C MURUGESAN Vs. CHIEF ENGINEER HIGHWAYS DEPARTMENT

JUDGEMENT

(1.) THE Writ Petitioner was originally appointed as a Junior Engineer in the Panchayat Union, Kambam and thereafter he was transferred and posted as Assistant Engineer, National Highways. It appears that based on certain audit objection, the Additional Block Development Officer, Panchayat Union, Kambam has issued order 13.10.1997 directing recovery of an amount of Rs.25,735/- from the petitioner, which is stated to be the amount of loss caused by the petitioner to the Department. Challenging the said recovery order dated 13.10.1997, the petitioner has approached Tamilnadu Administrative Tribunal by filing O.A.No.9270 of 1997. THEre appeared to be an order of interim stay and ultimately the Tribunal in the order dated 30.12.2003, which is stated to be passed one day before the date of superannuation of the petitioner, has set aside the order of recovery, however given liberty to the respondent Department to proceed with the enquiry by framing charges without prejudice the disciplinary proceedings and also directing the Government to allow the petitioner to retire on the date of superannuation viz., on 31.12.2003.

(2.) IT is not in dispute that the 1st respondent has allowed the petitioner to retire from service on the attainment of superannuation viz., on 31.12.2003, however without prejudice to the right of the Department from proceeding with the disciplinary proceedings. The 1st respondent has issued the impugned charge memo on 30.12.2003 one day before the date of superannuation of the petitioner and it appears that when the 2nd respondent was appointed as Enquiry Officer, he has issued a notice directing the petitioner to appear for enquiry in June 2004 inspite of the fact that the petitioner was allowed to retire. IT is not in dispute that the Fundamental Rules applies to the service conditions of the petitioner. As per Sub-rule 1(c) to Rule 56 of the Fundamental Rules, which reads as follows:

(3.) APPLYING the above said consistent view taken by the Courts to the facts of the present case, there is absolutely no difficulty to conclude that the charge memo, which has been framed against the petitioner dated 30.12.2003 cannot be continued by the respondents when the petitioner was allowed to retire on 31.12.2003, of course without prejudice to the recovery charges pending against him. There is absolutely no manner of right accrues to the respondent Department by inclusion of the words "without prejudice to the recovery charges pending against him" in the order dated 31.12.2003, unless a positive order is passed under Rule 56(1)(c) of the Fundamental Rules.