Madras High Court
The Commissioner vs R.Manoharan on 21 April, 2021
W.A.(MD)No.899 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.899 of 2021
and
C.M.P(MD)No.4043 of 2021
The Commissioner,
Madurai Corporation,
Madurai. ... Appellant / Respondent
Vs.
R.Manoharan ... Respondent / Petitioner
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent, praying to
set aside the order dated 26.02.2020 made in W.P.(MD)No.1558 of 2013 on the
file of this Court.
For Appellant : Mr.T.S.Mohamed Mohideen
For Respondent : Mrs.Vijayashanthi
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W.A.(MD)No.899 of 2021
JUDGMENT
***************
[Judgment of the Court was delivered by T.S.SIVAGNANAM, J.]
This Writ Appeal filed by the Commissioner, Madurai Corporation is
directed against the order, dated 26.02.2020, passed in W.P.(MD)No.1558 of
2013.
2.We have heard Mr.T.S.Mohammed Mohideen, learned Standing
Counsel for the appellant and Mrs.S.Vijayashanthi, learned Counsel appearing
for the respondent / writ petitioner.
3.With the consent on either side, the Writ Appeal itself is taken up
for final disposal.
4.The respondent / writ petitioner was working as a Bill Collector in
the Appellant Corporation. He came to adverse notice and he was placed under
suspension by order, dated 10.02.2005. Charges were framed against the
respondent / writ petitioner by proceedings, dated 17.08.2012, containing 6
Articles of charge. The Appellant Corporation would submit that the
Corporation decided to permit the respondent to retire without prejudice to the
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W.A.(MD)No.899 of 2021
Departmental proceedings subject to over conditions, which are as follows :
"1. k4ep2-6674-2004 eph; nfhg;gpy;
gpwg;gpf;fg;gl;Ls;s Fw;wr;rhl;L eltof;iff;F
ghjfkpy;yhkYk;.
2/ filrp khjk; Cjpaj;jpy; bjhHpy;thp
gpoj;jk; U:/975-? gpoj;jk; bra;ag;glntz;Lk; vd;Wk;.
3/kJiu khefuhl;rp Tl;Lwt[ rpf;fd ehza r';f
fld; epYitj; bjhif U:/2.38.757-?y; jdpahpd;
gzpf;bfhilapy; gpoj;jk; bra;ag;gLk; vdt[k;.
4/jdpauhy; khefuhl;rpf;F Vw;gl;l
epjpapHg;g[j; bjhif U:/7.73.640-?y; jpUk;g brYj;jpa
bjhif U:/1.36.000-? nghf kPjpj; bjhif
U:/6.37.640-?I cs;shl;rp epjpj; jzpf;ifj; Jiw
tpjpfspd;go 16# tl;oa[ld; brYj;jpa gpd; Xa;t{jpa fhy
gzg;gyd;fs; tH';fg;gLk; vd;w epge;jidfspd; goa[k;
gzp Xa;t[ bgw mDkjpf;fg;gLfpwJ/"
5.The respondent /writ petitioner filed the writ petition challenging
the condition Nos.1 and 4 alone. The learned Writ Court allowed the writ
petition on the ground that the respondent / writ petitioner having been
permitted to retire, the conditions imposed in the order, dated 31.08.2012 cannot
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W.A.(MD)No.899 of 2021
be enforced against the writ petitioner and that if at all the Appellant
Corporation, seeks to proceed departmentally against the respondent, it can do
so only under the Tamil Nadu Pension Rules.
6.After considering the materials placed on record, we are of the
definite view that the finding rendered by the learned Writ Court is not
sustainable. The writ petitioner was permitted to retire without prejudice to the
departmental proceedings and this order has been accepted by the respondent /
writ petitioner and he retired from service. Therefore, the Appellant
Corporation is entitled to proceed with the charge memo, which was framed,
much prior to the order permitting the writ petitioner to retire without prejudice
to the departmental proceedings. Therefore, the learned Writ Court ought not to
have quashed the condition No.1 in the order, dated 31.08.2012.
7.So far as condition No.4 is concerned, the learned Standing Counsel
for the Appellant Corporation would contend that the writ petitioner himself has
voluntarily remitted Rs.1,36,000/- (Rupees One Lakh Thirty Six Thousand
only), out of the total amount of Rs.7,73,640/- (Rupees Seven Lakhs Seventy
Three Thousand Six Hundred and Fourty Only) being the loss caused to the
Appellant Corporation and the balance payable amount is Rs.6,37,640/-
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W.A.(MD)No.899 of 2021
(Rupees Six Lakhs Thirty Seven Thousand Six Hundred and Fourty Only) and
unless he pays the said amount, the retirement benefits will not be released. We
find from the Charge Memo, dated 17.08.2012, that one of the charges is with
regard to loss caused to the Appellant Corporation to the tune of Rs.7,73,640/-
(Rupees Seven Lakhs Seventy Three Thousand Six Hundred and Fourty Only).
If such is the fact situation, then the appellant Corporation cannot compel the
respondent / writ petitioner to pay the money upfront, even before the
departmental proceedings is concluded.
8.The learned Standing Counsel for the Appellant Corporation
submitted that there is no compulsion exerted on the writ petitioner, but the
respondent / writ petitioner himself has given a sworn affidavit, dated
26.06.2012 agreeing to remit the said amount.
9. The learned counsel appearing for the respondent / writ petitioner
submitted that the said affidavit was obtained by exerting pressure on the
respondent.
10. Be that as it may, the Appellant Corporation cannot compel the
respondent to pay the money, even before conclusion of the disciplinary
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W.A.(MD)No.899 of 2021
proceedings. There is a complaint made on behalf of the respondent/ writ
petitioner that the Appellant Corporation is delaying the conclusion of the
departmental proceedings. It is not clear as to why the appellant Corporation
has not concluded the departmental proceedings, probably because of the
pendency of the writ petition, which was filed in the year 2013 and there was
also an order of interim stay. Hence, the Appellant Corporation cannot be
blamed for the delay in not concluding the departmental proceedings, as the
delay is attributable to the respondent / writ petitioner as it is he who had stalled
the matter by obtaining an order of interim stay in the writ proceedings.
Further, the learned counsel for the respondent/writ petitioner would submit that
though initially, there was an order of stay, subsequently, there was a direction
to pay the Subsistence Allowance and only thereafter, subsistence allowance
was paid.
11. In the light of the above discussion, the order passed in the writ
petition impugned in this Writ Appeal has to be interfered with.
12.In the result, the writ appeal is allowed and the impugned order is
set aside and the Appellant Corporation is directed to commence and conclude
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W.A.(MD)No.899 of 2021
the disciplinary proceedings within a period of two months from the date of
submission of the explanation to the charge memo, by the respondent/writ
petitioner. So far as condition No.4 of the order, dated 31.08.2012 is concerned,
the same shall not be enforced and the respondent should be permitted to face
the departmental enquiry. The Appellant Corporation is directed to pay the
Subsistence Allowance at the admissible rates continuously till the conclusion
of the departmental proceedings and till final orders are passed, if there is any
arrears of Subsistence Allowance to be paid, the same should also be paid and
only thereafter, the departmental proceedings could commence. No costs.
Consequently, connected miscellaneous petition is closed.
[T.S.S., J.] & [S.A.I., J.]
21.04.2021
Index : Yes / No
Internet : Yes / No
RM
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
T.S.SIVAGNANAM, J.
AND
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W.A.(MD)No.899 of 2021
S.ANANTHI, J.
RM
JUDGMENT MADE IN
W.A.(MD)No.899 of 2021
21.04.2021
https://www.mhc.tn.gov.in/judis/
