Madras High Court
The Joint ... vs V.Gnansundaram on 27 September, 2021
1 W.A.No.2455 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.09.2021
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
W.A.No.2455 of of 2021
and CMP.No.15760 of 2021
The Joint Commissioner/Executive Officer,
Arulmighu Meenakshi Sundareswarar Temple,
Madurai - 625001 ... Appellant
Vs.
1.V.Gnansundaram
2.The Special Commissioner & Commissioner,
Hindu Religious and Charitable
Endowments Admn.Dept.,
Chennai - 600034.
3.The Joint Commissioner,
H.R.&C.E., Admn.Dept.,
Madurai. ... Respondents
PRAYER:- Writ appeals are filed under clause 15 of the Letter Patent to set
aside the judgement dated 15.12.2020 in W.P.No.35467 of 2004 on the file of
this honourable court.
https://www.mhc.tn.gov.in/judis
2 W.A.No.2455 of 2021
For Appellant : Mr.V.R.Shanmuganathan
Senior Counsel for
Mr.S.Yashwanth
For Respondents : Mr.V.Prakash
Senior Counsel for R1
Mr.K.V.Sajeev Kumar
Government Counsel for R2 & R3
JUDGMENT
(Judgment of the Court was made by S.VAIDYANATHAN, J.)
Instant writ appeal is directed against the order dated 15.12.2020 made
in W.P.No.35467 of 2004.
2. The writ appeal has been filed challenging the proceedings dated
07.11.2003 whereby the first respondent/second respondent herein denied the
backwages from the date of suspension till the date of reinstatement and the
same was allowed by this Court. The learned counsel for the appellant
submitted that the employee was involved in a serious misconduct for which
he was placed under suspension on 21.07.1999 and after following due
process of law i.e., after conducting the enquiry he was dismissed from
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service on 25.10.2000. Aggrieved by the dismissal order a revision was filed
which was allowed by the authorities concerned, but however, backwages
from the date of suspension namely 21.07.1999 till the actual date of
reinstatement dated 04.12.2003 was deprived.
3. According to the appellant, the employee was placed under
suspension and after conducting departmental enquiry, he was dismissed from
service originally on 22.12.1999. The order was interfered with and the
matter was remanded and fresh orders have been passed by the authorities
and the dismissal order came into force with effect from 25.10.2000. The
learned counsel for the appellant stated that the employee has approached this
Court by filing W.P.Nos.2374 and 2375 of 2000 questioning the jurisdiction
of the authority to place the writ petitioner under suspension and also the
consequential punishment. This Court came to the conclusion that in terms of
Section 56 (1) of the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959, trustees alone got the power to suspend the
employees and that the order passed by the authority was one without
jurisdiction. As the employee is said to have involved in a serious offence and
that the ratification for conversion as an approval of the Executive Officer
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was declined by the Court, the suspension order, though not interfered with,
the punishment order was set aside and the matter was remanded to the
authorities to give fresh opportunity to the writ petitioner to submit an
explanation and W.P.No.5375 of 2000 was dismissed. He further submitted
that on remand, the authorities interfered with the order of punishment and
passed the following order.
10) On proper consideration of the facts and circumstances of the
case as detailed above, it is viewed that the punishment of dismissal from
service awarded to the petitioner is not commensurate with the charges
levelled, which have also not been absolutely proved beyond doubt. I am
therefore of the view that the impugned order passed by the Joint
Commissioner and the order of dismissal passed by the Chairman, Board
of Trustees of Arulmigu Meenakshi Sunderaswarar Temple, Madurai on
25.10.2000 are liable to be set aside andore accordingly set aside. The
Petitioner will be entitled to reinstate from the date of his joining duty.
The period of absence from the date of his removal till the date of his
joining shall be treated as leave to which he will be eligible. If the
petitioner has no leave to his credit, to vast extent,the remaining period
shall be treated as leave on loss of pay. In fine, the Revision Petition filed
U/S.211 of the Act be and is hereby allowed.
