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Madras High CourtWP/30539/2016disposed of

L.Ramachandran v. The Additional Chief Secretary

2016-09-01Honourable Mr Justice B. Rajendran5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 01.09.2016

CORAM:

THE HON'BLE MR.JUSTICE B.RAJENDRAN W.P.Nos.30539 to 30541 of 2016 and W.M.P.Nos.26476 to 26478 of 2016 W.P.No.30539 of 2016 L.Ramachandran ... Petitioner

Versus

The Additional Chief Secretary/Commissioner of Commercial Taxes, Second Floor, Ezhilagam, Chepauk, Chennai - 600 005 ... Respondent W.P.No.30540 of 2016 K.Viswalingam ... Petitioner

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The Additional Chief Secretary/Commissioner of Commercial Taxes, Second Floor, Ezhilagam, Chepauk, Chennai - 600 005.

... Respondent W.P.No.30541 of 2016 B.Suthakaran ... Petitioner

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The Additional Chief Secretary/Commissioner of Commercial Taxes, Second Floor, Ezhilagam, Chepauk, Chennai - 600 005.

... Respondent

WP No. 30539 of 2016:- Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorarified mandamus, to call for the records on the files of the respondent in Memo Ref.No.E1/37458/2013dated 02.08.2016 and quash the same as being contrary to the principle laid down by the Hon'ble Supreme Court of India in the judgment reported in (2013) 12 SCC 2010 (State of Jharkhand and others vs. Jitendra Kumar Srivastava and another) and further direct the respondent to arrange to issue the payment of all outstanding pension benefits as requested vide representation dated 31.05.2016.

WP No. 30540 of 2016:- Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorarified mandamus, to call for the records on the files of the respondent in Memo Ref.No.E1/37456/2013dated 02.08.2016 and quash the same as being contrary to the principle laid down by the Hon'ble Supreme Court of India in the judgment reported in (2013) 12 SCC 2010 (State of Jharkhand and others vs. Jitendra Kumar Srivastava and another) and further direct the respondent to arrange to issue the payment of all outstanding pension benefits as requested vide representation dated 31.05.2016.

WP No. 30541 of 2016:- Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorarified mandamus, to call for the records on the files of the respondent in Memo Ref.No.E1/37456/2013 dated 02.08.2016 and quash the same as being contrary to the principle laid down by the Hon'ble Supreme Court of India in the judgment reported in (2013) 12 SCC 2010 (State of Jharkhand and others vs. Jitendra Kumar Srivastava and another) and further direct the respondent to arrange to issue the payment of all outstanding pension benefits as requested vide representation dated 31.05.2016.

For Petitioner :

Mr.R.Senniappan For Respondent :

Mr.S.Kanmani Annamalai, Additional Government Pleader (Tax) COMMON ORDER By consent of both parties, these writ petitions are taken up for final disposal at the admission stage itself.

2. The petitioners were working as Commercial Tax Officers in the Department of Commercial Tax. During the course of their employment, they were placed under suspension on the ground that the Director of Vigilance and Anti-Corruption had recovered unaccounted money in the office of the Commercial Tax Officer,

Tiruchengode on 01.11.2013. In this regard, enquiry by the Tribunal for Disciplinary Proceedings at Coimbatore is also pending.

3.

According to the petitioners in W.P.Nos. 30540 and 30541 of 2016, they were due to retire from service on 30.04.2014 A.N., but they were retained in service beyond the said date. In so far as the petitioner in W.P.No. 30539 of 2016 is concerned, he was due to retire from service on 31.05.2015 A.N, but, he was also retrained in service beyond the said date. The petitioners submitted their representations dated 31.05.2016 requesting the respondent to revoke the suspension orders and to pass orders for payment of pension, gratuity and other pensionary benefits. But, the respondent, by Memo dated 02.08.2016, rejected the representations of the petitioners stating that as the enquiry is pending before the Commissioner of Disciplinary proceedings, their request could not be considered at this stage. Aggrieved against the said memo, the petitioners have filed these writ petitions.

