K.Thiruvalluvan vs The District Collector
2021 Latest Caselaw 4294 Mad

                                                                  W.P.No.29628 of 2012

               IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                 DATED : 19.02.2021
                                         CORAM
                  THE HON'BLE MR.JUSTICE R. SURESH KUMAR
                           Writ Petition No.29628 of 2012
                                and M.P.No.1 of 2012

K.Thiruvalluvan                                             ...    Petitioner
                                          -Vs-

1.The District Collector
  Cuddalore District.

2.Block Development Officer
  Mangalore Panchayat Union
  Mangalore, Cuddalore District.

3.President
  Arasangudi Village Panchayat
  Mangalore Panchayat Union
  Cuddalore District.                                       ...    Respondents


Prayer : Writ Petition under Article 226 of the Constitution of India praying for a
Writ of Certiorarified Mandamus calling for the records pertaining to the order
passed by the third respondent in his proceedings Na.Ka.No.1/2012 dated
19.04.2012 and quash the same, and direct the respondents to reinstate the
petitioner in service as Panchayat Secretary in the 3rd respondent Panchayat and
confer all the consequential benefits.


       For Petitioner        :     Mr.T.Sellapandian
                                   for M/s.C.S.Associates

       For Respondents       :     Mrs.K.Bhuvaneswari
                                   Additional Government Pleader – for RR 1&2

                                   Mr.A.G.Rajan – for R3




Page 1 of 13
                                                                   W.P.No.29628 of 2012

                                         ORDER

The prayer sought for herein is to call the records pertaining to the order

passed by the third respondent in his proceedings Na.Ka.No.1/2012 dated

19.04.2012 and quash the same, and direct the respondents to reinstate the

petitioner in service as Panchayat Secretary in the 3rd respondent Panchayat and

confer all the consequential benefits.

2. That the petitioner was appointed as Part Time Village Clerk, which post

subsequently has been re-designated as Full Time Panchayat Secretary in the year

2013.

3.Pursuant to the petitioner's appointment on 15.09.2006 at the third

respondent Village Panchayat, the petitioner has been working as Village Panchayat

Clerk and he had been looking after all the clerical and secretarial activities of that

village. While so, in the year 2012, ie., in the month of March and April 2012 ,

cheques were issued by the third respondent President on the following dated

17.03.2012, 03.04.2012, 03.04.2012 and again on 03.04.2012 for withdrawal of

money from the Bank for the purpose of disbursing the salary to the employees who

had been engaged in Mahatma Gandhi Rural Employment Scheme. Accordingly, the

money had been withdrawn by the petitioner on the following dates, 29.03.2012,

07.04.2012, 07.04.2012 and 07.04.2012.

W.P.No.29628 of 2012

4. After drawing the amounts from the Bank for the purpose of disbursing the

same to the employees, due to some alleged misunderstanding between the third

respondent and the employees, the amount could not be disbursed. Therefore, on

his instructions, according to the petitioner, the amount already withdrawn from the

Bank has been again re-deposited on 09.12.2012 itself.

5. In this context, a show cause notice was issued by the third respondent to

the petitioner on 10.04.2012 signed on 16.04.2012, which was served on the

petitioner on 17.04.2012 seeking show cause within two days.

6. On receipt of the said show cause notice on 17.04.2012, the petitioner had

asked for some reasonable time to respond. However, without giving such

reasonable time, which is allowable for the petitioner to respond, it seems that on

19.04.2012, the third respondent Panchayat passed a resolution deciding to remove

the petitioner from service and pursuant which, on the same day ie., 19.04.2012,

the impugned order has been issued, whereby the petitioner has been removed

from service. Challenging the same, the present writ petition has been filed.

