondent has filed a counter affidavit. In paragraph-5 of the counter affidavit, the respondent has taken a positive stand that the order of suspension dated 22.12.2010 was acknowledged by the petitioner on 23.12.2010 and that even the order of retention in service dated 28.12.2010 was received and acknowledged by the petitioner. In other words, the respondent disputes the contention of the petitioner that the impugned orders were not served on him before his retirement, but served long thereafter. 7. In view of the factual dispute between the parties about the date of service of the suspension order and the retention order, I directed the learned Additional Government Pleader to produce the files. Accordingly the files were produced. 8. The files show that the suspension order dated 22.12.2010 was forwarded to the Regional Transport Officer, Gobichettipalayam, on 23.12.2010, who in turn served it on the petitioner on 23.12.2010. The sheet attached to the copy of the suspension order dated 22.12.2010 contains the endorsement of the Regional Transport Officer, Gobichettipalayam, dated 23.12.2010 and the acknowledgement of the petitioner on the same date. The petitioner has actually written by his hand, "Received a letter" and signed underneath the same. The petitioner himself has written the date of receipt as 23.12.2010 in the same ink in which he has signed. He has also written his name in capital letters with his designation and office address. Therefore, it is clear that the order of suspension was served on the petitioner on 23.12.2010 itself, at least a week before his retirement. 9. But that is not the case with the order of retention in service. The order dated 28.12.2010 passed under Fundamental Rule 56(1)(c) appears to have been served on the petitioner only on 29.1.2011, four weeks after the date of his retirement. In other words, the order retaining the petitioner in service was not served on him before the date of his superannuation. Hence it is contended by the learned counsel for the petitioner, on the strength of a decision of a Division Bench of this Court in The State of Tamil Nadu vs. R.Karuppiah { 2005 (2) MLJ 555 }, that he must be deemed to have retired from service. Hence it is contended by the learned counsel for the petitioner, on the strength of a decision of a Division Bench of this Court in The State of Tamil Nadu vs. R.Karuppiah { 2005 (2) MLJ 555 }, that he must be deemed to have retired from service. According to the learned Senior Counsel for the petitioner, if no order of retention in service is served on a Government Servant, before his date of retirement, he is automatically deemed to have retired. Since the order under FR 56(1) (c) was admittedly served on the petitioner long after the date of superannuation, it is the contention of the learned Senior Counsel for the petitioner that the order is inoperative. 10. But the contention of the learned Senior Counsel for the petitioner does not appear to be well founded. Fundamental Rule 56(1)(a) mandates that every Government Servant in the superior service shall retire from service on the Afternoon of the last day of the month in which he attains the age of 58 years. Clause (c) of FR 56(1) mandates that a person who is under suspension on a charge of misconduct or against whom an enquiry into allegations of criminal misconduct is pending or against whom an enquiry into grave charges is contemplated shall not be permitted to retire on reaching the age of retirement. FR 56(1)(c) reads as follows:- "(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 of 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. (i) on a charge of misconduct; or (ii) against whom an enquiry into grave charges of criminal misconduct of 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 Subordinate 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). Instruction under Rule 56(1)(c):-Whether a Government servant referred to in clause (c) is fully exonerated or not, he shall be considered to have been on extension of service for the period from the date of retirement to the date of termination of the proceedings. During such an extension of service, the service rights which have accused to the Government servant shall freeze at the level reached on the date of retirement and the salary during that period shall not exceed the pension which has accrued to the Government servant on that date." 11. A perusal of the above Rule makes it clear that a Government Servant shall not be permitted to retire on reaching the age of superannuation, if he is under suspension and any one of the four conditions prescribed under sub-clauses (i) to (iv) of FR 56(1)(c) is satisfied. In the case on hand, there is no doubt that the petitioner was placed under suspension by order dated 22.12.2010 and that the order was also served on him on 23.12.2010. Therefore the first condition stands satisfied. The fact that an enquiry into grave charges is contemplated or that a complaint of a criminal offence is under investigation, cannot also be denied by the petitioner. Therefore the first condition stands satisfied. The fact that an enquiry into grave charges is contemplated or that a complaint of a criminal offence is under investigation, cannot also be denied by the petitioner. Therefore, one of the four conditions listed in sub-clauses (i) to (iv) is also satisfied. Hence, the case of the petitioner attracts FR 56(1)(c) without any iota of doubt. 