Disposed

V. Marudhachalam v. the Commissioner of Town

Madras HC9 Oct 2017WP/7702/2009

Case brief

AI extract

What is this about?

A town panchayat employee challenged a two-year reduction in rank for payment irregularities. The court upheld the punishment but directed notional restoration as Executive Officer after its expiry, with consequential service, monetary and pensionary benefits payable within two months.

What did the court decide?

Notional posting as Executive Officer from 03.01.2010, with consequential service, monetary and pensionary benefits payable within two months of receipt of the order.

V. Marudhachalam Vs the Commissioner of Town — Pension and Retirement Benefits | Madras HC (2017)

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ORDER RESERVED ON :29.11.2016 ORDER DELIVERED ON:. 09.10.2017

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 09.10.2017

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CORAM :

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THE HONOURABLE MR. JUSTICE R.SURESH KUMAR

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W.P.No.7702 of 2009
V.Marudhachalam .. Petitioner
Vs.
1.The Commissioner of Town Panchayat,
Kuralagam, Chennai- 600 108.
2. The District Collector,
Coimbatore District,
Coimbatore. ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of certiorari calling for the proceedings of the 1^st respondent in Na.Ka.No. 10610/2008/A4 dated. 05.01.2009 confirming the order passed by the 2^nd respondent in proceedings Na.Ka.No.4688/2006/P2 dated 24.12.2007 and quash both the orders.

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For Petitioner : Mr.V.Vijayashankar For Respondents : Mr. V.Jaya Prakash Narayanan Spl.G.P

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O R D E R This writ petition has been filed with a prayer of

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writ of certiorari to call for the records of the proceedings of the first respondent in Na. Ka.No. 10610/2008/A4 dated 05.01.2009 confirming the order passed by the second respondent in his proceedings in Na.Ka.No. 4688/2006/P2 dated 24.12.2007 and quash both the orders.

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The case of the petitioner as has been culled out from the affidavit filed in support of the writ petition is as follows:

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(i) That the petitioner was appointed as clerk on 19.9.1981 and was subsequently, promoted as Head Clerk on 02.08.2003. Later by proceedings dated 21.08.2006, the petitioner was further promoted as Executive Officer and he had been posted at Kinathukadavu town panchayat.

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(ii) When the petitioner was working as Executive Officer at the said Town Panchayat, he was placed under suspension by the proceedings of the second respondent dated 17.09.2006. Thereafter, on 26.09.2006, a charge memo was served on him containing 7 articles of charges.

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(iii) The sum and substance of the charges framed against the petitioner is that, while he was working as Executive Officer at Kinathukadavu town panchayat, he, under the guise of repair of water pipelines and hiring tractor for the garbage clearing work, had, without the authority, released the fund by creating or getting receipts, by thus, made loss to the town panchayat.

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(iv) As against the charges framed against the petitioner, the petitioner had given his explanation and an enquiry officer was also appointed to conduct enquiry on the alleged charges framed against the petitioner under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred to as, 'Discipline Rules').

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(v) It is the claim of the petitioner that, though an enquiry officer was appointed and he had directed the petitioner to appear before him for enquiry and in response to the same, the petitioner had also appeared before the enquiry officer, where some questions were asked by the enquiry officer which were answered by the petitioner, the said enquiry on that date on the said appearance of the petitioner, was over.

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(vi)Therefore, the petitioner was on the bonafide impression that further intimation would be sent to the petitioner about the date of further enquiry, where if at all any witnesses are examined, those witnesses would be examined in the presence of the petitioner and in this regard, he also expected that a chance of cross examination of the witnesses also would be provided to the petitioner.

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(vii) Contrary to all these procedures which ought to have been followed, the enquiry officer, to the surprise of the

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petitioner, had submitted an enquiry report to the second respondent on 30.04.2007 whereby, he was holding that the charges 1,2,4,5 and 7 were proved and charges 3 and 6 were not proved. Based on the enquiry report, after getting explanation from the petitioner, the second respondent being the disciplinary authority, had imposed a punishment by his proceedings dated 24.12.2007, inflicting the punishment on the petitioner for reduction in rank to the post of Junior Assistant for a period of two years.

