Madras High Court
E.Gnanasekar vs The Commissioner And Special ... on 26 February, 2021
W.P.(MD)No.674 of 2021
BBEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD) No.674 of 2019
and
W.M.P(MD) Nos.570, 571 and 3022 of 2019
E.Gnanasekar ...Petitioner
Vs.
The Commissioner and Special Officer,
Thoothukudi City Municipal Corporation,
Thoothukudi. .. Respondent
PRAYER : Writ petition filed under Article 226 of the Constitution of
India to issue a writ of certiorarified mandamus, to call for the records
relating to the impugned charge memo in A16/17170/2002 dated
24.04.2006 and consequent proceedings in impugned proceedings in
Na.Ka.No.A16/17170/2002, dated 13.03.2018 of the respondent to grant
periodic promotion with all other attended benefits payable to him within
the time frame fixed by this Court.
For Petitioner : Mr.A.Selvendran
for M/s.J.Ashok
For Respondent : Mr.S.Saji Bino
Standing Counsel
http://www.judis.nic.in
1/10
W.P.(MD)No.674 of 2021
ORDER
The petitioner herein, while serving as a Junior Assistant under the
respondent Corporation, has been levelled with charges to the effect that
during his service between 29.06.1993 to 31.08.1994 and 07.02.1997 to
10.05.2000 had not been taken effective steps to collect the rents from
the shops belonging to the Corporation.
2.The learned counsel for the petitioner has raised the ground of
latches and submitted that the respondents are not justified in taking
departmental action against the petitioner for the occurrences which took
place more than 10 years back.
3.The learned Standing Counsel for the respondents, on the other
hand, submitted that since the impugned order is only a charge sheet, the
petitioner can always establish his grounds before the Enquiry Officer
and the charge sheet need not be quashed at this stage.
4.I am given a careful consideration to the submissions made by
the respective counsels.
http://www.judis.nic.in
W.P.(MD)No.674 of 2021
5.As pointed out by the learned standing counsel for the
respondent, this Court, exercising its power under Article 226 of the
Constitution of India, will not normally interfere with the departmental
action by quashing a charge memo. However, the general Rule has
certain exceptions, which has been repeatedly reiterated in various
decisions of the Hon'ble Apex Court as well this Court.
6.A learned Single Judge of this Court, in the case of Kootha
Pillai Vs The Commissioner, Municipal Administration and others
reported in 2009(1) MLJ 761, had placed reliance on various decisions
of the Hon'ble Supreme Court, as well as this Court and had concluded
that the delay in initiating departmental action for the occurrences that
took place long back, would be vitiated. The relevant portions of the
orders reads thus:-
44. The next contention of the learned counsel for the
petitioner is that the subject matter of the proposed disciplinary
action, as stated in the impugned order, relate to incidents,
which took place more than 18 years ago. The following
judgments are pressed into service for the preposition that
inordinate delay, not explained satisfactorily would cause
serious prejudice and therefore, there cannot be any disciplinary
action, after retirement.
45. In State of Madhya Pradesh v. Bani Singh and
another reported in 1990 (Supp) SCC 738, the Supreme Court
had come down heavily against the latches on the part of the
http://www.judis.nic.in
W.P.(MD)No.674 of 2021
employer in conducting departmental enquiry and after finding
out that there was no satisfactory explanation for the inordinate
delay, held that it would be unfair to order departmental enquiry
to proceed further.
46. In State of A.P., v. N.Radhakrishnan reported in 1998
(4) SCC 154, the Supreme Court, at Paragraph 19, held as
follows:
"Normally, disciplinary proceedings should be allowed to take
its course as per relevant rules but then delay defeats justice.
Delay causes prejudice to the charged officer unless it can be
shown that he is to blame for the delay or when there is proper
explanation for the delay in conducting disciplinary
proceedings. Ultimately, the Court is to balance these two
diverse considerations."
47. In Union of India v. CAT reported in 2005 (2) CTC
169 (DB), this Court held that, "The delay remains totally
unexplained. Therefore, we have no hesitation at all in
concluding that the ground of inordinate delay in proceeding
with the departmental enquiry as referred to above by us, would
come in the way of the Govt., to continue with the enquiry any
further.............."
48. In P.V.Mahadevan v. M.D. Tamil Nadu Housing
Board reported in 2005 (4) CTC 403, this Court after referring
to various decisions, held that, "The protracted disciplinary
enquiry against a government employee should, therefore be
avoided not only in the interest of the government employee but
in public interests and also in the interests of inspiring
confidence in the minds of the government employees. At this
stage, it is necessary to draw the curtain and to put an end to the
enquiry. The appellant had already suffered enough and more on
account of the disciplinary proceedings. As a matter of fact, the
mental agony and sufferings of the appellant due to the
protracted disciplinary proceedings would be much more than
the punishment. For the mistakes committed by department in
the procedure for initiating the disciplinary proceedings, the
appellant should not be made to suffer.
