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Judgment
T. Raja, J.—The petitioner herein seeks for issuance of a writ of certiorarified mandamus to call for the records relating to the impugned
orders passed by the first respondent in Ref. No. 12046/2008/E1, dated 07.02.2011, and by the 3rd respondent in L. Dis. 1675/2011/D1, dated
23.03.2011, and to quash the same and consequently direct the respondents to refund the sum of Rs. 2,34,731/- to the petitioner with 12% penal
interest for illegally retaining the amount in spite of clear, categorical and unambiguous orders, dated 15.02.2010 and 26.10.2010, passed by this
Court in W.P. Nos. 18277 of 2008 and 8852 of 2010 respectively by computing the penal interest till the date of actual refund of Rs. 2,34,731/-
to the petitioner. Mr. R. Saseetharan, learned counsel appearing for the petitioner, at the first instance, by highlighting the case of the petitioner,
would submit that the petitioner, while working as Divisional Manager under R4-Tamil Nadu Tea Plantation Corporation Limited, Coonoor,
Nilgiris District, was placed under suspension from 19.11.1992 for certain alleged irregularities. In the meantime, he attained the age of
superannuation on 31.12.1993 and he was not allowed to retire. In view of that, the petitioner was allowed to receive the subsistence allowance
by virtue of Rule 56(1)(c) of the Tamil Nadu Government Fundamental Rules (hereinafter referred to as the ''Rules''). Finally, on completion of the
disciplinary proceedings, the Government had issued G.O. Ms. (3D) No. 44, Environment and Forest Department, dated 12.12.2006, and passed
final orders treating the period of suspension from 01.12.1992 to 31.12.2006 as substantive punishment. Pursuant to the said G.O., the first
respondent issued the proceedings in Na. Ka. No. 12046/96/Pa2, dated 19.09.2008, to recover the subsistence allowance already paid to the
petitioner for the period from 01.12.1992 to 31.10.2006 from the pension benefits and to remit the amount to the R-4/Corporation. In view of
that, the petitioner filed W.P. No. 18277 of 2008 challenging the proceedings, dated 19.09.2008, issued by the first respondent. This Court, by
order dated 15.02.2010, had set aside the proceedings issued by the first respondent by holding that the order of recovery of amount already paid
towards subsistence allowance from the petitioner cannot be sustained in the light of the judgment of the Apex Court rendered in Syed Abdul
Qadir and Others Vs. State of Bihar and Others, The petitioner had also filed another writ petition in W.P. No. 8852 of 2010 seeking a direction
to the first respondent to sanction pension and, vide order dated 26.10.2010, by making it clear that there is no question of any further direction
with respect to subsistence allowance already paid to the petitioner, this Court made an observation that in spite of the categorical findings given by
the Court, the conduct of respondent Nos. 3 and 4 in requesting R1 to recover the amount of subsistence allowance paid to the petitioner during
the period of suspension is without any legal ground. So observing, it was held that the respondents are bound to settle the pensionary benefits due
to the petitioner without insisting for recovery of the subsistence allowance already paid to him to the extent of Rs. 7,34,849/-.
Learned counsel appearing for the petitioner would add that, in spite of such specific earlier orders by this Court, by the first impugned order,
dated 07.02.2011, in Ref. No. 12046/2008/E1, R1 instructed R-2 to issue pension authorization after effecting recovery of Rs. 2,34,731/-
towards excess amount paid as subsistence allowance from 30.07.2002 to 31.10.2006. As a result, R-3 recovered a sum of Rs. 2,34,731/- as
ordered in the first impugned order along with other recoveries to the extent of Rs. 7,07,294/- by the second impugned order in L. Dis.
1675/2011/D1 dated 23.03.2011 and remitted the amount by way of cheque to R-4 Corporation. Therefore, according to the learned counsel,
the petitioner left with no other remedy has come to this Court seeking to quash the impugned orders resulting in illegal recovery on the ground that
this Court had already given clear-cut findings that the conduct of the respondents to recover the amount of subsistence allowance paid to the
petitioner is without any legal basis and to direct the respondents to refund the sum of Rs. 2,34,731/- to the petitioner with 12% penal interest
towards illegal recovery by computing the penal interest till the date of actual refund.