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(viii) The said order of punishment of the second respondent, on perusal, reveals that the disciplinary authority has simply accepted the enquiry report submitted by the enquiry officer and he did not apply his mind independently. The petitioner aggrieved over the same had filed an appeal to the first respondent.

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(ix) However, the first respondent / Appellate Authority also without going into the enquiry officer's report and the manner in which the disciplinary authority inflicted the punishment on the petitioner, without applying his mind independently, has rejected the appeal filed by the petitioner, by his proceedings dated 05.01.2009 by thus, confirming the punishment inflicted on him. According to the petitioner, even the Appellate Authority i.e., the first respondent also did not apply his mind and no independent reasons had been given by the Appellate Authority for accepting the report of the enquiry officer as well as the punishment inflicted by the second respondent / disciplinary authority.

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(x) In view of these orders passed by the second respondent as well as the first respondent inflicting the punishment of reduction in rank for the petitioner for two years from the post of Executive Officer to the post of Junior Assistant, under total non application of mind, as claimed by him, he has approached this Court by filing the present writ petition.

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(xi) On behalf of the respondents, the second respondent has filed a counter. In the said counter, it is averred that, when the petitioner was working as an Executive Officer at Kinathukadavu town panchayat, he committed serious irregularities while making payment for water supply pipe repair works in the town panchayat area and by doing so, he made financial loss to the town panchayat.

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(xii) It further proceeds to say that the petitioner had not followed the procedure laid down for execution of water

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supply, pipe repair works and for making payment for the work done. The counter further proceeds to say that against the said irregularities, charges were framed against the petitioner under Rule 17(b) of the Discipline Rules, by charge memo dated 26.09.2006. The petitioner had submitted written explanations on 16.07.2006. It would further state that the enquiry officer was appointed and he conducted enquiry on 28.2.2007, thereafter, the enquiry officer submitted his report on 30.04.2007 wherein, out of the seven charges framed against him, except charge No.3 all other charges were proved. Thereafter, the petitioner was called for further explanation by supplying the enquiry officer's report and in response to the same, the petitioner had submitted his further explanation on 16.5.2007. Thereafter, the petitioner was called for personal hearing on 20.11.2007 by the disciplinary authority and the petitioner attended the personal hearing on 20.11.2007.

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(xiii) The counter affidavit would further state that after attending the personal hearing, the petitioner gave a statement that he will not repeat the same mistakes in future and he asked the disciplinary authority for posting orders after revoking the suspension order. Based on this enquiry and the report as well as on consideration of the explanation given by the petitioner, the second respondent / disciplinary authority inflicted the said punishment as against which, though appeal was filed before the first respondent, the first respondent / Appellate Authority also has confirmed the punishment by rejecting the said appeal filed by the petitioner.

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Mr. V. Vijayashankar, the learned counsel appearing for the petitioner would submit that though several charges were framed against the petitioner under Rule 17(b) of the disciplinary Rules and a charge memo to that effect was served on the petitioner and an enquiry officer was appointed to conduct enquiry on the said charges, the said enquiry was not conducted properly in the manner expected to be followed when enquiry is taken up to enquire the charges framed under Rule 17 (b) of the said discipline rule.

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He would further state that the enquiry officer has completed the enquiry abruptly as if the summary proceedings, to enquire the charges framed under Rule 17(a) of the said discipline Rules. After one day enquiry, where certain questions alone were asked to the petitioner, which were answered, no further enquiry date was given. Even though, atleast two witnesses have been cited by the department side, none of the witnesses were examined and because of the said witnesses had not been examined, the chance of cross examining the witnesses

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also was not provided to the petitioner and therefore, the learned counsel would submit that the entire enquiry culminated with the enquiry report holding that except charges 3 and 6, all other charges were proved, is completely vitiated.

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The learned counsel for the petitioner would also submit that the petitioner had been rendering 28 years of unblemished services at the department and before this alleged charges, no other disciplinary proceedings were initiated against the petitioner and was pending. The learned counsel would also state that the procedure contemplated under Rule 17(b) of the discipline rules, namely, examination of the witnesses, having the presenting officer to present the prosecution case and also marking of documents from the side of the department as well as from the side of the defence, if at all not followed, since they are mandatory requirements to be followed, when enquiry is conducted under rule 17(b) of the discipline rules, such enquiry is totally vitiated, as it cannot be construed as a proper enquiry within the meaning of Rule 17(b) of the discipline rules.

