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2016 DIGILAW 4025 (MAD)

P. Nirmal Nesakumar v. District Collector

2016-11-24

M.V.MURALIDARAN

body2016
ORDER : M.V. Muralidaran, J. The case of the Writ Petitioner is that he was initially appointed as Water Supply Attender in Thoothoor Village Panchayat on 15.11.1984 and his service was regularized with effect from his initial date of appointment and subsequently, the Petitioner was promoted to the post of Bill Collector-cum-Group Clerk on 27.08.1997. The Petitioner was terminated by the then President of Thoothoor Village Panchayat on 06.08.1999, without conducting any enquiry and he is incompetent authority also. Against the order of termination, dated 06.08.1999, the petitioner filed O.A.No.3688 of 2002 before the Tamilnadu Administrative Tribunal, Chennai, and the Tamil Nadu Administrative Tribunal granted Interim Order on 26.08.2002. But the then President of Village Panchayat refused to implement the Tamil Nadu Administrative Tribunal Interim Order. After abolition of Tamil Nadu Administrative Tribunal the said O.A.No.3688 of 2002 was transferred to this Court and renumbered as W.P(MD)No.8815 of 2006. This Court allowed the Writ Petition in W.P(MD)No.8815 of 2006 on 09.10.2007 and set-aside the termination order by directing the respondents to all monetary and service benefits to the petitioner. 2. As per orders of this Court without reinstating the Petitioner, the then President of Village Panchayat suspended the Petitioner in his proceedings, dated 20.12.2007, with retrospective effect i.e. from 06.08.1999 and consequently, issued a charge memo in his proceedings, dated 16.04.2008. 3. In the mean time, the District Collector, Kanyakumari and Block Development officer Munchirai Panchaayt Union, preferred an appeal against the order dated 09.10.2007 made in W.P.No.8815 of 2006 in W.A(MD)Nos. 661 & 662 of 2008, which were dismissed by the Hon'ble Division Bench, on 21.10.2008, on the ground that the Service Conditions of the Writ Petitioner are governed by the statutory provisions i.e. Kanyakumar District Village Panchayat Group Clerk-cum-Bill Collectors (Appointment, Discipline and Appeal) Rules, 1997, which was deemed to have come into force from 22.04.1994 and the competent authority is the District Collector and not the President. 4. Therefore the Petitioner filed two Writ Petitions before this Court in W.P.(MD)Nos.5023 & 5024 of 2009 with the prayer to quash the order of suspension and Charge memo issued by the then President of Village Panchayat. This Court granted an order of Interim Stay on 19.06.2009 by staying the order of suspension and charge memo. 4. Therefore the Petitioner filed two Writ Petitions before this Court in W.P.(MD)Nos.5023 & 5024 of 2009 with the prayer to quash the order of suspension and Charge memo issued by the then President of Village Panchayat. This Court granted an order of Interim Stay on 19.06.2009 by staying the order of suspension and charge memo. But the then President of Village Panchayat refused to implement the Order of this Court and therefore, the Writ Petitioner filed a Contempt Petition before the Hon'ble Division Bench, in Cont.P(MD)No.474 of 2009 for non-implementation of the order made in W.A(MD)Nos.661 and 662 of 2008. Thereafter, the District Collector, Kanyakumari in his proceedings, dated 27.10.2009, set aside the order of suspension issued by the then President in his proceeding No.A1/30/2007, dated 20.12.2007, and consequently, issued a direction to reinstate the petitioner into service as Group Clerk-cum-Bill Collector in Thoothoor Village Panchayat. The Petitioner was reinstated in service on 14.12.2009. The Contempt Petition No.474 of 2009 was closed by the Hon'ble Division Bench of this Court on 15.12.2009 on the ground that the Petitioner was reinstated into service on 14.12.2009 and further the condemner seeking permission to pay the arrears of salary to the Petitioner in an instalments basis due to the financial constrains of Panchayat. Thereafter, the Block Development Officer in his proceedings in Na.Ka.A8/1504/2009, dated 13.04.2010, calculated the back wages and directed the Panchayat to pay the calculated amount by granting sanction. The Block Development Officer also directed the Panchayat to pay the calculated amount without any delay by communication, dated 11.06.2010. The President of Thoothoor Village Panchayat passed an order in his proceedings, dated 16.05.2011, and withdraw the charge memo issued against the petitioner on the ground that he is not the competent authority. 