Madras High Court
R.Patchaiappan vs The Additional Chief Secretary on 1 December, 2021
W.P(MD)No.7257 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.12.2021
CORAM
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD) No.7257 of 2020
& WMP(MD)Nos.6694 to 6696 of 2020
R.Patchaiappan ... Petitioner
Vs.
1.The Additional Chief Secretary,
Tourism, Culture and Religious Endowment Department,
St. George's Fort,
Chennai
2.The Principal Secretary cum Commissioner,
Hindu Religious Endowment Board,
Mahatma Gandhi Road,
Nungambakkam,
Chennai-600 034
3.T.Anitha,
W/o.V.Vijay Shankar,
No.21B, Shanmugar House,
Sriram Nagar Main Road,
Uthangudi,
Madurai -625 107 ... Respondents
R3 impleaded as per the order of this Court
dated 01.12.2021 in WP(MD)No.7257 of 2020)
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for
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W.P(MD)No.7257 of 2020
records relating to the paragraph no.3 of the impugned suspension order dated
11.07.2019 in G.O.(D)No.91, Tourism, Culture and Religious Endowments(RE
2-2) Department passed by the first respondent and the consequential impugned
order dated 14.11.2019 in Letter no.10492/RE 2-2/2019-6 passed by the first
respondent and quash the same and consequently, direct the first respondent to
pass orders fixing the place of the petitioner's headquarters during the period of
suspension at Madurai and direct him to pay the subsistence allowance from the
date of the suspension of the petitioner.
For Petitioner : Mr.J.Barathan
For Respondents : Mr.S.Shaji Bino, Spl.GP for RR1&2
Mr.K.R.Laxman for R3
ORDER
Heard Mr.J.Barathan, learned counsel appearing for the petitioner and
Mr.S.Shaji Bino, Special Government Pleader appearing for the respondents 1
& 2 and Mr. K.R.Laxman, learned counsel appearing for the newly impleaded
third respondent.
2.This Writ Petition has been filed, questioning paragraph no.3 in the
order of suspension passed by the first respondent in G.O.(D)No.91,
Tourism, Culture and Religious Endowments(RE 2-2) Department dated
11.07.2019 and the consequential impugned order dated 14.11.2019 in Letter
no.10492/RE 2-2/2019-6 passed by the first respondent, quash the same and
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W.P(MD)No.7257 of 2020
consequently, direct the first respondent to pass orders fixing the place of the
petitioner's headquarters during the period of suspension at Madurai and also
direct him to pay the subsistence allowance from the date of the suspension of
the petitioner.
3.Today, when the matter is taken up for hearing, the learned counsel for
the petitioner submitted that the petitioner has been paid with subsistence
allowance and therefore, he is instructed to withdraw the Writ Petition. He has
made an endorsement in the petition as follows:
''Since, the respondents are paying the subsistence
allowance to the petitioner, this Writ Petition is hereby
withdrawn without prejudice to his contentions.''
4. Recording the submission of the learned counsel for the petitioner and
also the endorsement made, this Writ Petition is dismissed as withdrawn.
5.Mr.K.R.Laxman, learned counsel for the newly impleaded third
respondent made a mention before this Court that this Writ Petitioner has
challenged paragraph no.3 of the impugned order of suspension passed by the
first respondent directing him to stay at Nagapattinam instead of Madurai,
while this petitioner was placed under suspension.
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W.P(MD)No.7257 of 2020
6.This Court, while entertaining this Writ Petition, passed the following
order:
''4.The petitioner continues to be under suspension.
Though the petitioner's headquarters has been changed from
Madurai to Nagapattinam, he continues to stay in Madurai.
According to the petitioner, the shifting of headquarter to
Nagapattinam was contrary to the Rule 54B(4) of the
Fundamental Rules which reads as under:-
''...4.The headquarters of a Government
servant under suspension is his last place of
duty. A Government servant under suspension
may change his headquarters provided the
competent authority who has placed him under
suspension is satisfied that such a course will
not put Government to any extra expenditure
like grant of travelling allowance.''
5.The learned Special Government Pleader appearing
for the respondents submits that the petitioner was involved
in sexual harassment of woman employee/officer of the
second respondent and it is under these circumstances, the
petitioner's headquarters has been changed from Madurai to
Nagapattinam. His presence in Madurai will be
intimidating to the said officer. He further submits that the
transfer of the headquarters of the petitioner is in tune with
the provisions of the Protection of Women from Sexual
Harassment at Work Place (Prevention, Prohibition and
Redressal) Act, 2013.
6.He also submits that this Writ Petition is liable to be
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W.P(MD)No.7257 of 2020
dismissed as it is not open for the petitioner to challenge
the suspension order for the second time. It is further
submitted that since the petitioner has not complied with the
direction of the respondent, the petitioner is not entitled to
the subsistence allowance as the petitioner has not reported
in Nagapattinam headquarters and is staying in Madurai.
He further submits that only if the petitioner had reported in
the Nagapattinam headquarters, the question of payment of
subsistence allowance will be released.
7.I have considered the arguments advanced by the
learned counsel for the petitioner and the learned Special
Government Pleader appearing for the respondents. The
respondents have not paid the subsistence allowance to the
petitioner. They have also not made any official
accommodation for the petitioner in Nagapattinam.
8.Considering the fact, the country is reeling under
the Covid-19 pandamic and considering the fact that the
petitioner cannot get an alternate accommodation himself at
this point of time, I am inclined to direct the respondents to
pay the arrears of subsistence allowance to the petitioner
within a period of two weeks from the date of receipt of a
copy of this order.''