By relying upon the instructions under Rule 56(1)(c) of the Rules, it is stated that although the petitioner faced the departmental proceedings
initiated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, during pendency of the departmental proceedings, when
he reached the age of superannuation on 31.12.1993, he was on extension of service for the period from the date of retirement till the date of
termination of the proceedings as he was not allowed to retire. Therefore, when the respondents refused to allow him to retire from service and
retained him for the purpose of completion of the departmental proceedings, the petitioner was entitled to receive the subsistence allowance
beyond the period of superannuation viz., 31.12.1993 till the date of termination of the proceedings. According to him, the subsistence allowance
admittedly paid to the petitioner from 01.12.1992 to 31.10.2006 either wittingly or unwittingly by the Department cannot be allowed to be
recovered as there was no misrepresentation on the part of the petitioner. So submitting, he prayed for grant of the prayer.
Per contra, Mr. M. Hidayathullah Khan, learned Government Advocate (Forests), by referring to the counter affidavit filed by Respondents-1
and 4, would submit that the petitioner, who attained the age of superannuation on 31.12.1993, was not permitted to retire and his services were
extended with continuation of suspension until further orders. In the meantime, by revoking the suspension, he was permitted to retire with effect
from 31.12.1993 without prejudice to the finalization of charge memo issued to him in G.O. (D) No. 238, Environment and Forest Department,
dated 29.07.2002. Therefore, according to the learned Government Advocate, he was not under suspension with effect from 29.07.2002. It
follows that as per Rules-60(1) (a) and 60 (1) (b) of the Tamil Nadu Pension Rules, he should have been paid provisional pension from the date he
reached the age of superannuation, but inadvertently, he was paid with subsistence allowance even beyond the period of superannuation. At any
rate, when the departmental proceedings were completed, it was ordered to treat the period of suspension from 01.12.1992 to 31.10.2006 as
substantive punishment for the proved charges. Subsequently, the first respondent also issued proceedings to the 3rd respondent in Na. Ka. No.
12046/96/Pa2, dated 19.09.2008, to recover the subsistence allowance already paid to the petitioner for the period from 01.12.1992 to
31.10.2006 from the pension benefits and to remit the amount to 4th respondent-Corporation. However, the petitioner filed W.P. No. 18277 of
2008 challenging the said proceedings and this court, by Order dated 15.02.2010, set aside the proceedings of the first respondent dated
19.09.2008 to recover the amount of subsistence allowance already paid to him during the suspension period from 01.12.1992 to 31.10.2006.
Again, when the petitioner filed another writ petition in W.P. No. 8852 of 2010, seeking a direction to the first respondent to sanction pension, this
Court directed the respondents to settle the pensionary benefits due to the petitioner without insisting for recovery of the subsistence allowance
already paid to him. According to the learned Government Advocate, so far as those orders passed by this Court in the above two earlier writ
petitions are concerned, the same were implemented in letter and spirit and the subsistence allowance paid to the petitioner from 19.11.1992 to
July, 2002 were not recovered and only the excess subsistence allowance paid to the petitioner after 29.07.2002 i.e., the date of revocation of the
suspension, to the tune of Rs. 2,34,731/- was recovered at the time of settlement of pensionary benefits. In such circumstances, the petitioner has
no locus standi even to aver the recovery effected after revocation as illegal, for, the respondents adjusted only the overdrawn monetary benefits
by the petitioner at the time of settling the pensionary benefits, otherwise, this will amount to double payment and double benefits which is
impermissible in law. On that basis, he prayed for dismissal of the writ petition.
