S.Deva Arul v. The Executive Officer,Vellimalai Town Panchayat,Ammandivilai Post,Kanyakumari District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.1.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.Nos.4373 and 4374 of 1999& 770 and 771 of 2000andW.M.P.Nos.1141 to 1144 of 2000S.Deva Arul .. Petitioner in W.P.No. 4373 of 1999 and W.P.No.770 of 2000D.Raja Sundar Singh .. Petitioner in W.P.No. 4374 of 1999 and W.P.No.771 of 2000 -vs-1.The Executive Officer, Vellimalai Town Panchayat, Ammandivilai Post, Kanyakumari District.

The Assistant Director of Town Panchayat, Nagercoil-629 001,Kanyakumari District. .. Respondents in all the writ petitionsPRAYER in WP.Nos.4373 and 4374 of 1999 : Petitions filed under Article226 of the Constitution of India praying for the issuance of a writ ofmandamus directing the respondents to reinstate the petitioner in service with back wages together with interest and costs, continuity of service, allowances and all other attendant benefits.PRAYER in W.P.Nos.770 and 771 of 2000 : Petitions filed under Article226 of the Constitution of India praying for the issuance of a writ ofcertiorarified mandamus calling for the records of the first respondent in his proceedings made in Na.Ka.No.205/97 dated 13.8.1999 and quash the same as null and void, illegal and invalid by directing the respondents to reinstate the petitioner in service placing him eligible for all service benefits computing from his date of appointment with fullback wages, allowances and other attendant benefits together with interest at the rate of 18% per annum and exemplary costs. https://hcservices.ecourts.gov.in/hcservices/ For petitioners: Mr.A.AmalrajFor respondents: Mr.Thankasivan (R1) Mr.A.Arumugam, Spl.G.P.(R2)*****

O R D E RW.P.Nos.4373 of 1999 and 770 of 2000 have been filed by one DevaArul. Likewise, W.P.Nos.4374 of 1999 and 771 of 2000 have been filed byone Raja Sundar Singh. 2. In W.P.No.4373 of 1999, the prayer of the petitioner is for adirection to the respondents to reinstate the petitioner in service withbackwages together with interest, continuity of service and other allowances. Similar prayer has also been made by the petitioner inW.P.No.4374 of 1999. Notice of motion was ordered in both the writ petitions on 17.3.1999. Subsequently, they were admitted on 07.7.1999.In the applications for interim injunction, this Court by an order dated07.7.1999 passed the following order:-''Serious allegations have been made in the counter affidavit filed by the respondents including fabrication of GovernmentOrders. The entire claim of the petitioners is based upon such fabricated Government Orders, which is the subject matter of criminal investigation. The petitioners according to the counsel for the third respondent were temporary employees. As serious allegations have been made, this Courtis not inclined to issue interim injunction as prayed for in the WMPs. Hence, these petitions are dismissed.2. Instead, liberty is given to the respondent to initiate proceedings forthwith and also pass appropriate orders with respect to the petitioners to keep them away from the office and pass appropriate orders with respect to payment of subsistence allowance within six weeks from today".(Emphasis Added)

In the light of the direction given by this Court, the respondent Executive Officer of Vellimalai Town Panchayat passed the following order in his proceedings dated 13.8.1999:-''The Honourable Judge has ordered to take disciplinary action against Mr.S.Deva Arul and Mr.D.Raja Sunder Singh and during the suspension period subsistence allowance to be paid and the proceedings has to be completed within six weeks form the date of order. Hence the advice of the Assistant Director https://hcservices.ecourts.gov.in/hcservices/ Town Panchayat was asked as per ref. No.2 stated above. The Assistant Director of Town Panchayat in his urgent memo dated 28.7.1999 asked to take action and impleadment(sic.implement) the order of the High Court. The G.O. was considered to be forgery one and action being initiated against those responsible for and the enquiries pending. Water Supply Attenders Mr.S.Deva Arul and D.Raja SunderSingh are the beneficiaries of the forged G.O. and who are appointed daily wages and they will not come under the TownPanchayat Employees Service Rules. The abovesaid matter is considered to be an offence and the enquiries pending the two persons cannot be put under suspension and hence they were removed from service. Again, the forged G.O.and the two employees were promoted from daily wages to scale of pay was wrong and hence they are not entitled for subsistence allowance during suspension period as there is no provision in the TownPanchayat Employees Service Rules. Therefore, the above two employees are not entitled for any subsistence allowance for the period of suspension. To Mr.Deva Arul from 15.7.1997 to 03.9.1997 a sum ofRs.2,811/- was paid for subsistence allowance. The abovesaidemployees got benefit due to the forged G.O. Their service has to be treated from scale of pay to daily wages and as there is no provision to pay subsistence allowance for daily wages. Therefore Mr.Deva Arul hereby directed to repay the sum of Rs.2,811/- to the Town Panchayat. "

Similarly, the petitioners moved this Court by filingW.P.Nos.770 and 771 of 2000 challenging the aforesaid order dated13.8.1999 and also sought for setting aside the said order with afurther direction to grant reinstatement with back wages together with interest at the rate of 18%. Both the writ petitions were admitted on19.1.2000. In the application for interim injunction and the application for direction to disburse subsistence allowance, notice was ordered. Itwas also ordered that no appointment should be made in the posts held by the petitioners. Thereafter, the matters were listed for final disposal. In the meanwhile, on behalf of the Executive Officer, a counteraffidavit dated 06.4.1999 was filed by the first respondent inW.P.Nos.4373 and 4374 of 1999. In view of the inter connectivity between the two writ petitions and as they arose out of a common order passed, all the writ petitions were heard together and a common order is being passed.