15. We therefore, have no hesitation to quash the charge issued
against the appellant. The appeal is allowed. The appellant will
be entitled to all the retiral benefits in accordance with law. The
http://www.judis.nic.in
W.P.(MD)No.674 of 2021
retiral benefits shall be disbursed within three months from this
date. No cost."
49. In the Special Commissioner and Commissioner of
Commercial Taxes, Chepauk v. N.Sivasamy reported in 2005 (5)
CTC 451, the Division Bench of this Court held as follows:
"Though the alleged lapse occurred in the year 1995 and certain
charges related to the period 1993-94, the charge memo was
issued on 15.07.1997 and served on 23.07.1997, just 7 days
before the date of retirement. The contention of the appellant
that only with a view to cause hardship, agony and anguish, the
charge memo was issued cannot be ignored.................. We have
already pointed out that though the applicant failed Original
Application No.6284/97, challenging the charge memo, dated
15.07.1997, admittedly, no stay was granted. Despite the above
fact that the department had not proceeded with the disciplinary
proceedings, there is an inordinate and unexplained delay on the
part of the department. According to the applicant, he is 67
years of age as on the date and had rendered 38 years of service
in the department. He had undergone sufferings from mental
worry, agony, anguish and hardship for all these years. We are
satisfied that there is no need to pursue the charge memo, dated
15.07.1997."
50. In yet another decision in R.Tirupathy and others v.
the District Collector, Madurai District and others reported in
2006 (2) CTC 574, this Court was pleased to quash the charge
memo, dated 02.02.2005 on the ground that the charges relate to
purchase of uniforms during the year 1994-95 and 1995-96 and
the inordinate delay on the part of the department in issuing a
charge memo was not properly explained.
51. The Supreme Court in M.V.Bijlani v. Union of
India and other reported in 2006 (5) SCC 88, quashed the order
of removal from service, confirmed by the appellate authority on
various grounds particularly, on the ground that initiation of
disciplinary proceedings after six years and continuance thereof,
for a period of seven years prejudiced the delinquent officer.
52. In M.Elangovan v. The Trichy District Central Co-
operative Bank Ltd., reported in 2006 (2) CTC 635, this Court,
while quashing the second show cause notice on the ground of
inordinate and unexplained delay in initiating and completing
http://www.judis.nic.in
W.P.(MD)No.674 of 2021
the disciplinary proceedings, allowed the Writ Petitions holding
that the petitioners therein were entitled to all the benefits in
accordance with law. The same view has been expressed by this
Court in yet another decision in Parameswaran v. State of Tamil
Nadu reported in 2006 (1) CTC 476.
7.In delinquency relating to failure to take effective steps to collect
the rents or taxes concerned, the learned Single Judge, in the case of
Kootha Pillai (supra) had placed reliance of the decision of this Court
and held that inordinate delay in initiating departmental proceedings for
the inaction of an employee to collect the rents is impermissible. The
relevant portion of the orders reads thus:-
53. In order to sustain that collection of time barred
arrears cannot be a subject matter of disciplinary action
against the petitioner, learned counsel for the petitioner placed
reliance on the decisions of this Court in Mani, N. v. The
Commissioner, Villupuram Municipality reported in 2006 (1)
CTC 632 and Nagarajan v. Commissioner, Salem Municipality,
Salem reported in 1988 Writ L.R. 38.
54. In Nagarajan v. Commissioner, Salem Municipality,
Salem reported in 1988 Writ L.R. 38, this Court had an
occasion to consider as to whether action can be taken against
a Bill Collector for recovery of time barred profession tax.
Following the decision rendered by this Court in W.P.No.3911
of 1997, dated 28.04.1980 and W.P.No.3421 to 3426 of 1978,
dated 04.02.1981, this Court held that recovery ordered by the
department against the bill collector for having allowed the
profession tax to become time barred, is illegal. The judgment
rendered in A.Selvaraj and others v. The Commissioner,
Tiruvarur Municipality (W.P.Nos.3364 to 3369 of 1976, dated
23.11.1976), by His Lordship Justice S.Mohan, J. (as he then
http://www.judis.nic.in
W.P.(MD)No.674 of 2021
was), as extracted in the above reported judgment, is
reproduced hereunder:
"Having regard to these provisions, I find it rather impossible
to appreciate the stand of the Municipality as to how a Bill
Collector could cause pecuniary loss to the Municipality by his
failure to collect the taxes. Firstly, it does not lie within his
powers to allow the recovery of taxes to become time barred.
The very elaborate procedure relating to collection of taxes
mentioned in paragraph 65 of Municipal Volume I would
clearly indicate that it is the duty of the Executive Office to
have periodic verification of the arrears. If he had failed to do
the duty and thereby the arrears of tax had become time barred
for recovery, that liability cannot be passed on to the Bill
Collector."
55. While setting aside the order of recovery, in
Nagarajan's case, this Court held as follows:
"Basically there are no grounds at all to pin down the liability
on the petitioner, as now being done. The proceedings taken in
this behalf are the result of a misconception of the legal
position. They have to stand ignored and cannot be
implemented. Taking note of the ratio of this Court, I have to
hold that the petitioner cannot be mulcted with liability on this
account. In view of this, this Writ Petition so far as the
petitioner is concerned, is allowed."