Mr. V. Vijay Shankar, learned counsel appearing for R-2/Accountant General (A & amp; E) of Tamil Nadu, by referring to the counter affidavit
filed by R-2, would vehemently contend that the petitioner, who had charges against him and some of the charges held to have been proved against
him, had got double benefits viz., payment of subsistence allowance as well as pension, which is nothing but a clear case of unjust enrichment.
According to him, when the period of suspension viz., 01.12.1992 to 31.10.2006, was held as substantive punishment, if he is paid with
subsistence allowance plus provisional pension, both would together amount to 100% salary. Such payment is exclusively prohibited by the
instruction under Rule 56(1) (c) of the Fundamental Rules. Only in that context, the respondents worked out the arrears of pension from
01.01.1994 to 31.10.2006 after adjusting the amount already paid by way of subsistence allowance/provisional pension for the said period. Thus,
according to him, when the impugned orders are fully in tune with what is provided under the Fundamental Rules in particular Rule 56(1) (c)
thereof, no interference is called for at all and the writ petition may be dismissed at the threshold.
Also heard Mr. S.V. Duraisolaimalai, learned Additional Government Pleader appearing for R-3.
It is not in dispute that when the petitioner was serving as Divisional Manager in the fourth respondent-Corporation, he was placed under
suspension from 19.11.1992 for certain alleged irregularities. As a result, departmental proceedings were initiated against him under Rule 17 (b) of
the TN Civil Services (Discipline and Appeal) Rules. During the pendency of the proceedings, the petitioner reached the age of superannuation on
31.12.1993 and he was not allowed to retire. During retention of petitioner''s services, the Department came forward to pay 50% of the
subsistence allowance to the petitioner from the date of suspension i.e., 19.11.1992. Unfortunately, payment of subsistence allowance continued
even after the petitioner reaching the age of superannuation viz., 31.12.1993. In this context, it is relevant to extract below Rule 56 (1) (C) of the
Rules along with the instruction thereto,
(1) Retirement on Superannuation. (a) Every Government servant in the superior service shall retire from service on the afternoon of the last
day of the month in which he attains the age of fifty-eight years. He shall not be retained in service after that age except with the sanction of the
Government on public grounds, which must be recorded in writing but he shall not be retained after the age of sixty years except in very special
circumstances:
Provided that this clause shall not apply to Government servants who are treated as in superior service for the purpose of these rules but as in the
Tamil Nadu Basic Service for the purpose of pension. Such Government servants as well as all basic servants shall retire on attaining the age of
sixty years :
........
(c) Notwithstanding anything contained in clause (a), a Government servant who is under suspension,
(i) on a charge of misconduct; or
(ii) against whom an enquiry into grave charges of criminal misconduct or allegations of criminal misconduct, is pending; or
(iii) against whom an enquiry into grave charges is contemplated or is pending; or
(iv) against whom a complaint of criminal offence is under investigation or trial.
shall not be permitted by the *appointing authority to retire on his reaching the date of retirement, but shall be retained in service until the enquiry
into the charge of misconduct or criminal misconduct or the enquiry into allegations of criminal misconduct or the enquiry into contemplated charges
or disciplinary proceeding taken under rule 17(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or rule 3(c) of the Tamil Nadu
Police Sub-ordinate service (Discipline and Appeal) Rules, as the case may be, in respect of item (iv) above is concluded and a final order passed
thereon by the competent authority or by any higher authority.
Explanation. For the purpose of this clause, the expression criminal misconduct shall have the same meaning as in Section 13 of the Prevention of
Corruption Act, 1988 (Central Act 49 of 1988).
