The State Of Tamil Nadu v. M.Nainar Mohammed
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated 09.08.2019
CORAM
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU AND THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY Writ Appeal (MD)Nos.188 to 190 of 2019 and C.M.P(MD)Nos.1541 to 1545 to 2019 AND WP(MD)NOS.21428 OF 2016,21430 OF 2016 AND 21429 OF 2016 1.The State of Tamil Nadu rep. by its Principal Secretary to Government, Environment & Forest (FRI) Department, Secretary, Chennai - 9.
2.The Principal Chief Conservator of Forests, No.15, Jeenis road, Saidapet, Chennai - 15.
.. Appellants in all W.As Vs.
M.Nainar Mohammed, Son of MMN Meera Shah Routher, No.49, Kamarajar Street, Peraiyur & Taluk, Madurai - 625 703.
.. Respondent in all W.As COMMON PRAYER: Writ Appeals are filed under Clause 15 of Letters Patent, to set aside the common order made in W.P(MD)Nos.21428 to 21430 of 2016 dated 24.05.2017.
Prayer in WP(MD). 21428/ 2016 :
Writ Petition is filed under Article 226 of the Constitution of India, praying this Court To issue a Writ of Certiorarified Mandamus, to calling for the records on the file of the 1st Respondent in his letter no. 9804/FR.1/2015-12, dated 13.10.2016 quash the same and consequently to settle all the retirement benefits including service benefits namely, Death Cum Retirement Gratuity, Provident Fund, Special Provident Fund, Commutation of Pension, Encashment of Leave, Pension Arrears and other benefits to the petitioner.
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Prayer in WP(MD). 21430/ 2016 :
Writ Petition is filed under Article 226 of the Constitution of India, praying this Court To issue a Writ of Certiorarified Mandamus to calling for the records on the file of the 1st Respondent his Proceeding G.O(3D0 No.5 dated 31.01.2014 and quash the same consequently allow the petitioner to retire on 31.01.2014.
Prayer in WP(MD). 21429/ 2016 :
Writ Petition is filed under Article 226 of the Constitution of India, praying this Court To issue a Writ of Certiorari, calling for the records of the impugned order passed by the 1st Respondent his proceeding in G.O.(3D) No.2 environment and Forest (FR-1) Department dated 22.01.2014 and quash the same. In all writ appeals;
For Appellant : Mr.V.R.Shanmuganathan (in all cases) Spl. Govt. Pleader For Respondents : Mr.D.Selvanayagam (in all cases) ***
JUDGMENT
(Judgment of the Court was delivered by K.RAVICHANDRABAABU, J.) These three writ appeals are filed against the common order passed by the Writ Court in W.P(MD)Nos.21428, 21429 and 21430 of 2016, dated 24.05.2017.
2.The appellants are the respondents before the Writ Court. The first respondent herein is the writ petitioner. He filed W.P (MD)No.21428 of 2016 challenging the order, dated 13.10.2016 of the Government, wherein and whereby, the writ petitioner was informed that encashment of Earned Leave is admissible only after finalization of the disciplinary proceedings and regularization of the suspension period also by indicating that till the conclusion of the criminal proceedings and the issue of final order thereon, the petitioner is not entitled for retirement benefits. Consequently, the writ petitioner sought for settling all the retirement benefits including service benefits, namely, death-cumretirement gratuity, special provident fund, commutation of pension, encashment of leave pension arrears and other benefits. 3.W.P(MD)No.21429 of 2016 was filed challenging the order of suspension, dated 31.01.2014. W.P(MD)No.21430 of 2016 was filed challenging the order retaining the service of the writ petitioner pending finalization of the disciplinary proceedings. 2/6
4.The writ petitioner was functioning in the post of Deputy Conservator of Forests. On 11.09.2013, a charge memo was issued on the writ petitioner alleging that during the course of surprise check on 26.08.2009, it was found that the cash book was not maintained properly from 11.08.2009 to 26.08.2009 and the cash register was not maintained by the Accountant and that the Superintendent and the Regional Manager concerned have not supervised the same, thereby the delinquent has failed to maintain and exhibit absolute integrity and devotion to duty. It is seen that another charge was also issued against the petitioner stating that during the course of surprise check on 26.08.2009, an unauthorised and unaccounted amount of Rs.
1,94,100/- was seized from his possession and he has failed to maintain and exhibit absolute integrity and devotion to duty, thereby contravened the provisions of Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973. Consequently, the writ petitioner was placed under suspension on 22.01.2014. Though he attained the age of superannuation on 31.01.2014, the order impugned in the writ petition was passed on 31.01.2014 not permitting him to retire from service. The department conducted enquiry and in the enquiry, it was found that the charges framed against the writ petitioner were not proved. Consequently, by proceedings, dated 27.04.2015, the department dropped the charges. In the meantime, sanction for criminal prosecution was granted against the writ petitioner on 11.03.2014. Accordingly, a criminal case in F.I.R No.
7 of 2009 on the file of Sivagangai Police Station was registered. Subsequently, a charge sheet was also filed in the said criminal case on 08.04.2015. Thus, the criminal case filed against the petitioner is still pending. However, since the department has dropped the charges issued against the writ petitioner, the above three writ petitions were filed before this Court with the relief as stated supra. The Writ Court, after considering the fact that charges were already dropped by the department, allowed all the writ petitions by a common order dated 24.05.2017. Thus, these three writ appeals are filed before this Court.
