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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
P.S. Kasthuri
Versus
Commissioner, Municipal Administration, Madras & Others
W.P. No. 27234 of 2006 (O.A. No. 125 of 1994)
Decided On : 05-11-2008
MUNICIPAL EMPLOYEES - RETIREMENT BENEFITS - RECOVERY OF SHORTAGE OF MATERIALS - DELAY IN CONDUCTING ENQUIRY - JURISDICTION - FUNDAMENTAL RULES 56(1)(C) - INORDINATE DELAY IN INITIATING DISCIPLINARY PROCEEDINGS - TIME BARRED ARREARS - RECOVERY FROM RETIRED EMPLOYEES - JURISDICTION - MUNICIPAL SERVICES DISCIPLINE AND APPEAL RULES - TAMIL NADU CIVIL SERVICES (DISCIPLINE AND APPEAL) RULES - WRIT PETITION - MAINTAINABILITY.
Fact of the Case:
The petitioner, a Municipal employee, challenged the order of the respondents directing him to pay a sum of Rs.19,49,699.83 towards the cost of materials at the market rate, as on the date of attaining superannuation, after a lapse of 17 years from the date of charge memo. He also challenged the recovery of Rs.51,566.45 towards the alleged loss caused to the Government in not recovering the arrears of property tax, profession tax, etc., to the tune of Rs.51,566.45.
Finding of the Court:
The Court held that the impugned order was liable to be set aside on the grounds of lack of jurisdiction, as the respondents had failed to follow the mandatory procedure contemplated under FR 56(1)(c), i.e., suspension of the Government servant or the employee of the local body and retain him from service for the purpose of holding an enquiry into the charges said to have been pending. The Court also held that the inordinate and unexplained delay in concluding the enquiry caused serious prejudice to the petitioner. Further, the Court held that the authorities had no jurisdiction to order for recovery of time barred arrears of property tax, professional tax and lease amount from the petitioner.
Issues: 1. Whether the respondents had jurisdiction to order for recovery of shortage of materials from the petitioner after a lapse of 17 years from the date of charge memo? 2. Whether the inordinate delay in conducting the enquiry caused serious prejudice to the petitioner? 3. Whether the authorities had jurisdiction to order for recovery of time barred arrears of property tax, professional tax and lease amount from the petitioner?
Ratio Decidendi: 1. The Court held that the respondents had no jurisdiction to order for recovery of shortage of materials from the petitioner after a lapse of 17 years from the date of charge memo, as they had failed to follow the mandatory procedure contemplated under FR 56(1)(c), i.e., suspension of the Government servant or the employee of the local body and retain him from service for the purpose of holding an enquiry into the charges said to have been pending. 2. The Court held that the inordinate and unexplained delay in concluding the enquiry caused serious prejudice to the petitioner, as he was not able to effectively defend himself against the allegations due to the loss or misplacement of evidence and records. 3. The Court held that the authorities had no jurisdiction to order for recovery of time barred arrears of property tax, professional tax and lease amount from the petitioner, as the Municipal Services Discipline and Appeal Rules and the Tamil Nadu Civil Services (Discipline and Appeal) Rules did not authorize the respondents to continue disciplinary proceedings or permit them to initiate fresh action after retirement, without placing the employee of the municipality or the government servant, as the case may be, under suspension before attaining the age of superannuation.
Final Decision: The Court allowed the writ petition and set aside the impugned order. The respondents were directed to settle the retirement benefits within three months from the date of receipt of a copy of the order.
The petitioner has challenged the order of the second respondent, dated 210. 2003 and sought for a direction to the respondents to settle all the retirement benefits, monetary as well as service, with appropriate interest till the date of payment and for damages.
2. Facts leading to the writ petition are as follows:
The petitioner was appointed as a Lower Division Clerk/Junior Assistant by direct recruitment and he joined the service on 7. 1955. He was promoted as Assistant and transferred to Coimbatore Municipality (now Corporation), where, he had worked as Store Keeper between the second week of December 1974 and the third week of June 1975. Since his predecessor had failed to handover the Water Supply Materials and Accounts, the petitioner brought to the notice of the Civil Engineer and the then Commissioner of Coimbatore Municipality. By memo, dated 21. 1975, of the then Commissioner of Coimbatore Municipality, the former general storekeeper was directed to handover the charge of the stores to the petitioner. Even then, he had failed to do so. On his transfer to Erode Municipality, the Municipal Commissioner instructed the petitioner to handover the materials available in the stores through his successor. Accordingly, the petitioner handed over all the materials available in the stores and got relieved. The Commissioner, Coimbatore Municipality in his memo, dated 20.12.1976 framed charges against the petitioner, alleging that he had failed to handover the complete charge of the stores and for other irregularities, for which, the petitioner had submitted a detailed explanation on 14. 1977.
.3. According to the petitioner, no orders were passed by the Municipal Commissioner on the said explanation. There were about 437 items mentioned in the Charge memo, dated 20.12.1976, in which, S1.322 was omitted. Out of which, he had handed-over 87 items of articles, with reference to stock entry In the ledgers and 244 items of materials, which were not even entered in the stock register. He had also handedover 56 items of materials in excess of the actual stock entries found in the Stock Registers. There was shortage of 49 items of materials, due to the failure of his predecessors to make proper entries, while the materials were issued for execution of various works in connection with water supply. The details of the shortage of materials are as follows:
.4. The petitioner has further submitted that in the second list furnished to him by the Commissioner, Coimbatore Municipality, 39 items were shown as "materials further to stock." According to the petitioner, no records were maintained in the Office of the said Municipality to show, how they were secured. From Coimbatore Municipality, he was transferred to various places and on 14. 1986, he was promoted as Manager and posted at Edapady Municipality. Subsequently, on 21. 1991 he was promoted as Assistant Revenue Officer and posted at Salem Municipality. The petitioner has further submitted that the order of recovery, dated 210. 1993, regarding shortage of materials, is passed without conducting any enquiry after a lapse of 17 years from the date of issue of the charge memo, i.e., 20.12,1976, when the petitioner was serving in Coimbatore Municipality (now Corporation). Thereafter, he was allowed to retire from the afternoon of 310. 1993 by the proceedings of the Regional Executive Engineer and the Regional Director of Municipal Administration, Salem, the second respondent, dated 29.10,1993, subject to the following conditions, (i) a sum of Rs.20,42,908.28 would be deducted from his retrial benefits and (2) without prejudice to the disciplinary action being taken against the petitioner.
5. By memo, dated 20.10.1993 of the Commissioner, Coimbatore Municipality, the petitioner was made liable to pay Rs.19,49,699.83 for the loss alleged to have been caused to Coimbatore Municipality during his tenure. Reference is also made to the charges said to have been framed against the pe
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