7. Heard Mr.T.Sellapandian, learned counsel for the petitioner, who would

submit that insofar as the merits of the show cause notice is concerned, he was

able to point out that there were four cheques which were encashed as directed by

the third respondent, one cheque dated 17.03.2012 was encashed on 29.03.2012,

and other three cheques dated 03.04.2012 were encashed on 07.04.2012. Since in

W.P.No.29628 of 2012

between 03.04.2012 and 07.04.2012, intervening Saturday and Sundays were

there, after drawing money from the bank, when the petitioner was ready to

disburse the amount, the third respondent had not allowed the petitioner to

disburse the same in view of some dispute between the petitioner and the

employees. Since the petitioner did not want to retain the money, prudently re-

deposited the amount in the Bank on 19.12.2012 itself with a view to withdraw the

same whenever the third respondent wants to withdraw the same.

8. Learned counsel for the petitioner would further submit that, retaining

money at the hands of the petitioner without any authorisation does not arise.

Moreover, it is not the case, where the petitioner has misappropriated the money

for his personal gain. Despite the same, the said charge has been made in the

show cause notice. The same had to be properly met by giving a detailed reply.

Therefore, breathing time was sought for by the petitioner. Even that was not

given to the petitioner and the third respondent Panchayat hastily passed the

resolution within 48 hours ie., on 19.04.2012 and on the very same day the third

respondent rushed to pass the impugned order, removing the petitioner from the

post and therefore the principles of natural justice have been violated in the case of

the petitioner.

9. In this context, the learned counsel for the petitioner has also brought to

the notice of this Court the relevant Government Order, which governs the service

conditions of the employees like the petitioner. G.O.No.175, Rural Development

W.P.No.29628 of 2012

and Panchayat Department dated 05.12.2006 has been relied upon by the learned

counsel for the petitioner, who has taken this Court to Clause 5 of the G.O., which

reads thus,

“fpuhk Cuhl;rpapd; eph;thfj;jpy;. Cuhl;rp cjtpahsh; Jiwapd;.

tpjpKiwfis kPwy;. xG';fPdk;. ftdf;Fiwt[ jFjpapd;ik. flik jtWjy;. jtwhd

eltof;iffs; nghd;wtw;wpy; <Lgl;lhy; me;j Cuhl;rp cjtpahsiu fz;ldk;.

mguhjk;. Cjpa cah;t[ my;yJ gzp cah;it epWj;jp itj;jy; my;yJ K:g;g[g;

gl;oaypy; juk; ,wf;Fjy;. my;yJ fPH;epiyg; gzpaplj;jpy; itj;jy; my;yJ

fhyKiw Cjpaj;jpy; fPH;epiyapy; itj;jy;. jw;fhypf gzpePf;fk; bra;jy;.

gzpapypUe;J ePf;Fjy; my;yJ gzptpyf;fk; bra;ayhk;/ ,Ug;gpDk; mjw;F

Kd;ghf me;j Cuhl;rp cjtpahsiu neuo tprhuizf;F miHg;gJ cl;gl mth; jdJ

tpsf;fj;ij mspf;f mtUf;F nghjpa tha;g;g[ mspf;fg;gl;oUf;f ntz;Lk;/

10. By relying upon the above clause, the learned counsel for the petitioner

would submit that, no such opportunity was given and only 48 hours time pursuant

to the show cause notice was given. No personal enquiry was conducted and

therefore there is blatant violation of the principles of natural justice.

11. Learned counsel for the petitioner would further submit that, in

W.A.No.1782 of 2011 dated 31.08.2012, in the matter of “S.Boopathi -Vs- The

District Collector and Others”, where exactly similar situation was confronted by

the Division Bench, the following was held at paragraph 4.

“ 4. We have carefully considered the submissions. The grievance of the appellant is that the President of the Panchayat has no authority to pass