5. The Block Development Officer, Munchirai Panchayat Union issued memo to the Petitioner in his proceedings, dated 05.11.2012, and stated that the services of the petitioner is not regularized and without getting prior permission the arrears of pay were disbursed to the petitioner from 06.08.1999 to 27.10.2009. Against the above Block Development Officer's notice, the President of village panchayat issued a detailed legal notice to the District Collector and Block Development Officer through his counsel on 16.11.2012 and categorically referred the Counter Affidavit filed by them in Cont.P.No.474 of 2009. Against the above Block Development Officer's notice, the President of village panchayat issued a detailed legal notice to the District Collector and Block Development Officer through his counsel on 16.11.2012 and categorically referred the Counter Affidavit filed by them in Cont.P.No.474 of 2009. Therefore, the petitioner filed Cont.P(MD)No.590 of 2014 before the Hon'ble Division Bench of this Court against the District Collector and Block Development Officer for violation of undertaking affidavit filed in the earlier Cont.P(MD)No.474 of 2009. 6. The Writ Petitioner further stated that on receipt of the notice from this Court, the District Collector and Block Development Officer threatened the Petitioner to withdraw the Contempt Petition filed before this Court, failing which, dire consequences will be faced. Thereafter, the Block Development Officer, Munchirai issued a charge memo in his proceedings, dated 09.05.2014 and stated that the Petitioner has misused a Thoothoor village Panchayat cheque and misappropriated the amount a sum of Rs.96,020/- and the same was subsequently, remitted in the Panchayat Account. The Petitioner submitted his detailed explanation and denied the charges levelled against him on the ground that he is not the custodian of the Panchayat Cheque and further he stated that the amount was withdrawn by the President of Village Panchayat as Self Cheque and further stated that the Block Development Officer is the incompetent authority to issue charge memo. Therefore, the Petitioner filed a Writ Petition before this Court in W.P. (MD)No.8825 of 2014 with the prayer to quash the charge memo issued by the Block Development Officer, Munchirai Panchayat Union in his proceedings, dated 09.05.2014. 7. Thereafter, the Block Development Officer issued a recovery order in his proceedings A8/125/2013, dated 10.02.2014 stating that the Audit conducted by one Mr. Kutralam, Deputy Block Development Officer (Audit) raised objections in granting monetary benefits to the Petitioner from 06.08.1999 to 30.11.2011 on the ground that the fixation was without getting any prior permission from Block Development Office. The case of the Petitioner is that his salary was fixed by the then Block Development Officer Munchirai Panchayat Union, and the same was counter signed by the auditor Mr. Kutralam, when he was working as Assistant in Munchirai Panchaayt Union and handling the Petitioner file. Now, the very same officer has made wrong statements in the audit report and stated that the pay fixation made infavour of the Petitioner is wrong. Kutralam, when he was working as Assistant in Munchirai Panchaayt Union and handling the Petitioner file. Now, the very same officer has made wrong statements in the audit report and stated that the pay fixation made infavour of the Petitioner is wrong. Therefore, the Petitioner filed a writ Petition before this Court in W.P.(MD)No.11531 of 2014 and this Court was pleased to grant Interim Order on 15.07.2014. On receipt of the copy of the Interim Order from this Court, the Block Development Officer issued another charge memo in his proceedings, dated 17.07.2014, after lapse of 4 years for the incident took place in the year 2010. Since the Block Development Officer, Munchirai in his proceedings dated 02.02.2010 directed the Petitioner to take additional charge of Kulappuram Village Panchayat and then the Petitioner assumed the additional charge in kulappuram village panchayat on 12.02.2010. Thereafter, one Mr. Raju was deputed to Kulappuram Village Panchayat and therefore, the Petitioner was relieved from Kulappuram Village Panchayat on 17.09.2010. The Petitioner further stated that the Block Development Officer is the incompetent authority to take disciplinary action against the Petitioner. 