IN THE HIGH COURT OF JUDICATAURE AT MADRAS DATED 08.09.2011 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.No.9739 of 2011 and M.P.No.1 of 2011 M. Bakthavachalam .. Petitioner Vs. 1. The District Collector, Dharmapuri District, Dharmapuri. 2. The Block Development Officer, (Village Panchayat), Veppanapalli Panchayat, Dharmapuri District. 3. The President, Alekundani Village Panchayat, Veppanapalli Block, Dharmapuri District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, for the issuance of writ of certiorarified mandamus to call for the records issued by the 1st respondent in Na.Ka. No.3745/2005/M3 dt.01.04.2005 and to quash the same and consequently direct the Respondent to reinstate the Petitioner in service as Panchayat Assistant in any one of the existing vacancies in Dharmapuri District based on the proceedings of the 2nd respondent issued in Na.Ka.784/E2/2002 dt.23.02.2003 by declaring the oral termination against the petitioner made by the 3rd respondent as illegal with all consequential and attendant benefits with continuity of service including arrears of salary with interest. [prayer amended as per the order dated 08.09.2011 in M.P.No.2 of 2011] For Petitioner : Mr. R.N. Amarnath For Respondents : Mr.A. Arumugam [for R2] Mr.Digvijaypandian Addl. Govt. Pleader [for R1 & R3] O R D E R The petitioner was appointed as Panchayat Assistant in Marachandran Village Panchayat, Dharmapuri District, by order dated https://hcservices.ecourts.gov.in/hcservices/ 25.1.1991. He underwent selection process before his appointment. While so, he was transferred by the second respondent to Alekundani Village Panchayat by order dated 16.06.1997. 2. According to the petitioner, the 3rd respondent refused to allow him to work as Panchayat Assistant from 18.4.1998. The refusal to give work to the petitioner was an oral one. The petitioner made representations to the respondents 1 and 2 to provide him employment. The second respondent issued proceedings dated 21.01.2003 directing the petitioner to appear before him on 5.2.2003 relating to provide employment to the petitioner. After enquiry, the second respondent, by order dated 23.2.2003 recommended that the petitioner be given reemployment if he pays Rs.5111/- that was misappropriated, in any one of the vacancies in the second respondent Panchayat Union. The petitioner wrote letters dated 21.4.2003, 04.07.2003, 9.7.2003 and 28.07.2003 explaining that he paid the amount in April 1998 itself and therefore, the second respondent was not correct in directing him to remit the amount for providing employment. He requested the first respondent to provide employment vide his letter dated 4.08.2003. He also wrote another letter dated 28.8.2003 to the Director of Rural Development in this regard. 3. In these circumstances, the second respondent passed an order dated 12.8.2004 stating that the amount of Rs.5111/- was already remitted by the petitioner and that the petitioner could be accommodated in any of the panchayat union in the district as there was no vacancy in the second respondent panchayat union. However, the petitioner was not appointed in any place. He made repeated representations to the respondents. The first respondent by his proceedings dated 25.02.2005 stated that unless it was established that the petitioner did not misappropriate any money, the petitioner could not be re-employed. 4. The petitioner made a representation on 21.3.2005 to the first respondent in reply to his proceedings dated 25.02.2005 bringing to the notice of the first respondent that he made various representation on 21.4.2003, 4.7.2003, 28.7.2003 , 15.9.2003 and 4.5.2003 and enclosed a copy of the receipt for having remitted the amount in April 1998 itself. 5. In these circumstances, the first respondent passed the impugned order dated 01.04.2005 stating that since the petitioner was unauthorisedly absent from 01.04.1998, he is not entitled for reinstatement. The petitioner has filed the present writ petition to quash proceedings of the first respondent dated 01.04.2005 and reinstate the petitioner into service as Panchayat Assistant in any one of the existing vacancies in Dharmapuri District with all consequential and attendant benefit with continuity of service including arrears of salary for the period of non-employment. 