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The learned counsel for the petitioner in support of his contentions and propositions has relied upon the following decisions:

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(i) 2009(2) SCC 570 [ROOP SINGH NEGI VS. PUNJAB NATIONAL BANK AND OTHERS]

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(ii) 2008(8) SCC 236 [STATE OF UTTARANCHAL AND OTHERS VS KHARAK SINGH]

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(iii) 2007(5)MLJ 1172 [A.YESODA VS. COLLECTOR, THIRUVANNAMALAI - SAMBUVARAYAR DISTRICT]

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(iv) 2010(3) MLJ 1370(SC) [L.I.C OF INDIA AND ANOTHER VS.RAM PAL SINGH BISEN]

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The learned counsel appearing for the petitioner would also state that if an order is passed by the disciplinary authority without acceptable reason to state that the discussion given would constitute for a reasoning to arrive at a conclusion by the disciplinary authority that the report of the enquiry officer has to be accepted, such order cannot be treated as a speaking order, especially when it is passed by a disciplinary authority as well as Appellate Authority, inflicting / confirming the punishment on the Government servant.

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In support of this proposition, the learned counsel would rely upon the following Judgments:

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(i)2010 (2) SCC 497 [ G. VALLIKUMARI VS. ANDHRA EDUCATION SOCIETY]

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(ii) 2009(2)SCC 570 [ROOP SINGH NEGI VS. PUNJAB NATIONAL BANK AND OTHERS] (cited supra)

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It is also the argument on the side of the petitioner counsel that, though number of documents had been relied upon by the department side, nothing has been supplied to the petitioner and therefore, even on that ground also, the enquiry is vitiated.

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The learned counsel for the petitioner would also submit that in alternative, even assuming that the punishment inflicted against the petitioner is valid, it was the punishment of reduction in rank only for two years which came to an end on 25.12.2009. Therefore, the petitioner would be entitled to get reinstated / appointed / posted as executive officer, the post which he held before he was suspended on the said disciplinary proceedings and even after the said two years period of punishment in reduction in rank, the petitioner since was not put back in his original position of executive officer post, the said action on the part of the respondent, is highly untenable and therefore, interference of this Court on this aspect is essentially required.

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Per contra, Mr.V.Jaya Prakash Narayanan, the learned Additional Government Pleader appearing for the respondent would submit that as has been averred in the counter affidavit filed by the second respondent, charges were framed against the petitioner under Section 17(b) of the discipline rules and whatever, procedure to be followed while conducting enquiry of the charges under the said rule 17(b) had been scrupulously followed. In this regard, the learned Additional Government Pleader would further submit that the enquiry officer was appointed, copy of the charge memo was supplied to the petitioner, his explanation to each of the charges were sought for. After getting explanation from the petitioner, enquiry was conducted, an opportunity was given to the petitioner by asking him that whether he wants to examine any witnesses. Since the petitioner has not expressed desire to examine any witnesses, the enquiry officer, based on the documents supplied by the department, as well as the explanation given to by the petitioner against each of the charges, has concluded the enquiry and submitted an enquiry report to the disciplinary authority.

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The learned Additional Government Pleader would also state that after receipt of enquiry report from the enquiry officer, the second respondent / disciplinary authority has given further chance of explanation to the petitioner and in this regard, a date was fixed to have the personal hearing, by the second respondent. In fact, in response to the said chance given to the petitioner to represent his case, he attended the personal hearing where also he had given explanation.

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In this regard, the learned Additional Government Pleader would invite the attention of this Court to the averment made by the second respondent in the counter affidavit stating that, the petitioner attended the personal hearing on 20.11.2007 and after the personal hearing conducted by the disciplinary authority, the petitioner gave a statement that he will not repeat the same mistakes in future and he asked the disciplinary authority for posting orders after revoking the suspension order.