7.The petitioner is also getting the subsistence allowance pursuant to the
interim order of this Court. However, he did not comply with the orders
impugned in this Writ Petition and he is still staying at Madurai only.
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W.P(MD)No.7257 of 2020
8.Mr.S.Shaji Bino, learned Special Government Pleader submits that
pursuant to the order of this Court dated 03.07.2020, the respondents are
paying subsistence allowance to the petitioner.
9.The learned counsel for the petitioner submits that now the subsistence
allowance is also enhanced to 75% and the petitioner is now receiving
subsistence allowance @ 75%. The order of suspension was passed on
11.07.2019. From 2021, i.e. for the past two years and three months, there is
not even a single allegation against the petitioner. He would further submit that
now the respondents are paying subsistence allowance @ 75% per month.
10.The learned Special Government Pleader further submits that a charge
memo has also been issued to the petitioner, enquiry officer has also been
appointed. However, by referring to the present Covid -19 situation, the
petitioner has not appeared for the enquiry. Since, the respondents have raised
certain objections on withdrawing this Writ Petition, the learned counsel for the
petitioner sought permission of this Court to raise his contentions since the
petitioner has challenged this Writ Petition only on the ground of Rule 54 B(4)
of the Tamilnadu Fundamental Rules. The Rule clearly provides that the
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W.P(MD)No.7257 of 2020
suspended employee is supposed to stay in the headquarters and this petitioner
at the time of suspension, was posted as Joint Commissioner at Madurai and
therefore, the headquarters was only at Madurai. However, against the
Fundamental Rules, the petitioner was directed to be present at Nagapattinam
without providing any alternative arrangement for him at Nagapattinam and
therefore, he filed the present Writ Petition. However, since the petitioner is
now paid with subsistence allowance, as per the instructions of the petitioner,
the learned counsel for the petitioner has made the above endorsement and
withdrawn the Writ Petition.
11.This Court paid its anxious consideration to the rival submissions
made and perused the materials placed on record.
12. The petitioner was placed under suspension with certain serious
allegations that on 29.06.2019, when the petitioner and the defacto-complainant
discharged their duties at Sathuragiri Hills, Saptur, Madurai District, the
petitioner used his mobile phone and Pen Camera for recording the bathing
taken by the defacto-complainant and one Prema who was a typist and NMR
employee in the Joint Commissioner Office, Madurai. Based on this allegation,
a preliminary enquiry was ordered through the Internal Complaints Committee
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W.P(MD)No.7257 of 2020
constituted as per the guidelines issued by the Visaka judgment and the
Internal Complaints Committee has also submitted an interim report that there
is prima facie material as against the petitioner and accordingly, the petitioner
was placed under suspension and since allegations are serious in nature and the
petitioner was directed to be placed at Nagapattinam in stead of Madurai. The
conditions of service cannot be treated equally at all circumstances and this
Court cannot fault with the said condition imposed by the respondents.
Considering the nature of allegations made against the petitioner, the authority
thought it appropriate to direct the petitioner to stay at Nagapattinam in order to
avoid any further complaints between the petitioner and the third respondent.
The petitioner has also filed this Writ Petition on this ground that the condition
no.4 is as against Rule 54-B(4) of Tamil Nadu Fundamental Rules and the
petitioner has also obtained interim order dated 03.07.2020, for payment of
subsistence allowance and the Sexual Harassment of Women at
Workplace(Prevention, Prohibition and Redressal) Act, 2013, Rule 12 enables
the Department to place the delinquent in any place other than the place where
he has been originally posted. This Fundamental Rule is a General Rule
whereas, the Sexual Harassment of Women at Workplace(Prevention,
Prohibition and Redressal) Act, 2013 being the Special Act, will prevail over
the General Rule. Further, Rule 54-B(4) of the Fundamental Rules is extracted
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W.P(MD)No.7257 of 2020
as under:
“54-B(4). The headquarters of a Government servant under
suspension is his last place or duty. A Government servant under
suspension may change is headquarters provided the competent
authority who has placed him under suspension is satisfied that
such a course will not put Government to any extra expenditure
like grant of travelling allowance.”
As per the proviso to the Rule, the competent authority is entitled to change the
headquarters, if he is so satisfied and therefore, this petitioner is not having any
merit in this Writ Petition.
13.When, this Writ Petition was taken up for hearing on 29.11.2021, this
Court directed the learned Special Government Pleader to ascertain the stage of
the enquiry already contemplated against the petitioner and directed to be listed
this case on 01.12.2021 under the caption ''for orders''. However, even before
the matter is taken up for hearing, a mention was made in the morning and
based on the endorsement made by the learned counsel for the petitioner, this
Writ Petition is dismissed as withdrawn. However, now this matter is taken up
again at the instance of the third respondent and in the light of the above
discussion, this Writ Petition is dismissed on merits, with a further direction to
the second respondent/Commissioner to ensure that the enquiry proceeded with
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W.P(MD)No.7257 of 2020
against the petitioner to be concluded within a period of three months from the
date of receipt of a copy of this order. No costs. Consequently, connected
miscellaneous petitions are closed.
01.12.2021
Index : Yes / No
Internet : Yes/ No
dn
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.
To:
1.The Additional Chief Secretary,
Tourism, Culture and Religious Endowment Department,
St. George's Fort,
Chennai
2.The Principal Secretary cum Commissioner,
Hindu Religious Endowment Board,
Mahatma Gandhi Road,
Nungambakkam,
Chennai-600 034
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W.P(MD)No.7257 of 2020
B.PUGALENDHI, J.
dn
W.P(MD)No.7257 of 2020
01.12.2021
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