6. The respondents refuted all the allegations made by the petitioner. In the counter affidavit filed by the respondents 2 and 3 it is averred as under:- https://hcservices.ecourts.gov.in/hcservices/ The petitioner worked upto 17.04.1998 and thereafter he stayed away from duty without any intimation to the second or third respondent. He misappropriated to the tune of Rs.5111/- from Panchayat general fund. Due to his long absence and his whereabouts was not known, another person was appointed as Panchayat Assistant by following due procedures for smooth running of the village panchayat. The misappropriation of Panchayat fund of Rs.5111/- was true and hence he could not be posted as Panchayat Assistant. The petitioner had not performed his duty well and with sincerity. He often stayed away from duty. The enquiry officer reported that the petitioner misappropriated Panchayat fund of Rs.5111/-. Since, the petitioner remained absent for seven years from 1998, there is no provision for reinstatement into service. 7. Heard both sides. 8. The learned counsel for the petitioner has assailed the impugned order, stating that the same was passed without application of mind. He has submitted that while the counter affidavit states that he remained absent from 17.4.1998, the impugned order states that he remained absent from 1.4.1998. He further brought to the notice of this Court the proceedings dated 21.1.2003 of the second respondent, directing the petitioner to appear on 5.2.2003 relating to his request for employment. Thereafter, based on the said enquiry, the 2nd respondent issued proceedings dated 23.2.2003 recommending to the 1st respondent to provide employment to the petitioner if he pays the misappropriated amount of Rs.5,111/-. The petitioner wrote letters to the 1st respondent on 21.4.2003, 4.7.2003, 9.7.2003, 28.7.2003, 15.9.2003 and 4.5.2004 bringing to his notice that he paid the amount of Rs,5,111/- even in April 1998 and therefore, the 2nd respondent was not correct in putting the condition to remit the amount. 9. The leaned counsel for the petitioner also pointed out that the 2nd respondent passed an order dated 12.08.2004 recommending the first respondent to provide employment to the petitioner, wherein he admitted that the petitioner already remitted the amount. The 2nd respondent recommended for employment in any one of the Panchayat Unions, since there was no vacancy in second respondent Panchayat Union. While so, the first respondent in his order dated 25.2.2005 stated that until it was established that the petitioner did not misappropriate money, he could not be re-employed. While so, it is stated in the impugned order dated 1.4.2005 as if the petitioner unauthorisedly is absent from 1998. Hence, according to the petitioner, the order was passed without application of mind. 10. It is also stated by the learned counsel for the petitioner that the petitioner was paid Rs.400/- per month as consolidated pay. He was out of employment for the past 13 years, inspite of the recommendation made on 23.2.2003 and 12.8.2004 by the second respondent. Since he has been out of employment for the past 13 years, he was not able to challenge the order dated 1.4.2005 and there was a delay in approaching the Court in challenging the order dated 1.4.2005. https://hcservices.ecourts.gov.in/hcservices/ 11. On the other hand, the learned counsel for the respondent submitted that the petitioner has approached this Court belatedly after six years and therefore this writ petition has to be dismissed on the ground of delay. He relied on the following two decisions viz., 1. W.P.No.6611 of 2011 [M.Rengalakshmi v. The Joint Registrar of Co-operative Societies and another] 2. (2010) 7 Supreme Court Cases 525 [Naresh Kumar v. Department of Atomic Energy and others] It is also submitted that the petitioner has also misappropriated a sum of Rs.5,111/- and therefore, the petitioner is not entitled to reinstatement. 