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By relying upon the said aspects, the learned Additional Government Pleader would argue that, during the personal hearing, the petitioner did attend and pleaded before the disciplinary authority that he would not repeat the same mistakes committed by him against which charges framed against him and by pleading the same, he requested the disciplinary authority to consider his request to give re-posting by revoking the order of suspension.

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Therefore, the learned Additional Government Pleader would submit that, in view of all these developments, where proper charge memo has been served on the petitioner and after taking his explanation, enquiry was conducted and thereafter, on filing the enquiry report, a copy of the same was supplied to the petitioner and the disciplinary authority had sought for further explanation from the petitioner by giving personal hearing and on utilising the same, the petitioner attended the personal hearing and in fact, pleaded guilty by giving a statement that the same mistake would not recur during his rest of his service and therefore, the petitioner cannot make any claim now to state that the enquiry was not conducted properly within the meaning of Rule 17(b) of discipline rules and therefore, the learned Additional Government Pleader would state that the arguments advanced by the learned counsel appearing for the petitioner is not in consonance with the facts of the case and therefore, the same is liable to be rejected.

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I have considered the case of the petitioner and the respondents and I have also considered the rival submissions made by the learned counsel appearing for both sides as well as the materials placed before this Court for perusal.

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In fact, during the hearing, this Court directed the learned Additional Government Pleader to produce the relevant records, pursuant to which, the learned Additional Government Pleader has produced the relevant records. I have perused the said records where the Additional Personal Assistant to

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Collector i.e., the second respondent had given a report on 15.09.2006. The said report states that it was a continuation of the earlier report dated 12.09.2006. The report further proceeds to say that the Deputy Inspection Cell Officer and Cell Inspectors made enquiries and inspected the places where the repair work said to have been carried out on the drinking water pipe line and based on which, the said report was filed before the second respondent.

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The report further would reveal that a total number of 12 vouchers had been prepared stating that the repair works were carried out at 43 places. The Deputy Inspector Cell Officer and the Cell Inspectors inspected all these places and after having conducted local enquiries place vice, the said report was furnished. In the said report, nearly about 40 places have been mentioned where the alleged repair works is said to have been taken place and according to the inspection report, in number of places, the work claimed to have been carried out, was not actually carried out.

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It seems that only pursuant to this report given by the said inspection team headed by the Personal Assistant to the Collector to the second respondent, an enquiry was contemplated against the petitioner and inview of the said enquiry, the petitioner was placed under suspension. Thereafter, 7 charges were framed against the petitioner under 17(b) of the discipline rule and an enquiry officer was appointed, who conducted the enquiry.

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From the records available, it seems that the petitioner had attended the enquiry which was conducted on 28.2.2006. There is no proof to show that after the said enquiry whether the petitioner had still sought for further time to extend the enquiry for the purpose of examination of any witnesses. Therefore, based on the enquiry completed by the enquiry officer, enquiry report was submitted and after the enquiry report was furnished to the petitioner, a further chance was given to the petitioner to give his explanation which he gave to the disciplinary authority by attending before him during the personal hearing. Thereafter, on considering the enquiry officer's report as well as the explanation given by the petitioner, the disciplinary authority inflicted the punishment of reduction in rank for two years which has subsequently been confirmed by the first respondent / Appellate Authority also.

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In this regard, it is the case of the petitioner, as projected by the learned counsel appearing for him that, the enquiry was not conducted properly and no witnesses were

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examined, no documents were supplied to him and it was almost a summary proceedings conducted in one day as if that the charges framed against him was under Section 17(a) of the discipline rules and therefore, the entire enquiry which culminated in the enquiry report is vitiated and therefore, the punishment inflicted against the petitioner also is vitiated.

