Full Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED1408.2013 CORAM THE HONOURABLE Mr.JUSTICE T.RAJ.W.P.No.10636 of 2008 and M.P.No.2 of 2008 G.Mani .Petitioner versus 1.The Commissioner of Municipal Administration, Chepauk, Chennai 600 005.
2.The Commissioner, Panruti Municipality, Panruti, Cuddalore District.
3.The Commissioner of Thuthukudi Municipality, Thuthukudi, Thuthukudi District.
(Now Corporation of Thuthukudi).4.The Commissioner of Local Fund Audit, Kuralagam, Chennai 108.Respondents (Respondents 3 and 4 are impleaded as per order dated 11.08.2011 in M.P.No.1 of 2011) Writ petition filed under Article 226 of the Constitution of India, praying this Court for issuance of Writ of Certiorarified Mandamus to call for the entire records relating to the impugned order of the second respondent dated 21.5.2004 made in proceedings Na.Ka.No.4285/02/C1 and quash the same as illegal and arbitrary and consequentially issue a mandamus forbearing the respondents from recovering any amount based on the above said impugned proceedings from the retirement/terminal benefits of the petitioner.
For Petitioner ..Mr.Solomon Francis For Respondents 1 and 4 ..Mr.N.Srinivasan, AGP For 2nd Respondent ..Ms.E.Ranganayaki For 3rd Respondent ..Mr.M.Velumani ORDER
The present writ petition has been filed challenging the impugned order dated 21.5.2004 recovering a sum of Rs.1,27,589/- from the petitioner G.Mani for the reason that he has not taken steps to collect the revision of tax imposed by the second respondent Municipality, Panrutti for the period commencing from 1.10.1998 in respect of the Ward Nos.8 and 9.
2.While assailing the impugned order, the learned counsel for the petitioner has submitted that the petitioner was recruited as Library Assistant on 14.4.1965 in the second respondent Panrutti Municipality.
After fifteen yeaRs.he became Revenue Assistant in the year 1980.
Thereafter, having rendered unblemished service, though the petitioner had to retire from service on reaching the age of superannuation on 31.5.2004, he was not allowed to retire because he was issued with a charge memo dated 11.12.2003 under Rule 8(ii) of the Tamil Nadu Municipality Service Discipline and Appeals Rules, 1978.
In the said charge memo dated 11.12.2003, it is stated that the petitioner misrepresenting the tax amount of the assessees during the period of revision wrongly, acted in favour of the assessees, while collecting the tax amount for the period from 1.10.1998 and thereby, caused loss to the second respondent Municipality.
However, the charge memo was issued in the year 2003 with inordinate delay of five years from 1.10.1998 and the petitioner submitted his explanation on 12.5.2004 to the said charge memo.
The second respondent, without holding any enquiry on the charge memo and without giving reasonable opportunity to the petitioner to prove his case, all of a sudden, passed the impugned order dated 21.5.2004 to recover a sum of Rs.1,27,589/- from the petitioner stating that the petitioner caused loss to the second respondent Municipality for not collecting the revised property tax from Ward Nos.8 and 9.
Aggrieved by the said impugned order dated 21.5.2004, the petitioner filed W.P.No.25773 of 2004 on the ground that without conducting any enquiry on the charge memo dated 11.12.2003, the order of recovery dated 21.5.2004 was passed for recovering a sum of Rs.1,27,589/- from the petitioner.
This Court disposed of the said writ petition by its order dated 5.9.2006.
Paragraph Nos.5 and 6 of the above said order dated 5.9.2006 are extracted hereunder: ".The learned counsel for the respondent has stated that after issuance of charge, the petitioner has given explanation.
Learned counsel for the respondent also state that the proceedings can be concluded within a reasonable period.
6.Having regard to the facts and circumstances of the case, the writ petition is disposed of with the observation that the disciplinary proceeding should be finalised within a period of six months from the date of receipt of a copy of this order.
The petitioner is directed to co-operate in early disposal of the writ petition.".
3.It was pleaded before this Court that the above said order passed by this Court shows that the impugned order dated 21.5.2004 for recovering a sum of Rs.1,27,589/- was wrongly passed without completing the disciplinary proceedings and hence, this Court directed the Commissioner, Panrutti Municipality, Cuddalore to complete the disciplinary proceedings within a period of six months from the date of receipt of a copy of the order.
But, as directed by the order dated 5.9.2006 of this Court in W.P.No.25773 of 2004, till date, no disciplinary proceedings have been initiated.
Therefore, the impugned order of recovery dated 21.5.2004 is liable to be interfered with.
4.Adding further, it was stated that after the order dated 5.9.2006 passed by this Court, enquiry was conducted by the Disciplinary Authority/Commissioner for Disciplinary Proceedings.
After completing the enquiry proceedings, the Enquiry Officer held that the charges levelled against the petitioner were not proved.
Hence, the Government issued G.O.(D)No.364, Municipal Administration and Water Supply (ME.4) Department, dated 14.08.2009 stating that the charges framed against the petitioner M.Mani were dropped.
In view of the said G.O.(D).No.364, issued for dropping of all the charges levelled against the petitioner, nothing survives in the writ petition in respect of the impugned order of recovery dated 21.5.2004.
Therefore, the writ petition deserves to be allowed by setting aside the impugned order of recovery.
5.Mr.E.Ranganayaki, learned counsel appearing for the second respondent, has submitted that it is the duty of the Revenue Assistants to issue Demand Notice to every assessee for every financial year and collect the tax from the assessees.