12. I have considered the submissions made on either side. The petitioner was appointed as Panchayat Assistant in 1991. Initially he was posted in Marachandran Village Panchayat. Thereafter, he was transferred on 16.6.1997 to the 3rd respondent Panchayat viz., Alekundani Village Panchayat. According to the petitioner, he was denied employment from 18.4.1998 orally. No written order was passed by the respondents denying employment. He made repeated representations seeking employment. The proceedings dated 21.1.2003 by the second respondent refers to various proceedings of the first respondent and the said proceedings of the 3rd respondent directed the petitioner to appear for enquiry on 5.2.2003 relating to his claim for employment. Accordingly, the petitioner appeared. Based on the enquiry, the 2nd respondent by his proceedings dated 23.02.2003 made a recommendation to the first respondent to provide employment to the petitioner, taking into account his family circumstances, if he pays the misappropriated amount of Rs.5,111/-. However, it is seen in the same order that the House Tax collected during February 1998 was remitted on 6.4.1998. The following passage in the order dated 23.2.2003 is extracted hereunder in this regard:- “Kd;dhs; Cuhl;rpj; jiytu; jpU/o.vk;/KDrhkp vd;gtu; mspj;j thf;FK:yj;jpy; jpU/ gf;jtr;ryk;. Cuhl;rp cjtpahsu;. gpg;utup 98 khjj;jpy; tNypj;j tupj; bjhif U:/3600-?I Cuhl;rp epjpf;F brYj;jhkYk; 21/03/1998y; kpd;thupaj;jpw;F brYj;j ntz;oa kpd; fl;lzj; bjhif U:/1248-?I kpd;thupaj;jpw;F brYj;jhky;. bjhifia ifahly; bra;Jtpl;L gzpf;F tuhky; jd;dpr;irahf epd;Wbfhz;luu; vd;Wk;. jzpf;ifjil vHhky; ,Uf;Fk; bghUl;Lk;. eilbgwtpUf;Fk; $khge;jpapy; tup tNy; , d;ik fhl;lg;gl;l ntz;Lk; vDk; ed;ndhf;fpy;. tuptNy; bjhif U;/3600-?y;. 06/04/1998y; U:/101-?k; 17/4/1998y; U:/3499-? k; jdJ brhe;j gzj;jpypUe;J Cuhl;rp epjpf;F brYj;jptpl;ljhft[k; kpd; thupaj;jpw;F brYj;jg;gl ntz;oa U:/1248-?I jz;l tl;oa[ld; nru;j;J U:/1311-?I kPz;Lk; Cuhl;rp epjpapypUe;J brYj;jg; gl;lbjd;Wk; ,J Fwpj;J 97?98k; Mz;oa jzpf;if mwpf;if gj;jp vz;/4y; jzpf;if kWg;g[ vGg;gg;gl;Ls;sjhft[k; bjuptpj;Js;shu;/** https://hcservices.ecourts.gov.in/hcservices/ 12. In these cirucmstances, the petitioner wrote letters dated 21.04.2003, 04.07.2003, 28.07.2003, 15.09.2003 and 04.05.2004 to the first respondent and enclosed the receipt for having remitted the amount during April 1998 itself. The remittance of amount in April 1998 was relating to the House Tax that was collected during February 1998. He wrote another letter dated 28.08.2003 to the Director of Rural Development Department (Panchayats) stating that the amount was paid in April 1998 itself. Rs.1311 towards electricity charges that was paid from Panchayat fund was also paid. In these circumstances the 2nd respondent passed an order dated 12.8.2004 noting that the petitioner remitted the entire amount of Rs.5,111/- and recommended for his re-employment in any one of the Panchayat Unions in Dharmapuri District, as there was no vacancy in the second respondent Panchayat Union. Since he was not given employment, he again made representation to the first respondent. On 21.2.2005, the first respondent passed an order stating that unless it is established that the petitioner did not misappropriate any money, the petitioner could not be given employment. While so, he sent letter dated 21.3.2005 to the first respondent stating that he made various representations seeking reinstatement and enclosed the challan for being remitted the amount. He requested to reinstate him in service. In these circumstances the first respondent passed the impugned order alleging that the petitioner unauthorisedly absent from 1.4.1998 for seven years. The relevant portion of the impugned order is extracted hereunder: **kDjhuu; 01/04/1998 Kjy; VG Mz;Lfshf gzpf;F tuhky; jd;dpr;irahf epd;W tpl;ljhy; ,tUf;F kPsg;gzpaplk; tH';f guprPyid bra;a murpd; tpjpKiwfspy; ,lk; ,y;iy vd;gjhy; ,tuJ nfhupf;if epuhfupf;fg;gLfpwJ/** 13. The above said narration of facts itself makes it clear that the first respondent passed the order without application of mind. The petitioner made representation enclosing copy of the challan for remitting the misappropriated amount and requested for employment and the second respondent also conducted an enquiry and the details of the same were stated above. Initially, the second respondent by proceedings dated 23.2.2003 recommended to the first respondent for reinstatement of the petitioner, if the petitioner pays the misappropriated amount of Rs.5,111/-. The petitioner brought to the notice of the respondents that he remitted the amount in April 1998 itself and therefore without any such condition he could be provided