J. Christy v. The District Collector Tirunelveli Tirunelveli District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.09.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.NO.8457 OF 2007J.Christy...Petitioner Vs.1. The District Collector Tirunelveli Tirunelveli District.2. The Block Development Officer Kuruvikulam Panchayat Union Kuruvikulam Tirunelveli District...RespondentsPRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India for issuance of writ of CertiorarifiedMandamus by way of transfer of O.A.No.488 of 2002, calling for therecords of the first respondent in his proceedingsNa.Ka.No.18/4509/98 dated 12.09.2000 followed by the proceedings ofthe second respondent in No.A9/7770/92 dated 15.09.2000 and therecords of the first respondent made in proceedingsO.M.U.No.41284/2001 dated 31.05.2001 and quash them and consequentlydirect the first respondent to give the petitioner continuing inservice and also all the back wages, and perquisites payable for theperiod 24.09.1992 to 26.09.2000 and pay all the arrears of salary tothe petitioner.For Petitioner :Mr.K.HidayatullahFor Respondents :Mrs.C.K.Vishnu Priya Additional Government Pleader for R-1 Mr.P.Subbiah Government Advocate for R-2 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe Original Application in O.A.No.488 of 2002 before theTamil Nadu Administrative Tribunal (hereinafter referred to as "theTribunal") is now Writ Petition in W.P.No.8457 of 2007 before thisCourt.2. Heard Mr.K.Hidayatullah, learned counsel for thepetitioner and Mrs.C.K.Vishnu Priya, learned Additional GovernmentPleader for the first respondent and Mr.P.Subbiah, learned GovernmentAdvocate for the second respondent.3. The petitioner was employed as a Mid-day Meal Organizerfrom 05.12.1983 in the Elementary School, at Meeza Nalandula inKuruvikulam Panchayat Union. While so, she was placed undersuspension, by the second respondent, by an order dated 24.09.1992.The second respondent issued another order dated 30.09.1992 torecover Rs.35,966.08 from the petitioner, based on the audit reportthat there were deficiency in the food stocks. According to the saidorder, the amount reported is one and half times of the cost of thefood stock that were found deficit.4. The petitioner filed W.P.No.17830 of 1992 to quash thesuspension order dated 24.09.1992. This court, on 26.11.1992,dismissed the writ petition at the admission stage itself. Thepetitioner also filed another writ petition No.19073 of 1992 to quashthe order of the second respondent dated 30.09.1992 for recovery ofRs.35,966.08. The said writ petition was allowed by this court on07.01.2000.5. Thereafter, the first respondent issued an order dated12.09.2000 revoking the suspension. In the said order, it is statedthat based on the proposals sent by the second respondent and alsothe order of this court dated 07.01.2000 in W.P.No.19073 of 1992, thepetitioner was re-appointed by revoking the order of suspension.6. Based on the aforesaid order, dated 12.09.2000, of thefirst respondent, a consequential order dated 15.09.2000 was issuedby the second respondent. Accordingly, the petitioner joined serviceon 26.09.2000 and after joining the work, the petitioner made arepresentation dated 29.05.2001 requesting the respondents to pay herback wages with continuity of service for the period from 24.09.1992to 26.09.2000. However, the said request was rejected by the firstrespondent by the impugned order dated 31.05.2001.7. The petitioner filed O.A.No.488 of 2002 (W.P.No.8457 of2001) to quash the orders dated 12.09.2000 and 31.05.2001 of thefirst respondent and the order dated 15.09.2000 of the secondrespondent and for a direction to pay her back wages for the periodfrom 24.09.1992 to 26.09.2000. https://hcservices.ecourts.gov.in/hcservices/

8. The learned counsel for petitioner submits that thoughthe suspension order dated 24.09.1992 was issued, the respondents didnot choose to issue any charge memo making allegations against thepetitioner and no disciplinary enquiry took place, after the issuanceof the suspension order. It is also submitted that while thepetitioner was in suspension, she was not paid even the subsistenceallowance. According to the counsel for petitioner that withoutissuing any charge sheet, pursuant to the suspension order andwithout conducting any enquiry, the first respondent cannot simplypass the impugned order dated 31.05.2001 stating that the periodbetween 24.09.1992 and 26.09.2000 is treated as break-in-service.Such an order would be passed, only after the conclusion of adepartmental enquiry and that too after recording a finding of guilt.In this case, the learned counsel submits that no departmentalenquiry took place at all and nothing prevented the respondents totake disciplinary proceedings departmentally against the petitioner. 