On the other hand, if the assessee fails to pay the tax, the Revenue Assistants have the power to issue attachment proceedings on them for the loss caused to the Government.
Here, the petitioner, who is a Revenue Assistant, has filed to perform his duty in giving notice in respect of collecting the tax and has not taken any interest in collecting the property tax, professional tax and water tax from assessees of the ward Nos.8 and 9 and thereby, caused loss to a sum of Rs.1,27,589/- to the Panruti Municipality.
Hence, he was issued with a charge memo dated 11.12.2003 by the second respondent.
For the said charge memo, the petitioner submitted his explanation on 12.5.2004.
Thereafter, Enquiry Officer was appointed and the said Enquiry Officer also submitted his report.
Based on the enquiry report only, the second respondent issued a impugned order of recovery to the petitioner on 21.5.2004 for recovering a sum of Rs.1,27,589/- from him.
6.Assailing the said recovery, she pleaded, the petitioner filed W.P.No.25773 of 2004 and the same was disposed of by the order dated 5.9.2006 directing the Commissioner, Panarutti Municipality, Cuddalore to conduct a fresh enquiry.
Pursuant to the said order dated 5.9.2006, a detailed enquiry was conducted by the Commissioner for Disciplinary Proceedings and the said Disciplinary Authority also submitted his report holding that the charges levelled against the petitioner were not proved.
As a result, G.O.(D)No.364, Municipal Administration and Water Supply (ME.4) Department, dated 14.08.2009 was issued by the Government stating that the Government accepted the findings of the Commissioner for Disciplinary Proceedings and decided to drop the charges framed against the petitioner G.Mani.
Though the charges levelled against the petitioner were dropped by the Government, a sum of Rs.1,27,589/- has to be recovered from the petitioner for negligence of his duty and the loss caused to the second respondent Municipality.
7.This Court is unable to accept the arguments advanced by the learned counsel appearing for the second respondent for the reason that when this Court asked the second respondent Municipality to show whether the Disciplinary Authority has reaffirmed the order of recovery dated 21.5.2004 and ordered to continue the disciplinary proceedings, it is not found from the records produced by the second respondent that the charges levelled against the petitioner were proved and the order of recovery was re-affirmed by the Disciplinary Authority.
8.Admittedly, the petitioner, who was a Revenue Assistant, has to issue Demand Notice to every assessee and collect property tax, professional tax and water tax from assessees in respect of his Ward Nos.8 and 9.
While so, he was issued with the charge memo dated 11.12.2003 containing three sub charges under Rule 8 (ii) of the Tamil Nadu Municipality Service Discipline and Appeal Rules, 1978 for causing loss to the second respondent Municipality.
The petitioner immediately after receiving the said charge memo, submitted his explanation on 12.5.2004.
Thereafter, when the second respondent, found that the petitioner has not taken any interest in collecting the revision of tax from the Ward Nos.8 and 9 and thereby, caused loss to the tune of Rs.1,27,589/-, he issued the order of recovery dated 21.5.2004 for recovering a sum of Rs.1,27,589/- from him.
As against the said order of recovery, the petitioner filed W.P.No.25773 of 2004.
This Court, while disposing of the said writ petition, issued a direction to the second respondent, Panruti Municipality to conduct fresh enquiry within a period of six months from the date of receipt of a copy of the order.
Pursuant to the said order, the records have been produced before this Court by the second respondent in respect of the disciplinary proceedings to show whether the Disciplinary Authority reaffirmed the order of recovery dated 21.5.2004 and ordered to continue the disciplinary proceedings.
But, from the records produced by them, nowhere it is found that the charges levelled against the petitioner were found proved by the Disciplinary Authority.
9.However, pursuant to the order dated 5.9.2006 passed by this Court in W.P.No.25773 of 2004, it is found in G.O.(D)No.364, Municipal Administration and Water Supply (ME.4) Department, dated 14.08.2009 that a detailed enquiry was conducted by the Commissioner for Disciplinary Proceedings and the said Enquiry Officer submitted his report giving his finding that the charges levelled against the petitioner were not proved.
As a result, the Government dropped all the charges levelled against the petitioner G.Mani contained in the charge memo dated 11.12.2003.
Moreover, according to the learned counsel for the petitioner, when there was only one charge memo issued to the petitioner and the charges framed against the petitioner in the said charge memo were dropped by the Government by issuing G.O.(D)No.364, dated 14.08.2009, the impugned order of recovery has got to fail.
Hence, the impugned order is liable to be set aside.
10.In view of the above submission made by the learned counsel for the petitioner and in the light of G.O.(D)No.364, Municipal Administration and Water Supply (ME.4) Department, dated 14.08.2009, the impugned order is set aside.
The writ petition is allowed accordingly.
There is no order as to costs.
Consequently, connected M.P.No.2 of 2008 is closed.
14.08.2013 Index:Yes/No Internet:Yes/No cla To 1.The Commissioner of Municipal Administration, Chepauk, Chennai 600 005.
2.The Commissioner, Panruti Municipality, Panruti, Cuddalore District.
3.The Commissioner of Thuthukudi Municipality, Thuthukudi, Thuthukudi District.
(Now Corporation of Thuthukudi).4.The Commissioner of Local Fund Audit, Kuralagam, Chennai 108.T.RAJA,J.
cla W.P.No.10636 of 2008 14.08.2013