BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15/11/2007 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P(MD)No.8297 of 2006 and M.P(MD)No.1 of 2006 W.P(MD)No.727 of 2007 and M.P(MD)No.1 of 2007 W.P(MD)No.8297 of 2006 P. Raajendran ... Petitioner Vs. 1. The District Collector, Sivagangai District, Sivagangai. 2. Additional Director of Panchayat, Sivagangai. 3. Block Development Officer (VP), S.Pudur Panchayat Union Office, Sivagangai District. 4. The President, Orathupatty Village, Sivagangai District. ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records relating to the third respondent's proceeding Na.Ka.B1/769/2003 dated 4.3.2003, quash the same and consequently direct the 4th respondent to reinstate the petitioner as part time Panchayat Clerk. !A.L. Vadivel ... Petitioner Vs. $1. The State of Tamil Nadu, rep.by Secretary, Rural Development & Local Administration, Fort St.George, Chennai - 600 009. 2. The District Collector, Sivagantai District, Sivagangai. 3. The Assistant Director of Panchayats, (Rural Development), Sivagangai. 4. Block Development Officer (VP), S.Pudur Panchayat Union Office, Sivagangai District. 5. The President, Oorathupatti Village, S.Pudur Union, Sivagangai District. 6. P. Raajendran, Orathupatty Village, S.Pudur Union, Sivagangai District. ... Respondents Prayer Petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified mandamus, calling for the records relating to the impugned order dated 27.12.2006 suspending the petitioner from service and quash the same and consequently direct the 5th respondent to permit the petitioner to continue in service as Clerk in S.Pudur Union, Orathupatti Panchayat, Sivagangai as per service register with effect from 1.9.2006. !For Petitioner in W.P.8297/2006 ... Mr.K.Mahendran ^For Petitioner in W.P.727/2007 ... Mr.Madhavagovindan For RR.1 to 4 in W.P.8297/2006 ... Mrs.V.Chellammal, & RR.1 to 5 in W.P.727/2007 Special Govt. Pleader :ORDER
W.P.No.8297 of 2006
W.P.No.8297 of 2006 is filed to quash the order passed by the third
respondent dated 4.3.2003 placing the petitioner under suspension and to direct
the fourth respondent to reinstate the petitioner as Part-time Panchayat Clerk.
2. The case of the petitioner is that on the resolution of Orathupatty
Village Panchayat, petitioner was appointed as Part-time Panchayat Assistant
from 1.11.1997 and his salary was fixed at a sum of Rs.350/- per month. The
fourth respondent sent a report to the third respondent on 4.3.2003 and stated
that the petitioner was not doing any work and requested the third respondent to
suspend the petitioner so that the third respondent will be in a position to
appoint a person, who is close relative of the President. The third respondent
by order dated 4.3.2003, suspended the petitioner and directed one Alagan
Poosari from Melavanniruppu Village Panchayat to look after the work assigned to
the petitioner. On 10.11.2003, petitioner submitted a report to the Block
Development Officer, S.Pudur Panchayat Union and requested the Block Development
Officer to reinstate him and pay the salary for the suspension period, however
no action was taken by the Block Development Officer. On 21.3.2003 a charge
memo was issued containing four charges, which reads as follows:
“A. That the petitioner has not attended the office and failed to
discharge his duty in collecting the tax and remitted the same to the
Government.
B. That the petitioner has failed to appear before the Executive
Officer (Panchayat) and produce the documents for inspection and thereby
disobeyed the order of the superior.
C. That after collecting the tax failed to remit the amount into the
Panchayat account and thereby misappropriated the amount.
D. That after collecting the tax amount, petitioner failed to remit the
amount into the correct account and thereby neglected the instruction given by
the higher officials and also directed him to give an explanation within a
period of 7 days failing which they will decide to take further action as per
the available documents.”
