The prayer in this writ petition is for issuance of a writ of certiorarified mandamus to quash the impugned order, dated 27.12.2011, passed in Na.Ka.No.A3/4454/2003, by the second respondent, consequential appeal order, dated 03.02.2012, passed in Na.Ka.No.Nu/12/10015/2010, by the first respondent and to direct the third respondent to reinstate the petitioner in service with all backwages within the time stipulated time.
2. According to the petitioner, he was initially appointed as a part-time Clerk, on 07.01.2000, in the third respondent Panchayat and later, his post was redesignated as Panchayat Assistant in the year 2001. On 26.07.2004, he was suspended from service in contemplation of the disciplinary proceedings initiated by the first respondent. The charge memo containing eight charges was issued to him on 19.05.2005 and he had submitted his explanation on 09.06.2005. He had also challenged the charge memo, dated 19.05.2005 as well as the suspension order, dated 26.07.2004, before this Court, by filing W.P.(MD) No.21799 of 2005 and when the said writ petition came up for admission, the Court, by order dated 05.07.2005, stayed the charge memo and the suspension order. Ultimately, the said writ petition was partly allowed by this Court, vide order dated 19.02.2010, by setting aside the order of suspension and directing reinstatement of the petitioner and in sofar as the charge memo was concerned, it was rejected with liberty to the respondents to proceed with the enquiry, but not to pass orders till the criminal case comes to an end.
3. Even though direction was given to reinstate the petitioner in service, it was actually implemented only on 03.11.2011. In the meanwhile, it appears that the third respondent had appointed the fourth respondent in the place of the petitioner. The fourth respondent preferred an appeal in W.A.(MD) No.823 of 2010, before this Court, challenging the order, dated 19.02.2010, passed in W.P.(MD) No.21799 of 2005. The Division Bench of this Court, vide Judgment dated 24.06.2010, dismissed the writ appeal holding that the fourth respondent was not an interested person and he was not entitled to challenge the said order. Further, it was observed that the order of dismissal of the writ appeal would not prejudice the appeal preferred by the State against the impugned order and the same should be decided on merits.
4. Thereafter, the official respondents preferred appeal, in W.A.(MD) No.1016 of 2010 and the same was disposed of by the Hon'ble Division Bench of this Court, vide Judgment, dated 25.07.2011, ordering reinstatement of the petitioner within a period of four weeks and the enquiry should be completed within a period of three months from the date of receipt of a copy of that Judgment and the petitioner was also directed to give full cooperation for the early disposal of the disciplinary proceedings. However, as stated supra, the petitioner was reinstated only on 03.11.2011, after issuance of contempt notice. In the meanwhile, the third respondent had sent a letter to the first respondent stating that the fourth respondent was appointed in the place of the petitioner pursuant to the order of dismissal passed by way of resolution of the fourth respondent Panchayat, dated 18.11.2004. The petitioner had denied of the existence of the so-called dismissal order, dated 17.11.2004. Thereafter, an enquiry officer was appointed on 10.09.2011 and he conducted an enquiry into the matter and came to the conclusion that all the charges, except Charge Nos.6 and 7, had been proved. Thereafter, an explanation was called for from the petitioner on the report filed by the Enquiry Officer. Subsequently, the second respondent, by proceedings in Na.Ka.No.B3/4454/2003, dated 27.12.2011, dismissed the petitioner from service. Against which, he had preferred an appeal before the first respondent and the first respondent had also, by order dated 03.02.2012, passed in Na.Ka.No.Nu/12/10015/2010, dismissed the appeal and confirmed the order of dismissal passed by the second respondent. Aggrieved by the same, the petitioner is before this Court.
5. The learned Additional Government Pleader appearing for the first respondent would submit that the enquiry was conducted properly and the petitioner had himself, in his letter, dated 31.10.2011, submitted that the enquiry was satisfactory and he was permitted to peruse all the documents relating to the enquiry and fair opportunity was granted to him to submit his arguments and he had requested to exonerate him from the charges. From the statement of the petitioner, it could be seen that the enquiry was conducted in a fair and proper manner by giving ample opportunity to him.
6. The petitioner has raised the ground of non-payment of subsistence allowance. But, as required under law, he had never stated that he was not gainfully employed. It was found from the complaint lodged by one Vijaya, who was the owner of the Quarry that the petitioner was gainfully employed as a Supervisor of the Quarry and this fact was never denied by the petitioner.
7. In so far as the ground of competency of the second respondent, who acted as a disciplinary authority, it was found fault with by the petitioner on the ground that the third respondent / Village President is the competent authority to impose punishment on the Village Assistant. It is the contention of the Additional Government Pleader that it was not correct. The petitioner was placed under suspension on 26.07.2004 for certain misconducts. Charge memo was issued on 19.05.2005. At the relevant point of time, the competent officer to initiate disciplinary proceedings was the second respondent / Block Development Officer. Subsequent to the passing of Government Order in G.O.Ms.No.175, dated 05.12.2006 only, the Panchayat President was conferred with the power of acting as disciplinary authority. Therefore, the jurisdiction point raised by the petitioner is not sustainable. Moreover, this Court, by order, dated 19.02.2010 in W.P.(MD) No.21799 of 2005, filed by the petitioner had categorically held answered the point that there is no jurisdictional error in respect of the charges framed against the petitioner. Therefore, the validity of the charge memo was refused to interfere by this Court. Therefore, the contention with regard to the jurisdiction for the issuance of the charge memo is not sustainable.
