IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.09.2009 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.8457 OF 2007 J.Christy ... Petitioner Vs. 1. The District Collector Tirunelveli Tirunelveli District. 2. The Block Development Officer Kuruvikulam Panchayat Union Kuruvikulam Tirunelveli District ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India for issuance of writ of Certiorarified Mandamus by way of transfer of O.A.No.488 of 2002, calling for the records of the first respondent in his proceedings Na.Ka.No.18/4509/98 dated 12.09.2000 followed by the proceedings of the second respondent in No.A9/7770/92 dated 15.09.2000 and the records of the first respondent made in proceedings O.M.U.No.41284/2001 dated 31.05.2001 and quash them and consequently direct the first respondent to give the petitioner continuing in service and also all the back wages, and perquisites payable for the period 24.09.1992 to 26.09.2000 and pay all the arrears of salary to the petitioner. For Petitioner : Mr.K.Hidayatullah For Respondents : Mrs.C.K.Vishnu Priya Additional Government Pleader for R-1 Mr.P.Subbiah Government Advocate for R-2 https://hcservices.ecourts.gov.in/hcservices/ O R D E R The Original Application in O.A.No.488 of 2002 before the Tamil Nadu Administrative Tribunal (hereinafter referred to as "the Tribunal") is now Writ Petition in W.P.No.8457 of 2007 before this Court. 2. Heard Mr.K.Hidayatullah, learned counsel for the petitioner and Mrs.C.K.Vishnu Priya, learned Additional Government Pleader for the first respondent and Mr.P.Subbiah, learned Government Advocate for the second respondent. 3. The petitioner was employed as a Mid-day Meal Organizer from 05.12.1983 in the Elementary School, at Meeza Nalandula in Kuruvikulam Panchayat Union. While so, she was placed under suspension, by the second respondent, by an order dated 24.09.1992. The second respondent issued another order dated 30.09.1992 to recover Rs.35,966.08 from the petitioner, based on the audit report that there were deficiency in the food stocks. According to the said order, the amount reported is one and half times of the cost of the food stock that were found deficit. 4. The petitioner filed W.P.No.17830 of 1992 to quash the suspension order dated 24.09.1992. This court, on 26.11.1992, dismissed the writ petition at the admission stage itself. The petitioner also filed another writ petition No.19073 of 1992 to quash the order of the second respondent dated 30.09.1992 for recovery of Rs.35,966.08. The said writ petition was allowed by this court on 07.01.2000. 5. Thereafter, the first respondent issued an order dated 12.09.2000 revoking the suspension. In the said order, it is stated that based on the proposals sent by the second respondent and also the order of this court dated 07.01.2000 in W.P.No.19073 of 1992, the petitioner was re-appointed by revoking the order of suspension. 6. Based on the aforesaid order, dated 12.09.2000, of the first respondent, a consequential order dated 15.09.2000 was issued by the second respondent. Accordingly, the petitioner joined service on 26.09.2000 and after joining the work, the petitioner made a representation dated 29.05.2001 requesting the respondents to pay her back wages with continuity of service for the period from 24.09.1992 to 26.09.2000. However, the said request was rejected by the first respondent by the impugned order dated 31.05.2001. 7. The petitioner filed O.A.No.488 of 2002 (W.P.No.8457 of 2001) to quash the orders dated 12.09.2000 and 31.05.2001 of the first respondent and the order dated 15.09.2000 of the second respondent and for a direction to pay her back wages for the period from 24.09.1992 to 26.09.2000. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned counsel for petitioner submits that though the suspension order dated 24.09.1992 was issued, the respondents did not choose to issue any charge memo making allegations against the petitioner and no disciplinary enquiry took place, after the issuance of the suspension order. It is also submitted that while the petitioner was in suspension, she was not paid even the subsistence allowance. According to the counsel for petitioner that without issuing any charge sheet, pursuant to the suspension order and without conducting any enquiry, the first respondent cannot simply pass the impugned order dated 31.05.2001 stating that the period between 24.09.1992 and 26.09.2000 is treated as break-in-service. Such an order would be passed, only after the conclusion of a departmental enquiry and that too after recording a finding of guilt. In this case, the learned counsel submits that no departmental enquiry took place at all and nothing prevented the respondents to take disciplinary proceedings departmentally against the petitioner. 9. On the other hand, the learned counsel for the respondents submits that the respondents have power to deprive the petitioner's salary for the period between 24.09.1992 and 26.09.2000 and to treat the said period as break-in-service. 