9. On the other hand, the learned counsel for therespondents submits that the respondents have power to deprive thepetitioner's salary for the period between 24.09.1992 and 26.09.2000and to treat the said period as break-in-service.10. I have considered the submissions made by the learnedcounsel on either side. It is the prerogative of the respondents totake disciplinary action against the petitioner for herdelinquencies. It is not disputed even by the petitioner that whenthe petitioner was placed under suspension in the year 1992, nothingprevented the respondents to issue charge memo and to proceeddepartmentally until she was restored to service in the year 2000.Even, when she was restored to service, by revoking the suspensionorder, the respondents could have proceeded departmentally by issuingcharge sheet, holding an enquiry, etc. But the respondents simplyrevoked the suspension order, by the order dated 12.09.2000, withoutreserving their right to proceed departmental action. In fact, thereading of the order suggests that they did not intend to proceeddepartmentally. Therefore, it has to be presumed that they droppedthe departmental action. If the respondents have dropped thedisciplinary proceedings, the petitioner is entitled to salary andall other benefits for the period of her suspension.11. While the first respondent passed an order dated12.09.2000 revoking the suspension and re-appointing her in service,nothing is stated about the disciplinary action. It is not stated inthe said order dated 12.09.2000, whether the first respondentproposed to proceed with the disciplinary proceedings, after revokingthe suspension. The first respondent was not precluded fromproceeding with disciplinary action, even after restoring thepetitioner in service. The order states that pursuant to theproposals sent by the second respondent and the order of this courtin W.P.No.9092 of 1992, the suspension was revoked. It is not stated https://hcservices.ecourts.gov.in/hcservices/ what was the proposal sent by the second respondent. As far as theorder of this court in W.P.No.9092 of 1992 is concerned, it hasnothing to do with the suspension and the disciplinary proceedingsagainst the petitioner. The said order dated 12.09.2000 also does notstate anything, as to how the period of suspension between 24.09.1992and 26.09.2000 would be treated.12. When the petitioner made a representation dated29.05.2001, requesting to pay her the back-wages with continuity ofservice for the period from 24.09.1992 to 26.09.2000, the firstrespondent passed the order dated 31.05.2001 stating as the firsttime that the suspension period was treated as break-in-service. Ifthe suspension period was treated as break-in-service, it could betaken only as a punishment. The first respondent cannot pass such anadverse order against the petitioner without any enquiry. Hence, onthe face of it, the order dated 31.05.2001 treating the period ofsuspension as break-in-service is is arbitrary and illegal. 13. It is also not disputed that the petitioner was noteven paid subsistence allowance for the period from 24.09.1992 to26.09.2000, when she was under suspension. It also seems that hersalary was a meager sum i.e., Rs.600/- per month. The respondentscannot continue an employee under suspension, without even payingsubsistence allowance and such an action depriving the subsistenceallowance, that too for a very long period of six years, certainlyamounts to deprival of livelihood guaranteed under Article 21 ofConstitution of India. 14. The impugned orders dated 12.09.2000 dated 31.05.2001of the first respondent seek to deny the continuity of service to thepetitioner, by treating the suspension of 6 years as break-in-service. Hence, the petitioner will lose her services from 1983 to2000, for 17 years. 15. Adverse orders were passed, without hearing thepetitioner. It is well settled that no adverse order, that results incivil consequences, could be passed without hearing the personconcerned.16. Therefore, for the reasons stated above, the impugnedorder dated 12.09.2000, in so far as providing employment to thepetitioner as re-appointment without continuity of service and theorder dated 31.05.2001 of the first respondent in treating the periodof suspension from 24.09.1992 to 26.09.2000 as break-in-service, arehereby quashed. Since the order dated 15.09.2000 passed by the secondrespondent providing re-appointment to petitioner is a consequentialorder to the order dated 12.09.2000, the same is also quashed in sofar as providing the re-appointment to petitioner without continuityof service and back wages is concerned. https://hcservices.ecourts.gov.in/hcservices/

17. In fine, the respondents are hereby directed to grantthe petitioner continuity of service and also to pay back wages forthe period 24.09.1992 to 26.09.2000, within a period of eight weeksfrom the date of receipt of a copy of this order.18. Accordingly, the writ petition is disposed of. No costs.rns Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1. The District Collector Tirunelveli Tirunelveli District.2. The Block Development Officer Kuruvikulam Panchayat Union Kuruvikulam Tirunelveli District+ 1 cc to Government PleaderSR.45131+ 1 cc to Mr. M.K. Hidayathullah, Advocate Sr.44993.W.P.NO.8457 of 2007KU(CO)EU 23.09.2009.