BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15/11/2007 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P(MD)No.8297 of 2006 and M.P(MD)No.1 of 2006 W.P(MD)No.727 of 2007 and M.P(MD)No.1 of 2007 W.P(MD)No.8297 of 2006 P. Raajendran ... Petitioner Vs. 1. The District Collector, Sivagangai District, Sivagangai. 2. Additional Director of Panchayat, Sivagangai. 3. Block Development Officer (VP), S.Pudur Panchayat Union Office, Sivagangai District. 4. The President, Orathupatty Village, Sivagangai District. ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records relating to the third respondent's proceeding Na.Ka.B1/769/2003 dated 4.3.2003, quash the same and consequently direct the 4th respondent to reinstate the petitioner as part time Panchayat Clerk. !A.L. Vadivel ... Petitioner Vs. $1. The State of Tamil Nadu, rep.by Secretary, Rural Development & Local Administration, Fort St.George, Chennai - 600 009. 2. The District Collector, Sivagantai District, Sivagangai. 3. The Assistant Director of Panchayats, (Rural Development), Sivagangai. 4. Block Development Officer (VP), S.Pudur Panchayat Union Office, Sivagangai District. 5. The President, Oorathupatti Village, S.Pudur Union, Sivagangai District. 6. P. Raajendran, Orathupatty Village, S.Pudur Union, Sivagangai District. ... Respondents Prayer Petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified mandamus, calling for the records relating to the impugned order dated 27.12.2006 suspending the petitioner from service and quash the same and consequently direct the 5th respondent to permit the petitioner to continue in service as Clerk in S.Pudur Union, Orathupatti Panchayat, Sivagangai as per service register with effect from 1.9.2006. !For Petitioner in W.P.8297/2006 ... Mr.K.Mahendran ^For Petitioner in W.P.727/2007 ... Mr.Madhavagovindan For RR.1 to 4 in W.P.8297/2006 ... Mrs.V.Chellammal, & RR.1 to 5 in W.P.727/2007 Special Govt. Pleader :ORDER
W.P.No.8297 of 2006 W.P.No.8297 of 2006 is filed to quash the order passed by the third respondent dated 4.3.2003 placing the petitioner under suspension and to direct the fourth respondent to reinstate the petitioner as Part-time Panchayat Clerk.
2. The case of the petitioner is that on the resolution of Orathupatty Village Panchayat, petitioner was appointed as Part-time Panchayat Assistant from 1.11.1997 and his salary was fixed at a sum of Rs.350/- per month. The fourth respondent sent a report to the third respondent on 4.3.2003 and stated that the petitioner was not doing any work and requested the third respondent to suspend the petitioner so that the third respondent will be in a position to appoint a person, who is close relative of the President. The third respondent by order dated 4.3.2003, suspended the petitioner and directed one Alagan Poosari from Melavanniruppu Village Panchayat to look after the work assigned to the petitioner. On 10.11.2003, petitioner submitted a report to the Block Development Officer, S.Pudur Panchayat Union and requested the Block Development Officer to reinstate him and pay the salary for the suspension period, however no action was taken by the Block Development Officer. On 21.3.2003 a charge memo was issued containing four charges, which reads as follows: "A. That the petitioner has not attended the office and failed to discharge his duty in collecting the tax and remitted the same to the Government.
B. That the petitioner has failed to appear before the Executive Officer (Panchayat) and produce the documents for inspection and thereby disobeyed the order of the superior.
C. That after collecting the tax failed to remit the amount into the Panchayat account and thereby misappropriated the amount. D. That after collecting the tax amount, petitioner failed to remit the amount into the correct account and thereby neglected the instruction given by the higher officials and also directed him to give an explanation within a period of 7 days failing which they will decide to take further action as per the available documents."
On 31.10.2003, petitioner submitted a representation to the 4th respondent seeking payment of subsistence allowance. In spite of the same, no subsistence allowance is paid. On 21.4.2004, petitioner submitted all the records and remitted all the tax amount collected and requested for restoration in service. Petitioner submitted his explanation for the above charges on 31.3.2003 and denied the same. No enquiry was conducted in spite of repeated representations. The second respondent sent a reply to the petitioner on 4.10.2005 and stated that suspension or removal from service of a part time clerk of Village Panchayat is vested with the President of the Village Panchayat and he has no jurisdiction. On 21.4.2006, 4th respondent requested the petitioner to appear before the Commissioner of Panchayat Union for enquiry and no order having been passed, petitioner challenged the order of suspension dated 4.3.2003 in this writ petition by contending that the third respondent has no jurisdiction to place the petitioner under suspension and the disciplinary power is vested with the Executive authority, who is the President of the Village Panchayat under the Tamil Nadu Panchayats Act, 1994. Petitioner also stated that no subsistence allowance was paid and no final order in the disciplinary proceeding is also passed. Therefore the petitioner contended that the prolonged suspension from 4.3.2003 is liable to be set aside.
3. The third respondent filed counter affidavit contending that the 4th respondent sent a report to the third respondent on 4.3.2003 stating that the petitioner is not doing any work and requested the third respondent to suspend the petitioner. It is also admitted in the counter affidavit that the third respondent suspended the petitioner and issued charge memo on 21.3.2003. It is also averred in the counter affidavit that no explanation for the charge memo dated 21.3.2003 was submitted by the petitioner. The Extension Officer (Panchayat) enquired the complaint given by the 4th respondent and recommended for temporary suspension of the petitioner on 4.3.2003 and therefore the third respondent suspended the petitioner. It is also stated in the counter affidavit that the third respondent removed the petitioner from service by resolution dated 1.5.2003 and the removal order dated 19.6.2003 was served on the petitioner on the same day itself, for which the petitioner gave his acknowledgment. On the above pleadings the third respondent prayed for dismissal of the writ petition.
