The petitioner filed O.A.No.10068 of 1997 seeking to set aside the order of the fourth respondent Tahsildar dated 10.9.1997 and for a consequential direction to pay the pension to the petitioner in terms of G.O.Ms.No.828, Revenue Department,d td 23.8.1996.
2. The petitioner was working as a Village officer at Kootapanai Village, Radhapuram Taluk. He was dismissed from service on 18.3.1973 for failure to report illicit cutting of Odai trees in certain Survey Numbers and also having accompanied with those illicit tree cutters. He filed an appeal to the District Revenue Officer, Thirunelveli, which was dismissed by him on 14.12.1975. A Revision Petition was filed by him to the first respondent State, which was also rejected on 24.5.1975.
3. As against the rejection of the appellate order, the petitioner filed a Writ Petition before this Court being W.P.No.3883 of 1979. Sathiadev,J, before whom the matter came up, allowed the Writ Petition by a judgement dated 13.7.1982. In the operative portion of the order, the learned Judge had given the following direction:
"These decisions go to show that once a delinquent desires an oral enquiry, it is mandatory on the part of the enquiry officer to hold such an enquiry. On the failure of the delinquent to appear, enquiry officer cannot hold the charges as proved, in the absence of the Department adducing oral and documentary evidence, as may be necessary.
Therefore, there being a failure to adhere to the mandatory requirements, the further orders passed based on such a provisional conclusion, being illegal, the impugned orders are hereby set aside.
On the impugned orders being set aside, but for the post being abolished, it would have enabled petitioner to be restored to service, and fresh enquiry to be held against him. Additional Government Pleader would state that, in such an event,he would have been placed under suspension and fresh enquiry proceeded. Now that the posts of Village Officers have been abolished, if the State desires to hold an enquiry, it is entirely for it to conduct such an enquiry and pass suitable orders thereon in respect of matters, which have arisen before the abolition of post. If it comes to the conclusion that the petitioner was not guilty, it would only enable him to secure the monetary benefits to which he would be entitled, till the date of the abolition of the post.
It was also contended by Additional Government Pleader that, after the post of was abolished, there is no scope for holding of an enquiry and that the Writ Petition has become infructuous. If the impugned order is to be retained on each a ground, it would result in a Government servant having been visited with certain findings of guilt, which could not be sustained in law. It would thus have far-reaching adverse effects on his future prospects. Merely because the posts have been abolished before finality could be arrived at in proceedings pending in Courts, it would not mean that the Government servants would have to carry on their shoulders the charges levelled against him, and which have been arrived at contravening mandatory requirements. He is entitled to be freed from the blemish, irrespective of whatever might have happened to the post. Hence, the relief he had sought for in this petition is available to him to quash the orders in respect of a post, which has been abolished, subsequent to the filing of the Writ Petition. By virtue of the order passed by this court, the State is hereby enabled to hold an enquiry in respect of a matter which had arisen before the abolition of the post and pass the necessary orders, thereon, or drop the proceedings if it so decides. It is made clear that the order passed herein would not enable him to demand for the post of Village Headman to be given to him as of right, till further orders are passed by third respondent, of what it proposes to do.
There is yet another reasons why petitioner is anxious to secure an order, in that, if the charges framed against him are held as not proved, it may not only entitle him to secure the limited monetary benefits, but would also provide an opportunity for him to apply for the post according to the Rules which have since come into force, or apply for some other job in Government. Therefore, merely because a post is abolished, it would not mean that disciplinary proceedings held against a Government servant contrary to the requirements of the Rules cannot be interfered with by this Court in proceedings instituted earlier to the abolition of the post.
For the reasons above stated,the Writ Petition is allowed."
Notwithstanding the direction given by this court, the respondents have not passed any orders.
4. During the pendency of the Writ Petition, the respondent State issued an Ordinance No.10 of 1980, abolishing the post of part-time Village Officers with effect from 14.11.1980. The said Ordinance was replaced by the Tamil Nadu Abolition of Posts of Part-time Village Officers Act, 1981 ( Tamil Nadu Act 3 of 1981).