4.

The learned counsel appearing for the petitioners submitted that the petitioners were kept under suspension for a long period. Even though the petitioners were superannuated, in view of the pendency of the criminal proceedings before the Disciplinary Authority, they were not paid the terminal benefits and pensionary benefits.

The pendency of the criminal proceedings will not be a bar for the respondent for payment of the terminal benefits. The learned counsel for the petitioner, relying on the decision of the Honourable Supreme Court in (State of Jharkhand and others vs. Jitendra Kumar Srivatsava and another) (2013) 12 Supreme Court Cases 210 to contend that the gratuity and pension are not bounty to be distributed by Government to its employees on their retirement, but are valuable rights and property in its hands. It is further contended by the learned counsel for the petitioners that pension to be disbursed to a public servant on his retirement is 'property' within the meaning of Article 31(1) of the Constitution.

Article 300-A of the constitution also contemplates that persons not to be deprived of property save by authority of law. Further, as per Service Law, withholding of public servant's pension during the pendency of disciplinary and criminal proceedings is illegal. Therefore, according to the learned counsel for the petitioners, the respondent ought to have paid the terminal benefits and pensionary benefits to the petitioners, notwithstanding the pendency of the departmental proceedings against them.

5.

The learned counsel for the petitioners would further contend that prolonged suspension of the petitioners could not be sustained under law. Further, the respondent did not

complete the enquiry initiated against the petitioners for more than two years. Therefore, the respondent may be directed to complete the enquiry on the disciplinary proceedings at the earliest date and to pay the pensionary benefits to the petitioners as requested by them in their representations dated 31.05.2016.

6.

The learned Additional Government Pleader submitted that normally, if any criminal proceedings or disciplinary proceedings are pending against an employee, he could be deprived of the terminal benefits and it cannot be disbursed as a matter of routine. It is well settled proposition laid down by this Court in several cases that an employee under suspension would be eligible only to get certain benefits and not the full amount towards terminal benefits. He further submitted that if the petitioners did not succeed in the criminal proceedings, they could escape with the retirement benefits paid to them and in such event, the department could finds it very difficult to recover the amount misappropriated by them. Hence, he opposed the relief sought for in these writ petitions.

7.

Heard both sides. Admittedly, the petitioners have been kept under suspension for a long period. Though they attained superannuation in the year 2014 and 2015 respectively, they were not paid terminal and pensionary benefits by the respondent, in view of the pendency of the criminal proceedings. As rightly contended by the learned counsel for the petitioners, the department has not completed the enquiry on the disciplinary proceedingsfor a long time. Furthermore, the pendency of the criminal case or any enquiry on the disciplinary proceedings will not be a bar for the authorities for payment of the terminal benefits and other pensionary benefits to the petitioners.

At the same time, as rightly contended by the learned Additional Government Pleader, if the petitioners are allowed to get the full amount of terminal benefits, the department will be put to jeopardy especially when the petitioners did not succeed in the disciplinary proceedings. Therefore, this Court is of the view that to safeguard the interest of both parties, the respondent can be directed to pay 75% of the terminal benefits to the petitioners and they can retain 25% of the terminal benefits with them. Accordingly, the respondent is directed to pay 75% of the terminal benefits to the petitioners, within a period of one month from the date of receipt of a copy of this order and to retain 25% of the terminal benefits till the disposal of the disciplinary proceedings initiated against them.

The respondent is further directed to complete the departmental enquiry, de hors the criminal enquiry within a period of six months from the date of receipt of a copy of this order.

the departmental proceedings against them.

8.

With the above directions, these writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.

-s/dAssistant Registrar True Copy Sub-Assistant Registrar To The Additional Chief Secretary/Commissioner of Commercial Taxes, Second Floor Ezhilagam,Chepauk, Chennai - 600 005.

+1 cc to M/s.R.Senniappan Advocate sr 49789 +1 cc to Special Government Pleader Taxes sr 50153 WP Nos.30539 to 30541 of 2016 aa14/09/2016