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2022 DIGILAW 2947 (MAD)

District Collector, Ariyalur v. G. Karuppaiyan

2022-08-26

PARESH UPADHYAY, V.BHAVANI SUBBAROYAN

body2022
JUDGMENT (Prayer: Writ Appeal filed under Clause 15 of the Letters Patent against the order of this Court dated 12.09.2017 made in W.P. 1487 of 2014. Writ Petition filed under Article 226 Constitution of India for issuance of Writ of Certiorarified Mandamus calling for the records on the file of the 2nd respondent in connection with the order of dismissal in Na.Ka.No.10741/2011/U3 dated 11.06.2021, quash the same as illegal and consequently, direct the respondents to permit the petitioner to continue to serve as Bill collector peacefully till the date of superannuation with all monetary and service benefits along with arrears.) Common Judgment V. Bhavani Subbaroyan, J. 1. Challenging the correctness of the order dated 12.09.2017 in W.P.No.1487 of 2014 passed by the Learned Single Judge, the State Authorities have come up with the present Writ Appeal. 2. Aggrieved by the order of dismissal in Na.Ka.No.10741/2011/U3 dated 11.06.2021 passed by the 2nd respondent, the petitioner, who is the respondent in the Writ Appeal, has come forward with the present Writ Petition seeking to quash the same, as illegal and consequently to direct the respondents to permit the petitioner to continue to serve as Bill collector peacefully till the date of superannuation with all monetary and service benefits along with arrears. 3. Earlier, viz., on 29.06.2022, it was brought to the notice of this Court that the services of the Writ Petitioner is subsequently discontinued by the Authorities and the same is challenged in W.P.No.4774 of 2022, hence, a direction was issued to tag the said Writ petition along with the present Writ Appeal. Since the issues / facts involved in the Appeal as well as in the Petition are one and the same, they are taken up together and a Common Judgment is passed. 4. For the sake of convenience, the prayer in the Writ Appeal is dealt with at the first instance and the prayer in the Writ Petition at the second instance. 5. 4. For the sake of convenience, the prayer in the Writ Appeal is dealt with at the first instance and the prayer in the Writ Petition at the second instance. 5. The Learned Single Judge while passing the Impugned Order on 12.09.2017 in W.P.No.1487 of 2014 filed by the Respondent/Petitioner had observed that the rejection of the claim of the petitioner, is completely devoid of any application of mind by the authorities and the observation made by the Division Bench has been completely taken out of context for not granting benefits to the petitioner, as otherwise he is entitled for grant of periodical increments with effect from 1992 etc., 6. The Learned Additional Advocate General I for Special Government Pleader for the Appellants contends that the Learned Single Judge erred in law in holding that the rejection order dated 17.10.2013 of the 3rd appellant was completely devoid of any application of mind, ignoring the context in which the 3rd appellant had passed the rejection order. The 3rd appellant is at liberty to issue show cause notice to the respondent to enable him to explain his irregular appointment, which appointment had been made ultravires the Rules and Regulations, however, the Court has assumed and presumed things in favour of the respondent without deciding the respondent's eligibility and qualification for benefits. Further, the learned Single Judge has completely lost sight of the case on hand and without adjudicating the contentions / issues involved, has merely accepted the allegations raised by the respondent. 7. According to the Learned Additional Advocate General I for the Appellants, the Learned Single Judge had failed to take into account the basic fact that the original appointment of the respondent was irregular, for which he was originally dismissed. Further, directed the appellants to grant the benefits to the respondent within three months, brushing aside the reality that the respondent is not entitled and eligible for any benefits, in view of the irregularity in his original appointment. That apart, due to various petitions filed by the respondent before this Court, the appellants were not able to pass any appropriate orders in time. Hence pleaded to set aside the order passed by the learned single judge and allow the present writ appeal. 8. That apart, due to various petitions filed by the respondent before this Court, the appellants were not able to pass any appropriate orders in time. Hence pleaded to set aside the order passed by the learned single judge and allow the present writ appeal. 8. On the other hand, the learned counsel for the respondent filed a detailed counter and submitted that the respondent repeatedly requested and filed writ petitions for pay fixation and when efforts were taken from the year 2007, despite liberty being granted to the appellants, after affording opportunity by order dated 01.08.2007 in W.P.No.1006 of 2000, the request for pay fixation was denied by order dated 17.10.2013, on the wrong pretext and wrong understanding of the order dated 01.08.2007 in the Writ Appeal and the said order was rightly interfered with by the learned Single Judge by setting aside the order dated 17.10.2013. Further, to cover up the faults of their own officers, the appellants have made the respondent as a scape goat, thereby requested this Court to dismiss the present appeal. 