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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
Kootha Pillai
Versus
Commissioner, Municipal Administration & Others
W.P.No.15231 of 2006 (O.A.No.2357 of 1994)
Decided On : 05-11-2008
The petitioner, a former employee of the Salem Municipality, challenged the departmental proceedings initiated against him at the fag end of his retirement and the order permitting him to retire subject to the conditions of recovery from retiral benefits and disciplinary action proposed to be taken after retirement. The court held that the impugned order was illegal and arbitrary and quashed it.
Fact of the Case:
The petitioner was appointed as a Lower Division Clerk/Junior Assistant in the Salem Municipality in 1960. He was promoted and posted as Assistant cum Accountant and later as Store Keeper. In 1993, he was permitted to retire from service subject to the conditions that Rs.1,28,40,144/- has to be deducted from his retirement benefits and without prejudice to the disciplinary action being taken against him. The petitioner challenged the impugned order on the grounds that it was illegal and arbitrary, and that the department had failed to follow the mandatory procedure under Fundamental Rule 56(1)(c) for initiating disciplinary proceedings against a government servant after retirement.
Finding of the Court:
The court held that the impugned order was illegal and arbitrary on the following grounds: * The department had failed to follow the mandatory procedure under Fundamental Rule 56(1)(c) for initiating disciplinary proceedings against a government servant after retirement. * The department had not placed any satisfactory reasons for the inordinate delay in proceeding with the enquiry for nearly 17 years. * The petitioner had been made a scapegoat for the irregularities committed by others. * The department had no jurisdiction to order for recovery of time barred arrears of property tax, professional tax and lease amount from the petitioner.
Issues: The issues before the court were: * Whether the impugned order was illegal and arbitrary. * Whether the department had followed the mandatory procedure under Fundamental Rule 56(1)(c) for initiating disciplinary proceedings against a government servant after retirement. * Whether the department had placed any satisfactory reasons for the inordinate delay in proceeding with the enquiry. * Whether the petitioner had been made a scapegoat for the irregularities committed by others. * Whether the department had jurisdiction to order for recovery of time barred arrears of property tax, professional tax and lease amount from the petitioner.
Ratio Decidendi: The court held that the impugned order was illegal and arbitrary on the following grounds: * The department had failed to follow the mandatory procedure under Fundamental Rule 56(1)(c) for initiating disciplinary proceedings against a government servant after retirement. * The department had not placed any satisfactory reasons for the inordinate delay in proceeding with the enquiry for nearly 17 years. * The petitioner had been made a scapegoat for the irregularities committed by others. * The department had no jurisdiction to order for recovery of time barred arrears of property tax, professional tax and lease amount from the petitioner.
Final Decision: The court allowed the writ petition and quashed the impugned order. The respondents were directed to settle the retiral benefits within three months from the date of receipt of a copy of the order.
Action of the respondents in initiating departmental proceedings, at the fag end of retirement and the order permitting the petitioner to retire subject to the conditions of recovery from retiral benefits and disciplinary action, proposed to be action after retirement, are under challenge. The petitioner has also sought for a direction to the respondents to settle all the retirement benefits, monetary as well as service, with appropriate interest till the payment and damages.
2. Facts leading to the Writ Petition are as follows:
The petitioner was appointed as Lower Division Clerk/Junior Assistant, by direct recruitment on 11. 1960. He was promoted and posted at Salem Municipality as Assistant cum Accountant. He was working as Store Keeper in Salem Municipality from 17. 1992 to 30.6.1992. Thereafter, he was posted as Cashier. Two other individuals posted as Store Keeper did not join duty in the said Municipality and therefore, the Commissioner of Salem Municipality orally instructed the petitioner to look after the stores in addition to the post of Cashier. His predecessor Thiru. A.V. Venugopal, Store Keeper in the above said Municipality worked for about seven years till 17. 1992. According to the petitioner, while Thiru. A.V. Venugopal was transferred to Mettur Municipality, he had failed to handover the charge of the stores and all the connected records. Though there were several audit objections from the year 1990-91 to 17. 1992, till he was relieved from Mettur Municipality, he had not taken any steps to settle the objections, while he was working as Store Keeper and he had also taken away all the records connected to the audit objections. It is the contention of the petitioner that though the above facts were brought to the notice of the Municipal Engineer and Commissioner, Salem Municipality, unfortunately, it was not taken care of properly and no action was taken against him, till date of his retirement.
3. It is the further contention of the petitioner that though the Vigilance Department had enquired into the irregularities committed by the said Thiru. A.V. Venugopal, during his tenure in Salem Municipality for about seven years, no action was taken on the report submitted by the Vigilance Department to the Government. Even the recommendations and suggestions made by the government to rectify the defects pointed out by the audit were not considered.
4. The petitioner has further submitted that at the fag end of his service, he was transferred to the post of Store Keeper in Salem Municipality and posted as Cashier from 7. 1993. By order dated 31. 1994, the petitioner was permitted to retire from the post of Cashier on the Afternoon of 31. 1994, without prejudice to the disciplinary action being taken against him. The impugned order, dated 31. 1994 permitting the petitioner to retire from service is subject to the following conditions, viz., (i) that Rs.1,28,40,144/- has to be deducted from the retirement benefits of the petitioner and
(ii) without prejudice to the disciplinary action being taken against the petitioner.
5. The petitioner has further submitted that during his tenure, he had served as Market Superintendent (Assistant Cadre) from 25. 1985 to 4. 1988. Then he was transferred to Suramangalam Municipality by the first respondent and posted as Revenue Inspector (Assistant Cadre). He had served as Revenue Inspector from 4. 1988 to 14. 1989 in Suramangalam Municipality. Again the petitioner was transferred and posted as Assistant in the Salem Municipality. The petitioner has served as Assistant from 20.4.1989 to 11. 1989 in Health Section and from 11. 1989 to 17. 1992 as Assistant (E1) in Engineering Section. He was transferred from E1 Section and posted as Store Keeper from 17. 1992 to 30.6.1993. The petitioner is alleged to have caused loss to the Salem Municipality, as detailed hereunder:
.(1)
Advance drawn by the petitioner from Salem Municipality
Rs.
25,000
.(2)
As per Audit Objection, Paragr
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