8. Further the Petitioner stated that in every financial year an audit was conducted by the auditing party and if any error is found, it should be rectified within the next audit. Further, the Panchayat President and Vice President are the custodian of Panchayat Cheques and the Petitioner never handled any Panchayat amount as alleged by the Respondents. Therefore, the Block Development Officer issued the charge memo after lapse of four years from the date of incident and more particularly on the date of occurrence i.e. on 21.03.2011 when the Petitioner was not working in Kulappuram Village Panchayat, since as per orders of the Block Development Officer, the Petitioner was relieved from the above Panchayat on 17.09.2010. Therefore, the allegations made against the Petitioner is baseless. 9. The Petitioner further submits that for the very same allegations narrated in the charge memo, dated 09.05.2014, the District Collector, Kanyakumari has directed the Block Development Officer to made a complaint before the Nithiravilai Police and the same was registered in Crime No. 219/2014 and the Petitioner was arrested by the police. Based on the criminal case, the Petitioner was placed under suspension by the District Collector in his proceedings dated 02.07.2014. Based on the criminal case, the Petitioner was placed under suspension by the District Collector in his proceedings dated 02.07.2014. The petitioner was detained in police custody more than 48 hours and therefore, the petitioner was placed under suspension under sub rule (b) of Rule 14 of Kanyakumari District Village Panchayat Group Clerk cum Bill Collector (Appointment, Discipline and Appeal) Rules 1997, with retrospective effect. 10. Against the suspension order the Petitioner filed a Writ Petition before this Court in W.P.(MD)No.14574/2014 on the ground that the suspension order was issued with mala fide intention. Since in an earlier occasion, the President of Thoothoor Village Panchayat made a complaint before the Nithiravilai Police Station alleging that the Cheque books were taken away by the Petitioner from panchayat office, the complaint was registered in Crime No. 281/2013 and the same was closed as 'Mistake of Fact' and further the Thoothoor Village Panchayat President received all Cheque Books and Panchayat Records in front of Nitiravilai Police Personnel on 09.12.2013 and acknowledged the same. Now, the Block Development Officer made a complaint alleging that one of the Cheque was over right by the Petitioner and the amount was misappropriated. The case of the Petitioner is that the cheque was signed by the President and Vice-President and the amount was withdrawn from the bank by way of Self Cheque. The Bank authorities should be obtained the signature from the person in the over-leaf of the Cheque, who presented the cheque other than the person signed in the cheque. So far as the present case is concerned the Petitioner has not signed in the cheque in anywhere. Therefore, the allegations made against the Petitioner is baseless and the criminal complaint is lodged by the Block Development Officer with mala fide intention and more particularly, the present suspension order is issued on the ground that the Petitioner has initiated Contempt Proceedings against the Respondents before this Court. Against the illegal registration of FIR, the Petitioner filed a Quash Petition before this Court in Crl.O.P.(MD)No.13683/2014 and this Court was pleased to grant an order of Interim Stay on 19.08.2014 and stayed all further proceedings of Cr.No. 219/2014 on the file of the Nithiravilai Police Station. Against the illegal registration of FIR, the Petitioner filed a Quash Petition before this Court in Crl.O.P.(MD)No.13683/2014 and this Court was pleased to grant an order of Interim Stay on 19.08.2014 and stayed all further proceedings of Cr.No. 219/2014 on the file of the Nithiravilai Police Station. Therefore, the Writ Petitioner made representation with the District Collector on 25.08.2014 with the request to revoke the suspension and the same was not considered and therefore, the Petitioner filed a Writ Petition (MD)No. 14574 of 2014 with the prayer to quash the suspension order. 