9. This Court has given its anxious considerations to the submissions made on either side and perused the pleadings, counter affidavits as well as the documents placed on record. 10. It is not in dispute that initially the appointment order was issued to the respondent by the 3rd appellant in Na.Ka.No.701/89 dated 11.12.1989 as 'Over Head Tank Operator' and the respondent was regularised on 03.06.1991 in Rc.No.A1.701/89 with effect from the date of appointment, viz., 11.12.1989. Thereafter, the 3rd appellant, through R.C.No.701/89/A on 17.10.1995, passed an order terminating the services of the respondent on the ground that some irregularities have been committed at the time of initial appointment. The said termination order was stayed by the Tamilnadu Administrative Tribunal in O.A.No.6591/1995 on 15.11.1995 on the ground of violation of principles of natural justice, on account of which, the respondent was reinstated in service vide Na.Ka.No.211/701/89 on 10.11.1995. The said Original Application was transferred to this Court and renumbered as W.P.No.6428/2006. The said writ petition was disposed of, on 05.02.2007. As against which, W.A.No.1006 of 2007 was preferred by the appellants and the Hon'ble First Bench, disposed of the said Writ Appeal by order dated 01.08.2007 by observing that “we do not see any reason to interfere with the order of the learned single judge. The said writ petition was disposed of, on 05.02.2007. As against which, W.A.No.1006 of 2007 was preferred by the appellants and the Hon'ble First Bench, disposed of the said Writ Appeal by order dated 01.08.2007 by observing that “we do not see any reason to interfere with the order of the learned single judge. However, the appellant shall reinstate the respondent into service and pass appropriate orders after affording adequate opportunity to him. We make it clear that the respondent is not eligible for payment of salary for the period when he was not in service on the basis of 'no work no pay” 11. While the matter stood thus, the respondent approached this Court in W.P.No.23071 of 2010 seeking for a direction to the 3rd appellant to pass orders on the representation dated 19.08.2010 another W.P.No.14679 of 2012 praying for grant of increments from 01.01.1998 to 31.12.1995, refixation of pay in the V pay commission and consequently fixation of VI pay Commission etc., the said Writ Petitions were disposed of by orders dated 01.11.2010 and 15.10.2012 respectively with a direction to consider the same within a period of four and eight weeks respectively. 12. The 3rd respondent vide Na.Ka.No.437/2010 dated 17.10.2013 by narrating all the facts and the orders passed by the Hon'ble First Bench, resultantly observed that as per the directions in the orders passed by the High Court, “the money / terminal benefits cannot be granted to the respondent” and the same was challenged by the respondent in W.P.No.1487 of 2014. By order dated 12.09.2017, the learned Single Judge set aside the said order dated 17.10.2013 and the same is challenged in this appeal. 13. On a perusal of the order dated 12.09.2017 in W.P.No.1487 of 2014, it is seen that the learned Single Judge has clearly observed that the basis on which the claim of the respondent was rejected is completely devoid of any application of mind, by taking note of the observation of the Hon'ble First Bench of this Court in W.A.No.1006 of 2007 dated 01.08.2007 extracted supra, the learned Single Judge had set aside the impugned order dated 17.10.2013 passed by the 3rd appellant and directed to grant all the benefits to the respondent, as prayed for, which is flawless. In other words, the same is just and valid one in the eye of law and does not require interference of this Court. In other words, the same is just and valid one in the eye of law and does not require interference of this Court. Consequently, the Writ Appeal fails. It is needless for this Court to make a mention that the respondent is not eligible for payment of salary for the period when he was not in service, i.e., from 17.10.1995 to 09.11.1995 on the basis of 'no work no pay” , as per Judgment of the Hon'ble First Bench of this Court in W.A.No.1006 of 2007 dated 01.08.2007. In the result, the Writ Appeal filed by the Department is dismissed. Consequently, connected Miscellaneous Petition is closed. 14. Now, at the second instance, this Court shall proceed to deal with the prayer in the Writ Petition. 15. It is the submission of the learned counsel for the Writ Petitioner that the respondents / state authorities failed in their duty in initiating disciplinary action in time, for the incident took place in case of the petitioner's appointment in the year 1989, the respondents have chosen to issue charge memo dated 28.02.2019 after a lapse of 30 years, which culminated into a punishment of dismissal from service by order dated 11.06.2021, after a lapse of 32 years from the date of appointment. To substantiate her contention, the learned counsel for the petitioner relied on the following judgments and pleaded to set aside the order of dismissal dated 11.06.2021 passed by the 2nd respondent. (I) Judgment of the Hon'ble Supreme Court of India in Case No.Appeal (Civil) 4901 of 2005 [P.V.Mahadevan Vs. M.D., Tamilnadu Housing Board dated 08.08.2005. (ii) Judgment of