Selvi.R. Shyni v. The District Collector

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 29..01..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 22826 of 2007Selvi.R. Shyni.. Petitioner Vs.1.The District CollectorThe Nilgiris Udhagamandalam2.The TahsildarPandalur TalukNilgiris District3.The Block Development OfficerGudalurNilgiris District4.The President Cherangode Village PanchayatCherambadi PostPandalur TalukNilgiris District .. Respondents Petition filed under Article 226 of the Constitution of India seekingfor issuance of writ of Certiorari calling for the records pertaining tothe order of the first respondent passed in his proceedings Na. Ka. Uoo.5/No.1760/07 dated 28.6.2007 and quash the order dated 28.6.2007.For Petitioner : Mr. S. PeriyasamiFor Respondents 1-3 : Mrs.Bhavani Subbarayan G.A.ORDERHeard Mr. S. Periyasami, learned counsel appearing for thepetitioner and G. Sankaran, learned Special Government Pleader takingnotice for the respondents 1 to 3 and perused the records. 2.The impugned order dated 28.6.2007 is an order placing thepetitioner under suspension pending further framing of charge-sheet andenquiry. It is seen from the said impugned order that there was aninspection conducted in the Panchayat on 27.6.2007 and 28.6.2007. TheTahsildar, Pandalur, seized Cash Books and cheques and thereafter a https://hcservices.ecourts.gov.in/hcservices/ report was sent by the Block Development Officer, Gudalur to theCollector. 3.It was the allegation against the petitioner that she, beingthe Panchayat Assistant, ignoring the directions, did not get thecheques signed by the President after preparing necessary bills andvouchers and got blank cheques signed. However, learned counselappearing for the petitioner submitted that he is not against the chargebeing framed against the petitioner but the jurisdiction of theauthority, viz., respondent, to place her under suspension. Accordingto the learned counsel appearing for the petitioner, by G.O. Ms. No. 175Rural Development and Panchayat Department dated 05.12.2006, the part-time Panchayat Assistants have been brought under time scale of pay andin the Annexure to the said G.O., it is stated that such a PanchayatAssistant should function under the control of the executive authorityof the Panchayat, viz., Panchayat President. Inasmuch thedisciplinary power vests on the executive authority of the Panchayat interms of Section 106 of the Tamil Nadu Panchayats Act, 1994 [for short,'Act'], any suspension by any other person is contrary to the provisionsof the Act. Therefore, the order should be quashed solely on theground of jurisdiction. 4.A counter affidavit dated 28.8.2007 has been filed by thethird respondent and in paragraph 8, it is stated that since therespondent is the Inspector of Panchayat, he has jurisdiction to suspendany of his subordinate staff as and when it is warranted in publicinterest. 5.No doubt, it is true that in terms of the Act, it is thePanchayat President, who is the executive authority and who can takedisciplinary action against the staff of the Panchayat. The questionthat arises for consideration is whether the higher officer, viz.,District Collector (designated as Inspector of Panchayat) is alsoempowered to suspend.6.The learned counsel appearing for the petitioner relied uponthe judgment of the Supreme Court reported in 1995 (2) SCC 474 [SurjitGhosh v. Chairman & Managing Director, United Commercial Bank andothers]. In that case, the question that arose was whether thedismissal can be imposed by an appellate authority thereby denying theright of appeal to the charged officer. The relevant passages foundin paragraphs 5 and 6 may be usefully extracted below:Para 5:".... However, since the action against him was taken bythe Deputy General Manager although the Divisional Managerand AGM (Personnel) were available for taking the action,the appellant was denied the right of an appeal and alsothe right of a review which lay only against the appellateorder. The impugned order of dismissal passed by the Bank,therefore, suffers from an inherent defect." https://hcservices.ecourts.gov.in/hcservices/ Para 6:".... Although the argument looks attractive at firstsight, its weakness lies in the fact that it tries toplace the Rules/Regulations which provide no appeal on parwith the Rules/Regulations where appeal is provided. It istrue that when an authority higher than the disciplinaryauthority itself imposes the punishment, the order ofpunishment suffers from no illegality when no appeal isprovided to such authority. However, when an appeal isprovided to the higher authority concerned against theorder of the disciplinary authority or of a lowerauthority and the higher authority passes an order ofpunishment, the employee concerned is deprived of theremedy of appeal which is a substantive right given to himby the Rules/Regulations. An employee cannot be deprivedof his substantive right." 7.But, in the present case, we are not concerned with the orderof punishment. It is only suspension pending enquiry. Therefore,the same logic cannot be made applicable and the Inspector of Panchaytscannot be a mute spectator when series of complaints were made on thebasis of spot inspection and it is always open to him to order forsuspending a Panchayat servant being the controlling authority of thePanchayat. 8.The learned counsel relied upon the Division Bench judgment ofthe Allahabad High Court reported in 1985 (1) SLJ 20 [Ram Narain Tewariv. Joint General Manager (Administration Personnel) and another].There, the question that arose before the Division Bench of theAllahabad High Court was whether there was any delegation of power infavour of a Joint General Manager of the State Road TransportCorporation and it was held that no delegation has been given in hisfavour for taking action. In the present case, this Court is notdealing with the case of delegation when the power of the Inspector ofthe Panchayat can be invoked in placing a Panchayat servant undersuspension pending enquiry. 9.The learned counsel also relied upon a Division Bench judgmentof this Court reported in 2007 (6) M.L.J. 36 [State of Tamil Nadu v.B. Jothi Naidu]. That case relates to the vires of Rule 2(e) of theTamil Nadu Panchayats Building Rules 1997 and in that context, thisCourt held that the Panchayat President is the executive authority tosanction building plan and that power cannot be usurped by theCommissioner of the Panchayat Union in the light of Article 243-G of theConstitution of India. That was not a case of any disciplinaryaction taken by the employer. 10.In service jurisprudence, unless the suspension is made by anauthority, who has totally no jurisdiction, the Court cannot interferewith the order of suspension. Further, it is not a case as if thesuspension has been made mala fide or without any materials and aperusal of the impugned order clearly shows that the suspension wasbased upon an inspection and materials gathered. Even otherwise, it https://hcservices.ecourts.gov.in/hcservices/ is not as if the petitioner has no remedy. He can always appeal tothe District Collector to modify his order. The Collector, being theInspector of Panchayat, is empowered to exercise emergency powers underSection 203 of the Act. Further, under Section 204 of the Act, he hasalso been vested with the power to take action in default of a VillagePanchayat or its President or its executive authority.11.Under the above circumstances, the writ petition filed by thepetitioner is misconceived and devoid of merits. Accordingly, thesame will stand dismissed. No costs. Interim stay already granted bythis Court will stand vacated and the Miscellaneous Petition is closed.griSd/- Asst.Registrar/true copy/ Sub Asst.RegistrarTo1.The District CollectorThe Nilgiris Udhagamandalam2.The TahsildarPandalur TalukNilgiris District3.The Block Development OfficerGudalurNilgiris District+1 cc to Mr.P.Anbarasan, Advocate Sr.No.4080.DM(CO)DCP/11.2W.P. No. 22826 of 2007