5.Heard the learned Special Government Pleader appearing for the appellants and the learned counsel appearing for the first respondent/writ petitioner.
6.In these appeals, following three issues arise for consideration:
(a) whether the writ petitioner is entitled to all the retirement benefits as sought for in W.P(MD)No.21428 of 2016, in view of the fact that he attained the age of superannuation on 31.01.2014, though he was not allowed 3/6
to retire in view of the pendency of the departmental proceedings?
(b) Whether the order of suspension issued on the writ petitioner is liable to be interfered with? (c) Whether the writ petitioner's service is to be retained?
7.Let us first consider the first issue. There is no dispute to the fact that though the writ petitioner has attained the age of superannuation on 31.01.2014, charge memos were issued by the department and subsequently, a criminal case was also filed against him in F.I.R No.7 of 2009, which has culminated into filing a charge sheet on 08.04.2015. It is an admitted fact that the criminal case is still pending. However, it is also an admitted fact that the disciplinary proceedings initiated against the petitioner was subsequently dropped as the charges were not proved. When such being the factual position, the entitlement to certain monetary benefits, under the present facts and circumstances, has already been considered by this Court in W.A (MD)No.105 of 2019 dated 31.07.2019.
In the said decision, this Court has found that pendency of the departmental proceedings or criminal prosecution shall not be a bar for disbursing the earned leave and Special Provident Fund to the employee. In other words, other retirement benefits cannot be disbursed during the pendency of such proceedings. Therefore, the Writ Court is not justified in allowing the writ petition in toto (W.P(MD)No.21428 of 2019). Accordingly, W.A(MD)No.188 of 2018 is allowed in part and the order of the writ Court made in W.P(MD)No.21428 of 2019 is modified by granting the relief to the writ petitioner only in respect of the earned leave as well as the special provident fund.
In other words, except the monetary benefits derived out of the earned leave, provident fund and special provident fund, the writ petitioner is not entitled to other monetary benefits pending disposal of the criminal proceedings. The monetary benefits as observed supra, shall be disbursed by the appellants within a period of four weeks.
8.While we considered the next two issues, namely, the order of suspension and the order retaining the service of the petitioner, it is true that those two orders were passed by citing the pendency of the departmental proceedings against the petitioner. It is also true that the charges levelled by the department were subsequently dropped on 27.04.2015. At the same time, it is to be noted that when the writ petition was taken up for final disposal, it is a matter of fact that the criminal prosecution was already launched against the writ petitioner and a charge sheet was also filed in the said criminal case on 08.04.2015. Therefore, the factum of pendency of criminal case at 4/6
the time of disposal of the writ petition was very much available before the Writ Court. However, the Writ Court has chosen to allow the writ petitions against the order of the suspension and the order retaining the service only on the reason that the charges levelled against the petitioner were dropped by the department subsequently, without taking note of the pendency of the criminal proceedings as stated supra.
9.
At this juncture, it is pertinent to note that Rule 56(1)(c) (iv) of the Fundamental Rules specifically contemplates that a Government Servant 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 allegation of criminal misconduct or the enquiry into contemplated charges or disciplinary proceedings taken under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or Rule 3(c) of 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.
10.Therefore, it is evident that even though the departmental proceedings ended in dropping the charges against the writ petitioner, in view of the admitted position that the criminal prosecution has already been launched even before dropping of such charges by the department and that the charge sheet was also filed in the criminal case on 08.04.2015 much earlier to the dropping of the charges by the department, we are of the view that clause 56 (1)(c)(iv) of the Fundamental Rules would come into operation against the petitioner for placing him under suspension as well as retaining his service due to the pendency of the criminal case.
Therefore, we are of the view that the Writ Court was not justified in setting aside the order of suspension as well as the order retaining his service simply because the charges levelled against the petitioner by the department were dropped. 11.Accordingly, the W.A(MD)Nos.189 and 190 of 2019 are allowed and the order passed by the Writ Court in W.P(MD)Nos.21429 and 21430 of 2016 are set aside. It is made clear that though the order of suspension and order of retention of service were passed based on the pendency of the departmental proceedings, in view of our observations made supra, those two orders shall be treated as the orders passed on the reason of pendency of the criminal prosecution against the petitioner.
Needless to say that the petitioner is at liberty to work out his remedy after the disposal of the criminal case accordingly. No costs.
connected miscellaneous petitions are closed. Sd/- Assistant Registrar (AD-II) // True Copy // Sub Assistant Registrar(CS) To 1.The Principal Secretary to Government, State of Tamil Nadu Environment & Forest (FRI) Department, Secretary, Chennai - 9.
2.The Principal Chief Conservator of Forests, No.15, Jeenis road, Saidapet, Chennai - 15.
skn +1 CC to M/s.SPL GP ( SR-81507[F] dated 13/08/2019 ) +1 CC to M/s.D. SELVANAYAGAM, Advocate ( SR-81624[F] dated 14/08/2019 ) Judgment made in Writ Appeal (MD)Nos.188 to 190 of 2019 and C.M.P(MD)Nos.1541 to 1545 to 2019 AND WP(MD)NOS.21428 OF 2016,21430 OF 2016 AND 21429 OF 2016 09.08.2019 KM/(17.09.2019) 6P 5C 6/6