1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.8111 of 2011 T.Paramasivan ... Petitioner Vs. 1.The Inspector of Panchayats, District Collector, Tirunvelveli District. 2.The Block Development Officer, (Village Panchayats), Manoor Panchayat Union, Manoor, Tirunelveli. 3.Sethurayanpudur Panchayat, rep. By its President, Sethurayanpudur, Manoor Union, Tirunelveli Taluk, Tirunelveli District. 4.Thiru S.Sudalaikkannu, President, Sethurayanpudur Panchayat, Sethurayanpudur, Tirunelveli Taluk, Tirunelveli District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records in Resolution No.43/Special Meeting dated 13.07.2011 on the file of the third respondent and the consequential order of termination made in Na.Ka.No.1/2011 dated 13.07.2011 on the file of the 3rd respondent and quash the same and consequently to direct the 3rd respondent to reinstate the petitioner into service with all attendant monetary benefits. For Petitioner : Mr.S.P.Maharajan For respondents : Mr.B.Pugalendhi Special Govt. Pleader for RR-1 & 2 Mr.S.Chandrasekar Govt. Advocate for R-3 O R D E R When the matter came up for hearing on 21.07.2011, this Court directed Mr.B.Pugalendhi, learned Special Government Pleader to take notice for the respondents 1 & 2 and Mr.Chandrasekar, learned Government Advocate to take notice for the respondents 3 and 4 with a specific https://hcservices.ecourts.gov.in/hcservices/ 2 direction for producing the entire records relating to the impugned order. Today, when the matter is taken up for hearing, the learned Government Advocate, on instructions from the Block Development Officer, (Village Panchayats), Manoor Panchayat Union, Tirunelveli District, the second respondent herein and also on the basis of the records maintained by both the authorities, submitted that subsequent to the filing of the present writ petition, orders have been issued in e.f.vz; .M3/3137/2011 dated 22.07.2011 by the second respondent to the President of Sethurayanpudur Panchayat, Tirunelveli Taluk, the 4th respondent herein stating that till the disposal of the present writ petition, the post of Panchayat Assistant should not be filled up on temporary or permanent basis. 2.The submission of the learned Government Advocate appearing for the second respondent is placed on record. He also submitted that though the 4th respondent has been specifically instructed to offer his remarks on the averments in the supporting affidavit, there is no response. In the aforesaid circumstances, this Court is inclined to consider and dispose of the writ petition on merits with reference to the pleadings and the records produced by the Block Development Officer, the second respondent herein. 3.The short facts deduced from the supporting affidavit are that the petitioner was appointed as a clerk in the Sethurayanpudur Panchayat, the 3rd respondent herein on 01.08.1997. He was placed under suspension in August 1999 and later on dismissed from service. The order of dismissal was challenged in I.D.No.117 of 2000 before the Labour Court, Tirunelveli. By an award dated 14.07.2011, the punishment of dismissal was set aside. The third respondent Panchayat filed an application for setting aside the award, along with an petition for condoning the delay in filing a petition for setting aside the exparte order and then, the same was allowed by the Labour court. The correctness of the order passed by the Labour Court was challenged by the petitioner in W.P.No.30254 of 2003. An order of interim stay was granted in W.P.M.P.No.36946 of 2003. Subsequently, the writ petition was taken up for further hearing and, by an order dated 19.11.2009 made in W.P.No.30254 of 2003, this Court directed the third respondent to reinstate the petitioner without any backwages as per award. Pursuant to which, by an order dated 19.01.2010, the petitioner was reinstated in third respondent panchayat without backwages. 4.The petitioner has alleged that after six months of reinstatement, the President of Sethurayanpudur Panchayat herein insisted the petitioner to do unlawful acts detrimental to the interest of the 3rd respondent panchayat, by directing the petitioner to issue house-tax receipts to strangers etc., since the petitioner had not acceded to the unlawful acts of the 4th respondent, the 4th respondent in his capacity as President of the 3rd respondent Panchayat, being the executive authority started giving trouble to the petitioner, by issuing memos alleging flimsy charges. A memo was given on 16.07.2010, wherein, explanation was sought for quoting six questions and in response to the same, an explanation dated 22.07.2010 was given, wherein, the petitioner has denied all the allegations levelled against him. No enquiry has been conducted with regard to the allegations and lapses. When the proceedings was pending, the fourth respondent, on 09.11.2011, about 4.00 https://hcservices.ecourts.gov.in/hcservices/ 3 p.m, came to the Panchayat Union in a drunken condition and insisted the petitioner to issue house-tax receipt by making entries without paying any money. When the petitioner has refused to give the receipt as insisted by the 4th respondent, the 4th respondent assaulted the petitioner and kicked him. In this regard, a complaint was given to Manoor Police Station on the same day. The police enquired into the matter. During enquiry, the 