employment. The fact that the amount was remitted during April 1998 itself was accepted by the second respondent in his order dated 12.8.2004. He also recommended for reinstatement in any one of the Panchayat Unions in the Dharmapuri District. While so, the first respondent passed an order dated 25.02.2005 stating that unless it was established that the petitioner misappropriated any money, the petitioner could not be reinstated. But, no charge memo was issued and no enquiry was conducted relating to the alleged misappropriation. Without issuing any charge memo and without holding any enquiry, the first https://hcservices.ecourts.gov.in/hcservices/ respondent could not simply say that unless it was established that the petitioner did not misappropriate money, the petitioner could not be given employment. It was for the respondents to issue charge memo, conduct enquiry and come to the conclusion one way or other. But no charge memo was issued and no enquiry was conducted. 14. From the records it is seen that the amount collected during February 1998 was belatedly remitted on 18.4.1998. In these circumstances, the second respondent recommended to provide him employment as stated above. The above said facts make it clear the the petitioner has been demanding employment by writing so many letters and the second respondent recommended for reinstatement. But the impugned order says that the petitioner was absent unauthorisedly from 1.4.1998. Therefore, I am of the view that the impugned order was passed without application of mind. In the Counter affidavit in para 7, it is alleged as follows: "7. Regarding para 7 of the affidavit, it is submitted that the petitioner while working as Panchayat Assistant had not performed his duty well and with sincerity. He often stayed away from duty. It caused very much struggle in smooth running of the Pnachayat administration. Further, the enquiry officer was also clearly reported that the petitioner was misappropriated the Panchayat funds Rs.5111/-. It was also revealed in the audit para No.4 of 97-98, that the petitioner misappropriated Rs.5111/- of the Panchayat funds." 15. The respondents have alleged that he did not perform his duty well and with sincerity and he also often stayed away from duty. If so, the respondents ought to have issued charge memo and conducted enquiry before denying employment. On the one hand it is stated that he was not sincere in duties and also misappropriated a sum of Rs.5111/- for which he was denied employment and on the other hand it was also alleged that he stayed away from 1.4.1998. Both cannot go together. Since the petitioner had been demanding employment and his request for employment was considered by the second respondent and the second respondent passed orders dated 23.02.2003 and 12.08.2004 recommending the petitioner for reinstatement, the allegation made in the impugned order that the petitioner remained unauthorisedly absent has no merit. Realising that respondents have no case on merits, the respondents have sought for dismissal of the case only on the ground of delay and latches. 16. The learned counsel for the respondents relied on two Judgments. In W.P.No.6611 of 2011 [M.Rengalakshmi v. The Joint Registrar of Co-operative Societies and another], it is held as follows: "The petitioner has come up with this present writ petition challenging the impugned https://hcservices.ecourts.gov.in/hcservices/ order of the first respondent dated 29.04.2003 made under Section 153 of the Tamil Nadu Co- operative Societies Act 1983. Absolutely there is no proper explanation for challenging the order of the year 2003, at this stage in the year 2001. In view of the same, the present writ petition stands dismissed only on the ground that it has been filed after eight years. No costs. Consequently connected miscellaneous Petition is also dismissed." 17. In my view the said case could not be applied to the facts of the present case. The petitioner was paid a meager amount of Rs.400/- as salary. He was denied employment without holding any enquiry from 18.4.1988. No suspension order was issued, though it was alleged that he belatedly remitted the House Tax amount. From the records it is seen that the House Tax was collected during February 1998 and the same was remitted on 17.4.1998. In these circumstances, the second respondent recommended to the first respondent to provide him employment. As stated above the petitioner was paid only meager amount of Rs.400/- as salary. Taking into account these facts, the above judgment could not be applied. 