The main legal point established in the judgment is that amended rules cannot be applied retrospectively to take away the vested right of an employee to retire, and that charges framed after retirement suffer from legal malice.

1. The petitioner, after completing 30 years of service with the respondent department, was due to retire on 31.01.1994, as Executive Engineer. On the date of his retirement, the petitioner was suspended from service and was not permitted to retire, on the ground that on the date of retirement, charges were pending against the petitioner.

2. It was after more than one year of the date of superannuation, that the petitioner was issued a charge memo on 12.10.1995 on the following charges:

CHARGE NO.1:-

ThiruS.Thirumalai Kumarasamy, Executive Engineer (Under suspension) in his former capacity as Executive Engineer, P.W.D. Madurai Division, Madurai made payments to a tune of Rs.1,91,105/-to the contractor Thiru S.M.Pandian based on bogus measurements for the works of (i) Special Repair to Flood bank to feed sadachipatti tank supply odai in Sadachapatti village of Usilampatti Taluk in reach L.S.O M to 250 M and 1250 M to 1500 M which is in gross-violation of Article 4 of TNFC Vol.I.

CHARGE NO.2:-

In gross violation of para-25 of P.W.'D' code he had failed to manage the said works, but colluded with his subordinate and defrauded the Government to a tune of Rs.1,91,105/- being the payment made to the contractor, Thiru S.M.Pandian, based on bogus and fictitious measurements.

CHARGE NO.3:-

That by committing the said grave irregularities he had failed to maintain absolute integrity and devotion to duty and thereby violated rule.20 of TNGSC rules."

3. The charges relate to occurrence of the year 1992 and 1993, therefore, the submission of petitioner was that framing of charges after one year of date of superannuation, suffers from legal malice.

4. It was also submitted that the petitioner could not be responsible for the alleged charges for reason that the entire division comes under the control of the Exective Engineer concerned, and it is on the recommendation of the subordinates, that the bills are sanctioned. It is, therefore, practically impossible for the Executive Engineer to check and measure the entire works under his control along with other routine responsibilities.

5. It was submission of petitioner that the Public Works accounts code makes it mandatory for the Executive Engineer to check measure only in the event of value consists of two estimates for two reaches, both of them not exceeding one lakh. Since the distance between the two reaches is more than 1000 metres, they could not be done unitedly, therefore, was treated as different reaches. The case of petitioner is that it is only to frame charges, that above estimates of two reaches have been added to value estimates of Rs.1,91,105/-.

6. The petitioner submitted a detailed reply to the charge memo on 04.05.1996, but because of various ailments, with which petitioner was suffering, he could not effectively participate in the enquiry. The enquiry was held exparte, and the charges were held to have been proved against petitioner.

7. The enquiry officer in the enquiry report accepted that as per the provisions of Public Works accounts code, that the Executive Engineer was not to supercheck works estimated below Rs.1 lakhs.

8. The petitioner filed detailed objections to the enquiry report. Being dissatisfied with the explanation, the petitioner was removed from service. The petitioner has challenged the impugned order of removal by invoking the writ jurisdiction of this Court.

9. Learned counsel for the petitioner has challenged the impugned order;

i) firstly on the ground that, the order of removal from service is null and void, as no order of removal could be passed after the date of superannuation, in absence of order of retention in service;

ii) secondly on the ground that, the order of removal is arbitrary and discriminatory, therefore, is violative of Article 14 & 16 of the Constitution of India, as the person, who was responsible for recommending payment of bill, was not punished;

iii) thirdly that, the report of enquiry officer is perverse,