T.Prakasam vs The Additional Chief Secretary To ...
2024 Latest Caselaw 19945 Mad

Madras High Court

T.Prakasam vs The Additional Chief Secretary To ... on 23 October, 2024

Author: R.Vijayakumar

Bench: R.Vijayakumar

                                                                            W.P.(MD).No.13649 of 2024




                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED : 23.10.2024

                                                        CORAM:

                                  THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

                                              W.P(MD)No.13649 of 2024
                                                        and
                                        W.M.P.(MD).Nos.12014 & 12015 of 2024

                     T.Prakasam                                               ... Petitioner
                                                           vs

                     1. The Additional Chief Secretary to Government,
                     Water Resources Department,
                     Chennai-600 005.

                     2. The Chief Engineer (General),
                     Water Resources Department,
                     Chennai-600 005.

                     3. The Deputy Secretary,
                     TamilNadu Public Service Commission,
                     Chennai-600 003.

                     4. The Accountant General (A&E) of TamilNadu,
                     No.361, Anna Salai,
                     Chennai-600 018.                                         ... Respondents

                     PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
                     to issue a writ of Certiorarified Mandamus, to call for the records relating to
                     the impugned order made by the 1st Respondent vide G.O.(D).No.80, Water


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                                                                                W.P.(MD).No.13649 of 2024


                     Resources (D1) Department dated 13.05.2024 and quash the same and
                     consequently direct the respondents to grant the admissible monthly pension
                     of Rs.60,030/- received by the petitioner without any reduction.
                                       For Petitioner                : Mr.M.Rajarajan
                                       For Respondents No.1 & 2      : Mr.S.Shaji Bino,
                                                                       Special Government Pleader
                                       For Respondent No.3           : Mr.J.Anandkumar
                                                                       Standing Counsel
                                       For Respondent No.4           : Mr.P.Gunasekaran

                                                           ORDER

The instant writ petition has been filed by a retired Superintending

Engineer of Public Works Department, challenging the order of the first

respondent, wherein, a sum of Rs.41,000/- per month is sought to be

recovered from the pension by invoking Rule 39 of Tamil Nadu Pension

Rules, 1978.

2. The petitioner herein, who was working as Superintending Engineer

in Public Works Department, had faced disciplinary proceedings. In the said

proceedings, final order has been passed by the Principal Secretary to

Government by way of G.O.(D).No.280 Public Works (E1) Department, dated

30.09.2019. Paragraph No.7 of the said Government Order is extracted

hereunder:

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“7. The Government, after careful and independent examination of the case again along with the views of the TamilNadu Public Service Commission, have decided to confirm the provisional conclusion to impose the punishment of “Compulsory Retirement” on Thiru.T.Prakasam, Superintending Engineer (under suspension and not allowed to retire from service on 31.07.2013 AN), Public Works Department. Accordingly, the Government Order that the punishment of “Compulsory Retirement’’ be impose on Thiru.T.Prakasam, Superintending Engineer (under suspension and not allowed to retire from service on 31.07.2013AN), Public Works Department, for the charges held partly proved and proved, as the case may be, against him, along with the recovery of Rs.21,778/- from his DCRG for the loss caused by him to the Government Orders on the grant of pension and DCRG under Rule 39 of the Tamil Nadu Pension Rules, 1978 will be issued separately.’’

3. In continuation of the above said imposition of punishment, the

impugned Government Order in G.O.(D).No.80, Water Resources (D1)

department dated 13.05.2024 has been passed, and the Paragraph No.7 of the

said Government Order is extracted as follows:

“7. The Government after careful and independent examination of the case once again with the relevant records along with the views of the TamilNadu Public Service Commission, accepted the views of

https://www.mhc.tn.gov.in/judis

the Commission and confirmed the provisional conclusion of fixing the pension of Thiru.T.Prakasam, Superintending Engineer (Compulsory Retired), Water Resources Department, under Rule 39 of the Tamil Nadu Pension Rules, 1978, at the rate of Rs.41,000/- (Rupees forty one thousand only) per mensem, being the two third value of his admissible pension and order accordingly.”

4. According to the learned counsel appearing for the petitioner, the

order impugned in this writ petition has been issued without issuing any

notice to the petitioner or conducting any enquiry. He further contended that a

sum of Rs.21,778/- has already been recovered from the retirement benefits.

The instant order of recovery from the pension ought not have been issued.

Hence, he prayed for allowing this writ petition.

5. The learned counsel appearing for respondent Nos.1 and 2, by filing

counter, had contended that the order impugned in this writ petition is only a

consequential order, and once the petitioner offered with an order of

compulsory retirement, the rejection of pension will be consequential in

nature. In view of Rule 39 of Tamil Nadu Pension Rules, the question of

issuing notice or conducting an enquiry does not arise, and also the question

of granting an opportunity to the petitioner before passing order does not

arise.

