Madras High Court
E.Gnanasekar vs The Commissioner And Special ... on 7 January, 2022
W.P(MD)Nos.11630 and 20214 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)Nos.11630 and 20214 of 2021
and
W.M.P.(MD)Nos.9144, 9145, 16358 and 16886 of 2021
W.P.(MD)No.11630 of 2021
E.Gnanasekar ... Petitioner
versus
The Commissioner and Special Officer,
Thoothukudi City Municipal Corporation,
Thoothukudi. ... Respondent
Writ Petition filed under Article 226 of the Constitution of India,
seeking for the issuance of writ of certiorarified mandamus, to call for
the records from the respondent relating to the impugned order in
C1/17170/2002 dated 30.06.2021 and quash the same as illegal and
consequently, direct the respondent to grant periodic promotion with all
other attendant and monetary benefits payable to the petitioner within
the time stipulated by this Court.
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.11630 and 20214 of 2021
For Petitioner : Mr.VR.Shanmuganathan
For Respondent : Mr.S.Saji Bino,
Special Government Pleader
W.P.(MD)No.11630 of 2021
N.Sermakani ... Petitioner
versus
The Commissioner,
Tuticorin Municipality,
Tuticorin. ... Respondent
Writ Petition filed under Article 226 of the Constitution of India,
seeking for the issuance of writ of certiorari, to call for the records
relating to the impugned order passed by the respondent in his
proceedings C1/17170/2002 dated 13.09.2021 and quash the same as
illegal, arbitrary and in violation of principles of natural justice.
For Petitioner : Mr.B.Saravanan
For Respondent : Mr.S.Saji Bino,
Special Government Pleader
COMMON ORDER
These writ petitions are filed against the orders of punishment
dated 30.06.2021 and 13.09.2021, in and by which, the respondent
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W.P(MD)Nos.11630 and 20214 of 2021
ordered for recovery of a sum of Rs.7,85,679/- and Rs.3,14,979/-.
2. The petitioners were slapped with a charge memo dated
24.04.2006, alleging that while they were working as Junior Assistant,
they failed to collect rent from the lessees and thereby caused loss of
Rs.92,49,537/- to the Exchequer of the erstwhile Thoothukudi
Municipality. They also submitted their explanation to the respondent
denying all the charges. Thereafter, an enquiry was conducted and the
Enquiry Officer submitted his enquiry report, by holding that among
six charges, five charges are not proved and one charge alone is partly
proved. Instead of taking decision on the enquiry report submitted by
the Enquiry Officer, the Disciplinary Authority, vide his proceedings
dated 13.03.2018, ordered for re-enquiry by appointing another
Enquiry Officer. The same was under challenge in W.P.(MD)No.674
of 2019. This Court, vide order dated 26.02.2021, allowed the writ
petition by setting aside the charge memo dated 24.04.2006 and the
consequential proceedings of re-enquiry dated 13.03.2018. Aggrieved
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W.P(MD)Nos.11630 and 20214 of 2021
by the same, the respondent Corporation filed an appeal in Writ Appeal
(MD) No.882 of 2021 before this Court. A Division Bench of this
Court, vide Judgment dated 23.04.2021, partly allowed by setting aside
the proceedings of re-enquiry dated 13.03.2018 and granted liberty to
the disciplinary authority to proceed with the enquiry report dated
28.05.2013 and to pass a fresh order. Accordingly, the impugned
orders have been passed. Aggrieved by the same, the present writ
petition is filed.
3. Since the issue involved in both the writ petitions are one and
the same, both the writ petitions are taken up together for final
disposal.
4. The learned counsel for the petitioners submitted that the
impugned orders have been challenged on two grounds. The first
ground is that the disciplinary authority is the Director of Municipal
Administration, but, the impugned orders have been passed by the
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W.P(MD)Nos.11630 and 20214 of 2021
incompetent authority, namely, the Commissioner of Tuticorin
Corporation. Therefore, on that ground, the impugned orders are liable
to be set aside. The second ground is that the Enquiry officer
submitted his report by holding that among six charges, five charges
are not proved and one charge alone is partly proved. While so, when
the respondent has intended to deviate from the findings of the Enquiry
Officer, in all fairness, he ought to have issued second show cause
notice, calling for explanation from the petitioners, before taking any
decision. But, the respondent has not issued any such notice to the
petitioners. On these grounds, the impugned orders are liable to be set
aside.
