BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/06/2010 CORAM THE HON'BLE Ms.JUSTICE K.SUGUNA and THE HON'BLE Mr.JUSTICE C.S.KARNAN W.A.(MD)No.322 of 2010 and M.P.No.1 of 2010 The President Marakkathur Village Panchayat Kalayarkoil Sivagangai District. ... Appellant Vs 1.R.Chandrasekar 2.The Inspector of Panchayat cum District Collector, Sivagangai District. 3.The Block Development Officer, Kalaiyar Koil Panchayat Union, Sivagangai District. ... Respondents Prayer Writ Appeal filed under clause 15 of Letters Patent against the order passed in W.P.(MD)No.8602 of 2006 dated 22.04.2010 by his Lordship Mr.Justice N.KIRUBAKARAN. !For Appellant ... Mr.Veera.Kathiravan ^For Respondents ... Mr.D.Gandhiraj Government Advocate :JUDGMENT
(Judgment of the Court was delivered by
K.Suguna, J)
This Writ Appeal is filed as against the order dated 22.04.2010 passed in
Writ Petition No.8602 of 2006, wherein setting aside the order of dismissal
passed by the President of the Village Panchayat as well as the District
Collector, this Court has ordered for re-instatement of the Writ Petitioner.
2. According to the learned counsel appearing for the appellant, though no
enquiry was conducted by the Village President before passing the order of
dismissal from service, the District Collector called for the records and after
conducting enquiry and providing an opportunity to the Writ Petitioner,
confirmed the order of the Village President and that apart, the Writ Petition
has been allowed relying on a Government Order issued in G.O.Ms.No.175, Rural
Development and Panchayat Department dated 05.12.2006. According to the learned
counsel for the appellant, as far as this Government Order is concerned, this
came into effect on 05.12.2006, whereas, the impugned order of dismissal has
been passed on 06.09.2006, i.e. prior to G.O.Ms.175, Rural Development and
Panchayat Department dated 05.12.2006 and consequently, relying on this
Government Order, which has been issued subsequent to the impugned order of
dismissal, the order passed in the said Writ Petition is unsustainable and the
same has to be set aside. Apart from this, according to the learned counsel, as
per Sections 201 and 202 of the Tamil Nadu Panchayats Act, 1994, the Collector
can call for the records and verify the entire files and pass orders. Basing on
this also, according to the learned counsel, the order of the learned Single
Judge has to be set aside.
3. But, a perusal of the order passed by the learned Single Judge
reveals that the order of dismissal from service has been set aside not only
relying on G.O.Ms.175, Rural Development and Panchayat Department dated
05.12.2006, but also on the ground that as per the Act, the Village President
has to pass orders, but, the District Collector, assuming the role of the
Executive Authority, has passed the order by conducting enquiry and confirmed
the order of the Village President.
4. Besides, the learned counsel for the appellant has also admitted the
fact that the dismissal order has been passed without conducting any enquiry and
without providing an opportunity to the writ petitioner and even as per the
stand of the learned counsel for the appellant also, as against the order of the
dismissal, the writ petitioner has filed an appeal and in that appeal alone, the
District Collector has passed the order.
5. Two things have to be noted here. One is that, even according to the
learned counsel appearing for the appellant, the competent authority to initiate
disciplinary proceedings is the Village President. But, without conducting any
enquiry, major punishment has been imposed. The main contention of the learned
counsel for the appellant is that though originally enquiry was not conducted,
the defect has been rectified by the Collector by conducting an enquiry. As far
as this stand of the learned counsel for the appellant is concerned, as rightly
pointed out by the learned Single Judge, the District Collector cannot assume
the role of the Village President and pass orders. Apart from this, even as per
paragraph no.35 of the judgment of the Hon’ble Apex Court reported in (2008) 9
SCC 177, Meera Sahni vs. Lieutenant Governor of Delhi and Others, when an Act or
Rule prescribes certain procedures to be followed, the said procedures have to
be followed while passing orders or taking decisions. But, here is a case,
where the Village President has passed an order and imposed a major punishment
in violation of principles of natural justice. Though the District Collector
had confirmed the order by conducting an enquiry, coming to the conclusion and
passing a final order is totally different from conducting an enquiry and
confirming the order which is already passed against the workman. The second
aspect of it is that as against the order of the Village President, the Writ
Petitioner had filed an appeal. If an enquiry had been conducted by the Village
President and orders had been passed, the workman would have agitated any
loophole in the order passed by the Village President before the Appellate
Authority. But, since that procedure has not been followed and the Appellate
Authority had conducted the enquiry, the writ petitioner, in fact, has lost his
right of agitating the loophole in the finding of the enquiry conducted before
the Appellate Authority.
6. As such, we find no reason to interfere with the order of the learned
Single Judge and the Writ appeal fails and the same is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
RR
To
1.The Inspector of Panchayat cum
District Collector,
Sivagangai District.
2.The Block Development Officer,
Kalaiyar Koil Panchayat Union,
Sivagangai District.