S. Chelliah v. Tenkasi Municipality & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 07.10.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.No.8341 of 2007S.Chelliah ..PetitionerVersusThe CommissionerTenkasi MunicipalityTenkasi,Tirunelveli District. ..Respondent PRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India by way of transfer of O.A.No.3198 of 2002from the file of Tamil Nadu Administrative Tribunal with a prayer tocall for the records relating to the proceedings of the Commissioner,Tenkasi Municipality, Tenkasi, the respondent herein made inProc.No.H1.7907 dated 17.05.2002, quash the same and direct therespondent herein to reinstate the applicant herein as a SanitaryWorker, Tenkasi Municipality, with all consequential attendant,service and monetary benefits, disburse all the arrears due to theapplicant.For Petitioner :Mr.K.Rajkumar For Respondent :Mr.V.Subbiahfor Mr.K.Kulandaivelu O R D E RThe Original Application in O.A.No.3198 of 2002 before theTamil Nadu Administrative Tribunal (in short "Tribunal") is thepresent writ petition.2.The petitioner was appointed as a Sanitary Worker in 1970in the respondent Municipality. He rendered 30 years of service,when he was dismissed from service. He was allotted duty in the 4thDivision in the respondent Municipality. On 23.10.2000, the SanitarySupervisor directed him to go and do the household works in theCommissioner's residence from 06.00 a.m. to 06.00 p.m. The SanitarySupervisor promised him that he would mark his presence in theattendance register in the 4th Division. The petitioner politelyrequested the Sanitary Supervisor to send someone who has experienceof doing household works. He also stated that he crossed 50 years of https://hcservices.ecourts.gov.in/hcservices/ age and he got some ailment and that therefore, he was not in aposition to do household works. The Sanitary Supervisor gotinfuriated and he informed the Commissioner as if the petitionerdisobeyed his order. 3.The petitioner states that the Commissioner unusuallyvisited the 4th Division office before 06.00 a.m. on 24.10.2000, evenbefore the arrival of the petitioner for work. The petitioner, asusual reported for duty at 06.00 a.m. The Commissioner, who waspresent in the 4th Division office, did not allow him to sign theattendance register and directed him to meet him in the office roomin the 4th Division. When he met the Commissioner in the office room,the Commissioner abused the petitioner in filthy language and alsocalled the petitioner by his caste name. The Commissioner also toldhim not to attend office till he was called back to duty. 4.The petitioner gave a petition dated 24.10.2000 to theDistrict Collector, seeking job protection, explaining the abovefacts. 5.The petitioner was placed under suspension by therespondent by an order dated 25.10.2000. The respondent issued acharge memo dated 30.10.2000 alleging the following charges:"(i) that the petitioner did not attend duty on25.10.2000 without getting prior permission.(ii) that he has not discharged his duties properly.(iii) that he disobeyed the orders of superiors.(iv) that he levelled allegations against the Commissioner".6. The petitioner submitted his explanation dated04.11.2000, denying the charges. Thereafter, the Commissionerappointed himself as an Enquiry Officer to enquire into the charges. 7.In the meantime, based on the complaint of thepetitioner, the District Collector directed the DistrictUntouchability Officer, to initiate action against the respondentCommissioner. 8.The petitioner states that in the said circumstances, thepetitioner sought orally for change of Enquiry Officer and that therespondent turned down the request. The respondent Commissionerproceeded with an exparte enquiry and dismissed the petitioner fromservice, by an order dated 16.03.2001. https://hcservices.ecourts.gov.in/hcservices/

9.Aggrieved by the same, the petitioner filed OriginalApplication in O.A.No.5349 of 2001 before the Tribunal, questioningthe termination order. The Tribunal allowed the Original Applicationand set aside the termination order, on 04.10.2001. While settingaside the order of termination, the Tribunal remanded the matter forfresh enquiry, by a different officer, other than the respondentCommissioner. 10.Thereafter, on remand, the respondent appointed theMunicipal Engineer as Enquiry Officer, by a letter dated 21.12.2001. 