4. Heard the learned counsel appearing for the petitioners as well as the learned Special Government Pleader appearing for the respondents.
5. In the light of the pleading, particularly with regard to the averments made in the counter affidavit filed by the third respondent stating that the petitioner was removed from service by order dated 19.6.2003, which was said to be acknowledged by the petitioner on the same day 19.6.2003, I directed the Government Pleader to produce the original file, pursuant to which the original file was produced before me. From the file it could be seen that the order passed by the 4th respondent on 19.6.2003 which was acknowledged by the petitioner on the same day is not an order of dismissal and it is only an intimation that charges will be framed against the petitioner and the petitioner will be dismissed from service. In the file, no charge memo framed thereafter or any dismissal order passed is available. Further, from the impugned order in W.P.No.727 of 2007 passed by the President of the Village Panchayat on 27.12.2006 it could be seen that the petitioner was restored to service and therefore there is no order of termination passed as averred in the counter affidavit filed by the third respondent.
6. In view of the statements contained in the counter affidavit at page No.4 reiterating the stand that the order dated 19.6.2003 is the removal order passed against the petitioner, which was acknowledged by the petitioner, it is clearly proved without any ambiguity that no order, other than the one stated supra is passed against the petitioner dismissing the petitioner from service. The learned counsel for the petitioner contended that no charge memo was issued to the petitioner till date and the petitioner is not permitted to work due to the order of suspension, which is impugned in this writ petition.
7. The order of suspension is dated 4.3.2003 and the same is also passed by the third respondent. Under the rules, disciplinary power against the Panchayat staff is vested with the Executive Authority of the Village Panchayat and the Executive Authority of the Village Panchayat is the President as per the notification issued by the Government in G.O.Ms.No.225 Rural Development (C1) Department, dated 15.10.1996, which reads as follows: "NOTIFICATION In exercise of the powers conferred by Section 83 of the Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994), the Governor of Tamil Nadu hereby appoints the President of Village Panchayat, as Executive Authority to exercise the power and perform the functions of the Executive Authority of that Village Panchayat."
The impugned suspension order is passed by the third respondent, who is admittedly not the Executive Authority.
8. Similar issue arose before this Court in the decision reported in 2004 (2) Law Weekly 577 (P.Adhikesavelu v. The District Collector, Thiruvallur and others) wherein it is held that under section 84 of the Panchayats Act, the Village Panchayat President is the competent authority to pass orders. Section 84(b) of the Tamil Nadu Panchayats Act, 1994, clearly states that the Executive Authority shall have control over all the officers and servants of the Village Panchayat. The said control amply discloses the disciplinary power including the power of suspension, dismissal. Hence the impugned order passed by the third respondent is without jurisdiction.
9. The learned counsel for the respondents are unable to show any rule empowering the Block Development Officer to pass the order of suspension. Hence the impugned order of suspension passed by the third respondent is declared invalid. However, it is open to the 4th respondent, who is the Executive Authority, to issue charge memo against the petitioner, if it is warranted, and complete the disciplinary proceeding if initiated, within a period of three months from the date of receipt of copy of this order. Since the petitioner was suspended, who was a part-time employee, the payment of salary for the suspension period will depend upon the ultimate decision to be taken in the disciplinary proceeding, if any initiated, against the petitioner. If no disciplinary proceeding is initiated against the petitioner by the 4th respondent, the entire suspension period shall be treated as duty period without backwages.
W.P.No.8297 of 2006 is allowed on the above terms. No costs. Connected miscellaneous petition is closed.
W.P.No.727 of 2007
10. Prayer in this writ petition is to quash the order dated 27.12.2006 suspending the petitioner herein from the service of the 5th respondent.
11. Petitioner was admittedly appointed in the vacancy caused due to suspension of the 6th respondent, who is the petitioner in W.P.No.8297 of 2006. The suspension order passed against the 6th respondent having been quashed on the ground of lack of jurisdiction and no order of termination having been passed against the 6th respondent till date, the petitioner herein is not entitled to contend that he should be permitted to work. The 5th respondent has passed an order on 27.12.2006 permitting the 6th respondent to rejoin duty on cancellation of the suspension order and due to the said action, there is no vacancy for the petitioner herein to continue in the post and therefore he was relieved from his duties. The impugned order clearly states that the petitioner AL.Vadivel, who is functioning as part-time clerk of Orathupatty Village Panchayat of S.Pudur Block of Panchayat Union of Sivagangai District, is ordered to be suspended from the date when the 6th respondent viz., P.Rajendran re-join duty. The said order clearly discloses yet another fact that the said 6th respondent was not terminated from his service by the competent authority viz., the Executive Authority of the Village Panchayat. There is no error in the order of the 5th respondent, as admittedly petitioner was appointed in the vacancy arose due to the suspension of the 6th respondent.
12. There is no merit in this writ petition and the same is dismissed. No costs. Connected miscellaneous petition is also dismissed.
1. The Secretary, Rural Development & Local Administration, Fort St.George, Chennai - 600 009.
2. The District Collector, Sivagantai District, Sivagangai.
3. The Additional Director of Panchayat, Sivagangai.
4. The Assistant Director of Panchayats, (Rural Development), Sivagangai.
5. The Block Development Officer (VP), S.Pudur Panchayat Union Office, Sivagangai District.
6. The President, Oorathupatti Village, S.Pudur Union, Sivagangai District.