Mr.S.Thankasivan, learned counsel appearing for the first respondent had also filed a typed set of papers containing the circumstances that led to the action being taken against the petitioners. Mr.Amalraj, learned counsel for the petitioners submitted that before filing these writ petitions, the petitioners earlier came up https://hcservices.ecourts.gov.in/hcservices/ against the order of suspension dated 16.7.1997 and 06.3.1998. Thiscourt in W.P.No.12897 of 1997 directed the subsistence allowance to bepaid to the first petitioner Deva Arul. Once again in W.P.Nos.12897 and3683 of 1998 by an order dated 16.9.1998, this Court set aside the suspension order on the ground that no suspension can be made without framing charge memo. It was subsequent to the said order, the two writ petitions have been filed, viz., W.P.Nos.4373 and 4374 of 1999 seeking for restoration to service.

It was found out that the petitioners have fabricated an order to show as if the Government had passed G.O.No.21, Rural DevelopmentDepartment, dated 03.1.1997 bringing the Water Supply Attenders, viz.,the two petitioners, into the time scale of pay. Using the said forgedGovernment Order, they have obtained scale of pay. Further fabricating another order claiming to be G.O.No.357, Rural Development Department, dated 15.9.1997, they got themselves appointed as Record Clerks. Whencomplaints were sent to the District Collector, the District Collectordirected the Executive Officer to take immediate action and to suspend the two petitioners.

It was thereafter the suspension orders came to be made. Thematter was also enquired by the Vigilance Inspector attached to the Directorate of Vigilance and Anti-Corruption Department. The VigilanceInspector informed the Executive Officer not to conduct any enquiry since the vigilance was conducting an enquiry in this regard. It was because of this communication, no further action was taken by them. Thereafter, the matter was referred to an enquiry by the Commissionerfor Disciplinary Proceedings. The petitioners were informed about it by the Commissioner for Disciplinary Proceedings, Nagercoil videcommunication dated 12.1.2007. In that communication they were directed to peruse the records. By a further communication dated 12.1.2007,charges were framed against the petitioner as well as several other persons. A list of witnesses had also been given to the petitioners in respect of the three charges framed against them.

When all these factors were brought to the notice the learned counsel for the petitioners had nothing to comment. The petitioners in these writ petitions never made any averments nor gave any information with reference to the enquiry pending before the Commissioner for Disciplinary Proceedings referred to above.

Mr.Amalraj, learned counsel for the petitioner tried to contend that pursuant to the order passed by this Court, they were entitled tobe restored to service and it was a gross disobedience of the orders of this court, dated 16.9.1998. However, the petitioners have failed to note that in the subsequent writ petitions, this Court by an order dated07.7.1999 had permitted the enquiry proceedings to go on. There were serious allegations made against the petitioners. Therefore the petitioners cannot rely upon the old order. Secondly, the petitioners https://hcservices.ecourts.gov.in/hcservices/ have never disclosed the nature of the allegations made against them. Inany event, it has now brought to the notice of this Court the charge memo framed by the Commissioner for Disciplinary Proceedings dated12.1.2007 in respect of the two petitioners. It was stated that in collusion with several others, they have falsely created a document asif it was a Government Order and on the basis of the said GovernmentOrder they have also obtained the scale of pay. Further by fabricating some more documents they have also got the post of Record Clerks. It was also stated that they have caused heavy loss to the Government by improperly drawing salary. When such serious charges are pending against the petitioner, reliance placed by the petitioners to the judgment of the Supreme Court in Commissioner, Karnataka Housing Board -vs-C.Muddaiah reported in (2007) 7 SCC 689 has no relevance.

In fact, the second set of writ petitions was filed in the year 2000 even when the first two writ petitions filed in the year 1999for similar relief were pending. It was only by the interim order passed in those writ petitions, the impugned order dated 13.8.1999 came to bemade by the Executive Officer. It is rather unfortunate that the petitioners should challenge an order which came to be passed pursuant to the direction given by this Court.

Hence, all the four writ petitions are totally misconceived, devoid of merits and accordingly, they are dismissed. It is for the petitioner to participate in the disciplinary proceedings initiated by the Commissioner for Disciplinary Proceedings, Nagercoil, await for afinal order to be passed by him and thereafter work out their remedies. Consequently, the connected miscellaneous petitions are also dismissed. There will be no order as to costs. Sd/Asst. Registrar/true copy/Sub Asst. Registrarjs https://hcservices.ecourts.gov.in/hcservices/ To1.The Executive Officer, Vellimalai Town Panchayat, Ammandivilai Post, Kanyakumari District. 2. The Assistant Director of Town Panchayat, Nagercoil-629 001, Kanyakumari District. +2ccs to M/s.A.Amalraj, Advocate Sr 3330 & 3331+2ccs to Govt. Pleader Sr 3616 & 3617+1cc to M/s.S.Thankasivan, Advocate Sr 3282SSR (CO)km/3.2.W.P.Nos.4373 and 4374 of 1999 & 770 and 771/2000 andW.M.P.Nos.1141 to 1144 of 2000