5. The vires of the said Act was challenged before the Supreme Court. The Supreme Court upheld the vires of the said Act by judgment in K.Rajendran vs. State of Tamil Nadu reported in 1982 (2) SCC 273. However, it was stated that the persons, who lost their office by virtue of the legislation may be considered for future employment as Village Administrative Officers, provided they come within the age norm fixed by the State and also having necessary educational qualification.
6. Section 11 of the said Act reads as follows:
11. Certain pending proceedings to abate: i) subject to the provisions of sub-section (2), notwithstanding anything contained in any law for the time being in force
a) all proceedings including appeals and revisions relating to the appointment of part-time Village Officers; and
b) all departmental disciplinary proceedings including appeals and revisions against part-time Village Officers, pending before any authority or Government on the date of the commencement of this Act, shall abate."
7. Perhaps with this provision, the State contended before this Court that the petitioner cannot seek any relief notwithstanding the contention that this Court directed the respondents to take appropriate decision on the disciplinary action taken against the petitioner.
8. On notice from the Tribunal, the respondents have filed a reply affidavit dated 27.10.1999. In the reply affidavit, in paragraph 5, it has been averred as follows:
"Then, the High Court, in its order in W.P.No.3883/79 dated 13.7.1982 filed by the applicant herein, set aside the dismissal order on account of failure to adhere mandatory requirements in the enquiry. But in the above order, it has been pointed out that the order passed would not enable him to demand forth post of Village Headman as a matter of right, till further orders are passed by the third respondent or what it proposed to do. In G.O.Ms.No.828, Revenue (E.Spl.1) Department dated 23.8.1996, pension was granted to the living Ex.Village Officers, who lost their service on 14.11.80 by the Act. As the applicant was not in service on 14.11.1980, he was informed by the fourth respondent that his request cannot be entertained as per Rules.
9. On the abolition of the Tribunal, the matter stood transferred to this Court and was re-numberred as W.P.No.37695 of 2006.
10. It is an admitted fact that the State Government introduced by G.O.Ms.No.828, Revenue Department dated 23.8.1996 granting pension to the living ex-Village Officers, who lost their service as on 14.11.1980 by virtue of the Act. Therefore, the respondents technically contend that since the petitioner is not in service on 14.11.1980, he is not eligible for any pension. Such an argument overlooks the fact that this Court by a judgment dated 13.7.1982 had set aside the dismissal order passed against the petitioner. Though it was stated that the same will not result in automatic restoration of service and the respondents were directed to conduct a proper enquiry and pass final orders, which will decide the monetary benefit available to the petitioner and also it was stated that the stigma attached to such dismissal order can be removed, if an opportunity is given to the petitioner.
11. The respondents have not conducted any enquiry in terms of the order passed by this Court. Therefore, contention that Section 11 of the Tamil Nadu Act 3 of 1981 makes an abatement by a legislative fiction cannot stand to ground in the light of specific mandamus issued by this court to consider the case of the petitioner. Even if the petitioner was not eligible for any re-employment in terms of Supreme Court directions issued in Rajendran Case cited supra, yet, if fictionally he is in service as on 14.11.1980, then he is eligible for pensionary benefits in terms of G.O.Ms.No.828, Revenue Department, dated 23.8.1996. Since the respondents have failed to utilize the remand order passed by this Court, the petitioner cannot be allowed to suffer.
12. In the light of the same, the Writ Petition will stand allowed. The respondents are directed to consider the case of the petitioner as if he has lost his employment on 14.11.1980 by virtue of Ordinance No.10 of 1980 and accord pension in terms of G.O.Ms.No.828, Revenue Department, dated 23.8.1996 within a period of twelve weeks from the date of receipt of a copy of this order. He shall also be paid all the arrears arising out of such non-payment and continue to receive pension in accordance with the pension scheme introduced by the by the respondent State. This Writ Petition is allowed. No costs.
ajr To
1. Secretary to Government Revenue Department Fort St.George, Madras 9
2. The Collector of Thirunelveli District, Thirunelveli
3. Assistant Director Cheranmaha Devi Thirunelveli District
4. Tahsildhar Radhapuram Thirunelveli District