Madras High Court
The President vs M.Bose ... 1St on 26 September, 2023
2023/MHC/4564
W.A.(MD) No.1607 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.(MD) No.1607 of 2023
and
C.M.P.(MD)No.12488 of 2023
The President,
Thiruchuli I Grade Panchayat,
Thiruchuli,
Virudhunagar District.
Rep. By its President,
Tmt.Panchavarnamkumar ... Appellant/3rd Respondent
-vs-
1.M.Bose ... 1st Respondent/Writ Petitioner
2.The District Collector/Inspector of Panchayats,
Virudhunagar District, Virudhunagar.
3.The Block Development Officer,
(Village Panchayat),
Thiruchuli Panchayat Union at M.Reddiyapatti,
Virudhunagar District.
... 2nd & 3rd Respondents/1st and 2nd Respondents
PRAYER: Writ Appeal has been filed under Clause 15 of Letters Patent to set
aside the order, dated 30.08.2023 made in W.M.P.(MD)No.17508 of 2023 in
W.P.(MD)No.21107 of 2023 on the file of this Court.
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W.A.(MD) No.1607 of 2023
For Appellant : Mr.K.Seemaraj
For R1 : Mr.R.Anand
For R2 & R3 : Mr.J.K.Jeyaseelan
Government Advocate
JUDGMENT
[Judgment of the Court was made by D.BHARATHA CHAKRAVARTHY, J.]
A. The Appeal & The Impugned Order :
The President, Thiruchuli I-Grade Panchayat, is before us aggrieved by
the interim order passed by the learned Single Judge in W.M.P.(MD)No.17508
of 2023 in W.P.(MD)No.21107 of 2023 dated 30.08.2023. In the writ petition,
the first respondent herein had challenged a charge memo dated 13.03.2023
and the suspension order dated 27.03.2023 and a consequential order dated
19.05.2023.
1.1 It is the case of the writ petitioner that the charge memo as well as
the suspension order are without jurisdiction as the President of the
Panchayat has no jurisdiction to issue the same. This apart it is the case of
the writ petitioner that the exercise of power is made vindictively on account of
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W.A.(MD) No.1607 of 2023
personal malafide. It is the further case of the writ petitioner that earlier upon
such complaint, the Block Development Officer has conducted an internal
enquiry and submitted a report before the Collector. Therefore, according to
the writ petitioner, the charge memorandum and the suspension order having
been issued without jurisdiction are not sustainable.
B. The order in the writ petition:
2. The learned Single Judge while considering the case of the parties,
held that the question as to who will be the appropriate authority to pass an
order of suspension has to be decided and that the matter is pending before
the Hon'ble Division Bench of this Court and therefore pending the batch to be
decided before the Hon'ble Division Bench of this Court had granted an order
of interim stay. Aggrieved by the same, the present writ appeal is filed before
this Court.
C. The Submissions:
3. Mr.K.Seemaraj, the learned counsel appearing on behalf of the
President would submit that even before the Hon'ble Division Bench of this
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W.A.(MD) No.1607 of 2023
Court, the question was whether the President of the Panchayat Union or the
higher authorities namely, the Block Development officer or the Collector will
have power to suspend the writ petitioner who is working as a Village
Secretary in the event of contemplation of disciplinary enquiry. However, in
this matter originally orders were passed imposing a punishment of dismissal
from service and by an order dated 19.05.2023, the said order of punishment
has been set aside and the matter was remanded back to the Panchayat
President by the District Collector. While so remanding, it is the District
Collector who has ordered that the first respondent/writ petitioner shall
continue to be in suspension pending the further proceedings. It is only in
compliance of the same, the consequential order of suspension was issued by
the appellant.
4. Per contra Mr.R.Anand, the learned counsel appearing on behalf of
the first respondent would submit that originally the Government has passed
G.O.Ms.No.175 dated 05.12.2006 by which power was granted to the
President of the Village Panchayat to impose major punishments. However, the
said Government order was superseded vide G.O.Ms.No.72 dated 09.07.2013
by which, the power of imposing the major penalties has been vested with the
Personal Assistant (Development) to the Collector. Further, it is also submitted
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W.A.(MD) No.1607 of 2023
by the learned counsel that the said G.O.Ms.No.72 was also under challenge
before this Court. In any event, the learned counsel submits that the said
G.O.Ms.No.72 and the other Government orders in this regard are all now
superseded as the Government has now framed Tamil Nadu Panchayat
Secretaries (Conditions of Service) Rules, 2013 in exercise of its powers
conferred under Section 102(1) of the Tamil Nadu Panchayats Act 1994 vide
G.O.Ms.No.113 dated 13.09.2023. Therefore, he would submit that when the
impugned orders of charge memo as well as the suspension suffers from want
of authority as well as malafide, the interim order granted by the learned
Single Judge need not be interfered with.
D. The Findings:
5. We have considered the elaborate submissions made by the learned
counsel on either side and perused the material records of the case.