W.P.No.29628 of 2012

the order impugned in the writ petition. Since we are inclined to consider the other grievance, we are inclined to go into the said question. A perusal of the order impugned in the writ petition shows that the appellant was removed from service on the grounds that he was negligent while performing his work, he attended office after consuming liquor, he did not collect the taxes and did not account for the same. In our opinion, these are all allegations which are required to be established in a detailed enquiry. Admittedly, no enquiry was conducted after issuance of charge memo. From paragraph-4 of the counter affidavit filed by the fourth respondent, it is seen that before taking disciplinary action, the appellant was issued with a notice dated 6.7.2009 requiring him to appear for enquiry at 11.00 am on 16.07.2009. It is also stated that the said notice was despatched by certificate of posting. But there is nothing to indicate that the said notice was served on the appellant. Even assuming that it has been served, by issuance of such a notice, it cannot be said that the charges have been established on a detailed enquiry. The fact remains that before imposing the major penalty, the appellant had not been issued with any charge memo. The further fact is that the earlier suspension order passed against the appellant was also revoked by the Block Development Officer vide proceedings dated 9.11.2009 and he was directed to be reinstated into service. In our opinion, in the absence of any enquiry to prove the charges against the appellant, the reasons adduced in the order impugned in the writ petition would amount to cause stigma on the appellant. The enquiry is necessary before removal. In the absence of such enquiry, the order impugned in the writ petition cannot be sustained.”

12. By relying upon the aforesaid decision of the Division Bench, the learned

counsel for the petitioner would contend that, assuming that if there is any violation

noticed on the part of the Village Assistant / Clerk / Secretary like the petitioner,

W.P.No.29628 of 2012

based on the same, charge memo should have been issued, following which an

enquiry shall be conducted. Without following this procedure as established under

law, if summarily the case is disposed of by the Village President concerned, who is

the executive authority as well as disciplinary authority, that too awarding maximum

punishment of removal of service, that is bad in law, as in the absence of such

enquiry being conducted, the order of the disciplinary authority removing the

employee, cannot be sustained.

13. Therefore, the learned counsel for the petitioner, relying upon the

provisions of the relevant Government Order as well as the Division Bench judgment

cited supra would contend that, if these propositions are applied in the present

case, the impugned order does not stand in the legal scrutiny. Therefore, he seeks

the indulgence of this Court.

14. Heard the learned Standing Counsel for the third respondent and the

learned Additional Government Pleader for the first respondent.

15. Insofar as the issue raised in this writ petition is concerned, the first and

second respondents do not have any role, as they have not passed any order

against the petitioner and the third respondent, being the immediate employer as

well as the disciplinary authority, has only passed the impugned order, of course, on

the basis of the resolution passed by the third respondent Panchayat.

W.P.No.29628 of 2012

16.Learned counsel for the third respondent would submit that, in view of the

delay caused by the petitioner in disbursing the salary, even though he had

withdrawn the amount from the Bank pursuant to the cheques issued by the third

respondent, there has been misunderstanding between the employees and the third

respondent and it had brought disrespect to the third respondent. Therefore, in

order to rectify the same, when the petitioner was called for giving explanation by

issuance of show cause notice dated 10.04.2012, the petitioner having received the

same on 17.04.2012 has not chosen to give a reply within the two days time

allowed to the petitioner. Therefore, the third respondent Panchayat having no

other option, has passed a resolution on 19.04.2012 to remove the petitioner from

service. Only pursuant to the resolution passed by the third respondent Panchayat,

the third respondent has issued the impugned order of removal of service on

19.04.2012. Therefore, in this case all the procedures which ought to have been

followed, had been followed and therefore it cannot be said that, without following

the procedure established under law the impugned order has been passed.

Therefore, the same is sustainable and accordingly the writ petition is liable to be

rejected, he contended.

17. I have considered the rival submissions made by the learned counsel on

either side and have perused the materials placed on record.

18. First of all, if we look at the import of the show cause notice dated

10.04.2012 signed on 16.04.2012 and served on 17.04.2012, three out of four

W.P.No.29628 of 2012

cheques were dated 03.04.2012 and thereafter weekend ie., Saturday and Sunday

intervened. Therefore, on 07.04.2012, the petitioner had withdrawn the money and

when he was ready to disburse the same, it is the definite case of the petitioner

that, due to misunderstanding between the third respondent and the employees,

who were supposed to be paid the wages, the petitioner was not permitted to

disburse that amount. Therefore, having waited for 24 hours, he decided to re-

deposit the amount in the bank as he did not want to retain the amount

unauthorisedly. Therefore, immediately on 09.04.2012 he had re-deposited the

amount in the bank and this has been admitted by the third respondent in the show

cause notice dated 10.04.2012 itself.

