Madras High Court
The Secretary To Government vs R.Rangarajan on 6 February, 2023
W.A.No.579 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
W.A.No.579 of 2020
and CMP No. 8171 of 2020
1. The Secretary to Government,
Government of Tamilnadu,
Revenue Department,
Secretariat, Chennai 600 009.
2. The Commissioner of Revenue Administration,
Chepauk, Chennai 600 005.
3. The District Collector,
Cuddalore District,
Cuddalore. ...Appellants/Respondents
Vs.
R.Rangarajan
Special Tahsildar (Land Acquisition),
National Highways,
Chidambaram, Cuddaore District.
(Under order of suspension and not
permitted to retire) ... Respondent/Petitioner
1/12
https://www.mhc.tn.gov.in/judis
W.A.No.579 of 2020
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent, against the
order dated 21.10.2019 made in W.P. No.29441 of 2019 and to set aside the
same.
For Appellants : Mr. G.Nanmaran
Special Government Pleader
For Respondent : Mr. R.Prem Narayan
JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
The State is aggrieved by the order of the Writ Court directing
disbursal of the Earned Leave Encashment, General Provident Fund, Family
Benefit Fund and a consequential retirement and pensionery benefits within
a time frame.
2. The respondent, who was working as a Special Tahsildar, Land
Acquisition, was placed under suspension from service for the reason that a
criminal case was registered against him for certain delinquencies and
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W.A.No.579 of 2020
misappropriation committed by him, while he was working as a Special
Tahsildar, (Land Acquisition) National Highways, Chidambaram. A Criminal
case in Crime No.3 of 2014 was registered against the respondent and other
officials under Sections 404, 465, 468, 471, 477(A) and 420 of the Indian
Penal Code, in the District Crime Branch and the respondent was also
arrested. He was placed under suspension by the proceedings of the District
Collector, Cuddalore on 30.09.2014. The respondent filed a Writ Petition in
this Court seeking permission to retire. This Court directed the District
Collector to dispose of his representation. The District Collector by his order
dated 22.12.2015 rejected his representation and confirmed the order not to
allow him to retire till conclusion of the Criminal Proceedings.
3. While things stood thus, the petitioner came up with the instant
Writ Petition seeking a Mandamus as aforesaid. The Writ Court upon
considering the relevant Rules and the judgment of this Court in WA
No.1485 of 2018 held that Encashment of Earned Leave, General Provident
Fund and Family Benefit Fund are payable even if the employee is not
allowed to retire and even if there are criminal cases pending against him
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W.A.No.579 of 2020
since those monies belonged to him. Aggrieved the Government is on
Appeal.
4. Mr.Nanmaran, learned Special Government Pleader appearing
for the appellants would vehemently contend that the Government is entitled
to withhold the retiral benefits under Rule 69(1)(b) of the Tamil Nadu
Pension Rules, since the Writ Court had not considered the said provision,
the order of the Writ Court is liable to be interfered with.
5. Contending contra Mr.R.Prem Narayanan, learned counsel
appearing for the respondent would submit that a Division Bench of this
Court in WA No.4018 of 2019 had gone into the question in detail and had
concluded that the Earned Leave Encashment, General Provident Fund and
Family Benefit Fund cannot be with held even in cases where the criminal
proceedings are launched against the employee and he is not allowed to
retire because of the pendency of such criminal proceedings.
6. We have gone through the judgment of the Division Bench in
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W.A.No.579 of 2020
The Chief Secretary to Government v. M.Uthiraswamy, (Writ Appeal
No.4018 of 2019) dated 22.11.2019, the Division Bench had referred to
Rule 56(1) of the Fundamental Rules, Rule 21 of the Tamil Nadu Pension
Rules, 1978 and Rule 7(1) of Annexure III of Tamil Nadu Leave Rules.
After elaborate consideration of the impact of the relevant Rules as well as
the judgment of another Division Bench of this Court in WA No.1285 of
2019., the Division Bench has concluded that even under Rule 69 or under
any of the above Rules, the Government has no power to retain the monies
particularly the Earned Leave Encashment, the General Provident Fund and
the Family Benefit Fund, even in cases where the employee is not allowed to
retire due to pendency of the criminal proceedings.
7. Useful reference can be made to the judgment of the Division
Bench in State of Tamil Nadu, Rep. by its Secretary to Government,
Public Works Department, Secretariat, Fort St. George, Chennai and
others v. V.Mahalingam, (WA No.1285 of 2019), wherein the another
Division Bench of this Court had considered the question as to whether
encashment of Earned Leave can be given to a Government servant who is
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W.A.No.579 of 2020
facing the criminal charges. On interpretation of Rule 21 of the Tamil Nadu
Pension Rules and Rule 56(1) of the Fundamental Rules, the Division Bench
in its judgment had held as follows:
“7. Rule 21 of the Tamil Nadu Pension Rules, 1978, is
extracted below:-
“21. Forfeiture of service on dismissal or
removal:- Dismissal or removal of Government Servant
from a service or post entails forfeiture of his past
service.”