5.1 As far as the impugned charge memorandum is concerned, it is
issued by the President of the Village Panchayat. Originally, it can be seen
that vide G.O.Ms.No.175 dated 05.12.2006, the power to impose major
punishment on the Panchayat Secretaries were vested with the President. It is
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W.A.(MD) No.1607 of 2023
useful to extract Clause (v) of the G.O.Ms.No.175, dated 05.12.2006 which
reads as follows:
“v.fpuhk Cuhl;rp eph;thfj;jpy;> Cuhl;rp cjtpahsh; Jiwapd;
tpjpKiwfis kPwy;> xOq;fPdk;> ftdf; FiwT jFjpapd;ik> flik
jtWjy;> jtwhd eltbf;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 %g;Gg; gl;baypy; juk; ,wq;Fjy;> my;yJ
fPo;epiyg;gzpaplj;jpy; itj;jy; my;yJ fhyKiw Cjpaj;jpy; fPoe
; piyapy;
itj;jy;> jw;fhypf gzpePf;fk; nra;jy;> gzpapypUe;J ePf;Fjy; my;yJ
gzptpyf;fy; nra;ayhk;. ,Ug;gpDk; mjw;F Kd;ghf me;j Cuhl;rp
cjtpahsiu Neub tprhuizf;F miog;gJ cl;gl mth; jdJ tpsf;fj;ij
mspf;f mtUf;F Nghjpa tha;g;G mspf;fg;gl;bUf;F Ntz;Lk;.”
5.2 Thereafter, vide G.O.Ms.No.72, the power to impose major
punishments was vested with the Personal Assistant (Development) to the
Collector. It is useful to extract Rule 15, wherein, it is also mentioned that the
Block Development Officer as the appropriate authorities to initiate
disciplinary action.
15. Authority Competent to impose the penalties:-
The authority competent to impose any of the above penalties
shall be the Personal Assistant (Development) to the Collector. However,
the Block Development Officer (Village Panchayats) may initiate
disciplinary action on the Village Panchayat Secretary and remit the
papers to Personal Assistant (Development) to the Collector for passing
final orders.”
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W.A.(MD) No.1607 of 2023
5.3. Now, both the above Orders are superseded and by G.O.Ms.No.113
dated 13.09.2023 the Tamil Nadu Village Panchayat Secretaries (Condition of
Service) Rules 2013 is framed and it is useful to extract Rules 16, 18 and 20 of
the said Rules which reads as follows:
“16. Procedure to be followed before imposing penalty:-
In every case where a person holding the post is found
guilty of any negligence, indiscipline fraud, breach of Rules or Orders
etc., in consequence of which any pecuniary loss may or may not have
been caused to the Village Panchayat/Government and it is proposed to
impose any of the penalties specified in rule 14, the authority shall give
him/her a reasonable opportunity of making any representation that
he/she may desire to make to defend himself/herself, and he/she may
desire to make to defend himself/herself, and he/she shall take such
representation, if any, into consideration before passing any order
imposing such penalty.
18. Appeal:-
(1) An appeal shall lie with the Collector within thirty days
from the date of receipt of the order, imposing the penalty by the
appointing authority.
(2) Second appeal shall lie with the Commissioner/Director of
Rural Development and Panchayat Raj within sixty days from the date
of receipt of the orders of the Collector.
(3) While passing an order in appeal, the Appellate Authority shall
consider-
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W.A.(MD) No.1607 of 2023
(i) Whether the facts on which the order was based have
been established:
(ii) Whether the facts established afford sufficient ground
for taking action, and
(iii) Whether the penalty is, adequate or inadequat or
excessive and pass such orders, as it may deem fit.
20. Savings:-
Nothing contained in these rules shall adversely affect the
persons holding the post on the date of coming into force of these
Rules.”
5.4 Similarly as far as the suspension is concerned, as per the 2013
Rules, the appointing authority is vested with the power to suspend the
Panchayat Secretary and Rule 17 of the 2013 Rules reads as follows:
“17. Suspension:-
(1) The appointing authority may place a person holding the post
under suspension, if it is necessary in public interest where:-
(i) an inquiry into grave charges against him/her is contemplated
or is pending: or
(ii) a complaint against him/her of any criminal offence is under
investigation or trial.
(2) A person holding the post who is detained in custody
whether on a criminal charge or otherwise, for a period longer than 48
hours shall be deemed to have been suspended under this rule.
(3) Review on extension of suspension of the persons holding the
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W.A.(MD) No.1607 of 2023
post shall be done by the Personal Assistant (Development) to Collector
for every quarter.
(4) During the period of suspension, a person holding the post is
eligible for subsistence allowance of 50% of the last pay and
allowances drawn.”
5.5 The said Rule has been superseded and at present the Rule 22 of
the 2023 Rules read as follows:
“22. Suspension:-
(1) The disciplinary authority may place a person holding the post,
under suspension, if it is necessary in public interest where,-
(i) an inquiry into grave charges against him is
contemplated or is pending; or
(ii) a complaint against him of any criminal offence is
under investigation or trial.