19. Therefore, the question of any misappropriation on the part of the

petitioner in this case does not arise. When there is no misappropriation or

unlawful retainment of the Panchayat money at the hands of the petitioner, prima

facie there could be no violation on the part of the petitioner of any rules and

regulations in this regard.

20. Nevertheless, the third respondent issued the show cause notice only on

the ground that, the non-disbursement of the salary to the employees has brought

some embarrassment to the third respondent. Even assuming that, it has brought

some embarrassment to the third respondent, for which the show notice was

issued, only two days time was given by the third respondent in the show cause

notice. Normally, if these kind of show cause notices are issued against the

W.P.No.29628 of 2012

employee, the bare minimum time of one week at least should have been given.

However, only two days time was given to respond to the show cause notice. That

itself shows the intention of the third respondent to take some drastic action against

the petitioner out of nothing.

21. Further, even though the petitioner claimed some reasonable time to

respond, that time was not given. Within 24 hours ie., on 19.04.2012 it seems that

the third respondent Panchayat passed a resolution and on the very same day, the

third respondent rushed to issue the impugned order dated 19.04.2012 removing

the petitioner from service,

22. It is to be noted herein that, if we look at the import of the show cause

notice dated 10.04.2012 and the hastiness shown by the third respondent in

passing the impugned order dated 19.04.2012, it is clearly established that, the

third respondent had intentionally passed this proceedings only to remove the

petitioner for the reasons best known to him. Therefore, definitely the reason cited

in the show cause notice cannot be the reason for inflicting such a major

punishment of removal of service against the petitioner. Moreover, as has been

rightly pointed out by the learned counsel for the petitioner, under the relevant

Government Order ie., G.O.No.175, Clause 5 makes it clear that, if at all disciplinary

proceedings has to be initiated, enquiry shall be conducted on the basis of the

definite charge memo. Nothing has been followed in this case, as no charge memo

has been issued, no enquiry has been conducted. Therefore, it is a clear violation

W.P.No.29628 of 2012

of the relevant G.O., in this regard. That apart, as has been rightly pointed out by

the learned counsel for the petitioner, law is well settled that, whenever an order of

penalty or punishment is awarded against the employee on the basis of any charge,

certainly it is a penalty or it is an order attached with stigma. Here in the case in

hand, maximum penalty of removal of service has been inflicted. Therefore, such

action of termination or removal cannot be considered to be an order of

' termination simplicitor' but it attached stigma on the employee.

23. When that being the position, as held by the Division Bench in the

aforesaid judgment in similar circumstances, there should have been a charge

memo followed by enquiry. In the absence of both, the action taken by the third

respondent, which culminated in the order of removal of service against the

petitioner is per se illegal. Therefore, the said order cannot be sustained in the eye

of law.

24. In that view of the matter, this Court is inclined to dispose of this writ

petition with the following order.

That the impugned order is quashed. It is needless to mention that, in view

of the quashment of the impugned order, the consequential service benefits to

which the petitioner is entitled to, shall be extended to the petitioner. In this

regard, if any reinstatement is given, with regard to the backwages, it is for the

third respondent to take a decision in consultation with the petitioner. However,

W.P.No.29628 of 2012

this Court feels that, since the third respondent is only a Village Panchayat, such

kind of huge money by way of backwages may not be required to be claimed by the

petitioner and a pragmatic approach can be taken by both sides in arriving at the

claim of backwages for the period from the date of removal till the date of

reinstatement.

25. With the above observations, this writ petition is ordered. No costs.

Consequently, connected miscellaneous petition is closed.

19.02.2021 Index : Yes Internet : Yes KST

To

1.The District Collector Cuddalore District.

2.Block Development Officer Mangalore Panchayat Union Mangalore, Cuddalore District.

3.President Arasangudi Village Panchayat Mangalore Panchayat Union Cuddalore District.

W.P.No.29628 of 2012

R. SURESH KUMAR, J.

KST

W.P.No.29628 of 2012

19.02.2021