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With regard to the said submissions made by the learned counsel for the petitioner, it may be relevant to state here that the petitioner on 02.04.2007 has given the following request to the first respondent which are extracted hereunder for better appreciation of the facts:

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“nfhit khtl;l Ml;rpj; jiyth; mth;fspd; cj;jput[ vz; 3658/2006/ng2. ehs; 21/8/2006-d;go ehd; fpzj;Jf;flt[ ng%uhl;rpapy; bray; mYtyuhf 23/8/2006-e; njjp Kw;gfy; Kjy; gzpg; bghWg;ngw;W gzpg[hpe;J te;njd;/ ghh;it 1-y; fhQqk; nfhit khtl;l Ml;rpj; jiyth; mth;fspd; bray;Kiw Mizapd;go 17/9/2006-e; njjp Kjy; jw;fhypfg; gzp e Pf ;fk; bra;J cj;jut [ tH';fg;gl;lJ/ ghh;it 2-y; fhQqk; nfhit khtl;l Ml;rpj; jiyth; mth;fs; vd; k PJ Vw;gLj;jg;gl;l Fw;wr;rhl;Lfs; Fwpg;ghiz 26/9/2006-y; bgw;Wf; bfhz;nld; vd;gij gzpt[ld; bjhptpj;Jf; bfhs;fpnwd;/

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nkw;go Fw;wr;rhl;LfSf;F ghh;it 3-y; fhQqk; vdJ gjpy; rkhjhd mwpf;ifapid 9/10/2006-e; njjpapy; nfhit kz;ly ng::% uhl;rpfspd; cjtp ,af;Feh; mth;fsplk; nehpy; rkh;g;gpj;Js;nsd; vd;gij gzpt[ld; bjhptpj;Jf; bfhs;fpnwd;/ ghh;it 4-y; fhQqk; nfhit khtl;l Ml;rpj; jiyth; mth;fspd; cj;jput[g;go tlts;sp ng%uhl;rp bray; mYtyh; mth;fs; tprhuiz mYtyuhf epakpf;fg;gl;l cj;jput[ efy; bgw;Wf; bfhz;nld; vd;gij gzpt [ld; bjhptpj;Jf; bfhs;fpnwd;/

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ghh;it 5-y; tlts;sp ng%uhl;rp bray; mYtyh; kw;Wk; tprhuiz mYtyh; mth;fsplk; ,Ue;J 28/2/2006-y; fpzj;Jf;flt [ ng%uhl;rpapy; tprhuiz bra;a nehpy; M$uhff; fojf; Fwpg;gpy; bjhptpf;fg;gl;lJ bjhlh;ghf fpzj;Jf;flt[ ng%uhl;rpapy; 28/2/2006-e; njjpapy; eilbgw;w tprhuizapy; fye;J bfhz;nld; vd;gij gzpt[ld; bjhptpj;Jf; bfhs;fpnwd;/

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jw;nghJ jw;fhypf gzp e Pf ;fk; bra;ag;gl;L vdf;F MW khj';fSf;F nkyhfptpl;lJ vd;gij gzpt[ld; bjhptpj;Jf; bfhs;fpnwd;/

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vdnt. vdJ FLk;gj;ij ftdpg;gjw;F kpft[k; fZlkhf

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cs;sJ/ Mfnt FLk;g NH;epiyia fUj;jpy; bfhz;L jw;fhypf gzp e Pf ;fj;jpypUe;J tpLtpj;J vdf;F k Pz ;Lk; gzpaplk; tH';fp jf;f cj;jputpid gpwg;gpf;FkhW kpft[k; gzpt[ld; nfl;Lf; bfhs;fpnwd;/”

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Thereafter, after the enquiry report was submitted before the first respondent / disciplinary authority, petitioner had been given a chance of personal hearing by the second respondent by his proceedings dated 05.11.2007 which was received by the petitioner on 09.11.2007. The said communication reads thus:

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“nfhak;g[j;öh; kz;lyk; fpzj;Jf;flt[ ng%uhl;rpapd; bray; mYtyuhf gzpapl bghWg;g[ tfpj;J te;j jpU/tp/kUjhryk; (j/g/e P) vd;gth; fpzj;Jf;flt[ ng%uhl;rpapy; bra;j KiwnfLfSf;fhf ,th; k PJ jkpH;ehL Foikg;gzp (xG';F kw;Wk; nky;Kiwa PL) tpjp 17 (M)d; f PH ; ghh;it 1-y; fz;l ,t;tYtyf Fw;wr;rhl;L Fwpg;ghizapd; _yk; Fw;wr;rhl;Lf;fs; gpwg;gpf;fg;gl;ld/

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nkw;go KiwnfLfs; Fwpj;J gpwg;gpf;fg;gl;l