11.In the meantime, the petitioner sent a letter dated19.12.2001 to the respondent, to implement the order of the Tribunal,by reinstating him in service. The request of the petitioner wasturned down and he was not reinstated pending enquiry. The petitionermade representations dated 11.02.2002, 02.03.2002 and 14.03.2002, topay him subsistence allowance pending enquiry. But the same was alsonot paid. 12.However, by an order dated 30.01.2002 of the MunicipalEngineer, the petitioner was directed to appear for an enquiry on11.02.2002 at 11.00 a.m. The petitioner took a stand that unless hewas paid subsistence allowance, he would not attend the enquiry. Inthese circumstances, the enquiry was posted to 06.03.2002 andthereafter on 27.03.2002. The enquiry was concluded on 27.03.2002,exparte.13.The Enquiry Officer submitted a report dated 17.04.2002,finding the petitioner guilty of the charges. Based on the saidfindings, the petitioner was dismissed from service by an order dated17.05.2002 of the respondent. 14.Aggrieved by the same, the petitioner filed OriginalApplication in O.A.No.3198 of 2002 (W.P.No.8341 of 2007) to quash theaforesaid order dated 17.05.2002 and for a direction to therespondent to reinstate him in service, with all backwages and allother benefits. 15.Heard Mr.K.Rajkumar, learned counsel for the petitionerand Mr.V.Subbiah, learned counsel for the respondent. 16.The respondent has not chosen to file counter affidavit.The learned counsel for the respondent made his submissions based oninstructions. 17.The learned counsel for the petitioner submits asfollows:a) The entire disciplinary action lacks bona fide besidesit is vindictive. https://hcservices.ecourts.gov.in/hcservices/ b) The disciplinary action is vitiated for non payment ofsubsistence allowance.c) In the exparte enquiry, no witnesses were examined onthe side of the Department and such a procedure is illegal andrendering the dismissal order bad. d) Even in the exparte enquiry, the charges were notestablished and the findings of the Enquiry Officer is perverse.e) The action of the respondent is arbitrary and violativeof Articles 14 and 21 of the Constitution. 18.The learned counsel for the petitioner has brought to mynotice the following passage, from the order dated 04.10.2001 of theTribunal, made in O.A.No.5349 of 2001. While setting aside theearlier termination order dated 16.03.2001 of the respondent, in para8, the Tribunal held as follows:- "8.In as much as the complainant, the enquiryofficer and the disciplinary authority are one andthe same, it is very unlikely that there will be nobias on his part especially when the applicant is alow level sweeper in the Municipality, he is bound tobe crushed by the weight of authority of a mightyMunicipal Commissioner. Therefore, the orders of theMunicipal Commissioner dated 16.03.2001 are herebyset aside............"19.The learned counsel for the petitioner submits that theaforesaid passage of the Tribunal itself makes it clear that theentire action is mala fide. The learned counsel for the petitionerfurther submits that the non payment of subsistence allowance wouldvitiate the entire disciplinary proceedings. As per Regulation 4(4)of the Tamil Nadu Municipal (Non Centralised Regular) Public HealthEstablishment Discipline and Appeal Regulations 1977, the petitioneris entitled to subsistence allowance from the date of original orderof suspension, when the earlier dismissal order was set aside by theTribunal. Once the petitioner is under suspension, the petitioner isentitled to subsistence allowance. The learned counsel for thepetitioner further submits that the Honourbale Apex Court in JAGDAMBAPRASAD SHUKLA VS. STATE OF U.P. AND OTHERS reported in 2000 (5)SUPREME 650 held that the order of removal from service is liable tobe quashed, if subsistence allowance was not paid and the delinquentemployee was not able to participate in the enquiry proceedings dueto financial difficulties. 20.The learned counsel for the respondent submits that thepetitioner was paid subsistence allowance after the impugned order ofthe respondent, dismissing the petitioner from service and that https://hcservices.ecourts.gov.in/hcservices/ therefore, he should not complain about non-payment of subsistenceallowance. 21.The learned counsel for the petitioner submits that thesubsistence allowance was paid, only after the petitioner filed thepresent Original Application. The payment of subsistence allowanceafter the petitioner filed the present Original Application, wouldnot cure the defect. It is submitted that while admitting theOriginal Application on 14.06.2002, the Tribunal granted interim stayof termination order. The respondent, instead of reinstating thepetitioner pursuant to the interim stay of the Tribunal, had chosento pay him subsistence allowance. 22.The learned counsel for the petitioner further submitsthat the allegations made in the charge memo, would not constituteeven misconduct. The allegations, on the face of it, would disclosethat it is a vindictive and punitive action. 