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6. The learned counsel appearing for the 4th respondent herein

submitted that in Rule 6(2) of the Tamil Nadu Pension Rules, 1978, any

reduction in pension or gratuity can be made only after giving reasonable

opportunity to the employee. He relied upon the Rule 6(6)(b) of the Tamil

Nadu Pension Rules, 1978 and the said Rule indicates that Rule-6 is not

applicable where the pension is reduced by invoking Rule 39 of the Tamil

Nadu Pension Rules. He further contended that as per the Rule 39 of Tamil

Nadu Pension Rules, the government servants, who are imposed with the

punishment of “Compulsory Retirement’’, are not eligible to receive regular

pension, and they are only entitled to receive pension and retirement gratuity

as fixed by the disciplinary authority. Hence, he prayed for dismissing the

writ petition.

7. I have carefully considered the submissions made on either side, and

perused the materials available on record.

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8. A perusal of Rule 39 of the Tamil Nadu Pension Rules, 1978 reveals

that when a Government servant is compulsorily retired from service as a

penalty may be granted by the authority competent to impose such penalty,

pension or gratuity, or both at a rate not less than two-thirds and not more

than full compensation pension or gratuity, or both admissible to him on the

date of his compulsory retirement. However, prior to passing of the said order,

the Government is mandated to consult the Tamil Nadu Public Service

Commission. In the present case, before passing the impugned order, the

authorities have consulted with Tamil Nadu Public Service Commission and

obtained opinion from them on 14.03.2024.

9. A perusal of Rule 39 of the Tamil Nadu Pension Rules reveals that

the discretion has been conferred upon the competent authority to impose

penalty on reduction of pension not less than two-thirds and not more than

full compensation. Whenever, the discretion is granted to the authority, before

exercising such discretion, the authority has to certainly issue a notice to the

concerned person who is likely to be affected.

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10. The Hon’ble Supreme Court in a Judgment reported in (2008) 14

SCC 151 (Sahara India (firm), Lucknow vs Commissioner of Income Tax,

Central-I and another) in Paragraph No.32 has held as follows:

“32. The upshot of the entire discussion is that the exercise of power under Section 142 (2A) of the Act leads to serious civil consequences and, therefore, even in the absence of express provision for affording an opportunity of pre-decisional hearing to an assessee and in the absence of any express provision in Section 142(2-A) barring the giving of reasonable opportunity to an assessee, the requirement of observance of principles of natural justice is to be read into the said provision. Accordingly, we reiterated the view expressed in Rajesh Kumar’s case (supra).”

11. The Hon’ble Supreme Court in a judgment reported in (2011) 2

SCC 258 (Automotive Tyre Manufacturers Association vs Designated

Authority and others) in paragraph No.80 has held as follows:

“80. It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the

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order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected.....”

12. In view of the judgements of the Hon’ble Supreme Court of India, it

is clear that unless the statue or rule expressly prohibits a pre-decisional

hearing, it should be read into the said provision and an opportunity should be

granted before passing an order entailing civil consequences, even in the

absence of an express provision for pre-decisional hearing. In the present

case, the impugned order inflicts reduction in pensionary and gratuity benefits

of the writ petitioner. The said order is likely to have a life long civil

consequences upon the writ petitioner. In such circumstances, it is clear that

the order impugned in this writ petition is clearly in violation of the principles

of natural justice and the same is liable to be set aside.

13. In view of the above such deliberations, the impugned in the writ

petition is hereby set aside. The matter is remitted back to the first respondent

herein for passing order afresh on merits and in accordance with law after

affording due opportunity to the writ petitioner. In case, if the first

respondent arrives at a finding to reduce the pension after conducting enquiry

any excess pension paid to the writ petitioner shall be recovered.

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14. With the above said observations, the writ petition stands allowed.

No costs. Consequently, connected miscellaneous petitions are closed.

                                                                                              23.10.2024
                                                                                                    (1/2)

                     NCC      : Yes/No
                     Index    : Yes / No
                     Internet : Yes / No
                     gvn

                     To

1. The Additional Chief Secretary to Government, Water Resources Department, Chennai-600 005.

2. The Chief Engineer (General), Water Resources Department, Chennai-600 005.

3. The Deputy Secretary, TamilNadu Public Service Commission, Chennai-600 003.

4. The Accountant General (A&E) of TamilNadu, No.361, Anna Salai, Chennai-600 018.

https://www.mhc.tn.gov.in/judis

R.VIJAYAKUMAR,J.

gvn

23.10.2024 (1/2)

https://www.mhc.tn.gov.in/judis