IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.07.2008 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.10304 of 2000 & WPMP No.14851 of 2000 M.Ramiah ..Petitioner Vs. 1. The Commissioner Tirunvelveli Corporation Tirunvelveli Twon 2. The Mayor Administrative Counsel Tirunelveli Corporation Tirunelveli ..Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus to call for the entire records in C.5/1571/95 dated 17.12.1996 on the file of the first respondent and quash the same as illegal and direct the first respondent to pay the arrears of pension Rs.87,465/- to the petitioner herein. For Petitioner :: Mr.R.Sankara Subbu For Respondents :: Mr.K.R.Tamizhmani for R1 Mr.V.Ravi for R2 O R D E R The petitioner was a Bill Collector in the first respondent Corporation. The petitioner was issued with a show cause notice asking him to make good the loss caused by him. He had reached the age of superannuation on 31.5.1995. On reaching the age of superannuation, at the time of relieving from service, certain conditions were imposed in that order. It was stated that since the audit for the year 1994-1995 for the Corporation was still pending and subsequently if it was found that he was responsible for https://hcservices.ecourts.gov.in/hcservices/ causing any loss to the Corporation, the amounts due from him will be recovered from his terminal benefits. It was on this condition, the petitioner was retired from service. 2. It was also stated that in respect of tax collection from Ward Nos.3 and 4, there was a due of a sum of Rs.1,62,150/-, then the amount paid towards encroachment charges a sum of Rs.3023/- and non-collection of professional tax for several years amounting to Rs.84,377/- and non-collection of water charges a sum of Rs.42,000/- and tour advance of Rs.500/-, for which final bill was not submitted. It was for all these heads recovery was ordered. The petitioner was specifically informed that these were the areas where the action will be taken against him. 3. The petitioner was earlier issued with a charge memo under Rule 8(a) of the Tamil Nadu Municipal Service (Discipline and Appeal) Rules as applicable to the Corporation even while in service. The petitioner challenged the conditional retirement order before this Court being W.P.No.10701 of 1995. This Court by order dated 28.10.1996 disposed of the Writ Petition by stating that he must reply to the charge memo and that the respondent can proceed in accordance with law. During the course of the order, a reference was made to the fact that even before retirement, on 16.12.1994, he was given a charge memo and it was for this charge memo, he was directed to give his explanation. 4. Surprisingly in this Writ Petition, the petitioner never made any reference to the earlier charge memo issued to him before retirement and also about his previous attempt to question the order of retirement. This attitude of the petitioner is highly reprehensible. Even on this ground the Writ Petition is liable to be dismissed. 5. Pursuant to the charge memo and show cause notice, the petitioner did not submit any explanation. Therefore, the Corporation proceeded to pass a final order dated 17.12.1996 fixing the liability of the dues mentioned in the order of retirement. He was also informed that the said amounts will be recovered from his terminal benefits. As against the same, the petitioner is alleged to have filed an appeal in September 1999. Even though the order imposing the penalty was dated 17.12.1996, it is stated by the petitioner that sine he had filed an appeal and was waiting for the outcome of the same, it took nearly 4 years to file the present Writ Petition. Even on grounds of delay and latches, the Writ Petition is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 6. Pending the Writ Petition, the petitioner sought for a direction to pay the amount of Rs.87,465/- retained by the Corporation. In the said direction application, notice alone was ordered. 7. Pursuant to the admission of the Writ Petition, the Commissioner of the first respondent Corporation has filed a counter affidavit in July 2007. In that counter affidavit, it was stated that his appeal was not considered, as it was time barred. 