11. The Block Development officer, Munchirai Panchayat Union filed detailed counter affidavit denying the allegations made by the Writ Petitioner. Further, the Block Development officer, Munchirai Panchayat Union has stated that the petitioner while working in Thoothoor Village Panchayat has involved in misappropriation of Village Panchayat Fund by tampering a bank cheque of Rs. 9.602/- as Rs.96,020/- (both in figure and words) and fabricated the office records in his favour to usurp the Government money. The chance for filing reply on the charge memo has been provided to the petitioner. There is also provision of appeal with the appropriate authority if any order passed on the charge memo. No ground made out to challenge the charge memo. 12. Further the Block Development officer, Munchirai Panchayat Union stated that a criminal case has been registered against the petitioner in Cr.No.219/2014 u/s 409, 465, 467, 471 IPC in Nithiravilai Police Station for the criminal offence mentioned in this petition and he was detained on 27.06.2014. Since the period of detention was exceeded 48 hours, the petitioner herein was placed under suspension by the District Collector, Kanniyakumari District vide Roc.V3/14179/2014 dated 02.07.2014. The Writ Petitioner also tampering a EB receipt of Rs.20/- as Rs. 66,000/- and fabricated the office records in his favour to usurp the Government money. The petitioner is a habitual petition monger who is playing hide and cheek with the Court and hoodwinking the Court from the year 1998, by filing independent cases for the same service matters on different occasions, without reference either to the previous litigations. 13. In the whole State of Tamilnadu, only Panchayat Assistants are appointed to Village Panchayats and not any Group Clerk-cum-Bill Collector. 13. In the whole State of Tamilnadu, only Panchayat Assistants are appointed to Village Panchayats and not any Group Clerk-cum-Bill Collector. On State's Reorganization, the Kanyakumari District was merged with Tamilnadu on 01.11.1956 and subsequently, certain Town Panchayats were converted to Village Panchayats paving way to excess of 57 Bill Collectors, who were allowed to work in the Village Panchayat as Group Clerk-cum-Bill Collectors. They were assigned with duty in one or more Village Panchayats as a Group. To govern their services, Kanyakumari District Village Panchayat Group Clerk-cum-Bill Collectors (Appointment, Discipline and Appeal) Rules, 1997 was framed vide G.O.Ms.No.278 Rural Development Department dated 11.09.1997. These rules were amended vide G.O.Ms.No.137 Rural Development Department dated 07.09.2004 banning appointment from 15.10.1996 and regulating these rules applicable only to Bill Collector who are in service prior to 15.10.1996. The Government in G.O.Ms.No.225 Rural Development Department dated 15.10.1996 have appointed the Village Panchayat President as the Executive Authority of the Panchayat and as the controlling authority of Panchayat staffs. The Government in G.O.Ms.No.230 Rural Development Department dated 15.10.1996 have provided powers to the President concerned to appoint part-time Panchayat Assistant in their respective village panchayats. Except as provided for by the Government orders, the Government in G.O.Ms.No.93, Rural Development Department, dated 26.03.1997 have directed that no fresh appointment on part time/NMR/Full Time/Temporary Basis of any category of staff should be made by any of the local bodies. Subsequently for removal of all doubts, the Government in its letter No. 135/E5/1996 dated 17.06.1997 have banned appointment of Group Clerk-cum-Bill Collector, specifically. 14. The Block Development officer, Munchirai Panchayat Union has further stated that the petitioner have filed a Contempt Petition No.474 of 2009 in W.A.(MD) No.661 of 2008 against the President, and the President in due compliance of the order passed by this Court, has directed the petitioner to join and continue to work as Bill Collector and as such he joined duty on 16.12.2009. The petitioner was not in Government service from 06.08.1999 till 15.12.2009. Based on the orders of the Hon'ble Apex Court in various occasions, the strategy of "No work No pay" has to be followed in this case too. The petitioner was not in Government service from 06.08.1999 till 15.12.2009. Based on the orders of the Hon'ble Apex Court in various occasions, the strategy of "No work No pay" has to be followed in this case too. But the petitioner has filed writ petitions in W.P.