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Judgment
P. Jyothimani, J.—This writ petition is filed forbearing the respondent from making recovery of any amount on the basis of time barred
arrears from the retirement and pensionary benefits of the petitioner or impose any punishment pursuant to the charge memo dated 12.08.2005
and also for a consequential direction against the respondent to pay the retirement benefits.
The case of the petitioner is that he has worked in many municipalities as a Junior Assistant and ultimately as a Revenue Inspector in Pallavaram
and Madavaram Municipalities. The duties of the Revenue Inspector is to supervise the bill collectors and give instructions with regard to the
collection of taxes. While he was working in Pallavaram Municipality, proceedings were initiated against him along with 14 other persons with
regard to the time barred property tax, etc., and for recovery of the said amounts. The said proceedings/order was challenged by all the persons
including the petitioner herein by filing a batch of OAs in Nos.1946 of 2002 batch in which the petitioner''s application was O.A.No.2968 of
2002. However the Tamilnadu Administrative Tribunal by an order dated 22.10.2002 while holding that the recovery order as not valid, held that
the petitioner along with others should be imposed with the punishment of stoppage of increment with cumulative effect for five years stating that
the said punishment was imposed in lieu of order of recovery. As against the said common order of the Tribunal one of the applicants
G.Muthurameswaran has filed W.P.No. 26394 of 2004 before this Court and the Honourable Division Bench, relying upon the judgment of this
Court rendered in V. Nagarajan v. Commissioner, Salem Municipality, Salem reported in 1988 W.L.R. 38 holding that recovery orders passed
based on time barred claim cannot be sustained, by an order dated 16.09.2004, has set-aside the order of the Tribunal and also the impugned
order of recovery passed in respect of that petitioner by allowing the writ petition. It is also stated in respect of one M.Jayamani whose writ
petition in W.P.No.22554 of 2004 on similar circumstance was allowed by this Court against which when the respondent-Municipality has filed an
appeal in Writ Appeal No.584 of 2005, the Division Bench by an order dated 23.03.2005 relying upon the above said judgment of the Division
Bench rendered in W.P.No.26394 of 2004 dated 16.09.2004 has dismissed the said writ appeal. It is also the case of the petitioner that he has
also filed a writ petition challenging the common order of the Tribunal dated 22.10.2002 and the same is pending. Subsequently, the petitioner was
transferred to the respondent-Municipality on 03.01.2003 and is working in the said municipality. The respondent issued a charge memo dated
12.08.2005 seeking to recover an amount of Rs.18,06,566/- in respect of the tax arrears for the period from 1996-97, 1997-98 and 1998-99
which is apart from being time barred claim, cannot be raised against him because the petitioner has not worked as a Revenue Inspector or Bill
Collector during the relevant periods. According to the petitioner, since during the relevant periods when it is stated that the tax have not been
collected by the Bill Collectors, he has not worked under the Respondent-Municipality apart from the fact that it is a time barred claim and
therefore the respondents have no jurisdiction and this can never be treated as misconduct as per Rule 8(2) of the Tamil Nadu Municipal Service
Discipline and Appeal Rules, 1970. It is also the case of the petitioner that in the meantime the petitioner has to retire from service on 30.09.2005.
In view of the above said fact, the petitioner has filed the present writ petition.
I have heard Mr.D.Peter Francis learned Counsel for the petitioner and also Mr.G.Sankaran, learned Additional Government Pleader for the
respondent. Even though the respondents have not filed the counter, the learned Additional Government Pleader taken notice on behalf of
respondents and made his submissions on instructions from the respondents.