the Hon'ble Supreme Court of India in Case No.Appeal (Civil) 8267 of 2004 [M.V.Bijlani Vs. Union of India and others] dated 05.04.2006. (iii) Judgment of the Hon'ble Supreme Court of India in a reported in (2003) 4 Supreme Court Cases 579 [Indian Railway Construction Co., Ltd., Vs. Ajay Kumar dated 27.02.2003. (iv) Judgment of the Hon'ble Supreme Court of India in Civil Appeal No.3046 of 1988 [The State of Madhya Pradesh Vs. Bani Singh dated 05.04.1990. (v) Judgment of the Hon'ble Supreme Court of India in State of Andhrapradesh vs. N.Radhakrishnan 07.04.1998 (vi) Judgment of this Court in W.P.Nos. 39642 and 41699 of 2002 dated 26.10.2005 [The Special Commissioner and Commissioner of commercial taxes, chennai – 5 and another Vs. N.Sivasamy and another] 16. Bani Singh dated 05.04.1990. (v) Judgment of the Hon'ble Supreme Court of India in State of Andhrapradesh vs. N.Radhakrishnan 07.04.1998 (vi) Judgment of this Court in W.P.Nos. 39642 and 41699 of 2002 dated 26.10.2005 [The Special Commissioner and Commissioner of commercial taxes, chennai – 5 and another Vs. N.Sivasamy and another] 16. Per contra, it is the contention of behalf of the respondents that the petitioner has not pointed out any lapses in the departmental inquiry now. In fact, he has given written submission that the inquiry against him was fair and satisfied. While so, he shall not challenge the same, just because the final order was not in his favour. Moreover, the petitioner has already availed the option for appeal before the Government, vide his appeal dated 03.07.2021, while the same has been pending, he cannot invoke the writ jurisdiction and seek relief for same cause of action from two different forums. 17. Heard the submissions on either side and perused the documents placed on record. 18. On scrutinising the order of dismissal dated 11.06.2021 passed by the 2nd respondent, it could be seen that there are as many as nine charges framed against the petitioner and explanation was called for from the petitioner, out of 9 charges, the charges 1, 7, 8 and 9 were proved against the petitioner. However, State authorities had not chosen to examine a single witness to substantiate the alleged charges, held four charges, viz., Charge 1, 7, 8 and 9 against the petitioner by not producing a piece of document to substantiate the same. 19. As far as Charges 1 & 7 are concerned, Charge 1 states that the appointment of the petitioner is illegal & Charge 7 pertains to grant of salary during the period when the petitioner was not allowed to sign in the S.R., but rendered services, respectively. 19. As far as Charges 1 & 7 are concerned, Charge 1 states that the appointment of the petitioner is illegal & Charge 7 pertains to grant of salary during the period when the petitioner was not allowed to sign in the S.R., but rendered services, respectively. Further, the respondents contended that the delay in initiating punishment is only due to act of the petitioner in preferring petitions / appeals one after the other before this Court, it cannot be lost sight of that the appointment order was issued in the year 1989 and the services of the petitioner were regularised in the year 1991, with effect from the year 1989 and the petitioner was terminated from the service in the 1995, without adhering to the principles of natural justice, at that point of time itself, there was a delay of four years from the date of regularisation of service. That apart, the order of dismissal was passed on 11.06.2021, which is nearly more than three decades. Further, even assuming that the petitioner had not rendered services and salary has been paid to him during the period, viz., March, April and May, 1990, the respondents ought to have passed an appropriate order, however, the same has not been done. 20. As far as Charge 8 is concerned, it is with regard to the irregularities committed by several officers as well as the petitioner, thereby observed that the petitioner obtained order of void appointment as 'Over Head Tank Operator' on irregular basis. Further, the Enquiry officer observed that “all works pertaining to this appointment were done at administrative level at Panchayat. It is confirmed that only with a view to give appointment to the petitioner all files, and records were prepared and irregularities were committed. There was undue pressure on the part of the petitioner and the petitioner has used his influence.” In reality, the punishment awarded against some of the officers were revoked by awarding lesser punishment. 21. In respect of the charge 9, it is stated that for the said irregularities, the petitioner has violated Rule 20 of the Government Servants Conduct Rules, 1973. For the mistakes committed by the Department in the procedure for initiating disciplinary proceedings, the petitioner should not be made to suffer. 22. 21. In respect of the charge 9, it is stated that for the said irregularities, the petitioner has violated Rule 20 of the Government Servants Conduct Rules, 1973. For the mistakes committed by the Department in the procedure for initiating disciplinary proceedings, the petitioner should not be made to suffer. 