V.Sahadevan v. The Director Of Backward
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.07.2017 CORAM :
THE HONOURABLE MR.JUSTICE T.RAJA WP(MD)No.2227 of 2017 and WMP(MD)No.1845 of 2017 V.Sahadevan ... Petitioner vs.
1)The Director of Backward Classes, Chepauk, Chennai-5.
2)The District Backward Classes & Minorities Welfare Officer, Theni, Theni District.
... Respondents Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, call for the records relating to the impugned order of the 1st respondent the Director of Backward Classes in his Letter No.A2/2373/2016 dated 07.11.2016 and quash the same and direct the respondent to pay the Gratuity and Encashment of Leave Salary to the petitioner with 12% interest within the time limit prescribed by this Hon'ble Court. For Petitioner : Mr.K.Muthumalai For Respondents : Mr.D.Muruganantham Additional Government Pleader
ORDER
The petitioner has come to this Court challenging the correctness of the impugned order dated 07.11.2016, in and by which, the request of the petitioner for payment of leave encashment salary as well as gratuity was refused. 2.Heard both sides.
3.The petitioner was placed under suspension on 18.12.2007, citing pendency of a criminal case in Special Case Nos.34 to 38/2008 on the file of the Special Judge for Vigilance and Anti Corruption Cases by way of FIR on 05.05.1997 registered by the Vigilance and Anti Corruption Commissioner, Madurai Branch for the
irregularities alleged to have been committed in the sanction and disbursement of scholarship to five typewriting institutes during the year 1991-92. The said criminal case is still pending, hence, the petitioner was not allowed to retire from service on reaching the age of superannuation on 31.12.2007. In the meanwhile, the petitioner has given a representation on 29.04.2016 to the Director of Backward Classes, Chennai, for payment of DCRG and encashment of leave salary.
4.In support of his contentions, the petitioner has relied upon a decision of this Court made in W.P.No.20946 of 2014, dated 06.08.2014(B.Udayakumar vs. The District Collector, Cuddalore and three others), wherein this Court recording the submission of the respondents therein that without prejudice to the rights of the respondents to proceed with the departmental proceedings, if any, and also to proceed with the suspension proceedings, the leave encashment salary as well as gratuity can be disbursed, directed the respondents to pay gratuity and leave encashment salary within eight weeks, holding that even though a person is placed under suspension and was not allowed to retire, he is entitled to payment of gratuity and leave encashment salary. 5.
The learned Additional Government Pleader appearing for the respondents drawing the notice of this Court to Rule 60(1)(c) of the Tamil Nadu Pension Rules, 1978, submitted that if a Government servant is not permitted to retire from service, he is not entitled to receive the gratuity. He also contended that as per the second proviso to Rule 60(1)(c) of the Tamil Nadu Pension Rules, even where a Government servant against whom departmental or judicial proceedings involving pecuniary loss to Government is pending, is permitted to retire without prejudice to such departmental or judicial proceedings, a portion of gratuity may be authorised after deducting the maximum computed financial loss to the Government for which the Government servant is held liable.
This Court finds merit in the submission made by the learned Additional Government Pleader.
6.In the present case, admittedly, the petitioner has not been permitted to retire from service in view of the order dated 31.12.2007 passed by the 1st respondent refusing to retire and retaining him in service. Although the petitioner argued taking support from the decision of this Court made in W.P.No.20946 of 2014, dated 06.08.2014(cited supra), there is no discussion in the said order as to Rule 60(1)(c) of the Tamil Nadu Pension Rules. 7.Hence, the respondents are directed to pass orders on the representation of the petitioner dated 29.04.2016 disbursing eligible leave encashment salary alone to the petitioner within a period of four weeks from the date of receipt of a copy of this order.
The impugned order dated 07.11.2016 is set aside to the extent indicated above and the Writ Petition is allowed in part. No costs. Consequently, connected miscellaneous petition is closed.
Sd/- Assistant Registrar(CS-II) /True copy/ Sub Assistant Registrar To 1)The Director of Backward Classes, Chepauk, Chennai-5.
2)The District Backward Classes & Minorities Welfare Officer, Theni, Theni District.
+1 cc to Mr.K.Muthumalai, Advocate in SR.No. 64068 +1 cc to Special Government Pleader in SR.No.63933 nbi AE/MR KKR/SAR1/17.07.2017/3P/5C WP(MD)No.2227 of 2017 06.07.2017