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Fw;wr;rhl;LfSf;F Fw;w mYtyh; mspj;Js;s rkhjhdk;. tprhuiz mYtyhpd; tprhuiz mwpf;if kw;Wk; tprhuiz mwpf;ifapd; k PJ Fw;w mYtyhpd; TLjy; rkhjhdk; Mfpait bgwg;gl;L , Wjp cj;jut[fs; gpwg;gpf;fg;glt[s;s epiyapy; neh;Kf tprhuiz ( Personal hearing) 20/11/2007 gpw;gfy; 3/30 kzpf;F nfhak;g[j;öh; khtl;l Ml;rpj; jiyth; mYtyfj;jpy; elj;jg;glt[s;sJ/ Fw;w mYtyuhd jpU/tp/kUjhryk;. bray; mYtyh; (j/g/e P) nkw;go neh;Kf ( Personal hearing) tprhuizapy; fye;J bfhs;s nfl;Lf; bfhs;sg;gLfpwhh;/”

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On the date of personal hearing i.e., on 20.11.2007, the petitioner did attend before the second respondent office and had given the following statement which are very crucial and important in this case and therefore, the said statement given by the petitioner is extracted here under:

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“nfhak;g[jJ}h;/

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ehs;: 20/11/2007

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mDg;g[jy;: nt/kUjhryk;. bray; mYtyh; (j/g/e P). fpzj;Jf;flt[ ng%uhl;rp. fpzj;Jf;flt[/ bgWjy;: cah;jpU khtl;l Ml;rpj; jiyth; mth;fs;. khtl;l Ml;rpahsh; mYtyfk;. nfhak;g[j;öh;- 18/

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ma;ah.
bghUs; bghJg;gzpfs; - ng%uhl;rpfs; ; - nfhak;g
[j;öh; kz;lyk; - fpzj;Jf;flt[ ng%uhl;rp
Kjy;epiy bray; mYtyh; (gzpapl
bghWg;g[) kUjhryk;( jpU) - Foe Ph ; FHha;
gGJ ghh;f;Fk; gzpapy; brytpd';fs;
nkw;f;bfhz;l tifapy; bra;j KiwnfLfs;
bjhlh;ghf - xG';F eltof;if nkw;f;
bfhz;lJ/ 20/11/2007-e; njjpapy; eilbgw;w
neuo tprhuizapy; fye;J bfhz;lJ -
Fwpj;J/
ghh;it: nfhit khtl;l Ml;rpj;jiyth; mth;fspd;
Fwpg;ghiz
ghh;itapy; fhQqk; nfhit khtl;l Ml;rpj;jiyth;
mth;fspd; Fwpg;ghizapy; nfhug;gl;Ls;s nfhak;g[j;öh; khtl;l
Ml;rpj;jiyth; mth;fsplk; 20/11/2007-e; njjpapy; eilbgw;w neuo
tprhuizapy; fye;J bfhz;nld; vd;gijg; gzptd;g[ld;
bjhptpj;Jf; bfhs;fpnwd;/

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,dp tU';fhy';fspy; Foe Ph ; FHha;fs; gGJghh;f;Fk; gzpapy; KiwnfLfs; VJk; Vw;glhtz;zk; vdJ gzpapid muR tpjpKiwfspd;goa[k;. neh;ikahft[k; bra;fpnwd; vd;Wk; nkw;gof; Foe Ph ; tpepnahfj;jpy; bra;ag;gl;l FiwghLfspy; ,Ue;J vd;id

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tpLtpj;Jk; vdf;F k Pz ;Lk ; gzpaplk; tH';f Mtz bra;a[khW kpft[k; gzpt[ld; nfl;Lf; bfhs;fpnwd;/

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j';fs; cz;ika[s;s. (nt/kUjhryk;)” (Emphasis supplied)

¶85

Based on the enquiry report, the explanation initially given by the petitioner and thereafter, his personal statement given on 20.11.2007 during the personal hearing before the second respondent, the said disciplinary authority / second respondent has inflicted the punishment of reduction in rank of two years, on the petitioner.