18. Likewise, the other judgment of the Apex Court reported in (2010) 7 Supreme Court Cases 525 [Naresh Kumar v. Department of Atomic Energy and others] is also not applicable to the facts of the present case. In that case, the appellant was employed in Indian Air Force. He was given military pension. Thereafter he joined Department of Atomic Energy. Later the same was constituted as a Corporation. He opted for Pro-rata pension. Later, instead of pro-rata pension he wanted Pension for combined service put in both the Department of Atomic Energy and Nuclear Power Corporation of India Limited, for the purpose of his terminal benefits. But it was declined. When the same was questioned before the Mumbai High Court, the Mumbai High Court found that the petitioner has no case on merits. Apart from that it also noted that there was a delay of eight years. The order was challenged by the appellant before the Apex Court.. The Apex Court rejected the appeal. In para 10 of the judgment, it is stated that large number of employees had exercised their option and it is the practice in the Nuclear Power Corporation that none of the employees were permitted to change their option at any subsequent stage, because, it will cause tremendous administrative and financial problems for the Corporation. It is also noted that the appellant has no case on merits. Para 10 of the above decision is extracted below: "10. Another submission which carries some weight on behalf of the Corporation is that this practice has been uniformly followed till date and a large number of employees had exercised their option like the petitioner, none was permitted to change such option, by the https://hcservices.ecourts.gov.in/hcservices/ Corporation at any subsequent stage. If the case of the petitioner is now accepted, it will cause tremendous administrative and financial problems for the Corporation. It is true that normally the matters which are settled should not be permitted to be unsettled on the mere asking. As per practice, the Corporation has followed this as a rule and has applied it to all concerned uniformly for all these years and even the petitioner whose request was declined in the year 1999 did not bother to approach the court of law for claiming appropriate relief till the year 2007. Thus, in addition to the other reason that the petitioner is not entitled to the relief on merits, we even find substance in this argument on behalf of the Corporation." Hence, I am of the view that the said judgment is not applicable to the facts of the present case. 19. As I have already held that the petitioner has already been out of employment for the past 11 years, though the 2nd respondent issued proceedings dated 23.02.2003 and 12.08.2004 recommending for reinstatement. In these circumstances, the first respondent passed an order without application of mind. Hence, I have no hesitation to quash the impugned order dated 1.4.2005 and to issue direction to the first respondent to reinstate the petitioner with continuity of service but without back wages. The learned counsel for the petitioner has submitted that the petitioner is willing to serve in any one of te panchayat unions in Dharmapuri District and he is not insisting for appointment under the second respondent panchayat union. The first respondent is directed to reinstate the petitioner in service as Panchayat Assistant in any one of the existing vacancies in Dharmapuri District within a period of eight (8) weeks from the date of receipt of a copy of this Order. 20. In the result, the writ petition is allowed in part. No costs. Connected Miscellaneous Petition is closed. ggs Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The District Collector, Dharmapuri District, Dharmapuri. 2. The Block Development Officer, (Village Panchayat), Veppanapalli Panchayat, Dharmapuri District. 3. The President, Alekundani Village Panchayat, Veppanapalli Block, Dharmapuri District. +1cc to Mr.R.N.Amarnath Advocate Sr.55613 W.P.No.9739 of 2011 BS(CO) rvr 29/09/2011 https://hcservices.ecourts.gov.in/hcservices/