IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.10.2009 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.8341 of 2007 S.Chelliah ... Petitioner Versus The Commissioner Tenkasi Municipality Tenkasi. Tirunelveli District. ... Respondent PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.3198 of 2002 from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records relating to the proceedings of the Commissioner, Tenkasi Municipality, Tenkasi, the respondent herein made in Proc.No.H1.7907 dated 17.05.2002, quash the same and direct the respondent herein to reinstate the applicant herein as a Sanitary Worker, Tenkasi Municipality, with all consequential attendant, service and monetary benefits, disburse all the arrears due to the applicant. For Petitioner : Mr.K.Rajkumar For Respondent : Mr.V.Subbiah for Mr.K.Kulandaivelu O R D E R
The Original Application in O.A.No.3198 of 2002 before the Tamil Nadu Administrative Tribunal (in short “Tribunal”) is the present writ petition.
2.The petitioner was appointed as a Sanitary Worker in 1970 in the respondent Municipality. He rendered 30 years of service, when he was dismissed from service. He was allotted duty in the 4th Division in the respondent Municipality. On 23.10.2000, the Sanitary Supervisor directed him to go and do the household works in the Commissioner’s residence from 06.00 a.m. to 06.00 p.m. The Sanitary Supervisor promised him that he would mark his presence in the attendance register in the 4th Division. The petitioner politely requested the Sanitary Supervisor to send someone who has experience of doing household works. He also stated that he crossed 50 years of age and he got some ailment and that therefore, he was not in a position to do household works. The Sanitary Supervisor got infuriated and he informed the Commissioner as if the petitioner disobeyed his order.
3.The petitioner states that the Commissioner unusually visited the 4th Division office before 06.00 a.m. on 24.10.2000, even before the arrival of the petitioner for work. The petitioner, as usual reported for duty at 06.00 a.m. The Commissioner, who was present in the 4th Division office, did not allow him to sign the attendance register and directed him to meet him in the office room in the 4th Division. When he met the Commissioner in the office room, the Commissioner abused the petitioner in filthy language and also called the petitioner by his caste name. The Commissioner also told him not to attend office till he was called back to duty.
4.The petitioner gave a petition dated 24.10.2000 to the District Collector, seeking job protection, explaining the above facts.
5.The petitioner was placed under suspension by the respondent by an order dated 25.10.2000. The respondent issued a charge memo dated 30.10.2000 alleging the following charges:
“(i) that the petitioner did not attend duty on 25.10.2000
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 dated 04.11.2000, denying the charges. Thereafter, the Commissioner appointed himself as an Enquiry Officer to enquire into the charges.
7.In the meantime, based on the complaint of the petitioner, the District Collector directed the District Untouchability Officer, to initiate action against the respondent Commissioner.
8.The petitioner states that in the said circumstances, the petitioner sought orally for change of Enquiry Officer and that the respondent turned down the request. The respondent Commissioner proceeded with an exparte enquiry and dismissed the petitioner from service, by an order dated 16.03.2001.
9.Aggrieved by the same, the petitioner filed Original Application in O.A.No.5349 of 2001 before the Tribunal, questioning the termination order. The Tribunal allowed the Original Application and set aside the termination order, on 04.10.2001. While setting aside the order of termination, the Tribunal remanded the matter for fresh enquiry, by a different officer, other than the respondent Commissioner.
10.Thereafter, on remand, the respondent appointed the Municipal Engineer as Enquiry Officer, by a letter dated 21.12.2001.
11.In the meantime, the petitioner sent a letter dated 19.12.2001 to the respondent, to implement the order of the Tribunal, by reinstating him in service. The request of the petitioner was turned down and he was not reinstated pending enquiry. The petitioner made representations dated 11.02.2002, 02.03.2002 and 14.03.2002, to pay him subsistence allowance pending enquiry. But the same was also not paid.
12.However, by an order dated 30.01.2002 of the Municipal Engineer, the petitioner was directed to appear for an enquiry on 11.02.2002 at 11.00 a.m. The petitioner took a stand that unless he was paid subsistence allowance, he would not attend the enquiry. In these circumstances, the enquiry was posted to 06.03.2002 and thereafter 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 said findings, the petitioner was dismissed from service by an order dated 17.05.2002 of the respondent.
14.Aggrieved by the same, the petitioner filed Original Application in O.A.No.3198 of 2002 (W.P.No.8341 of 2007) to quash the aforesaid order dated 17.05.2002 and for a direction to the respondent to reinstate him in service, with all backwages and all other benefits.
15.Heard Mr.K.Rajkumar, learned counsel for the petitioner and 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 on instructions.
17.The learned counsel for the petitioner submits as follows:
a) The entire disciplinary action lacks bona fide besides it is vindictive.
b) The disciplinary action is vitiated for non payment of subsistence allowance.
c) In the exparte enquiry, no witnesses were examined on the side of the Department and such a procedure is illegal and rendering the dismissal order bad.
d) Even in the exparte enquiry, the charges were not established and the findings of the Enquiry Officer is perverse.
e) The action of the respondent is arbitrary and violative of Articles 14 and 21 of the Constitution.
