IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.3.2009 C O R A M THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR Writ Petition No.38564 of 2006 (T) (O.A.No.1641 of 1999) 1. M.Kannan (died) 2. Rani @ Rajeswari 3. K.Hemalatha 4. K.S.Hemamalini 5. K.S.Hemasoundari (petitioners 2 to 5 are impleaded as per order of this Court dated 24.3.2009 made in M.P.No.1 of 2009 in W.P.No.38564 of 2006) ...petitioners Vs 1. The Commissioner Kancheepuram Municipality Kancheepuram 2. The Commissioner Vellore Municipality, Vellore 3. The Examiner Local Fund Audit Kuralagam Chennai-1 ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records relating to the proceedings of the Commissioner, Kancheepuram Municipality, Kancheepuram, the first respondent herein made in (a) Na.Ka.No.A5/7542/98 dated 29.9.1998 (b) Na.Ka.No.A5/7542/98 dated 29.9.1998 (c) Na.Ka.No.28148/98/P1 dated 5.2.1999 quash the said proceedings and consequently direct the first respondent herein to disburse the retiral benefits due to the petitioner with interest at 18% p.a. for the belated payment of retiral benefits from the date when it became due till the date of actual disbursement, within a short date that may be fixed by this Court. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.K.Rajkumar For respondents: Mr.P.I.Thirumoorthy for R1 Mr.P.Subramanian Additional Government Pleader for R2 & R3 O R D E R In this writ petition, the petitioner challenges the impugned orders made in Na.Ka.No.A5/7542/98 dated 29.9.1998, Na.Ka.No.A5/7542/98 dated 29.9.1998 and Na.Ka.No.28148/98/P1 dated 5.2.1999 respectively. 2. The petitioner was appointed as Junior Assistant in the year 1964 in the Vellore Municipality and was promoted as Assistant in the year 1981, and further promoted as Assistant Revenue Officer on 30.10.1992. He retired on 30.9.1998. The impugned orders have been issued ordering recovery of a sum of Rs.59,548/-, Rs.2,858/- and Rs.62,406/-respectively from the petitioner. The said impugned orders are challenged on the ground of jurisdictional issue relying upon the earlier orders of the State Administrative Tribunal in O.A.No.3503 of 1996 dated 28.11.1996 and O.A.No.4761 of 1992 dated 19.12.1997. In the said orders, the Tribunal considered similar issue and held that the Revenue Officers in the Local Bodies cannot be made liable for the time barred arrears of tax dues and no recovery has to be made from them. The Tribunal had come to such a conclusion by placing reliance on paragraph 3 of G.O.Ms.No.1881 R.D. & L.A. Department, dated 14.9.1981, wherein it is stated that the responsibility to take proceedings to recover the tax before they become time barred, vests with the Commissioner and the Revenue Officers are not responsible for the tax arrears having become time barred and that the only duty of the Revenue Officers is to report about the tax arrears. The said order was passed by the Tribunal relying the decision of this Court V.NAGARAJAN Vs. COMMISSIONER, SALEM MUNICIPALITY, SALEM, 1988 WLR 38, wherein this Court considered a similar issue and following an earlier decision in W.P.Nos.3364 to 3369 of 1976 dated 23.11.1976 held as under: "...The respondent in the present case seemed to have acted against the petitioner under the Tamil Nadu Municipal Service (Discipline and Appeal) Rules, but withheld recovery process on account of stay by the Government. Now, by virtue of the Government vacating the stay, the process of recovery from https://hcservices.ecourts.gov.in/hcservices/ the salary of the petitioner is being set in motion by the present order of the respondent. It is only in that context a writ of Mandamus is being asked for by the petitioner, to forbear the respondent from recovering from the salary of the petitioner, the time barred profession taxes. Basically, there are no grounds at all to pin down the liability on the petitioner, as now being done. The proceedings taken in this behalf are the result of a misconception of the legal position. They have to stand ignored and cannot be implemented. Taking note of the ratio of this Court, I have to hold that the petitioner cannot be mulcted with liability on this account...." 3. The above said position is also made clear from the communication of the Director of Municipal Administration, Chepauk, Chennai-5, addressed to all Regional Directors of Municipal Administration, in Roc.No.75380/96/R1 dated 3.12.1996 which reads as under: "The Municipal Employees Associations are demanding cancellation of recovery orders for time barred arrears among other things. In the meeting convened on 8.7.1994 in the chambers of Secretary, Municipal Administration and Water Supply Department to discuss with the office bearers of the Rural Development and Municipal Employees Association Federation the following decision was taken on the above demand: "The Director of Municipal Administration has already granted time upto 3.9.1994. Time barred arrears need not be recovered, from the DORG etc., from the retired employees," 2. To pursue further action in this regard, Government considered that proposal to write off time barred arrears due to Municipalities may be taken up after the elections to the Municipalities and after all the Municipal Councils pass necessary resolutions in this regard, Government have now called for a consolidated report in this regard, in the letter cited. 3. Hence, I request you to instruct all the Municipal Commissioners within your jurisdiction to place the matter before the Municipal Council and to send a detailed report along with the copy of the resolution, in duplicate. After getting the same, I request you to send a consolidated report to this office; along with copies of resolution passed by the Municipal Councils, so as to send a report https://hcservices.ecourts.gov.in/hcservices/ to Government. As the matter involves the long-standing demand of the Municipal Employees, I request you to expedite your report. Sd/- V.Pitchai for Director." 4. In view of the decision of this Court cited supra and in the light of the communication dated 3.12.1996 extracted above, the writ petition is partly allowed and the impugned orders dated 29.9.1998 and 5.2.1999 are set aside. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. lan To 1. The Commissioner Kancheepuram Municipality Kancheepuram 2. The Commissioner Vellore Municipality, Vellore 3. The Examiner Local Fund Audit Kuralagam, Chennai-1 1 cc to Government Pleader, SR. 9921 1 cc to M/s. P.I. Thirumoorthy, Advocate, SR. 9562 1 cc to M/s. K. Rajkumar, Advocate, SR. 9204 Writ Petition No.38564 of 2006 (T) (O.A.No.1641 of 1999) SR (CO) kk 17/4 https://hcservices.ecourts.gov.in/hcservices/