On 31.10.2003, petitioner submitted a representation to the 4th respondent
seeking payment of subsistence allowance. In spite of the same, no subsistence
allowance is paid. On 21.4.2004, petitioner submitted all the records and
remitted all the tax amount collected and requested for restoration in service.
Petitioner submitted his explanation for the above charges on 31.3.2003 and
denied the same. No enquiry was conducted in spite of repeated representations.
The second respondent sent a reply to the petitioner on 4.10.2005 and stated
that suspension or removal from service of a part time clerk of Village
Panchayat is vested with the President of the Village Panchayat and he has no
jurisdiction. On 21.4.2006, 4th respondent requested the petitioner to appear
before the Commissioner of Panchayat Union for enquiry and no order having been
passed, petitioner challenged the order of suspension dated 4.3.2003 in this
writ petition by contending that the third respondent has no jurisdiction to
place the petitioner under suspension and the disciplinary power is vested with
the Executive authority, who is the President of the Village Panchayat under the
Tamil Nadu Panchayats Act, 1994. Petitioner also stated that no subsistence
allowance was paid and no final order in the disciplinary proceeding is also
passed. Therefore the petitioner contended that the prolonged suspension from
4.3.2003 is liable to be set aside.
3. The third respondent filed counter affidavit contending that the 4th
respondent sent a report to the third respondent on 4.3.2003 stating that the
petitioner is not doing any work and requested the third respondent to suspend
the petitioner. It is also admitted in the counter affidavit that the third
respondent suspended the petitioner and issued charge memo on 21.3.2003. It is
also averred in the counter affidavit that no explanation for the charge memo
dated 21.3.2003 was submitted by the petitioner. The Extension Officer
(Panchayat) enquired the complaint given by the 4th respondent and recommended
for temporary suspension of the petitioner on 4.3.2003 and therefore the third
respondent suspended the petitioner. It is also stated in the counter affidavit
that the third respondent removed the petitioner from service by resolution
dated 1.5.2003 and the removal order dated 19.6.2003 was served on the
petitioner on the same day itself, for which the petitioner gave his
acknowledgment. On the above pleadings the third respondent prayed for
dismissal of the writ petition.
4. Heard the learned counsel appearing for the petitioners as well as
the learned Special Government Pleader appearing for the respondents.
5. In the light of the pleading, particularly with regard to the
averments made in the counter affidavit filed by the third respondent stating
that the petitioner was removed from service by order dated 19.6.2003, which was
said to be acknowledged by the petitioner on the same day 19.6.2003, I directed
the Government Pleader to produce the original file, pursuant to which the
original file was produced before me. From the file it could be seen that the
order passed by the 4th respondent on 19.6.2003 which was acknowledged by the
petitioner on the same day is not an order of dismissal and it is only an
intimation that charges will be framed against the petitioner and the petitioner
will be dismissed from service. In the file, no charge memo framed thereafter
or any dismissal order passed is available. Further, from the impugned order in
W.P.No.727 of 2007 passed by the President of the Village Panchayat on
27.12.2006 it could be seen that the petitioner was restored to service and
therefore there is no order of termination passed as averred in the counter
affidavit filed by the third respondent.
6. In view of the statements contained in the counter affidavit at page
No.4 reiterating the stand that the order dated 19.6.2003 is the removal order
passed against the petitioner, which was acknowledged by the petitioner, it is
clearly proved without any ambiguity that no order, other than the one stated
supra is passed against the petitioner dismissing the petitioner from service.
The learned counsel for the petitioner contended that no charge memo was issued
to the petitioner till date and the petitioner is not permitted to work due to
the order of suspension, which is impugned in this writ petition.