18.The learned counsel for the petitioner has brought to my notice the following passage, from the order dated 04.10.2001 of the Tribunal, made in O.A.No.5349 of 2001. While setting aside the earlier termination order dated 16.03.2001 of the respondent, in para 8, the Tribunal held as follows:-
“8.In as much as the complainant, the enquiry officer and the disciplinary authority are one and the same, it is very unlikely that there will be no bias on his part especially when the applicant is a low level sweeper in the Municipality, he is bound to be crushed by the weight of authority of a mighty Municipal Commissioner. Therefore, the orders of the Municipal Commissioner dated 16.03.2001 are hereby set aside…………”
19.The learned counsel for the petitioner submits that the aforesaid passage of the Tribunal itself makes it clear that the entire action is mala fide. The learned counsel for the petitioner further submits that the non payment of subsistence allowance would vitiate the entire disciplinary proceedings. As per Regulation 4(4) of the Tamil Nadu Municipal (Non Centralised Regular) Public Health Establishment Discipline and Appeal Regulations 1977, the petitioner is entitled to subsistence allowance from the date of original order of suspension, when the earlier dismissal order was set aside by the Tribunal. Once the petitioner is under suspension, the petitioner is entitled to subsistence allowance. The learned counsel for the petitioner further submits that the Honourbale Apex Court in JAGDAMBA PRASAD SHUKLA VS. STATE OF U.P. AND OTHERS reported in 2000 (5) SUPREME 650 held that the order of removal from service is liable to be quashed, if subsistence allowance was not paid and the delinquent employee was not able to participate in the enquiry proceedings due to financial difficulties.
20.The learned counsel for the respondent submits that the petitioner was paid subsistence allowance after the impugned order of the respondent, dismissing the petitioner from service and that therefore, he should not complain about non-payment of subsistence allowance.
21.The learned counsel for the petitioner submits that the subsistence allowance was paid, only after the petitioner filed the present Original Application. The payment of subsistence allowance after the petitioner filed the present Original Application, would not cure the defect. It is submitted that while admitting the Original Application on 14.06.2002, the Tribunal granted interim stay of termination order. The respondent, instead of reinstating the petitioner pursuant to the interim stay of the Tribunal, had chosen to pay him subsistence allowance.
22.The learned counsel for the petitioner further submits that the allegations made in the charge memo, would not constitute even misconduct. The allegations, on the face of it, would disclose that 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 are well founded. I am of the considered view that the entire disciplinary proceedings is mala fide. The entire narration of events that lead to framing of the charge memo and the trivial nature of the events also make it clear that the action of the respondent lacks bona fide in proceeding against the petitioner on one protext or another. The mere perusal of the charge memo makes it very clear that the action of the respondent is nothing but a vindictive one.
24.The dismissal order is also vitiated for non-payment of subsistence allowance. As rightly pointed out by the learned counsel for the petitioner, the respondent is enjoined to pay subsistence allowance, once the order of removal was set aside by the Tribunal on 04.10.2001, if the respondent did not choose to reinstate the petitioner in service. The respondent neither reinstated him in service nor provided him subsistence allowance. This is also an incident 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 disciplinary proceedings, if an employee was not paid subsistence allowance and consequently he was not able to participate in the proceedings, due to financial difficulties, the order of removal from service was liable to be quashed.
25.The said dictum of the Honourable Supreme Court squarely applies to the facts of the case. The learned counsel for the petitioner is also correct in his submissions that the procedure adopted by the Enquiry Officer by not examining any witnesses, to prove the charges is illegal. It has been held by this Court in R.KARUPPANNAN VS. TAMIL NADU WATER SUPPLY AND DRAINAGE BOARD reported in 1992 (II) L.L.N. 127 and the Honourable Supreme Court in ROOP SINGH NEGI VS. PUNJAB NATIONAL BANK AND OTHERS reported in 2009 (2) SCC 570 that mere production of document is not enough and the contents of the documentary evidence have to be proved, by examining witnesses. Hence, there is a basic flaw in the conduct of the enquiry. The Enquiry Officer failed to follow the basic principles in conducting the enquiry.
26.The learned counsel for the petitioner is also correct in his submissions that there is no discussion by the Enquiry Officer, as to how he came to the conclusion that the charges were established. He submits that it is a mere ipse dixit of the Enquiry Officer, without analysing even the documents which were placed before him. The learned counsel also rightly submits that the charge memo is based on the alleged report of the Sanitary Supervisor and however, the same was not even furnished to him at any point of time.
27.The submissions of the learned counsel for the respondent that the respondent paid subsistence allowance, deserves to be rejected, since the same was paid after the interim order of the Tribunal in this case. The learned counsel for the petitioner is also correct in his submissions that the entire action of the respondent is arbitrary and violative of Articles 14 and 21 of the Constitution. The respondent has no regard for rule of law and the respondent deprived the livelihood of the petitioner by the arbitrary action in not even paying subsistence allowance during the enquiry. Hence, the action of the respondent is violative of Articles 14 and 21 of the Constitution.
28.For the all the reasons as stated above, the impugned order is liable to be quashed and accordingly, the same is quashed.
29.At this juncture, the learned counsel for the petitioner submits that the petitioner reached the age of superannuation on 30.03.2006.
30.In these circumstances, the respondent is directed to pay wages for the period of non-employment and also all other benefits, on account of the setting aside of the order of dismissal, up to 30.06.2006, and thereafter to pay him all the terminal benefits, including pension, within a period of four weeks from the date of receipt of a copy of this order.
31.With the above observation and direction, the writ petition is disposed of. No costs.
TK
To
The Commissioner
Tenkasi Municipality
Tenkasi,
Tirunelveli District