10. I have considered the submissions made by the learned counsel on either side. It is the prerogative of the respondents to take disciplinary action against the petitioner for her delinquencies. It is not disputed even by the petitioner that when the petitioner was placed under suspension in the year 1992, nothing prevented the respondents to issue charge memo and to proceed departmentally until she was restored to service in the year 2000. Even, when she was restored to service, by revoking the suspension order, the respondents could have proceeded departmentally by issuing charge sheet, holding an enquiry, etc. But the respondents simply revoked the suspension order, by the order dated 12.09.2000, without reserving their right to proceed departmental action. In fact, the reading of the order suggests that they did not intend to proceed departmentally. Therefore, it has to be presumed that they dropped the departmental action. If the respondents have dropped the disciplinary proceedings, the petitioner is entitled to salary and all other benefits for the period of her suspension. 11. While the first respondent passed an order dated 12.09.2000 revoking the suspension and re-appointing her in service, nothing is stated about the disciplinary action. It is not stated in the said order dated 12.09.2000, whether the first respondent proposed to proceed with the disciplinary proceedings, after revoking the suspension. The first respondent was not precluded from proceeding with disciplinary action, even after restoring the petitioner in service. The order states that pursuant to the proposals sent by the second respondent and the order of this court in W.P.No.9092 of 1992, the suspension was revoked. It is not stated https://hcservices.ecourts.gov.in/hcservices/ what was the proposal sent by the second respondent. As far as the order of this court in W.P.No.9092 of 1992 is concerned, it has nothing to do with the suspension and the disciplinary proceedings against the petitioner. The said order dated 12.09.2000 also does not state anything, as to how the period of suspension between 24.09.1992 and 26.09.2000 would be treated. 12. When the petitioner made a representation dated 29.05.2001, requesting to pay her the back-wages with continuity of service for the period from 24.09.1992 to 26.09.2000, the first respondent passed the order dated 31.05.2001 stating as the first time that the suspension period was treated as break-in-service. If the suspension period was treated as break-in-service, it could be taken only as a punishment. The first respondent cannot pass such an adverse order against the petitioner without any enquiry. Hence, on the face of it, the order dated 31.05.2001 treating the period of suspension as break-in-service is is arbitrary and illegal. 13. It is also not disputed that the petitioner was not even paid subsistence allowance for the period from 24.09.1992 to 26.09.2000, when she was under suspension. It also seems that her salary was a meager sum i.e., Rs.600/- per month. The respondents cannot continue an employee under suspension, without even paying subsistence allowance and such an action depriving the subsistence allowance, that too for a very long period of six years, certainly amounts to deprival of livelihood guaranteed under Article 21 of Constitution of India. 14. The impugned orders dated 12.09.2000 dated 31.05.2001 of the first respondent seek to deny the continuity of service to the petitioner, by treating the suspension of 6 years as break-in- service. Hence, the petitioner will lose her services from 1983 to 2000, for 17 years. 15. Adverse orders were passed, without hearing the petitioner. It is well settled that no adverse order, that results in civil consequences, could be passed without hearing the person concerned. 16. Therefore, for the reasons stated above, the impugned order dated 12.09.2000, in so far as providing employment to the petitioner as re-appointment without continuity of service and the order dated 31.05.2001 of the first respondent in treating the period of suspension from 24.09.1992 to 26.09.2000 as break-in-service, are hereby quashed. Since the order dated 15.09.2000 passed by the second respondent providing re-appointment to petitioner is a consequential order to the order dated 12.09.2000, the same is also quashed in so far as providing the re-appointment to petitioner without continuity of service and back wages is concerned. https://hcservices.ecourts.gov.in/hcservices/ 17. In fine, the respondents are hereby directed to grant the petitioner continuity of service and also to pay back wages for the period 24.09.1992 to 26.09.2000, within a period of eight weeks from the date of receipt of a copy of this order. 18. Accordingly, the writ petition is disposed of. No costs. rns Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1. The District Collector Tirunelveli Tirunelveli District. 2. The Block Development Officer Kuruvikulam Panchayat Union Kuruvikulam Tirunelveli District + 1 cc to Government PleaderSR.45131 + 1 cc to Mr. M.K. Hidayathullah, Advocate Sr.44993. W.P.NO.8457 of 2007 KU(CO) EU 23.09.2009. https://hcservices.ecourts.gov.in/hcservices/