Instruction under Rule 56 (1) (c). Whether a Government servant referred to in clause (c) is fully exonerated or not, he shall be considered to have
been on extension of service for the period from the date of retirement to the date of termination of the proceedings. During such an extension of
service, the service rights which have accrued to the Government servant shall freeze at the level reached on the date of retirement and the salary
during that period shall not exceed the pension which has accrued to the Government servant on that date."" A close reading of the above provision
makes it abundantly clear that a Government Servant, who is placed under suspension and fully exonerated or not, shall be considered to have
been on extension of service for the period from the date of retirement till the date of termination of the proceedings. The instruction further makes
it clear beyond anyone''s doubt that, during such extension of service, the service rights which have accrued to the Government servant shall freeze
at the level reached on the date of retirement and the salary during that period shall not exceed the pension which has accrued to the Government
servant on that date. In other words, when the petitioner was not allowed to retire on reaching the age of superannuation on 31.12.1993, as per
Rule 51 (1)(c) of the Rules, his service right to receive salary or subsistence allowance freezes on the date of retirement. Therefore, he ceases to
receive the monthly salary. When he ceases to receive the monthly salary as a Government Servant and when he no longer continues so for the
reason he is not a Government Servant, it necessarily follows that the petitioner is not legally entitled to receive even the subsistence allowance, for,
the said allowance is only payable to a serving Government Employee placed under suspension in lieu of the salary.
It must be made clear that the provisions for payment of subsistence allowance are made to pay the said allowance in lieu of monthly salary to the
government servants who are in service but not retired. When a government servant retires from service on reaching the age of superannuation, he
ceases to be government servant, therefore, legally, he is neither entitled to get salary nor subsistence allowance even if the pending enquiry is not
complete for the simple reason that, during such an extension of service beyond the period of retirement, the service rights which have accrued to
the government servant shall freeze at the level reached on the date of retirement and the salary during that period is replaced with provisional
pension which has accrued to the government servant on that date as per Rule-56(1)(c) of the Rules. Therefore, undoubtedly, the subsistence
allowance paid to the petitioner beyond 31.12.1993 is liable for recovery by the respondents.
It must also be pointed out that when the respondents sought to recover the same, this Court, as stated earlier, ordered not to recover the same
and accordingly the respondents also had given up recovery of the said amount. Finally, when they came forward to pay the pension, at such stage,
they are entitled to implement the order of punishment treating the period of suspension from 01.12.1992 to 31.10.2006 as substantive punishment
and also the punishment of stoppage of full pension for a period of 5 years was imposed on him vide G.O. (3D) No. 44, dated 12.12.2006.
Therefore, the earlier orders of this Court in ordering not to recover the subsistence allowance does not mean that the respondents are also
restrained to re-adjust the same at the time of disbursal of the terminal/pensionary benefits. It must be highlighted at this juncture that if the plea of
the petitioner that no recovery should be made is accepted, then the punishment imposed on him as mentioned above for the misconduct of the
petitioner would be rendered totally meaningless and it would amount to paying double premium to the bad conduct of the petitioner which cannot
be allowed by this court. Also, the petitioner served in the rank of a Gazetted Officer and it is seen that he was also the Pension Sanctioning
Authority for his subordinates. Thus, it goes without saying that he was well-versed with the Pension Rules and he should not have accepted the
subsistence allowance inadvertently paid to him after he was allowed to retire on 29.07.2002. When he received the said allowance despite fully
knowing that he was ineligible to receive the same, this Court has no hesitation to observe that, in a way, he is guilty of misrepresentation and his
action does not deserve any indulgence by this Court. Even otherwise, any indulgence would only result in allowing the petitioner to gain unjust
enrichment which can never be permitted by this Court. Therefore, having regard to Rule-56(1)(c) read with the instruction thereto as well as the
T.N. Pension Rules in particular Rule 69(2) thereof, this Court holds that the subsistence allowance worked out at 50% of salary and the pension
worked out at 50% of pay last drawn actually worked out to 100% of salary which was received by the petitioner beyond the date of
superannuation is clearly prohibited. Therefore, the Department is at liberty to adjust whatever amount that is wrongly paid to the petitioner from
and out of the pension/terminal benefits without reference to the earlier orders of this Court as those orders have nothing to do with the adjustment
of the sums wrongly paid to the petitioner and received by him knowing fully well that he is not eligible to receive the same.
Consequently, the Writ petition fails and it is dismissed with the above observation. However, there will be no order as to costs.