The Learned Special Government Pleader
submits that the forfeiture of past service of a
Government Servant on his dismissal or removal from
a post entails that no benefits arising out of service
could be claimed by him. It must be remembered that
the aforesaid rule has to be read in the context of the
Tamil Nadu Pension Rules, 1978, where it is found, and
cannot be extended beyond its scope. Viewed in that
perspective, what has been meant to be conveyed by
‘forfeiture’ in the said rule is that a Government
Servant, who has been dismissed or removed from
service, would not be entitled to claim pension relying
on his past service. As such, it would be far fetched to
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W.A.No.579 of 2020
read that provision as if all other monetary benefits
that have already accrued to him during service would
also be lost or deprived.
8. Next, Rule 69 of the Tamil Nadu Pension
Rules, 1978, relates to payment of provisional pension
when disciplinary proceedings are pending and there
is nothing mentioned anywhere in that rule about
earned leave and as such, the same does not have any
relevance to the issue now under consideration.
9. It is apparent on a reading of Rule
56(1)(c) of the Fundamental Rules that it empowers to
continue in service, a Government Servant, who has
attained the age of superannuation, till the completion
of disciplinary proceedings or criminal prosecution, so
that depending on its outcome, a decision regarding
imposing any penalty on such delinquent Government
Servant could be taken, but there is nothing therein to
infer that earned leave of the said Government Servant
could be withheld during that period.”
8. The Division Bench has also referred to the judgment of the
Supreme Court in State of Jharkhand and others V. Jitendra Kumar
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W.A.No.579 of 2020
Srivastava and another, reported in (2013) 12 SCC 210, wherein the
Hon’ble Supreme Court has pointed out that a right under Article 300 A of
the Constitution of India, cannot be taken away by executive instructions.
The only contention that remains to be considered is the contention of the
learned Government Pleader based on Rule 69(1)(b) of the Tamil Nadu
Pension Rules. Rule 69(1)(b) of the Tamil Nadu Pension Rules, reads as
follows:
“69. Provisional pension where department or
judicial proceeding may be pending:
(b) No gratuity shall be paid to the
Government servant until the conclusion of the
departmental or judicial proceedings and issue of final
orders thereon:
Provided that no such gratuity, shall be
withheld in respect of a Government servant who has
been permitted to retire without prejudice to the
departmental or judicial proceedings pending against
him, where such departmental or judicial proceedings
are only for administrative lapses not involving any
pecuniary loss to the Government;
Provided further that where a Government
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W.A.No.579 of 2020
servant, against whom a 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 authorized after deducting the maximum
computed financial loss to the Government for which the
Government servant is held liable, along with un-
recovered Government dues if any, of such Government
servants, with interest.”
9. A very reading of the Rule would show that it is only the
gratuity that could be retained by the Government till the conclusion of the
Departmental or Judicial proceedings. Therefore, at no stretch of
imagination can it be said that the Government has a power to retain the
Earned Leave Encashment, the General Provident Fund and the Family
Benefit Fund. Though the respondent has couched his prayer in the Writ
Petition in very wide terms, the Writ Court had taken care to confine it only
to the Earned Leave Encashment, the General Provident Fund and the
Family Benefit Fund.
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W.A.No.579 of 2020
10. We are therefore unable to fault the Writ Court for having
allowed the Writ Petition. We see no merit in the Appeal, the Writ Appeal
fails and it is dismissed. There will be a direction to the Government to
disburse the Earned Leave Encashment, General Provident Fund and Family
Benefit Fund, to which the respondent is entitled to with interest at 9% per
annum from the date on which it is due till date of payment. Such payment
shall be made within a period of three months from the date of receipt of a
copy of this order. There shall be no order as to costs. Consequently, the
connected miscellaneous petition is closed.
(R.S.M., J.) (S.S.K., J.)
06.02.2023
jv
Index : No
Internet : Yes
Speaking order
Neutral Citation: Yes
Note: Time Bound case
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W.A.No.579 of 2020
To
1. The Secretary to Government,
Government of Tamilnadu,
Revenue Department,
Secretariat, Chennai 600 009.
2. The Commissioner of Revenue Administration,
Chepauk, Chennai 600 005.
3. The District Collector,
Cuddalore District,
Cuddalore.
https://www.mhc.tn.gov.in/judis
W.A.No.579 of 2020
R.SUBRAMANIAN, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
jv
W.A.No.579 of 2020
and CMP No. 8171 of 2020
06.02.2023
https://www.mhc.tn.gov.in/judis
