K. Askar Ali v. The Corporation of Tirunelveli & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:23.03.2007CORAM:THE HON'BLE MR. JUSTICE P. SATHASIVAMANDTHE HON'BLE MR. JUSTICE S. TAMILVANANWRIT APPEAL No.2070 of 2003K. Askar Ali.. Appellantvs.1.The Corporation of Tirunelveli rep. By its Commissioner Tirunelveli 6.2.The Examiner of Local Funds Accounts Local Fund Audit Department Fourth Floor, Kuralagam Chennai 108... RespondentsWrit Appeal filed under Clause 15 of the Letters Patent againstthe order of The Learned single Judge (His Lordship Mr. Justice E.Padmanabhan) in W.P.No.12435 of 1996 dated 24.10.2002.WP No.12435 of 1996 : The writ petition filed under Article 226 of theconstitution of India. Prayed for the issuance of writ ofcertiorarified mandamus to call for the proceedings of the 1strespondent in order No.C2/7483/94 dated 9.4.1996, quash the same and todirect the respondents to refix the date of the petitioner attaining thespecial order as 1.10.84 and consequently increase the pletitioner'spension benefits and refund the sum of Rs.25,474.For appellant : Mr. K. Ilias AliFor respondents : Mr. P. Subramanian Government AdvocateJUDGMENT(Judgement of the Court was delivered by P. SATHASIVAM,J.)The above writ appeal is directed against the order of thelearned Single Judge dated 24.10.2002 made in W.P.No.12435 of 1996 inand by which the learned Judge, after finding no illegality or error ofjurisdiction in the proceedings, dismissed the writ petition.2. For convenience, we shall refer the parties as arrayed in thewrit petition.3. According to the petitioner, he was appointed as a Bill https://hcservices.ecourts.gov.in/hcservices/ Collector of the then Tirunelveli Municipality, now upgraded asCorporation, on 31.10.1962. He was suspended on 17.6.1975 on some minorcharges and thereafter, he was removed from service on 31.7.1976. Hepreferred an appeal to the Inspector of Municipalities, who, by hisorder dated 6.10.1979 modified the punishment of removal into one ofpunishment of reduction of pay in two stages from Rs.180/- to Rs.170/-.Then, the Municipal Commissioner, by his order dated 17.7.1980regularised his period of suspension from 17.6.1975 to 30.7.1976. Inthe said order, it was also stated that regarding the period from31.7.1976 to 21.11.1979, separate orders would be issued. On11.1.1991, the first respondent passed an order to the effect that asper G.O.Ms.No.1013 dated 17.9.1990, the Bill Collectors, now known asRevenue Assistants, who had completed 20 years of services wereentitled to a special grade and increase in pay and as such, thepetitioner was given the special grade and his pay was revised as on1.10.1984 from Rs.705-1230 to Rs.905-1545 and his further increment insalary upto 1.10.1990 was indicated as Rs.1500-2040. This clearly showsthat the first respondent had taken into account the period from31.7.1976 to 22.12.1979 while calculating total years of service of thepetitioner. By order dated 29.4.1994, the first respondent permittedthe petitioner to retire from service. The petitioner also received aletter stating that the Director of Municipal Administration, in hisproceedings M.M.74410/94/S1, dated 2.3.1995, regularised the period from31.7.1976 to 22.11.1979 as leave without pay. However, the petitionerreceived a letter dated 26.7.1995 from the second respondent, Examinerof Local Funds Accounts, which was addressed to the first respondentstating that since the period from 25.11.1975 to 22.11.1979 was treatedas leave without pay, the petitioner was entitled to special categoryonly from 28.10.1986. In other words, the above period which wastreated as leave without pay was not considered as part of period ofservice. When the said order was issued, the petitioner retired fromservice. Since the petitioner was given the increase in pay from1.10.1984, in view of the said order, the petitioner had to repay a sumof Rs.25,474/- to the first respondent. The first respondent has alsoissued an order on 26.7.1995 to recover the said amount. On 2.1.1996the second respondent addressed a letter to the first respondent whichis called pension payment order stating that the total period ofemployment of the petitioner was 27 years 6 months and 2 days, fixinghis pension as Rs.707/-. In the letter, it is also indicated thatgratuity amount due to the petitioner was Rs.24,902/- and the arrearswas Rs.25,474/- and thus, a balance of Rs.572/- only was due to thepetitioner. Subsequently, the first respondent on 9.4.1996 passed anorder relating to the pension benefits of the petitioner. As therespondents have acted arbitrarily and in a capricious manner, having noother effective remedy, the petitioner has filed the present writpetition seeking to quash the proceedings of the first respondent dated9.4.1996 and to issue further direction to the respondents to fix thedate of his attaining special grade as 1.10.1984 and consequently,increase his pension benefits and refund the sum of Rs.25,474/-. 4. Though Rule NISI was issued in the year 1996 and finally thewrit petition came to be disposed of on 24.10.2002, admittedly, therespondents have not filed counter affidavit conveying their stand tothe Court. 