7. The order of suspension is dated 4.3.2003 and the same is also
passed by the third respondent. Under the rules, disciplinary power against the
Panchayat staff is vested with the Executive Authority of the Village Panchayat
and the Executive Authority of the Village Panchayat is the President as per the
notification issued by the Government in G.O.Ms.No.225 Rural Development (C1)
Department, dated 15.10.1996, which reads as follows:
“NOTIFICATION
In exercise of the powers conferred by Section 83 of the Tamil Nadu
Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994), the Governor of Tamil Nadu
hereby appoints the President of Village Panchayat, as Executive Authority to
exercise the power and perform the functions of the Executive Authority of that
Village Panchayat.”
The impugned suspension order is passed by the third respondent, who is
admittedly not the Executive Authority.
8. Similar issue arose before this Court in the decision reported in
2004 (2) Law Weekly 577 (P.Adhikesavelu v. The District Collector, Thiruvallur
and others) wherein it is held that under section 84 of the Panchayats Act, the
Village Panchayat President is the competent authority to pass orders. Section
84(b) of the Tamil Nadu Panchayats Act, 1994, clearly states that the Executive
Authority shall have control over all the officers and servants of the Village
Panchayat. The said control amply discloses the disciplinary power including
the power of suspension, dismissal. Hence the impugned order passed by the third
respondent is without jurisdiction.
9. The learned counsel for the respondents are unable to show any rule
empowering the Block Development Officer to pass the order of suspension. Hence
the impugned order of suspension passed by the third respondent is declared
invalid. However, it is open to the 4th respondent, who is the Executive
Authority, to issue charge memo against the petitioner, if it is warranted, and
complete the disciplinary proceeding if initiated, within a period of three
months from the date of receipt of copy of this order. Since the petitioner was
suspended, who was a part-time employee, the payment of salary for the
suspension period will depend upon the ultimate decision to be taken in the
disciplinary proceeding, if any initiated, against the petitioner. If no
disciplinary proceeding is initiated against the petitioner by the 4th
respondent, the entire suspension period shall be treated as duty period without
backwages.
W.P.No.8297 of 2006 is allowed on the above terms. No costs. Connected
miscellaneous petition is closed.
W.P.No.727 of 2007
10. Prayer in this writ petition is to quash the order dated 27.12.2006
suspending the petitioner herein from the service of the 5th respondent.
11. Petitioner was admittedly appointed in the vacancy caused due to
suspension of the 6th respondent, who is the petitioner in W.P.No.8297 of 2006.
The suspension order passed against the 6th respondent having been quashed on
the ground of lack of jurisdiction and no order of termination having been
passed against the 6th respondent till date, the petitioner herein is not
entitled to contend that he should be permitted to work. The 5th respondent has
passed an order on 27.12.2006 permitting the 6th respondent to rejoin duty on
cancellation of the suspension order and due to the said action, there is no
vacancy for the petitioner herein to continue in the post and therefore he was
relieved from his duties. The impugned order clearly states that the petitioner
AL.Vadivel, who is functioning as part-time clerk of Orathupatty Village
Panchayat of S.Pudur Block of Panchayat Union of Sivagangai District, is ordered
to be suspended from the date when the 6th respondent viz., P.Rajendran re-join
duty. The said order clearly discloses yet another fact that the said 6th
respondent was not terminated from his service by the competent authority viz.,
the Executive Authority of the Village Panchayat. There is no error in the
order of the 5th respondent, as admittedly petitioner was appointed in the
vacancy arose due to the suspension of the 6th respondent.
12. There is no merit in this writ petition and the same is dismissed.
No costs. Connected miscellaneous petition is also dismissed.
vr
To
1. The Secretary,
Rural Development & Local Administration,
Fort St.George, Chennai – 600 009.
2. The District Collector, Sivagantai District,
Sivagangai.
3. The Additional Director of Panchayat,
Sivagangai.
4. The Assistant Director of Panchayats,
(Rural Development), Sivagangai.
5. The Block Development Officer (VP),
S.Pudur Panchayat Union Office, Sivagangai District.
6. The President, Oorathupatti Village,
S.Pudur Union, Sivagangai District.
