P. Bose vs The District Collector and Others

R. Mahadevan, J.�This writ petition has been filed seeking a writ of Certiorarified Mandamus to call for the records pursuant to the impugned order passed by the first respondent in his proceedings Na.Ka.A7/889/07 dated 12.11.2007 and quash the same and consequently, direct the respondents to treat the period of suspension as duty-period and to grant all attendant and monetary benefits. The case of the petitioner is that the petitioner was appointed as Panchayat Assistant in Manalur Village Panchayat on 01.02.1997. The first respondent by proceedings dated 07.05.2007, transferred the petitioner within the District. Challenging the same, he filed W.P. No. 4537 of 2007, wherein an order of status quo was granted on 16.05.2007. However, the petitioner joined at the transferred place at the instance of the second respondent. Meanwhile, the first respondent passed the impugned order of suspension dated 12.11.2007, stating that the President of Manalur Village Panchayat made a complaint against the petitioner alleging that he misused the Panchayat amounts, besides not handed over the Panchayat records. Aggrieved by the same, the petitioner has filed W.P.(MD)No. 6599 of 2011 before this Court, wherein, this Court, by order dated 23.06.2011, directed the first respondent to consider the representation of the petitioner dated 02.08.2010 seeking revocation of the order of suspension. However, the first respondent issued a show cause notice on 06.02.2012, for which the petitioner has also submitted his explanation on 01.03.2012. The petitioner has suffered the order of suspension since 2007. Therefore, the petitioner has come forward with the present writ petition.

In the counter affidavit filed by the respondents 1 and 2, they denied the allegations levelled by the petitioner and accordingly, they prayed for the dismissal of the writ petition.

The third respondent filed the counter affidavit stating that the impugned order passed by the first respondent is in order and since the petitioner is only on the consolidated pay, he is not entitled to subsistence allowance and therefore, opposed the relief sought for by the petitioner.

I have considered the rival submissions and perused the materials available on record.

The learned Counsel for the petitioner submitted that the first respondent is not the competent authority to pass the order of suspension and moreover, there was a prolonged suspension and no action has been forthcoming from the side of the respondents and hence, it is bad in the eye of law. In support of his submissions, he relied on the following decisions of this Court:

"(i) The judgment in P. Raajendran v. The District Collector [W.P.(MD) No. 8297 of 2006, decided on 15.11.2007]

(ii) The judgment in R. Siva v. The District Collector [W.P. No. 3445 of 2008, decided on 17.11.2011]."

Contending contra, the learned Additional Government Pleader appearing for the respondents submitted that as per the direction of this Court in W.P(MD) No. 6599 of 2011, dated 23.06.2011, issued the show cause notice to the petitioner, for which, the petitioner also submitted his explanation and after taking into consideration of the same, the first respondent appointed the Block Development Officer, Kallal, as Enquiry Officer and directed to conclude the enquiry within two months.

In the judgment in P. Raajendran v. The District Collector [W.P.(MD) No. 8297 of 2006, decided on 15.11.2007], this Court dealt with the similar issue and held as follows:

"9. The learned counsel for the respondents are unable to show any rule empowering the Block Development Officer to pass the order of suspension. Hence the impugned order of suspension passed by the third respondent is declared invalid. However, it is open to the 4th respondent, who is the Executive Authority, to issue charge memo against the petitioner, if it is warranted, and complete the disciplinary proceeding if initiated, within a period of three months from the date of receipt of a copy of this order. Since the petitioner was suspended, who was a part-time employee, the payment of salary for the suspension period will depend upon the ultimate decision to be taken in the disciplinary proceeding, if any initiated, against the petitioner, if no disciplinary proceeding is initiated against the petitioner by the 4th respondent, the entire suspension period shall be treated as duty period without backwages."

In the judgment in R. Siva v. The District Collector [W.P. No. 3445 of 2008, decided on 17.11.2011], this Court also dealt with the powers of the District Collector and held as under:

"8. It is true that prior to the decision of the Government in G.O.Ms. No. 175, dated 05.12.2006, the power was vested with the authorities and that power had to be exercised by them, as the same was the scheme of the Act. However, later on, the Government took a policy to entrust the said power of disciplinary proceedings and the procedure to be followed before imposing the punishment to the President of the Panchayat, who is an elected representative. When such a power is entrusted to the President of the Panchayat, it is not proper on the part of the District Collector to deal with the subject matter in question. Therefore, the punishment imposed by the District Collector, terminating the employee of the Panchayat, namely, the petitioner herein, is totally uncalled for and without authority of law and jurisdiction. By the said act, the District Collector has exceeded his jurisdiction and encroached upon the powers of others, when the said power is not available to him, after the order of the Government in G.O.Ms. No. 175. In other words, when an act is vested with a particular authority, the said authority alone can exercise such a power and jurisdiction and not anybody else. In the instant case, the said legal principle is violated and, therefore, the impugned proceedings passed by the District Collector are vitiated. Accordingly, the Writ Petition is allowed and the impugned order of termination passed by the District Collector/first respondent is set aside. However, it is made clear that this order will not preclude the second respondent village panchayat from making any enquiry and take action against the petitioner in respect of the charges alleged against the petitioner, after following the procedures as contemplated in G.O.Ms. No. 175, dated 5.12.006. No costs."

(emphasis added.)

In the light of the above judgments of this Court, I am of the considered opinion that the impugned order of suspension passed by the first respondent is bad in law and therefore, the same is liable to be set aside. In fine, this writ petition is allowed. Accordingly, the impugned order passed by the first respondent in his proceedings Na.Ka.A7/889/07 dated 12.11.2007, is quashed and the petitioner shall be reinstated forthwith. However, it is open to the third respondent, who is the Executive Authority, to issue proper charge memo against the petitioner, if it is warranted, and afford due opportunity to the petitioner for filing proper objections, if any and thereafter, complete the disciplinary proceeding if initiated, within a period of six months from the date of receipt of a copy of this order. Since the petitioner was suspended, the payment of salary for the petitioner will depend upon the ultimate decision to be taken in the disciplinary proceedings, if initiated against the petitioner and in case, no such disciplinary proceedings are proposed or initiated against the petitioner, the issue regarding the period of suspension shall be decided by the authority concerned after following the procedures as per law. Consequently, the connected miscellaneous petition is closed. No costs.