There is no provision in TANCEM service Rules, reserving right to continue disciplinary proceedings after superannuation.

Common Judgment (P. Sathasivam, J.)

In W.P. No.18952 of 2003, the petitioner challenges the charge memo, dated 16.09.2002, issued by the 1st respondent/Tamilnadu Cements Corporation Limited (TANCEM), and Order dated 30.06.2003, and seeks to quash the same insofar it states that he is being retired without prejudice to the pending disciplinary proceedings against him; and on the ground that withholding the terminal benefits is illegal, arbitrary, without any authority and jurisdiction, and contrary to the service regulation of the first respondent/Corporation.

In W.P. No.18953 of 2003, he challenges another charge Memo dated 15.05.2001, here again, to the extent reserving the right of the authority to proceed with the disciplinary proceedings.

2. In view of the common order to be passed here-under, we are of the view that it is unnecessary to refer all the factual details, however, it is relevant to note that the petitioner joined the services of the first respondent as Assistant Manager during the year 1975. From 1991, he was working as General Manager in Ariyalur Cement Works of the first respondent. He was issued with a charge sheet dated 24.05.1995, whereupon, the first respondent, after conducting enquiry, imposed punishment on 01.03.1996. The appeal preferred by the petitioner was also rejected and he had also undergone the punishment. While so, another charge memo, dated 16.09.2002, came to be issued on identical allegations. On a concluded proceeding, the first respondent wanted to proceed further, which is without jurisdiction. The petitioner attained the age of superannuation as per Rule 2.22 of the Service Rules of the first respondent, on 30.06.2003. It is his claim that, till the date of his superannuation, ie., 30.06.2003, the domestic enquiry proceedings in respect of the charge memo dated 16.09.2003 were not conducted. By order dated 30.06.2003, the first respondent permitted the petitioner to retire from 30.06.2003 without prejudice to the disciplinary proceedings pending against him, mentioning that the terminal benefits will be withheld till final orders are passed in the disciplinary proceedings. Similar order was passed in respect of other charge memo.

3. Heard Mr. Balan Haridas, learned counsel for the petitioner and Mr. Karthik, learned counsel for the first respondent.

4. Learned counsel for the petitioner, after taking us through the entire Service Rules applicable to the employees of Tamil Nadu Cements Corporation Limited, submitted that inasmuch as the petitioner attained the age of superannuation on 30.06.2003 and was also permitted to retire on the said date, under the Service Rules, there is no power vested in the authority to proceed against an employee after his attaining superannuation, thus, the impugned orders, permitting the petitioner to retire but without prejudice to the right of the Corporation to proceed with the disciplinary proceedings, initiated pursuant to the charge memos, are illegal and without jurisdiction.

5. Mr. Karthik, learned counsel appearing for the respondents fairly admitted that, as per the Service Rules of TANCEM, there is no enabling provision to continue the disciplinary proceedings against an employee after his attaining superannuation.

6. We verified the Service Rules of the Tamil Nadu Cements Corporation Limited. There is no specific enabling provision, empowering the Management to continue the disciplinary proceedings against an employee even after his attaining superannuation, thus, there is a lacunae in the Service Rules of the Corporation.

7. In the decision reported in 1999 (2) L.L.N. 993 (Bhagirathijena v. B.D., O.S.F.Corporation), the Hon'ble Supreme Court considered the effect of continuance of disciplinary proceedings after superannuation in the absence of specific provisions in Orissa State Financial Corporation Staff Regulations, 1975. The following conclusion in paragraph Nos.6 & 7 are relevant and the same is extracted below:-

"6. It will be notic