5. Mr.S.Saji Bino, learned Special Government Pleader appearing
for the respondent Corporation submitted that since the petitioners
caused huge revenue loss to the tune of Rs.92,49,537/- to the
Corporation, the charge memo dated 24.04.2006 was issued to the
petitioners and for the said charges, enquiry was also conducted by
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W.P(MD)Nos.11630 and 20214 of 2021
appointing an Enquiry Officer and the Enquiry Officer also submitted
the enquiry report. Being not satisfied with the enquiry report, the
respondent, vide proceedings dated 13.03.2018, ordered for re-enquiry.
Thereafter, pursuant to the Judgment of the Division Bench of this
Court in W.A.(MD)No.882 of 2021, the impugned orders came to be
passed.
6. With regard to the jurisdiction, the learned Special
Government Pleader submitted that the disciplinary proceedings was
initiated in the year 2006. The Thoothukudi Municipality was
upgraded as Thoothukudi City Municipal Corporation in the year 2008.
Therefore, as on that date, the Commissioner of Municipal Corporation
is the competent authority.
7. This Court paid its anxious consideration to the rival
submissions made.
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W.P(MD)Nos.11630 and 20214 of 2021
8. The petitioners were slapped with a charge memo dated
24.04.2006 by framing six charges. The respondent Corporation
appointed an Enquiry Officer in the year 2011 and after conducting the
enquiry, the Enquiry Officer submitted the report in the year 2013, by
holding that among six charges, five charges are not proved and one
charge alone is partly proved. The disciplinary authority ought to have
passed an order based on the enquiry report. Instead of that, the
respondent Corporation, vide his proceedings dated 13.03.2018,
ordered for re-enquiry by appointing another Enquiry Officer, that too
after five years. The same was challenged before this Court in
W.P.(MD)No.674 of 2019, which was allowed by this Court, vide
order 26.02.2021, setting aside the order of re-enquiry, against which,
the respondent Corporation filed an appeal in W.A.(MD)No. 882 of
2021. The Division Bench of this Court, vide Judgment dated
23.04.2021, partly allowed the writ appeal, by setting aside the order of
re-enquiry.
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W.P(MD)Nos.11630 and 20214 of 2021
9. If the disciplinary authority intended to deviate from the
findings of the Enquiry Officer, in all fairness, he ought to have issued
a second show cause notice to the petitioners and afford an opportunity
to submit their explanations, if any and thereafter only, he has to
proceed with the disciplinary proceedings. In this case, the respondent
has not issued any such notice.
10. As per Rule 4(b) of the Tamil Nadu Municipal Services
(Discipline and Appeal) Rules, 1970, the Commissioner/Director of
Municipal Administration, Chennai is the appointing authority. As per
Rules 4(3) and 6 of the Tamil Nadu Municipal Services (Discipline and
Appeal) Rules, 1970, the appointing authority is the competent
authority to impose penalty.
11. It is not disputed by the respondent that the appointing
authority is the Director of Municipal Administration. Therefore, the
competent disciplinary authority would be the Director of Municipal
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W.P(MD)Nos.11630 and 20214 of 2021
Administration, Chennai. But, in this case, the
respondent/Commissioner of Thoothukudi Municipal Corporation,
instead of referring this matter to the competent authority, viz., the
Commissioner/Director of Municipal Administration, Chennai, decided
the issue on his own and passed the impugned orders, that too without
issuing second show cause notice to the petitioners. Therefore, on
these two grounds, the impugned orders are set aside.
12. Accordingly, both the writ petitions are allowed with liberty
to the respondent to refer these matters to the competent authority,
namely, the Director of Municipal Administration, Chennai. The
Director of Municipal Administration, Chennai, shall proceed with the
disciplinary proceedings based on the enquiry report dated 28.05.2013
and pass orders in accordance with law. The disciplinary authority, if
intends to deviate from the findings of the Enquiry Officer, shall take a
decision afresh, after affording opportunity of hearing to the petitioners
and pass orders within a period of twelve weeks from the date of
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W.P(MD)Nos.11630 and 20214 of 2021
receipt of a copy of this order. No costs. Consequently, connected
miscellaneous petitions are closed.
07.01.2022
ogy
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.
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.11630 and 20214 of 2021
B.PUGALENDHI, J.
ogy
W.P(MD)Nos.11630 and 20214 of 2021
07.01.2022
https://www.mhc.tn.gov.in/judis