(MD) No.7494/2008, 2709/2010, 2996/2011, 9003/2011 and Contempt Petition No. 382/2014 in W.P.(MD) No.8815/2006 for subsistence allowances/arrear of salary for the period he has not worked and by way of colluding with officials, he had drawn money from the Panchayat Fund without any proper authority. The Government of Tamilnadu in Letter No.97731/94-4/N Personal and Administrative Reforms Department dated 04.04.1995 has provided liberty to an officer subordinate to the appointing authority to initiate disciplinary proceedings. Thus, the impugned order stands valid and there is no question of competency. Therefore, the respondents are prayed this Court that the Writ Petitions are liable to be dismissed. 15. Heard Mr. M. Saravanakumar, learned Counsel of the Petitioner as well as Mr. K. Guru, Learned Additional Government Pleader appearing the 1st Respondent and Mr. T.S. Mohammed Mohideen for 2nd Respondent and perused all the relevant records produced by both parties. 16. The Writ Petitioner was terminated without enquiry and he got the interim stay of Termination before the Tamil Nadu Administrative Tribunal and same was not obeyed. After abolition of Tamil Nadu Administrative Tribunal the case was transferred to this Hon'ble Court and the same was renumbered as W.P.(MD)No.8815 of 2006. The said Writ Petition was allowed on 09.10.2007 and thereby the Petitioner is entitled to reinstatement with back wages and monetary benefits. The order passed in the above Writ Petition was not implemented and Contempt Notice was issued and thereafter, the District Collector and the Block Development Officer preferred Writ Appeal and the Writ Appeal was dismissed. Thereafter the Writ Petitioner filed Contempt Petition No.474/2009 and the Respondents filed Counter stating that Petitioner was reinstated on 14.12.2009 and seeking permission to pay the arrears of salary of Petitioner in instalments due to the financial constrains of Panchayat. The Petitioner was deputed to Kulapuram Village Panchayat to hold the additional charge by order dated 12.02.2010. He was doing the allotted work both in Thoothoor Village Panchayat and as well as Kulapuram Village Panchayat. The Petitioner was deputed to Kulapuram Village Panchayat to hold the additional charge by order dated 12.02.2010. He was doing the allotted work both in Thoothoor Village Panchayat and as well as Kulapuram Village Panchayat. Thereafter, the Competent authority namely, Block Development Officer in his proceedings, dated 13.04.2010, calculated the back wages and directed the Panchayat to pay the calculated amount by granting sanction. The Block Development Officer also directed the Panchayat to pay the calculated amount without any delay by communication dated 11.06.2010. The Block Development Officer, by order dated 17.09.2010, relieved the Petitioner from the Kulapuram Village Panchayat from holding the post of Additional charge. On 17.09.2010, the entire charge along with panchayt record was duly checked and received by the Panchayat authority after making the necessary acknowledgement. That being the situation, the District Collector directed the Village Panchayat to pay the arrears immediately as per the Block Development Officer's Communication, by order dated 30.06.2011. Consequently, monetary benefits were paid. Therefore, arguments advanced by the respondent's counsel that 'no work, no pay' will not be applicable to the present case. Since the respondents filed an undertaking affidavit before the Hon'ble Division Bench of this Court seeking permission to pay the arrears of salary of petitioner in instalments due to the financial constrains of Panchayat and the same was accepted and the respondents were exonerated from the contempt proceedings. Now, the Respondents have no locus standi to state that without getting prior permission from them, the Panchayat has disbursed the arrears of salary of the Petitioner is erroneous and the same cannot be accepted. Since the judgment of the Hon'ble Apex Court in the case of State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334 , categorically held that recovery from the employees belonging to Class III and Class IV (Groups C & D) would be impermissible in law. Since the petitioner also belongs to Class III and Class IV (Groups C & D), in the light of the recent judgment mentioned above, the impugned order of recovery is liable to be set aside. 