12. In such circumstances, the only question that arises for consideration is as to whether the non-service of the copy of the retention order passed under FR 56(1)(c), before the date of retirement, would vitiate the proceedings against the petitioner, despite the suspension order having been served on him much before. 13. In P.R.Nayak vs. Union of India { 1972 (1) SCC 332 }, a similar question arose. The appellant in that case joined the Indian Civil Service way back in 1935. In 1960, he became the Managing Director of the Indian Refineries Limited. In January 1965, he became the Secretary in the Ministry of Petroleum and Chemicals. In February 1969, he became the Secretary, Ministry of Works, Housing and Urban Development. He was due to complete 35 years of service on 24.11.1970. Under the relevant rules then in force, the completion of 35 years of service was the date of retirement, of members of the Indian Civil Service. One day before the date of his completion of 35 years of service, viz., 23.11.1970, the Central Government passed an order, granting extension of service upto 25.3.1971. But before the extended period came to an end, he was placed under suspension on 23.3.1971. The order of suspension was challenged by the delinquent in the High Court. Apart from praying for quashing the order of suspension, the appellant in that case also prayed for a declaration that he is deemed to have retired from service and that he is immune from any further action by the Government. This was on the ground that after his retirement, there was no authority for the Government to proceed against him. The High Court dismissed the writ petition and the matter was taken to the Supreme Court. 14. Interestingly, the case was heard by a Bench comprising of six Judges. A majority of four Judges allowed the writ petition and quashed the order of suspension. The High Court dismissed the writ petition and the matter was taken to the Supreme Court. 14. Interestingly, the case was heard by a Bench comprising of six Judges. A majority of four Judges allowed the writ petition and quashed the order of suspension. For doing so, the majority upheld only one contention of the petitioner viz., that under Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969 (as it stood then), a person shall be placed under suspension only after disciplinary proceedings with respect to a definite charge were actually initiated against him. In other words, the majority of four Judges held in that case that at the stage of contemplation of an enquiry into grave charges, no order of suspension could be passed, in the light of rule as it stood then. On this sole ground, the majority quashed the order of suspension, as can be seen from paragraphs 67 and 69 of the report. The fact that the majority did not take up for consideration the other contentions, is very clear from paragraph 76 of the report. But in the minority views of Justice A.N.Ray and G.K.Mitter, there were certain observations with regard to FR 56(ff). These observations could be found in paragraphs 49 and 50 of the report and they are extracted as follows:- "(49.) The fourth contention on behalf of the appellant was that the order of suspension was bad inasmuch as there was no order under Fundamental Rule 56(ff) requiring the appellant not to retire. At the outset it has to be borne in mind that the order of suspension is not under Fundamental Rule 56(ff). The order of suspension is under Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969. Fundamental Rule 56(ff) is a Rule laying down the consequences of an order of suspension. When a valid order of suspension has been made as in the present case during the period of extension of the services of the appellant it could not in the same breath be said that he is not permitted to retire. That is the concomitant of the order of suspension. Furthermore, the language of Fundamental Rule 56(ff) is that notwithstanding anything contained in clauses (a), (d) and (f) a member of the Indian Civil Service who is under suspension shall not be required or permitted to retire. That is the concomitant of the order of suspension. Furthermore, the language of Fundamental Rule 56(ff) is that notwithstanding anything contained in clauses (a), (d) and (f) a member of the Indian Civil Service who is under suspension shall not be required or permitted to retire. Therefore, Fundamental Rule 56 (ff) itself contains the words forbidding retirement of a member placed under suspension, Fundamental Rule 56(ff) means these things. First, Fundamental Rule 56(f) is deleted from coming into operation during the period of suspension inasmuch as the words used are notwithstanding anything contained in clause (f). Secondly, the language of Fundamental Rule 56(ff) is that he shall not be required or permitted to retire. The language is not that he shall be required not to retire. In other words, retirement is negatived by the positive effect of suspension. Thirdly, the entire consequence of Fundamental Rule 56(ff) is that the member shall be retained in service until the enquiry into the charges is concluded and the final order is passed. This Court in State of Punjab v. Khemi Ram {1969 (2) SCC 28} stressed the importance of passing an order of suspension where a disciplinary enquiry could not be concluded before the date of retirement. In