4th respondent regretted for his acts and assured that he would give proper account for writing accounts by the petitioner. When the matter stood thus, the 4th respondent issued another charge memo dated 10.11.2010 and 13.11.2010 containing five counts of charges and directed the petitioner to give explanation within three days. The petitioner received the memo on 15.11.2010 and gave his explanation on 16.11.2010. A copy of the same was addressed to the second respondent and Assistant Director of Village Panchayats, by way of registered post and than the third respondent had received the same on 18.11.2010. No action was taken thereafter. Subsequently, on 06.06.2011 and 07.06.2011, an audit inspection was said to be made in the 3rd respondent Panchayat by the Deputy Block Development Officer (Audit). However the audit inspection did not take place since the 4th respondent has kept the documents and registers under lock and key and hence, the 4th respondent was directed by the authority to submit the documents for inspection. 5.It is the further contention of the petitioner that in order to wreck vengeance, the President of Sethurayanpudur Panchayat, the 4th respondent herein has issued another notice on 07.06.2011 containing false and frivolous allegations. In respect of the same, the petitioner had given his explanation on 13.06.2011 by registered post and the same was acknowledged by the 4th respondent on 15.06.2011. The direction to hand over the keys and documents was also complied with. Pursuant to the above action, the 4th respondent did not allow the petitioner to sign in the Attendance Register and kept the Attendance Register. When the matter stood thus, the third / fourth respondent issued an order in Na.Ka.No.1/2011 dated 13.07.2011 stating that Resolution No.43 dated 13.07.2011 was passed in a special meeting by the 3rd respondent panchayat, against the petitioner by terminating him from service. In these circumstances, the petitioner has come forward to this court challenging the order of termination. On the above said pleadings, the learned counsel for the petitioner submitted that the impugned order is perse illegal and arbitrary and it reflects mala fide attitude of the 4th respondent, President of the panchayat union and that there is a violation of principles of natural justice. According to him, the writ petitioner was not given any opportunity to put forth his case and no enquiry was conducted and when the charge warrants a major punishment of termination or dismissal from service, a regular enquiry has to be conducted. But in the instant case, no such regular enquiry has not been conducted. An opportunity to put forth his defence effectively was not granted to the petitioner and he also submitted that it is the 4th respondent, who is indulging in unlawful acts and also committed offences punishable under law. It is his further submission that when the matter was enquired into by the police, the 4th respondent had given a letter of regret. 5.As stated supra, though serious allegations have been levelled against the 4th respondent, no counter affidavit has been filed, https://hcservices.ecourts.gov.in/hcservices/ 4 though notice was taken as early as on 21.07.2011 on his behalf. This Court is inclined to examine the contentions of the learned counsel for the petitioner as to whether there is any violation of principles of natural justice warranting interference. Perusal of the impugned order shows that for not attending duties and for other charges, disciplinary action has been taken against the writ petitioner, when he was issued with memos and explanations have been sought for. The resolution dated 13.07.2011, enclosed at page No.32 of the typed set of papers, filed along with the supporting affidavit, shows that an explanation was sought for, from the writ petitioner with regard to certain charges. The resolution reads that though the petitioner had submitted an explanation to the first notice, subsequent two notices issued by the Panchayat have been refused by the writ petitioner and for such acts, a resolution has been passed on 13.07.2011 to dismiss the petitioner from service. The President/ Executive Officer of Sethurayanpudur Panchayat, the 4th respondent herein had issued an administrative order in Na.Ka.No.1/2011 dated 13.07.2011 dismissing the petitioner from service. It is well settled that whenever disciplinary action is taken against an employee/government servant with a proposal to impose a major penalty and when the charges are rebutted, it is obligatory on the part of the disciplinary authority to conduct a regular departmental enquiry to prove the charges and also to provide adequate opportunity to the employee to put forth his defence. The guarantee given to an employee/government servant, under Article 311(2) of the Constitution of India mandates such procedure and even if the writ petitioner had refused to receive the subsequent notices sent by the Panchayat, unless a regular enquiry is conducted, wherein, charges are held as proved, he cannot be dismissed from service. Perusal of the records produced by the learned Government Advocate shows that there is an allegation of physical assault by the fourth respondent to the writ petitioner and, when the writ petitioner made a complaint dated 09.11.2010 to the Inspector of