5. The learned Judge, after finding that the petitioner has not https://hcservices.ecourts.gov.in/hcservices/ challenged the orders that had been passed in between 1980 and 1985,approved the order of recovery and dismissed the writ petition, byorder dated 24.10.2002. Hence, the present writ appeal.6. Heard learned counsel for the appellant as well as learnedGovernment Advocate for the respondents. 7. It is not in dispute that originally the petitioner wasremoved from service on 31.7.1976, however, on appeal preferred by thepetitioner, he was reinstated into service with effect from 22.11.1979.In the order of reinstatement, the appellate authority, viz., Inspectorof Municipalities ordered to treat the suspension period of BillCollector as leave to which the petitioner is eligible. Accordingly,the suspension period of Bill Collector from 17.6.1975 to 30.7.1976 wasordered to be regularised as per the following details:"1. 18.6.75 to 25.8.75 = 69 days earned leave. 2. 26.8.75 to 24.11.75 =Three months' leave on private affairs on half pay. 3. 25.11.75 to 30.7.76 =Leave on loss of pay."In the same proceedings, the Municipal Commissioner observed that ordersregarding the period from 31.7.1976 to 21.11.1979 will be issuedseparately. Based on the same, the Executive Director ofMunicipalities, Chennai in his proceedings in M.M.74410/94/H1, dated2.3.1995, passed the following order:"The Municipal Commissioner has requested for ordersto regularise the period from 31.7.1976 to 22.11.1979 when theabove person was removed from service. Hence, the period whenhe was removed from service from 31.7.1976 to 22.11.1979 istreated as leave without pay and ordered accordingly."It is clear from the above order that the relevant period, viz., from31.7.1976 to 22.11.1979 was treated as leave without pay and necessaryproceedings were issued by the authority concerned. This is alsoreferred to in the subsequent proceedings of the Auditor, LocalAdministration, Revenue Accounts, Chennai dated 26.7.1995 addressed tothe Commissioner, Tiruvelveli Municipal Corporation. 8. It is not in dispute that accepting the orders/proceedings ofthe authority, the first respondent passed an order on 11.1.1991 fixingthe salary of the petitioner at Rs.905/- and granting him special gradeas on 1.10.1984 taking into account that he had completed 20 years ofservice by then. As rightly pointed out, the order of the Inspector ofMunicipalities dated 6.10.1979 modifying the punishment of removal fromservice into one of reduction of pay by two stages from Rs.180/- toRs.170/-, superseded the order of the first respondent dated 31.3.1977.Therefore, it follows that the period had to be treated as leave withoutpay. It is also brought to our notice that the Tamil Nadu Pension Rules,viz., Rule 22 of the said Rules deals with the counting of past serviceon reinstatement, which reads as under:"22. Counting past service on reinstatement: -- (1) A Government Servant who is dismissed, removed orcompulsorily retired from service but is reinstated on appealor review, is entitled to count his past service as qualifying https://hcservices.ecourts.gov.in/hcservices/ service. (2) The period of interruption in service between thedate of dismissal, removal or compulsory retirement, as thecase may be and the date of reinstatement and the period ofsuspension if any shall not count as qualifying service unlessregularised as duty or leave by a specific order of theauthority which passed the order of reinstatement."9. In view of the order passed by the Executive Director ofMunicipalities dated 2.3.1995 treating the relevant period viz.,31.7.1976 to 22.11.1979 as leave without pay and in the light of Rule22(2) of the Tamil Nadu Pension Rules, the order passed by the firstrespondent dated 9.4.1996 cannot be sustained. Unfortunately, all theabove-mentioned details were not adverted to by the learned Judge whiledismissing the writ petition on the only ground that the petitioner hadnot challenged the orders which were passed in the years 1980 to 1985.We are unable to accept the reasoning of the learned Judge. By virtueof the above-mentioned proceedings as well as the relevant Rule which wehave already referred to, the petitioner is entitled to succeed. 10. In these circumstances, the order of the learned SingleJudge dated 24.10.2002 is set aside and the proceedings of the firstrespondent dated 9.4.1996 are quashed and the respondents are directedto re-fix the date of the petitioner attaining the Special Grade as1.10.1984 and pass appropriate orders fixing proper pension and otherbenefits. In view of our said conclusion, the respondents are directedto refund a sum of Rs.25,474/- and also pass fresh orders with regardpension and other benefits on the basis of calculation treating theperiod from 31.7.1976 to 22.11.1979 as leave without pay, within aperiod of six weeks from the date of receipt of copy of this order. Thewrit appeal is allowed with costs. Counsel fee is fixed at Rs.1,000/-.kh Sd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1.The Commissioner, The Corporation of Tirunelveli Tirunelveli 6.2.The Examiner of Local Funds Accounts Local Fund Audit Department Fourth Floor, Kuralagam Chennai 108.+1 cc to M/s.K.Ilias Ali, Advocate Sr.No.18523.+1 cc to the Government Pleader,Sr.No.18420.RS(CO)dcp/12.4.07 W.A.No.2070 of 2003