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It is interesting to note that even though 7 charges were framed against the petitioner, even according to the enquiry officer, charge No.3 and charge No.6 have not been proved.

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Since charge No.7 is only based on other charges, the same need not be give much credence. Therefore, in sum and substance only charge Nos.1, 2, 4 and 5 alone were proved according to the enquiry officer's report, which has been in toto accepted by both disciplinary authority and Appellate Authority. However, even in respect of charge No.1, the findings of the enquiry officer's report is that, as per the resolution of the town panchayat, dated 03.11.2006, the said payment made by the petitioner had been approved.

¶88

Like that, in respect of charge No.2 also, it was the finding of the enquiry officer that as per the resolution dated 19.9.2006, the said expenses made by the petitioner was approved by the town panchayat.

¶89

Therefore, in effect, only charge Nos. 4 and 5 can be treated as proved, if at all the report of the enquiry officer is accepted. Even in respect of charge No.5, though it is the claim of the petitioner that two persons, namely, one vijayan and palani by whom the report was given that they had not undertaken the repair and they were not responsible for the receipt of the money and therefore, they should have been enquired, the enquiry officer though has not enquired those two persons, had concluded that the said charge were framed based on the report given by them.

¶90

Be that as it may, when the disciplinary authority

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given notice for personal hearing to the petitioner and when he was asked to appear before th disciplinary authority for personal hearing and to give his explanation, it is the explanation on the part of the petitioner on 20.11.2007 that he would not indulge in such act in future. Thereby, the petitioner in fact accepted his guilt as per the proven charges as per the enquiry report.

¶93

Moreover as per the letter dated 02.04.2007 which has been extracted hereinabove, the petitioner has accepted that the charge memo had been served on him, enquiry was conducted on 28.2.2006 at the office of the Kinathukadavu town panchayat where he participated in the enquiry.

¶94

He only requested the disciplinary authority to revoke his suspension because he was placed under suspension for more than six months. He did not raise any objection about the manner in which the said enquiry was conducted or concluded and there is no proof to show that the petitioner has expressed his displeasure over the manner in which the enquiry was conducted or completed.

¶95

Moreover in view of his categorical statement, dated 20.11.2007 as extracted above, the question of finding any fault with the enquiry conducted against the petitioner does not arise at this stage, because, the petitioner himself has given a statement that he would see that this type of mistake would not recur in future. In view of his own admission as has been reflected in the said statement dated 20.11.2007 and the same since has not been denied by the petitioner, it cannot be construed that the petitioner had have any grievance over the manner in which the enquiry was conducted at any point of time. However, only before this Court, in this writ petition, such a ground and plea was taken by the petitioner that the enquiry was not conducted properly within the meaning of Rule 17(b) of the discipline rules.

¶96

In view of the said factual matrix, this Court feels that, the Judgments cited by the learned counsel for the petitioner need not be gone into, as those propositions as has been enunciated in those Judgments would not be applicable to the facts of the present case as the petitioner has come forward to accept his mistakes.

¶97

However, when the punishment of reduction in rank was imposed against the petitioner only for two years period and the same was over as early as in the year 2009 itself, certainly, the petitioner would be entitled to be placed in the original

¶98

https://hcservices.ecourts.gov.in/hcservices/

¶99

position after that period of punishment.

¶100

In this regard, the petitioner has made a request on 02.03.2012 to the Assistant Director of Town Panchayat, Coimbatore, who in turn by his proceedings dated 20.6.2012, has replied to the petitioner in the following terms:

¶101

“,ofiu ngUuhl;rp ,sepiy cjtpahsh; jpU/nt/kUjhryk; fpzj;Jf;flt[ ngUuhl;rp bray; mYtyuhf (gzpapil bghWg;g [ adhoc Basic) gzpg[hpe;J te;jnghJ Foe Ph ; tpepnahf bryt[ ,dj;jpy; FiwghLfs; Fwpj;J jw;fhypf gzp e Pf ;fk; bra;ag;gl;lJ bjhlh;ghf jz;lidf; fhykhf ,uz;L tUlk; , sepiy cjtpahsuhf gjtp ,wf;fk; bra;jJ Fwpj;J jdpauhy; brd;id cah;e P jpkd;wj;jpy; bjhlh;e;Js;s tHf;F vz;/W. P.No.7702/2009 bjhlh;ghf e Pjpkd;w j Ph ;g ;g[ fpilf;fg;bgw;wt [ld; jdpaUf;F gzpKg;g[g; gl;oay;go gzp epakdk; bra;tJ Fwpj;J eltof;if nkw;bfhs;sg;gLk; vd;w tpguk; kDjhuUf;F bjhptpf;fg;gLfpwJ/”