8. The petitioner has raised another point that the Division Bench of this Court, while dismissing the writ appeal in W.A.(MD) No.1016 of 2012, had found that pendency of the criminal proceedings has nothing to do with the departmental proceedings. Therefore, a direction was issued to the respondents to complete the enquiry within a period of three months. Accordingly, there was no bar for passing final orders.
9. The learned Additional Government Pleader appearing for the first respondent has submitted that the second respondent had considered all the points raised by the petitioner by way of objections to the enquiry report. After considering each and every point, the disciplinary authority had come to the conclusion that except Charge Nos.6 and 7, all the other charges were proved. The petitioner had not made any point for interference to the findings of the disciplinary authority. The order of the appellate authority is also based on the reasons. Therefore, according to him, the writ petition is liable to be dismissed.
10. The fourth respondent has filed a counter affidavit stating that as per Rule 54(b) of the Fundamental Rules, the Government servant could not claim lien on the original post and he could not claim that he should be accommodated in the same post. The petitioner was employed only as a temporary part-time Clerk in the third respondent Panchayat and he was suspended on 26.07.2004 and thereafter, vide resolution dated 17.11.2004, he was dismissed and the fourth respondent was appointed as a part-time Clerk. The third respondent had thereafter obtained approval from the first respondent on 21.09.2004 to engage temporary part-time clerk. Thereafter, the petitioner was appointed on temporary basis. According to the fourth respondent, he was later appointed on regular basis by the third respondent with effect from 20.08.2009. As per the fourth respondent, he is entitled for regular appointment atleast from the date of dismissal order passed by the second respondent on 27.12.2011. Therefore, considering the twelve years of service and his age that he has crossed 43 years having two daughters, he shall not be disturbed at this distance of time.
11. Heard both sides and perused the materials produced.
12. It is not in dispute that disciplinary proceedings were initiated against the petitioner by issuing a charge memo on 19.05.2005. By that point of time, the second respondent was the competent authority to issue a charge memo. The petitioner had also by his conduct had accepted the authority of the second respondent and had submitted his explanation and also while challenging the suspension and charge memo had impleaded the second respondent as a party respondent, but not impleaded the third respondent. Moreover, the very same point has already been decided by this Court in the writ petition filed by the petitioner himself. Therefore, the question of jurisdiction and competency of the second respondent cannot be questioned and it is held that the second respondent is the competent to impose the punishment.
13. In sofar as the non-application of mind is concerned, the second respondent has categorically given his finding that after considering all the points raised by the petitioner, he came to such a conclusion. Even though ample opportunity was given to the petitioner, he had failed to avail the opportunity to prove his innocence. On the other hand, he had only made denial of averments and he had not taken steps to prove his innocence and disprove the charges with specific details. Mere denial and general statement would not come to the rescue of the petitioner. Therefore, the findings of the Enquiry Officer and also the decision taken by the second respondent / disciplinary authority are corroborated by the documents and oral evidence. Therefore, the punishment imposed by the second respondent does not warrant interference of this Court.
14. It only remains to consider the averments of the petitioner sofar as order passed by the Appellate Authority, namely, first respondent. As contended by the learned counsel for the petitioner, the first respondent had extracted the order of the original authority along with the objections filed by the petitioner. The petitioner had also pointed out that the second show- cause notice informing the proposed punishment was not adhered to Part-I Para 46(a) Sub-Clause 23(2b) of the Office Manual for Panchayats. The Appellate Authority, without considering anything, had passed the cryptic order that the appeal made by the petitioner is not sustainable and rejected the appeal. In V.P.Chellappa v. Superintending Engineer, T.N.E.B., reported in (2010) 1 MLJ 714, relied on by the learned counsel appearing for the petitioner, this Court has held that order passed by the appellate authority should indicate application of mind and reasons however brief they may be, should be incorporated in the order. Therefore, this Court is of the opinion that the order passed by the Appellate Authority alone is liable to be set aside with a direction remit back the appeal to the first respondent. However, the decision in C.Thirugnanasambandam v. Joint Registrar, Co-operative Societies, reported in (2011) 7 MLJ 1275, relied on by the learned counsel for the petitioner, is not applicable to the facts and circumstances of the case on hand.
15. In the result, the writ petition is partly allowed and the order, dated 27.12.2011, passed in Na.Ka.No.A3/4454/2003, by the second respondent, is confirmed and the appeal order, dated 03.02.2012, passed in Na.Ka.No.Nu/12/10015/2010, by the first respondent is set aside. The appeal preferred by the petitioner is remitted back to the file of the first respondent with a direction to the first respondent to take into consideration the grounds of appeal and the supporting materials produced by the petitioner and to pass a reasoned orders within a period of three months from the date of receipt of a copy of this order and communicate the decision taken to the petitioner forthwith. No costs.
To:
The District Collector-cum-
Inspector of Panchayats, Tirunelveli District, Tirunelveli..