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4. The Appellant stated that the employee/writ petitioner was initially
suspended and thereafter dismissed from service. Consequent to the
interference with the dismissal order, the entire benefits have been extended
to the employee, including the terminal benefits and that the employee would
not be entitled to backwages for the period mentioned supra as the order of
the authority is based on analysis of evidence.
5. Per contra the first respondent would submit that the Writ
petitioner/first respondent was appointed as a Plumber in the Temple and
based on the qualification, he was promoted as an Electrician and he would
further submit that during the pendency of the Writ Petition, he has attained
the age of superannuation. He would further submit that a charge memo was
issued after placing the Writ Petitioner under suspension and dismissal order
was passed after due enquiry. The writ petitioner has earlier approached this
Court and the order of punishment was interfered with and not the
suspension, and after conducting an enquiry, once again, he was dismissed
from service with effect from 25.10.2000.
6. A reading of the order of the authority would make it very clear that
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there was no misappropriation of funds and that there was no fault on the first
respondent/Writ Petitioner. The learned Single Judge has observed as
follows:-
7.In view of the above facts and circumstances of this case, it is
clear that the first respondent in his order had clearly observed and stated
that there was no misappropriation of funds and there was no fault on part
of the petitioner. Further, the counter affidavit filed by the third respondent
was signed on 27.09.2017 itself but the same is produced before this Court
only on 09.04.2019. The Writ Petition was filed in the year 2004 and
though, the charges levelled against the petitioner were disapproved by the
first respondent, the same is pending till now. The respondents cannot take
advantage of the letter given by the petitioner after 8 years and claim that
the petitioner has given up his rights, as the first respondent had given a
clear finding that no charges were proved against the petitioner and he did
not abscond from his duty. The third respondent has not challenged the
order passed by the first respondent. The order of the first respondent
attained finality. Therefore, this court is not accepting the contention of the
third respondent. Accordingly, the benefits of backwages from the date of
suspension till the date of reinstatement, to the petitioner, should be
extended and the same is extended. The respondent is directed to pay the
backwages of the petitioner from the date of suspension of his service till
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his reinstatement in service.
7. He further contended that the order of the learned Single Judge is
perfectly correct and need not be interfered with.
8. In reply, the appellant would submit that the employee has given a
representation on 21.05.2008 that he will not claim backwages and the writ
petition No.27867 of 2006 seeking to quash the proceedings dated
01.03.2006 and for the consequential direction to pay backwages from the
date of suspension namely 21.07.1999 to 24.10.2000 was withdrawn on
18.09.2008. When that being the case, having given an undertaking, the
employee is not entitled for the relief of backwages for the period in question.
9. In response to the above the first respondent/writ petitioner would
submit that even though the very same plea was taken by the appellant herein
before the learned Single Judge, this communication was not produced to him
and that apart, the employee has been driven from pillar to post and he had to
file contempt petition to get the order of promotion due to him. Hence no
mercy shall be shown to the appellant and hence the writ petition was rightly
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allowed by the learned single Judge.
10. Heard both parties.
11. It is not in dispute that the employee was a Plumber and placed
under suspension on 21.07.1999 for various charges he was initially
dismissed from service on 22.12.1999 and this order was set aside by this
Court in W.P.2374 and 2375 of 2000 but however, the suspension order was
retained as such.
6. Insofar as W.P.No.2375 of 2000 is concerned, it is admitted that
under section 56 (1) of the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959. It is the trustees alone who have got the power to
control and suspend the employees of the temple are therefore, there is
force in the learned counsel for the petitioner that the order is one passed
without authority. Counsel for the temple Mr.P.Gopalan submitted that the
suspension order passed on 21.07.1999 was approved immediately in the
meeting convened by the trustees of the temple on 02.08.1999. The
decision states that the petitioner has been involved in serious offences
against the properties of the temple and therefore, in the interests of
administration, the suspension of the petitioner by the Executive Office has
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been ratified.
7.In as much as this ratification was done immediately
without any delay and that the temple authorities have taken into account
the nature if the allegations for the purpose of placing the petitioner under
suspension, the ratification has to be treated as an approval of the action
taken by the Executive officer. Hence I am not inclined to interfere with the
order of suspension in as much as the petitioner is given a fresh
opportunity to submit his explanation and as the order or punishment has
been given opportunity to submit his explanation. In the above
circumstances, writ petition No.5375 of 2000 is dismissed.