Police, Manoor Police Station, alleging that the President had assaulted him and prevented him from discharging duties, the complaint has been taken on record by the Sub-Inspector of police, Manoor Police Station, Tirunelveli in C.S.R.No.1079/2010. It is stated by the petitioner, that the fourth respondent has regretted for his action and a copy of the letter addressed to the Sub-Inspector of police, Manoor Police Station found in the files reads as follows: mDg;g [eh ; “ R.Rliyf;fz ; Qq Cuhl;rp kd;w jiyth;. nrJuhad;g [Jhh ;. bgWeh; cah;jpU rhh;g [ Ma;thsh ; mth;fs ;. fhty; epiyak;. khDhh;. bghUs; :-vd; kPJ Cuhl;rp cjtpahsh; bfhLj;j g[fhh ; kDt[f ;F gjpy; jUtJ rk;ge ;jkhf. – https://hcservices.ecourts.gov.in/hcservices/ 5 Iah. nrJuhad ; g [Jhh ; Cuhl ;rp kd ;w mYtyfj ;jpy ; gzpapd ; nghJ eph ;thf rk ;ge ;jkhf thf ;Fthjk ; bra ;jnghJ rpy fhuz' ;fshy ; mt ;thW neh ;e ;J tpl ;lJ. Cuhl;rp cjtpahsUila kfd; gl;L vd;w khhpag;gd ; vd;kPJ jhf;Fjy ; elj;jpaJ nghy; kWgoa[k ; jhf;Fjy ; elj;j neh;e ;jhy ; Cuhl;rp cjtpahsh; T.gukrptd; jhd; KG bghWg;g [ Vw;f ntz;Lk ;. ,dpnky; Cuhl;rp cjtpahshplk; Kiwahf Mtz';fis fhl;o fzf;F vGjr;brhy ;ntd;. mjd;go mth; ele;Jf ;bfhs ;s ntz;Lk ;. Cuhl ;rp cjtpahsh ; T.gukrptd ; nrJuhad ; g [Jhh ; Cuhl ;rpapy ; gzp bra ;a tpUk ;ghj gl ;rj ;jpy ntbuhU Cuhl ;rpf ;F khw ;wk ; bra ;a jiyth ; vd ;w Kiwapy ; cjtp bra ;J gzp khWjy ; bgw ;W ju rk ;kjpf ;fpnwd ;. vd ;dhy ; ve ;j gpur ;rpida [k ; Vw ;glhJ vd ;gij bjhptpj ;Jf ; bfhs ;fpnwd ;. ,g;gof;F xg;gk ; (R. Rliyf;fz ; Qq)” 6.Thus, it is evident from the pleadings and the material on record shows that the matter had gone to the police station. Vindicating the above stated grievances, the petitioner has also made a representation to the Block Development Officer, Manoor. Though no action was taken earlier, pursuant to the filing of the writ petition, the Block Development Officer, Manoor Panchayat Union, the second respondent herein had issued a proceeding e.f.vz;.M3/3137/2011 dated 22.07.2011 instructing the fourth respondent not to fill up the post of Panchayat Assistant either on temporary or permanent basis. Since the fourth respondent has taken cognizance of the events, he is directed to conduct a proper enquiry into this matter under the provisions of Tamil Nadu Panchayats Act. As the impugned order perse reflects violation of principles of law and natural justice, the same is set aside. The fourth respondent, President, Sethurayanpudur panchayat is directed to reinstate the petitioner in service forthwith. The respondents 1 & 2/official respondents are hereby directed to see that the orders of this Court are complied with, in later stage. As disciplinary action has already been initiated against the writ petitioner, this Court is not inclined to go into details in this regard. However as serious allegations of malice, physical assault, violation of principles of natural justice are made and not refuted, in the interest of justice, it is just and necessary to give a fair and reasonable opportunity to the writ petitioner to defend the allegations levelled against him. Under the said circumstances, this Court is inclined to issue a direction to the Block Development Officer, Sethurayanpudur Panchayat Union, the second respondent herein, to conduct an impartial enquiry into this matter in respect of the allegations levelled against the petitioner by appointing an enquiry officer to submit a report. On receipt of the said report, the second respondent herein shall pass orders on the disciplinary proceedings and it is made clear that the aforesaid order is passed with the consent of the learned counsel for the petitioner and taking note of G.O.Ms.No.175. Though the https://hcservices.ecourts.gov.in/hcservices/ 6 President of the Panchayat/Executive Officer is the competent authority to impose penalty on the disciplinary proceedings, and the Block Development Officer is the appellate authority. By virtue of the abovesaid direction, the writ petitioner would be losing an opportunity of making an appeal. Nevertheless, the learned counsel for the petitioner has given his consent for passing such order and his consent is placed on record. 7.The learned counsel for the petitioner has further submitted that in the aforesaid circumstances, it would be difficult for the writ petitioner to serve under the 4th respondent Panchayat. Considering the same, a direction is also issued to the respondents 1 & 2 to consider the request of the petitioner for transferring him out of the 4th respondent Panchayat for which the President has also given a statement to the police. 8.With the above directions, the impugned order is set aside and the fourth respondent is directed to restore the petitioner into service forthwith. 9.This writ petition is ordered accordingly. Consequently, connected M.P.No.1 of 2011 is closed. No costs. vs Sd/- Assistant Registrar /True copy/ To Sub Assistant Registrar 1.The Inspector of Panchayats, District Collector, Tirunvelveli District. 2.The Block Development Officer, (Village Panchayats), Manoor Panchayat Union, Manoor, Tirunelveli. 3.The President, Sethurayanpudur Panchayat, Sethurayanpudur, Manoor Union, Tirunelveli Taluk, Tirunelveli District. +1 cc to Special Government Pleader, SR.No.25005. W.P.(MD).No.8111 of 2011 Dated:26.07.2011 6P/5C RPB 29.07.2011 https://hcservices.ecourts.gov.in/hcservices/