short the order of suspension means that he is in service but his services are temporarily suspended and no retirement can therefore take place. (50.) It was said on behalf of the appellant that Fundamental Rule 56(ff) occurred in a Chapter headed Compulsory retirement and the word compulsory was removed sometime in 1969. It was therefore said that Fundamental Rule 56(ff) which did not permit a Government servant placed under suspension to retire was in the nature of punishment. The deletion of the word compulsory was necessitated inasmuch as Fundamental Rule 56 regulated not only cases of compulsory retirement of Government servants in public interest prior to the attaining of the age of superannuation but also of Government servants after attaining the age of 50/55 years or rendering 30 years service as the case might be. That is why the heading became Retirement instead of Compulsory Retirement to be a correct reflection of the provisions. Therefore, when an order of suspension was made the mandate of Fundamental Rule 56(ff) became effective and placed an embargo on retirement. That is why the heading became Retirement instead of Compulsory Retirement to be a correct reflection of the provisions. Therefore, when an order of suspension was made the mandate of Fundamental Rule 56(ff) became effective and placed an embargo on retirement. If an order of suspension were made before the appellant completed 35 years of service the order of suspension could a fortiori be made while the appellant was in the enjoyment of an extension of service. The result of the order of suspension is to suspend the retirement. The prohibition against retirement is embedded in Fundamental Rule 56(ff). Therefore, no separate order is required or necessary to the effect that the appellant shall not be required or permitted to retire could be made under Fundamental Rule 56 (ff)." 15. The above observations contained in the minority view were not set at naught by the majority. The majority in P.R.Nayak differed from the minority view only on one aspect and allowed the appeal, without going into the other contentions, one of which related to what is extracted above. 16. F.R.56(ff) which fell for consideration in P.R.Nayak, was extracted in paragraph 28 of the report and it reads as follows: "Notwithstanding anything contained in clauses (a), (d) and (f) where an officer who is a member of the Indian Administrative Service or the Indian Police Service and who before becoming such member was a member of the Indian Civil Service or the Indian Police, is under suspension on a charge of misconduct, he shall not be required or permitted to retire on reaching the date of compulsory retirement, but shall be retained in service until the inquiry into the charge is concluded and a final order is passed thereon by the competent authority." 17. A comparison of the F.R.56(ff) which was under consideration before the Supreme Court in P.R.Nayak, with F.R.56(1)(c) about which we are now concerned, would show that they are almost identically worded except that sub-clauses (i) to (iv) found in F.R.56 (1)(c) are not found in F.R.56(ff). F.R.56(ff) states that an officer who is under suspension on a charge of misconduct shall not be required or permitted to retire, but shall be retained in service. The expression "on a charge of misconduct" found in F.R.56(ff) stands elaborated and expanded in sub-clauses (i) to (iv) of F.R.56(1)(c). F.R.56(ff) states that an officer who is under suspension on a charge of misconduct shall not be required or permitted to retire, but shall be retained in service. The expression "on a charge of misconduct" found in F.R.56(ff) stands elaborated and expanded in sub-clauses (i) to (iv) of F.R.56(1)(c). Therefore, the opinion expressed by the minority in P.R.Nayak (which was not contradicted by the majority) that by the very wording of the Fundamental Rule, the retirement of a member placed under suspension is forbidden and that consequently no separate order is necessary, would hold good for our case also. 18. In the judgment of the Division Bench in { 2005 (2) MLJ 555 }, relied upon by the learned Senior Counsel for the petitioner, it appears that the government servant was allowed to retire on 31.5.1990, as seen from paragraph 19 of the report. Apart from the fact that the decision of the Supreme Court in P.R.Nayak was not brought to the notice of the Division Bench in R.Karuppiah, the decision of the Division Bench related to a case where no order under F.R.56(1)(c) was ever passed. But in the case on hand, an order retaining the petitioner in service was passed on 28.12.2010. Therefore, merely because it was served upon the petitioner after the date of his normal retirement, it cannot be contended that the petitioner was permitted to retire happily. 19. The date of service of the order upon a delinquent employee may be relevant in so far as orders of suspension, removal, transfer, etc are concerned. But the date of service may not be a relevant criterion in so far as other types of orders, such as the one on hand, are concerned. Therefore, it is immaterial that the order dated 28.12.2010 retaining the petitioner in service was served on him after 31.12.2010. Hence, there are no merits in the writ petition and it is liable to be dismissed. 20. Accordingly, the writ petition is dismissed. No costs. Consequently, the above MP is also dismissed.