17. Further the Hon'ble Division Bench categorically held that the Service Conditions of the Writ Petitioner are governed by the statutory provisions i.e. Kanyakumar District Village Panchayat Group Clerk-cum-Bill Collectors (Appointment, Discipline and Appeal)Rules, 1997. 17. Further the Hon'ble Division Bench categorically held that the Service Conditions of the Writ Petitioner are governed by the statutory provisions i.e. Kanyakumar District Village Panchayat Group Clerk-cum-Bill Collectors (Appointment, Discipline and Appeal)Rules, 1997. Therefore, the stand taken by the respondents in their counter the Petitioner service is governed in G.O. Ms. No. 225, Rural Development Department, dated 15.10.1996, and the Executive Authority of the Panchayat is the controlling authority of Panchayat staffs is not accepted. The Government in G.O.Ms.No.230, Rural Development Department, dated 15.10.1996, have provided powers to the President concerned to appoint part-time Panchayat Assistant in their respective village panchayats. So far as the Petitioner is concerned, he was appointed on 15.11.1984 even prior to the issuance of the above Government Order. Therefore, the respondents contention cannot be accepted at this juncture. Therefore, the charge memos are issued by the incompetent authority and hence the charge memos is liable to be quashed. 18. Therefore, in my considered view, when this Court clearly held in the judgment made in W.A.(MD)Nos.661 & 662 of 2008 that the Service Conditions of the Writ Petitioner are governed by the statutory provisions i.e. Kanyakumari District Village Panchayat Group Clerk-cum-Bill Collectors (Appointment, Discipline and Appeal) Rules, 1997 which was deemed to have come into force from 22.04.1994 and the competent authority is the District Collector and not the President and therefore, the Charge memos issued by the Block Development officer is liable to be quashed. 19. The petitioner has been placed under suspension by the District Collector in his proceedings Roc. No.V3/14179/2014 dated 02.07.2014 since then, he has been receiving subsistence allowance, however, on completion of six months period of suspension, he is being paid 75% of the salary as subsistence allowance. When the petitioner has been under prolonged suspension, he has made representations to the respondents requesting to review the same, but the same was not considered. As on today, the criminal case also stayed by this Court in Crl.O.P(MD)No. 13683 of 2014, for the reason that the criminal case has not yet been over, suspension of the petitioner need not be prolonged. Records show that when the petitioner has made representations to the respondents praying to review the prolonged suspension, the same was not considered by the respondents. But the respondents, who are aware of the payment of 75% of subsistence allowance for a long time. Records show that when the petitioner has made representations to the respondents praying to review the prolonged suspension, the same was not considered by the respondents. But the respondents, who are aware of the payment of 75% of subsistence allowance for a long time. In my considered opinion, the respondents should have considered the revocation of the prolonged suspension by posting him in an effort to extract work as he has been paid with 75% of the salary without extracting any work. This view is further supported by the judgment of the Hon'ble Apex Court in the case of Ajay Kumar Choudhary v. Union of India reported in 2015 (7) SCC 291 . 20. Accordingly I am passing the following orders:- W.P (MD)No.8825 of 2014 and W.P (MD)No.11886 of 2014 are allowed on the ground that the charge memos are issued by the incompetent authority and with liberty to the competent authority to proceed afresh, if so advised. W.P (MD)No. 11531 of 2014 is allowed and the recovery order passed by the Block Development Officer, Munchirai Panchayat Union in his proceedings A8/125/2013 dated 10.02.2014 is set-aside. W.P (MD)No. 14574 of 2014 is allowed and the suspension order issued by the District Collector in proceedings Roc. No.V3/14179/2014 dated 02.07.2014 is setaside, based on the Hon'ble Apex Court Judgment made in the case of Ajay Kumar Choudhary v. Union of India reported in 2015 (7) SCC 291 . 21. No Costs. Consequently connected Miscellaneous Petitions are closed.