56. Following Nagarajan's case, another learned single
Judge of this Court in Mani, N. v. The Commissioner, Villpuram
Municipality reported in 2006 (1) CTC 632, tested the
correctness of a show cause notice issued against a Revenue
Inspector for recovery of the arrears of time barred property
tax and lease amount. Facts of this case are, the petitioner
therein was appointed as Bill Collector in the year 1963 in the
respondent Municipality and lateron promoted as Revenue
Inspector on 13.4.1989. He retired from service on 31.10.2000.
Impugned show cause notices therein were issued calling upon
him to show cause as to why the loss suffered by the
Municipality on account of failure to discharge his official duty
to collect the arrears towards property tax and lease amount
should not be recovered from him. The said show cause notices
were under challenge on the ground of jurisdictional issue
http://www.judis.nic.in
W.P.(MD)No.674 of 2021
relying upon the earlier orders of the State Administrative
Tribunal in O.A.No.3503 of 1996 dated 28.11.1996 and
O.A.No.4761 of 1992 dated 19.12.1997. Earlier, the Tribunal
held that the Revenue Officers in the Local bodies cannot be
made liable for the time barred arrears of tax dues and no
recovery can be made from them. The conclusion was arrived
at on the basis of paragraph 3 of G.O.Ms.No.1881 R.D.& L.A.
Department, dated 14.9.1981, wherein it was stated that the
responsibility to take proceedings to recover tax before they
become time barred, vests only with the Commissioner and the
Revenue Officers are not responsible for the tax arrears, having
become time barred and that the only duty of the Revenue
Officers is to report about the tax arrears.
57. Following the decision in Nagarajan's case (cited
supra) and the communication of the Director of Municipal
Adminstration, Chennai, addressed to all the Regional Director
of Municipal Administration in ROC.No.75380/96/R1, dated
13.12.1996, the learned single Judge of this Court, in N.Mani's
case, has set aside the show cause notices issued to the
petitioner therein. The communication, dated 03.12.1996,
referred to in the order is extracted hereunder, "The Municipal
Employees Associations are demanding cancellation of
recovery orders for time barred arrears among other things. In
the meeting convened on 8.7.1994 in the chambers of Secretary,
Municipal Administration and Water Supply Department to
discuss with the office bearers of the Rural Development and
Municipal Employees Association Federation the following
decision was taken on the above demand.
"The Director of Municipal Administration has already granted
time upto 3.9.1994. Time barred arrears need not be recovered
from the DCRG etc., from the retired employees."
2. To pursue further action in this regard, Government
considered that proposal to write off time barred arrears due to
Municipalities may be taken up after the elections to the
Municipalities and after all the Municipal Councils pass
necessary resolutions in this regard, Government have now
called for a consolidated report in this regard, in the letter
cited.
http://www.judis.nic.in
W.P.(MD)No.674 of 2021
3. Hence, I request you to instruct all the Municipal
Commissioners within your jurisdiction to place the matter
before the Municipal Council and to send a detailed report
along with the copy of the resolution, in duplicate. After getting
the same, I request you to send a consolidated report to this
office, along with copies of resolution passed by the Municipal
Councils, so as to send a report to Government. As the matter
involves the long-standing demand of the Municipal
Employees, I request you to expedite your report.
Sd/- V.Pitchai, For Director."
58. The communication of the Director of Municipal
Administration, Madras addressed to all the Regional Director
of Municipal Administration, in his letter, dated 03.12.1996,
makes it clear that time barred arrears need not be recovered
from the DCRG etc., of the retired employees. In view of the
decisions of this Court as well as the above said
communication, the amount proposed to be recovered, is wholly
without jurisdiction and arbitrary.
8.The aforesaid extract is self explanatory. As such, the
respondents may not be justified in proceeding against the petitioner, for
the delinquency that he had failed to collect the rents, which was due
more than 10 years back and therefore, it would be appropriate to
interfere with the impugned charge memo.
9.For all the forgoing reasons, this Writ Petition is allowed and the
impugned charge memo in A1/17170/2002 dated 24.04.2006 and
consequent proceedings in Na.Ka.No.A16/17170/2002, dated 13.03.2018
are stand quashed. Consequently, the petitioner would be entitled to all
http://www.judis.nic.in
W.P.(MD)No.674 of 2021
M.S.RAMESH, J.
cp
the monetary and service benefits, including promotion benefits, as if the
petitioner was never issued with the present impugned charge memo.
No costs. Consequently, connected miscellaneous petitions are closed.
26.02.2021
Index : Yes / No
Internet : Yes / No
cp
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
The Commissioner and Special Officer,
Thoothukudi City Municipal Corporation,
Thoothukudi.
W.P.(MD) No.674 of 2019
and
W.M.P(MD) Nos.570, 571 and 3022 of 2019
26.02.2021
http://www.judis.nic.in