(2) A person holding the post who is detained in custody whether
on a criminal charge or otherwise, for a period longer than 48 hours
shall be deemed to have been suspended under this rule.
(3) The disciplinary authority who places the person holding the
post under suspension shall examine whether to continue the
suspension beyond six months or not and pass appropriate orders.
(4) An order of suspension made or deemed to have been made
under this rule may at any time be revoked by the disciplinary
authority.”
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W.A.(MD) No.1607 of 2023
5.6 Therefore, it can be seen that under the erstwhile Rules, the Block
Development Authority was the authority to intiate disciplinary proceedings
and the Personal Assistant to the Collector was the authority to pass orders of
suspension. Now in the present Rules, again the Block Development Authority
is the authority to initiate disciplinary proceedings and he is also the authority
to place the person under suspension.
5.7 It is in this background, even though originally the proceedings were
initiated and suspension was made by the Village President himself, ultimately
the proceedings ended in punishment but however an appeal, the District
Collector had passed an order setting aside the order of punishment of
dismissal from service dated 15.05.2023 and while remanding the matter back
as ordered that fresh opportunity should be given on the charges issued
against the first respondent and that he be placed under suspension pending
the enquiry.
5.8 Therefore, when the fresh proceedings have virtually been ordered
by the District Collector himself and that the suspension have also been
ordered by him, when the authority higher than the competent authority
passed an order of suspension, the same cannot be held to be without
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W.A.(MD) No.1607 of 2023
jurisdiction.
5.9 It is true that the Charge Memorandum is originally issued by the
President. Prior to the coming to force of the current Rules of 2023, admittedly
the position was nebulous as there was no clarity as to whether it was the
President or the Block Development Officer who was the competent authority.
When there is no rule or when the rule position is not clear, it is always held
that initiation of disciplinary proceedings by an authority lower than the
disciplinary authority by itself will not vitiate the disciplinary proceedings.
Over and above the same, now the District Collector himself as the Appellate
Authority has dealt with the charges and remanded back to the original
authority for fresh enquiry by giving one more opportunity. Therefore we hold
that the Charge Memorandum shall be deemed to be issued by the competent
authority. The further allegation of malafide and vindictiveness will also stand
redressed by our following order since we propose the enturst the continuation
of the enquiry to the appropriate authority namely Block Development
Authority and the same is not going to be continued by the President. After all
the gravamen of the charges is that the Village Secretary never reported for
work and acted in a manner not to recognise the elected office bearers, while it
is the contention of the delinquent that inspite of he reporting for work the
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W.A.(MD) No.1607 of 2023
charges are issued on malafide motives. The truth or otherwise of the
allegations have to be found out and there is no point in protracting the issue
on technical issues.
E. The Result:
6. Therefore, we dispose of the appeal with the following directions :
(i) We hold that the charge memorandum dated 13.03.2023 shall be
deemed to be initiated by the competent authority;
(ii) The Block Development Officer namely, the third respondent herein
at this stage may apply his mind on the charge memorandum and the
explanation submitted by the first respondent and from that stage proceed
further in accordance with Rule 20 of the Tamil Nadu Village Panchayat
Secretaries (Conditions of Service) Rules 2013. It would be open for him to
drop the charges accepting the explanation or to appoint an enquiry officer to
continue the disciplinary enquiry in accordance with law;
(iii) Pending the disciplinary enquiry, as ordered by the second
respondent, namely, the District Collector, Virudhunagar Distrit, the first
respondent shall remain under suspension;
(iv) The disciplinary authority shall complete the enquiry and pass final
orders within a period of three months from the date of receipt of a copy of this
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W.A.(MD) No.1607 of 2023
order;
(v) If for any reason, the disciplinary authority is unable to complete the
disciplinary enquiry within the period as aforementioned, the order of
suspension shall be reviewed and revoked or extended as the case may be as
per the opinion of the disciplinary authority in accordance with law;
(vi) Needless to say that in the meanwhile, the first respondent will be
entitled for subsistence allowance as may be permissible under the Rules and
the same shall be forthwith paid to him;
7. It may be seen that our above decision and directions, finally decide
the very lis in W.P.(MD)No.21107 of 2023 itself and as such the writ petition
itself shall stand disposed of on the above terms. No costs. Consequently,
connected miscellaneous petition is closed.
[S.S.S.R., J.] [D.B.C., J.]
26.09.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sji
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W.A.(MD) No.1607 of 2023
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
sji
To
1.The District Collector/Inspector of Panchayats,
Virudhunagar District, Virudhunagar.
2.The Block Development Officer,
(Village Panchayat),
Thiruchuli Panchayat Union at M.Reddiyapatti,
Virudhunagar District.
W.A.(MD) No.1607 of 2023
and
C.M.P.(MD)No.12488 of 2023
26.09.2023
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