8. Whatever may be the stand taken by the respondent, the contentions now raised in this Writ Petition by Mr.Sankara Subbu, the learned counsel for the petitioner were as follows i) since the petitioner has retired from service, no amount can be recovered from his salary; ii) the liabilities arose for the amounts to be recovered are as old as 1987-1888 and therefore so many years being lapsed, it is not open to them to recover those amounts at this point of time; and iii) in tune with the line of the judgments, where this Court has held that the Bill Collector cannot be saddled with the liability for non-collection of tax due. 9 In so far as the first submission is concerned, the petitioner had made an attempt to stall his conditional retirement in W.P.No.10701 of 1995, wherein the stand of the petitioner was that it was not open to the Corporation to grant a conditional retirement. The reason given in that order of retirement dated 31.5.1995 was that the audit was still going on and the amounts due were yet to be ascertained. In any event, having been unsuccessful in his challenge to the order dated 31.12.1995, it is not open to the petitioner to raise the said contention once again. 10. The second contention is that the arrears claimed were of 10 years old and there was inordinate delay. Delay by itself cannot be a ground to quash the said charge memo. In the earlier order, this Court has specifically directed the petitioner to submit his explanation to the charges. Without taking advantage of the said direction, the petitioner did not submit any explanation as found in the impugned order and he cannot raise such a ground now. 11. This leaves the third submission that the Bill Collector cannot be saddled with the liability of non-collection of dues. Therefore the petitioner places reliance of the judgment of this court in N.Mani vs. Commissioner, Villupuram Municipality, Villupuram reported in 2006 (1) LLN 768. It must be stated that it is one thing to state that the Bill Collector cannot be saddled solely with the responsibility for non-collection of dues by the https://hcservices.ecourts.gov.in/hcservices/ Corporation. But, it is an other thing to say that even if there was any negligence on his part for not collecting the due amount, still he is not liable for any disciplinary action. 12. As found in the Tamil Nadu Municipal Service (Disciplinary and Appeal) Rules, if the petitioner is proceeded for act of misconduct, it can result in any punishment and the petitioner cannot escape from the liability of imposition of any penalty on him and they may include even recovery of loss of amounts to the extent caused by him. In the present case, except from pointing out from the audit report about the collection due, the respondent Corporation has not gone into question as to, who are responsible for the non-collection of the dues. As rightly pointed out by the learned counsel for the petitioner, above the Writ Petitioner, there was a Revenue Inspector and hierarchy of officers and therefore, unless accountability is fixed on each one of them, it is not open to the Corporation to fix the liability on one person, who is the last in the ladder. While an employee working in a Corporation cannot escape from his accountability, at the same time, the entire loss cannot be saddled on one person, as if he alone is responsible for such a loss. It is after conducting an enquiry, even under the Tamil Nadu Municipal Service (Disciplinary and Appeal) Rules , for causing loss, consequential recovery can be made which considered as a major penalty. In that view of the matter, the respondent, merely because the petitioner had not sent a reply, cannot pass a final order, without fixing the liability on the petitioner. 13. In view of this fact, the impugned order will stand set aside and the first respondent Corporation is directed to hold a proper enquiry and fix the liability to the extent the petitioner was responsible for the loss. While doing so, the first respondent Corporation, against whom several Writ Petitions have been filed earlier on similar issues, wherein this court had held that for the time barred tax dues or non-collection, responsibility cannot be fixed on the collecting officials and there must be further materials to prove that they were directly responsible for causing loss to the Corporation, shall take note of the same. After taking note of the circumstances, the first respondent should pass appropriate orders, after giving opportunity to the petitioner and fix the liability. If the petitioner is even thereafter aggrieved, it is open to him to work out his remedy in the manner known to law. The first respondent is hereby directed to undertake this exercise within a period of twelve weeks from the date of receipt https://hcservices.ecourts.gov.in/hcservices/ of a copy of this order. The Writ Petition is disposed of accordingly. No costs. The connected Miscellaneous Petition is closed. ajr Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The Commissioner , Tirunvelveli Corporation Tirunvelveli Town 2. The Mayor, Administrative Counsel Tirunelveli Corporation, Tirunelveli 1 cc to Mr.K.R.Tamizhmani, Advocate, SR.36380 1 cc to Mr.R.Sankara Subbu, Advocate, SR.36495 ka (co) dv/21.7. W.P.No.10304 of 2000 https://hcservices.ecourts.gov.in/hcservices/