(Prayer: To set aside the order dated 17.09.2020 made in WP.No.13091 of 2018.)

S.M. Subramaniam, J.

1. State preferred the present Intra Court Appeal filed under Clause 15 of Letters Patent, challenging Writ Order dated 17.09.2020 passed in W.P.No.13091 of 2018.

2. Writ Petitioner / Respondent herein was holding the post of Deputy Tahsildar in Revenue Department and departmental disciplinary proceedings were initiated against him. Charge Memo dated 21.05.2018 was issued. Perusal of charge memo would show that six charges were framed and Annexture-2 provides list of documents relied on by Department. There is no infirmity in respect of procedures followed in respect of issuance of Charge Memorandum. The said charge memo came to be challenged on the ground that respondent attained the age of superannuation on 31.03.2000 without prejudice to departmental disciplinary proceedings initiated against him.

3. Proceedings of District Collector, Nagapattinam dated 31.03.2000 would show that respondent was permitted to retire from service without prejudice to the departmental disciplinary proceedings pending against him on his attaining the age of superannuation on 31.03.2000 as per G.O.144, Personnel and Administrative Reforms (N) Department dated 08.06.2007 and departmental disciplinary proceedings pending against him shall be continued under Rule 9 of the Tamil Nadu Pension Rules, 1978 in accordance with the procedures laid down in the said Rules.

4. Challenging the charge memo, respondent filed writ petition. Writ Court relied on the judgment of Division Bench of this Court in the case of The State of Tamil Nadu vs. R.Karuppiah(2005 (3) CTC 4) and held that petitioner having been allowed to retire from service, without invoking the provisions of Rule 56(1) of Fundamental Rules, renders the charge memo invalid. Consequently, charge memo was quashed. Thus, State preferred the present writ appeal.

5. Issues relating to continuance of departmental disciplinary proceedings against a retired employee are no more res integra. Rule 9 (2) of Tamil Nadu Pension Rules, 1978 permits Government to continue disciplinary proceedings, even after retirement of an employee. Employee may either be placed under suspension or his services may be extended or permitted to retire from service without prejudice to departmental disciplinary proceedings initiated against him. Depending on the nature of allegation, Authorities are empowered to take a decision in this regard. However, departmental disciplinary proceedings may be continued even after retirement of employee is the legal position in view of Rule 9(2) of Tamil Nadu Pension Rules, 1978.

6. In respect of Division Bench judgment of this Court in the case of Karuppiah relied on by Writ Court, a Full Bench of this Court in the case of C.Mathesu vs. Secretary to Government, Revenue Department, Chennai(2013 (3) CTC 369) answered reference as under:

                   “27. Thus, the view taken by the Court which makes both the provisions viz., Rule 56(1)(c) of the Fundamental Rules and Rule 9 of the Pension Rules workable is to be preferred.

                   28. From the aforesaid discussion, the following broad principles emerge:

                   (i) If a Government servant has been placed under suspension and not permitted to retire even after his attaining the age of superannuation in terms of Rule 56(1)(c) of the Fundamental Rules, the enquiry against him can proceed, and in that case, if charges of misconduct are proved, depending upon the nature of the charges, even the extreme penalty of dismissal or removal from service can be imposed.

                   (ii) If there is any statutory provision for continuing the departmental proceedings like Rule 9(2) of the Pension Rules even after the Government servant has retired on attaining the age of superannuation, then the departmental proceedings already instituted before the retirement of the Government servant can be continued against the delinquent employee by treating him to be in service.

                   (iii) If the Government servant has retired on attaining the age of superannuation and subsequently any departmental proceeding is to be instituted against him, in that event, under Rule 9(2)(b) of the Pension Rules, sanction of the Government is required to be taken and the event in respect of which the departmental proceedings are sought to be initiated should not have taken place more than four years before such institution.

                   (iv) In cases where the Government Servant is allowed to retire on attaining the age of superannuation or where the departmental proceedings are to be initiated after the retirement, there is no question of passing the order of dismissal or removal from service and only the pension can be withheld, withdrawn or reduced. The question of dismissal or removal of the said delinquent employee from service, therefore, does not arise.

                   (v) Since in the present case, the appellant was permitted to retire on attaining the age of superannuation without prejudice to the disciplinary proceedings pending against him, in our considered opinion, the said proceedings can be permitted to be continued in terms of Rule 9(2)(b) of the Pension Rules.

                   29. Insofar as the contention of the appellants counsel that two similarly placed persons, viz. Tvl. K. Sivaprakasam and Rathnavel were allowed to compensate the loss suffered by the Government and permitted to retire on attaining the age of superannuation without any disciplinary proceedings and the same principle be also applied to the case of the appellant is concerned, we may mention here that the appellant cannot obtain such a benefit in disregard of the law by invoking the right to equality before the law and equal protection of the laws guaranteed under Article 14 of the Constitution of India. In the case of Narain Dass vs. Improvement Trust, Amritsar reported in (1973) 2 S.C.C. 265, it was contended that while administering Section 56 of the Punjab Town Improvement Act, 1922, there had been hostile discrimination against the appellants therein, because lands under orchards belonging to persons similarly placed had been exempted, whereas the appellants had been refused such exemption. Rejecting this contention, the Honble Supreme Court, in paragraph 6 of the reports, had observed as follows:-

                   “In any event if the appellants have failed to bring their case within Section 56 of the Act then merely because some other party has erroneously succeeded in getting his lands exempted ostensibly under that section that by itself would not clothe the present appellants with a right to secure exemption for their lands. The rule of equality before the law or of the equal protection of the laws under Article 14 cannot be invoked in such a case.”

                   In the case of Eskayef Limited vs. Collector of Central Excise reported in (1990) 4 S.C.C. 680, the Honble Supreme Court has held that it is impermissible to grant such benefit as other persons have been granted wrongly.

                   30. Conclusion:

                   In view of the foregoing discussion, we hold that the decision to the contrary taken in Writ Appeal (MD) No.669 of 2011 (The District Collector, Tiruchirappalli, District, Tiruchirappalli vs. N. Mohanraj) dated 22.7.2011, as also in The State of Tamil Nadu vs. R. Karuppiah, 2005 (3) C.T.C. 4 and in K. Durairajan vs. Secretary to Government Commercial Taxes & Registration Department, 2010 (4) C.T.C. 504, in our humble opinion, do not lay down the correct law.”

7. Pertinently, in Paragraph No.3 of Full Bench judgment, case of Karuppiah (supra) is held as not a correct law. Therefore, Writ Court relied on an overruled judgment and quashed the charge memo in the impugned writ order in the present Writ Appeal.

8. Under Fundamental Rules, an employee may be placed under suspension on the last date of retirement, if charges are framed and his services may be extended for conduct of disciplinary proceedings. Tamil Nadu Pension Rules, 1978 also permits Authorities to continue departmental disciplinary proceedings. Therefore, charge memo framed against Government employee will not die on account of retirement of an employee. That being the settled legal position, order of Writ Court is infirm and running counter to the reference answered by Full Bench of this Court in the case of C.Mathesu (supra).

9. For the foregoing reasons, the present Writ Appeal is allowed. The order of Writ Court dated 17.09.2020 passed in W.P.No.13091 of 2018 is set aside. No costs. Consequently, connected Miscellaneous Petition is closed.