¶102

Though the said request was made by the petitioner, it seems that because of the pendency of this writ petition, it was replied by the concerned officer i.e., Assistant Director of town panchayat in the aforesaid proceedings that, after the disposal of the writ petition such plea on the part of the petitioner can be considered.

¶103

In the meantime, since the petitioner attained superannuation on 30.6.2012, the second respondent by proceedings dated 25.6.2012 permitted the petitioner to superannuate and retire from service, accordingly, the petitioner retired from service on 30.6.2012, only as a Junior Assistant, the post in which he had been reverted as punishment.

¶104

Since pursuant to the punishment inflicted on the petitioner for reduction in rank from executive officer to Junior Assistant was for the period of two years and the said punishment was over on 02.01.2010 itself, the petitioner would be otherwise entitled to get back the original posting of executive officer. However because of the pendency of the writ petition as stated supra, the respondents have not given posting of executive officer to the petitioner till his superannuation and he was allowed to retire on 30.06.2012, as Junior Assistant.

¶105

In this regard, the alternative submissions made by Mr.V. VijayaShankar, learned counsel for the petitioner cannot be brushed aside as he has made submissions that assuming that

¶106

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¶107

the punishment inflicted against the petitioner is valid i.e, only for two years period of reduction in rank and when the petitioner has undergone the said punishment and worked in the post of Junior Assistant where he has already been reverted pursuant to the punishment and that was over by 24.12.2009, the petitioner shall be entitled to get back the original posting i.e., the executive officer.

¶108

As has been stated above, since the petitioner himself has accepted his guilt by his letter dated 20.11.2007, the question of interfering on the punishment inflicted against the petitioner by the second respondent as confirmed by the first respondent, at this juncture does not arise.

¶109

However, since the said punishment itself is only for two years of reduction in rank, as has been rightly submitted, as an alternative plea, by the learned counsel for the petitioner, the petitioner shall atleast be entitled to get back the original post of executive officer at the end of the two years punishment period.

¶110

In view of the above the following orders are passed in this writ petition:

¶111

(i) The impugned order of punishment is sustainable and it requires no interference;

¶112

(ii) Since the punishment through the impugned order was reduction in rank for the petitioner from the post of executive officer to Junior Assistant for two years and the said punishment was over as early as on 02.01.2010 as admitted, though the petitioner has been superannuated on 30.6.2012 from the post of Junior Assistant, the petitioner shall be entitled to get postings as executive officer from 03.01.2010. Therefore, the petitioner shall be given postings as executive officer of town panchayat notionally from 03.1.2010 for the purpose of extending the service and monetary benefits.

¶113

(iii) Accordingly, necessary orders giving postings notionally to the petitioner as executive officer of town panchayat from 03.01.2010 shall be passed by the respondents and based on which the service benefits including monetary benefits shall be calculated. Accordingly, the said monetary benefits including the pensionary benefits shall be paid to the petitioner within a period of two months from the date of receipt of a copy of this order.

¶114

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¶115

With these directions, the writ petition is disposed of. No costs.

¶116

-Sd/-
Assistant Registrar
// True Copy //
Sub Assistant Registrar
To
1.The Commissioner of Town Panchayat,
Kuralagam, Chennai- 600 108.
2. The District Collector,
Coimbatore District,Coimbatore.
+ 1 cc to Mr.V.Vijay Shankar, Advocate Sr.No. 72392
W.P.No.7702 of 2009
CO(SR)
RRI 14/11/2017

¶117

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V. Marudhachalam v. the Commissioner of Town

Case brief

What is this about?

What did the court decide?

V. Marudhachalam v. the Commissioner of Town

Case brief

What is this about?

What did the court decide?

What the court decided

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