22. Thus for the alleged charges which occurred in the year 1989, the petitioner has to face disciplinary proceedings for nearly 30 years, which in the considered opinion of this Court, itself is a penalty. Also, the protracted disciplinary enquiry against a government employee should, therefore be avoided not only in the interests of the government employee, but in the public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The petitioner had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the petitioner due to the protracted disciplinary proceedings would be much more than the punishment, as per decision of Hon'ble Supreme court in Appeal (Civil) 4901 of 2005 [P.V.Mahadevan Vs. M.D., Tamilnadu Housing Board dated 08.08.2005. Since the petitioner is being awarded with an order of dismissal from service after a long period, on the point of latches also, the impugned order of dismissal is liable to be set aside. 23. In fact, the Government has issued a letter (Ms) No.1118/Per.N/87 dated 22.12.1987 by Personnel and Administrative Reforms Department, Government of Tamilnadu to all the heads of departments on how the disciplinary cases should be disposed of expeditiously and prescribed a revised time limit for disposal of disciplinary cases and the said communication reveals that the time limit has been prescribed for completion of investigation / enquiry at every stage, including report by the Director of Vigilance and Anti-corruption, etc., as per decision of Division Bench of this Court in A.Obaidhullah Vs. State of Tamilnadu, rep. By the Secretary to Government and Another reported in 2005 (5) CTC 380 . 24. There is no dispute that it is the prerogative of the disciplinary authority to initiate disciplinary proceedings against an employee in case it is made out that such employee has committed misconduct. However, enquiry should be completed as expeditiously as possible. State of Tamilnadu, rep. By the Secretary to Government and Another reported in 2005 (5) CTC 380 . 24. There is no dispute that it is the prerogative of the disciplinary authority to initiate disciplinary proceedings against an employee in case it is made out that such employee has committed misconduct. However, enquiry should be completed as expeditiously as possible. In case considerable time is taken even to initiate enquiry, it would cause substantial prejudice to the delinquent. The employee would not be in a position to defend the proceedings after a particular point of time. Every employee has got a right to claim promotion. The chance of promotion would be denied to the employee who is facing disciplinary proceedings. The chance of promotion would also be denied in case punishment is imposed on the employee. Therefore, both pendency of proceedings as well as currency of punishment would cause serious prejudice to the employees. In the present case on hand, promotion was also granted to the petitioner as Bill Collector, consequent to the Contempt Petition No.1706 of 2018 on 18.01.2019. 25. Therefore, both pendency of proceedings as well as currency of punishment would cause serious prejudice to the employees. In the present case on hand, promotion was also granted to the petitioner as Bill Collector, consequent to the Contempt Petition No.1706 of 2018 on 18.01.2019. 25. On a careful analysis of the contentions advanced on either side and also this Court taking note of the surrounding facts and circumstances of the instant case in a conspectus fashion, is of the considered opinion that the petitioner, who was appointed on 11.12.1989 was regularised on 03.06.1991 with effect from the date of appointment, subsequently, was terminated from service on 17.10.1995, with a delay of 4 years, that too without following the principles of natural justice, and in view of the stay granted in O.A.6851 of 1995 [preferred by the petitioner] on 01.11.1995, the petitioner was reinstated in service, later on, the same was converted in W.P.No.6428 of 2006 and disposed of, with an observation to afford an opportunity, again, the same was challenged by the state authorities in W.A.No.1006 of 2007, the Hon'ble First Bench vide its order dated 01.08.2007 confirmed the directions issued in W.P.No.6428 of 2006, thereafter, an order of rejection was passed by the 3rd respondent rejecting to grant the benefits on 17.10.2013, at this stage, the delay of 6 years has occurred from the date of Judgment in W.A.No.1006 of 2007 and at this point of time also, the state authorities have failed to conduct enquiry by affording an opportunity and coupled with the fact that the impugned order of dismissal was passed on 11.06.2021, with a delay of nearly 30 years from the date of appointment, though by affording opportunity, however, without any documents to substantiate their act, does not sustain in the eye of law. Further, conduct of disciplinary proceedings in the subject case even after 30 years from the date of appointment that too without appropriate evidence and necessary documents to substantiate the said punishments, is nothing but illegal. 26. In view of the above said facts and circumstances of the case, the Writ Petition is allowed and the impugned order of dismissal dated 11.06.2021 passed by the 2nd respondent is quashed and the respondents are directed to permit the petitioner to continue to serve as Bill collector peacefully till the date of superannuation with all monetary and service benefits along with arrears, if any. 27. 27. In the result, the Writ Appeal preferred by the Department is dismissed and the Writ Petition preferred by the petitioner is allowed. Consequently, connected miscellaneous are closed. No costs.