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2013 DIGILAW 462 (MAD)

G. Nagendran v. District Election Officer

2013-01-21

K.RAVICHANDRABAABU

body2013
ORDER : K. Ravichandrabaabu, J. The petitioner challenged the order of suspension passed by the second respondent. The case of the petitioner is that the petitioner is working as a Co-operative Sub-Registrar, having entered into service in the year 1987. On 4.8.2006, the petitioner was suffering with viral fever. In spite of such position, he attended the office. The first respondent, through proceedings, dated 25.8.2003, appointed the petitioner as 'Assistant Returning Officer' for conducting election to the post of President of Village Panchayats. The petitioner made a representation on 1.9.2006 to the first respondent informing about his inability to discharge his duty as 'Assistant Returning Officer', in view of his ill-health. The petitioner was under the impression that his request would be considered by the first respondent. Thereafter, his health condition got deteriorated and subsequently, he was unable to attend his official duties. Therefore, from 20.9.2006 onwards, he went on medical leave. He applied for such medical leave with medical certificate and submitted a copy of the same to the first respondent. When that being the position, the second respondent passed the impugned order on 26.9.2006, placing the petitioner under suspension on the ground that the petitioner had committed refusal and disobedience to perform election duty and also on the ground that an enquiry into grave charges against the petitioner was contemplated. The said order of suspension is challenged by the petitioner in this writ petition. 2. The first respondent filed a counter affidavit and in which, it is stated that the petitioner's absence in election duty is an utter wilful and wanton disobedience on his part to perform as 'Assistant Returning Officer'. The duty of the Assistant Returning Officer assigned to the petitioner did not involve any tour, but to sit at the Headquarters fixed for the purpose of receiving nominations etc. Therefore, it is clear that the petitioner had wilfully and wantonly disobeyed the order of the District Election Officer. Consequently, the District Election Officer, as per the powers conferred under Rule 5(1) of the Tamil Nadu Panchayat (Election) Rules, 1995 addressed the second respondent to place the petitioner under suspension with immediate effect on the ground of refusal and disobedience to perform election duty. Accordingly, the second respondent issued the impugned order. 3. The respondents 2 and 3 filed a separate counter affidavits. Accordingly, the second respondent issued the impugned order. 3. The respondents 2 and 3 filed a separate counter affidavits. The sum and substance of the counter affidavits of the respondents 2 and 3 are on the same line as stated by the first respondent in his counter affidavit. 4. The learned counsel appearing for the petitioner would submit that the petitioner was prevented from discharging his function as 'Election Officer', in view of his ill health, which is substantiated and supported by the medical certificate issued by the Doctor. 5. The learned counsel also submits that the order of suspension came to be passed as early as on 26.9.2006 and till this date, no further progress had taken place by initiating any other departmental proceedings against the petitioner. The learned counsel has also relied on a Circular, dated 31.12.1997 issued by the Registrar of Co-operative Societies, Chennai, to contend that the petitioner, being the Sub-Registrar, could be placed under suspension only after getting clearance from the Registrar of Co-operative Societies. Therefore, the learned counsel appearing for the petitioner submitted that in view of the fact that there was no further proceedings, in pursuant to the suspension order for all those years and in view of the fact that the very suspension order was passed without obtaining clearance from the Registrar of Co-operative Societies, the petitioner is entitled to succeed in this writ petition. 6. Per contra, the learned Additional Government Pleader appearing for the respondents submitted that the petitioner was placed under suspension rightly by the second respondent as he had committed refusal and disobedience to perform the election duty. 7. Heard the learned counsels appearing for the respective parties. 8. It is seen that the petitioner was placed under suspension on 26.9.2006 on the ground that he had committed refusal and disobedience to perform the election duty and also by stating that an enquiry into grave charges against the petitioner was contemplated. No doubt, the said order of suspension was challenged by the petitioner in this writ petition and he obtained interim stay. Consequently the petitioner is now working as the Sub Registrar continuously. If at all, the respondents have contemplated any enquiry against the petitioner as stated in the impugned order of suspension, nothing prevented them from initiating and proceeding with further proceedings against the petitioner all these years. Consequently the petitioner is now working as the Sub Registrar continuously. If at all, the respondents have contemplated any enquiry against the petitioner as stated in the impugned order of suspension, nothing prevented them from initiating and proceeding with further proceedings against the petitioner all these years. The fact remains that no such proceedings were initiated against the petitioner, in pursuant to the impugned order of suspension. 9. It is also admitted by the learned Additional Government Pleader that no further proceedings had been initiated or issued against the petitioner. Thus, it is manifestly clear that even though, the suspension order says that pending contemplation of enquiry the petitioner was placed under suspension, in view of the fact that no such proceedings were initiated even after a long lapse of more than 7 years, I am of the view that the suspension order cannot be prolonged any more. Even otherwise, it is seen from the proceedings of the Registrar of Co-operative Societies through his circular, dated, 31.12.1997, no suspension of a Sub-Registrar could be made without getting clearance from the Registrar of Co-operative Societies. There is no material placed before this Court to show that any such clarification was obtained by the second respondent before passing the order of suspension. At any event, whether the circular is applicable to the case of the petitioner, who was placed under suspension in pursuant to the exercise of power conferred under Rule 5(1) of the Tamil Nadu Panchayat (Election) Rules, 1995 is question on which, I do not wish to express any opinion on theses aspects, as I am fully convinced that the prolonged suspension without there-being any subsequent departmental proceedings, cannot be sustained. Accordingly, the writ petition is allowed and the impugned order is set aside. Consequently, connected Miscellaneous Petition is closed. No costs.