A reference to the charge framed against the petitioner shows that, tax is due in respect of the property in question for the periods from 1996-
97, 1997-98 and 1998-99 of an extent of Rs.18,06,566/- and the same has not been collected from the owners of the property. The charges also
includes the failure to collect the tax amount, failure to take further action like attachment etc., in the event of inability to collect the tax, not taking
steps to collect the arrears of tax and also not taking steps to submit an explanation to the various memos issued. It is also an admitted fact that to
the charge memo dated 12.08.2005, the petitioner has submitted his detailed explanation. The issue relating to non-collection of tax by the Bill
Collectors and imposing responsibility by way of disciplinary proceedings and seeking to recover the amounts from the Bill Collectors came up for
consideration in many number of cases. This Court, considering that in those cases concluding that the claim by the Municipalities themselves will
be time barred, has held that such responsibility cannot be fixed on the bill collectors and consequently no recovery can be made from their salaries
or pensionary or other benefits. Ultimately, in the case of V. Nagarajan v. Commissioner, Salem Municipality, Salem reported in 1988 WLR 38,
the Honourable Justice Nainar Sundaram by taking into consideration all the previous similar cases has held categorically that there can be no
responsibility on the part of such officials and such recovery can never be made and the officials cannot be mulcted with liability on that account.
The short judgment of His Lordship merits reproduction for the better appreciation of the facts in issue in the present case:
... The respondent in the present case seemed to have acted against the petitioner under the Tamil Nadu Municipal Service (Discipline and Appeal)
Rules, but withheld recovery process on account of stay by the Government. Now, by virtue of the Government vacating the stay, the process of
recovery from the salary of the petitioner is being set in motion by the present order of the respondent. It is only in that context a writ of mandamus
is being asked for by the petitioner, to forbear the respondent from recovering from the salary of the petitioner, the time-barred profession taxes.
Basically, there are no grounds at all to pin down the liability on the petitioner, as now being done. The proceedings taken in this behalf are the
result of a misconception of the legal position. They have to stand ignored and cannot be implemented. Taking note of the ratio of this Court, I
have to hold that the petitioner cannot be mulcted with liability on this account ....
That apart, it is relevant to point out that even in respect of the petitioner herein, when he was working in the Pallavaram Municipality, a similar
issue arose regarding the collection of time barred debt by way of arrears wherein the petitioner was working as a Revenue Inspector, where one
of the applicants in the O.A. has approached this Court and the Division Bench of this Court in W.P.No.26394 of 2004 in the order dated
16.09.2004 relying upon the said judgment reported in 1988 W.L.R. 38 (referred to supra) has applied the facts and circumstances of that case
and held no recovery can be made and it is not in dispute that even subsequently the Division Bench has followed the same in W.A.No.584 of
2005 dated 23.03.2005.
Mr. G.Sankaran, learned Counsel for the respondent-Municipality even though has chosen to oppose the prayer in the writ petition, is unable to
dispute the above said legal and factual position.
Considering the facts and circumstances of the case and admittedly the charge memo against the petitioner relates to the tax arrears in respect of
the years 1996-97, 1997-98 and 1998-99 which are clearly barred by limitation, apart from the fact that it is the case of the petitioner himself that
during that relevant periods of time, the petitioner was not working in the respondent-municipality which fact has not been denied by the
respondents, as the petitioner has come to the respondent-municipality only on 03.01.2003 and in view of all the above fact, I have no hesitation to
come to the conclusion that based on the above said judicial precedents there is absolutely no reason for the respondent-municipality to proceed
against the petitioner.
At this juncture, Mr.D.Peter Francis learned Counsel for the petitioner produced a letter of the respondent dated 23.09.2005 stating that infact
out of the said amount Rs.18,06,566/- which is stated to be the arrears not recovered during the relevant period of time as stated above, the
respondent-municipality has recovered an amount of Rs.14,24,248/- and the remaining amount is only Rs.3,82,318/- and he would also rely upon
a latest judgment of this Court wherein Honourable Justice N.Paul Vasanthakumar in the case of N. Mani v. The Commissioner, Villupuram
Municipality, Villupuram reported in 2006 W.L.R. 616 in the identical facts and circumstances wherein the Municipality was seeking to recover the
amount from the retired Revenue Inspector and relying upon the above said judgment reported in 1988 W.L.R. 38 (referred to supra) has allowed
the writ petition wherein the show cause notices issued for recovery were challenged.
In view of the reasons stated above and especially the circumstance that it is not even in dispute by the respondent-municipality that the
petitioner has joined in the respondent-municipality only on 03.01.2003, the writ petition stands allowed as prayed for. No costs. Consequently,
the connected WPMP is closed.