8. Petitioner is entitled to the subsistence allowance as provided for
under the Rules till final order is passed against him.
12. On remand, after enquiry, once again a dismissal order dated
25.10.2000 was passed. In revision, the department allowed the claim of the
writ petitioner/first respondent herein but however deprived the back wages
from the date of suspension 21.07.1999 till the date of reinstatement namely
04.12.2003. The contention of the appellant that the order of suspension was
not set aside and that the writ petitioner is not entitled to any allowance much
less the one claimed by him in the present Writ Petition cannot be accepted.
Once the order is set aside, the employee will be put back to the original
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place as if there is no order of suspension. This Court has held that charges
have not been established based on the orders passed by the Revision
Authority dated 07.11.2003.
13. The next submission of the learned counsel for the appellant is that
the employee has not actually worked and hence he will not be entitled to
back wages based on the principle of “No Work No Pay”. This contention
does not hold good for the reason that once the order of dismissal is held to
be bad and more so the charges have not been established and that the
employee, having been placed under suspension, he has to be paid the entire
backwages due to him. If there was any punishment imposed other than the
dismissal or discharge or removal and he was reinstated in service, then it is
for the authorities to decide as to how the period of suspension will have to
be treated. In this case even though the charges have not been proved, the
authority ought not to have come to the conclusion that the entire backwages
for the period of suspension till the date of dismissal have got to be deprived,
which cannot be accepted by this Court and rightly, the learned Single Judge
has interfered with the order impugned in the writ petition. With regard to the
undertaking letter dated 21.05.2008, submitted by the writ petitioner, it has
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been stated by the respondent/ Writ Petitioner that the said undertaking letter
was not brought to the attention of the learned Single Judge while hearing
W.P.No.27867 of 2006, which was subsequently dismissed as withdrawn.
Thus, there is a categorical evidence that the writ petition in which, such
undertaking was alleged to be given, and therefore, the issue in that writ
petition no longer subsists. However, this Court makes it very clear that the
employee is not entitled to allowance from 21.07.1999 to 24.10.2000 and not
thereafter. It is argued on the side of the Respondent that the letter was given
on the presumption that he would be granted promotion, but, no promotion
was given to him.
14. In response, Mr.Shanmuganathan, learned Senior Counsel
appearing for the appellant submitted that the employee has been given all
benefits, including promotion with effect from 15.09.2006. In view of the
undertaking given by the employee, the backwages for the period from
21.07.1999 to 24.10.2000 alone need not be paid and for the rest of the
period, the employee will be entitled to all the monetary benefits that has
been deprived to him. If any promotional benefits have not been granted to
the employee as contended by the respondent/Writ Petitioner, it is open to
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him to claim the same in accordance with law.
15. In view of the above submission, the entire monetary benefits,
except for the period in question mentioned supra has got to be extended
within a period of three months from the date of receipt of a copy of this
judgment, failing which, it will carry interest at the rate of 6% per annum
from the date of the Writ Petition. If any provident fund amount is payable to
the employee, as the backwages have been ordered only now, the same will
have to be remitted within 30 days, failing which, the EPFO is entitled to
demand the rate of interest as prescribed.
16. With the above observation the writ appeal is ordered to the extent
indicated above. No costs. Consequently connected miscellaneous petition is
also closed.
(S.V.N.J.,) (A.A.N.J.,)
27.09.2021
dpq
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
S.VAIDYANATHAN, J.
and
https://www.mhc.tn.gov.in/judis
A.A.NAKKIRAN, J.
dpq
To
1.The Special Commissioner & Commissioner,
Hindu Religious and Charitable
Endowments Admn.Dept.,
Chennai - 600034.
2.The Joint Commissioner,
H.R.&C.E., Admn.Dept.,
Madurai.
W.A.No.2455 of of 2021
and CMP.No.15760 of 2021
27.09.2021
https://www.mhc.tn.gov.in/judis