23.I have considered the submissions made on either side.The submissions made by the learned counsel for the petitioner arewell founded. I am of the considered view that the entiredisciplinary proceedings is mala fide. The entire narration ofevents that lead to framing of the charge memo and the trivial natureof the events also make it clear that the action of the respondentlacks bona fide in proceeding against the petitioner on one protextor another. The mere perusal of the charge memo makes it very clearthat the action of the respondent is nothing but a vindictive one. 24.The dismissal order is also vitiated for non-payment ofsubsistence allowance. As rightly pointed out by the learned counselfor the petitioner, the respondent is enjoined to pay subsistenceallowance, once the order of removal was set aside by the Tribunal on04.10.2001, if the respondent did not choose to reinstate thepetitioner in service. The respondent neither reinstated him inservice nor provided him subsistence allowance. This is also anincident to show the lack of bona fide on the part of the respondent.The Honourable Supreme Court in the judgment cited supra,categorically held that while during suspension pending disciplinaryproceedings, if an employee was not paid subsistence allowance andconsequently he was not able to participate in the proceedings, dueto financial difficulties, the order of removal from service wasliable to be quashed. 25.The said dictum of the Honourable Supreme Court squarelyapplies to the facts of the case. The learned counsel for thepetitioner is also correct in his submissions that the procedureadopted by the Enquiry Officer by not examining any witnesses, toprove the charges is illegal. It has been held by this Court inR.KARUPPANNAN VS. TAMIL NADU WATER SUPPLY AND DRAINAGE BOARD reportedin 1992 (II) L.L.N. 127 and the Honourable Supreme Court in ROOP https://hcservices.ecourts.gov.in/hcservices/ SINGH NEGI VS. PUNJAB NATIONAL BANK AND OTHERS reported in 2009 (2)SCC 570 that mere production of document is not enough and thecontents of the documentary evidence have to be proved, by examiningwitnesses. Hence, there is a basic flaw in the conduct of theenquiry. The Enquiry Officer failed to follow the basic principlesin conducting the enquiry. 26.The learned counsel for the petitioner is also correctin his submissions that there is no discussion by the EnquiryOfficer, as to how he came to the conclusion that the charges wereestablished. He submits that it is a mere ipse dixit of the EnquiryOfficer, without analysing even the documents which were placedbefore him. The learned counsel also rightly submits that the chargememo is based on the alleged report of the Sanitary Supervisor andhowever, the same was not even furnished to him at any point of time. 27.The submissions of the learned counsel for therespondent that the respondent paid subsistence allowance, deservesto be rejected, since the same was paid after the interim order ofthe Tribunal in this case. The learned counsel for the petitioner isalso correct in his submissions that the entire action of therespondent is arbitrary and violative of Articles 14 and 21 of theConstitution. The respondent has no regard for rule of law and therespondent deprived the livelihood of the petitioner by the arbitraryaction in not even paying subsistence allowance during the enquiry.Hence, the action of the respondent is violative of Articles 14 and21 of the Constitution. 28.For the all the reasons as stated above, the impugnedorder is liable to be quashed and accordingly, the same is quashed. 29.At this juncture, the learned counsel for the petitionersubmits that the petitioner reached the age of superannuation on(*) 30.06.2007. 30.In these circumstances, the respondent is directed topay wages for the period of non-employment and also all otherbenefits, on account of the setting aside of the order of dismissal,up to (*) 30.06.2007, and thereafter to pay him all the terminalbenefits, including pension, within a period of four weeks from thedate of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/

31.With the above observation and direction, the writpetition is disposed of. No costs.Sd/Asst.RegistrarDated : 09.10.2009(*) Corrected as per Being Mentioned Order of this Court dated 22.12.2009 and made in WP.No.8341 of 2007sd/-Asst.RegistrarDated : 23.12.2009/true copy/TKSub Asst.RegistrarTo The Commissioner, To be substituted for Tenkasi Municipality, Tenkasi, the Order already Tirunelveli District. despatched on 09.10.2009.+ 1 c.c. to Mr. K. Rajkumar, Advocate. S.R.No.51493.W.P.No.8341 of 2007RB (CO)GSK 09.10.2009.PUR (CO)GSK 23.12.2009.