S. Nagarathana vs City Improvement Trust Bd. Mysore

The writ petition coming up for preliminary hearing after notice to respondent, is taken up for final hearing by consent of Counsel for parties.

In this writ petition, the petitioner who is an employee (under suspension) of the City Improvement Trust Board, Mysore City, Mysore, as Second Division Clerk has prayed for the issue of a writ in the nature of mandamus directing the City Improvement Trust Board to reinstate the petitioner in service pursuant to the resolution of the Board of Trustees setting aside the dismissal order dated 6th March 1976, dismissing the petitioner from the service of the Board. She has further prayed that her salary and allowances may be directed to be paid upto date.

The brief facts that may be necessary to dispose of the writ petition may be stated as follows.

The petitioner was appointed as a Second Division Clerk on 1.1.73. The said appointment was temporary in nature not being one made to a sanctioned post. On 9.12.1974 she was placed under suspension pending enquiry. The charge against her was that she had absented herself unauthorisedly from duty on 29th and 30th November, 1974, and 2nd and 5th December, 1974, and thereafter continued to remain absent. She was further charged with the tampering of evidence relating to Criminal Case No. 308/1974 in which her husband also an employee of the Board was the accused. On 20.3.1976 the Chairman of the Board terminated the services of the petitioner without holding an enquiry. Against the said order, the petitioner filed an appeal to the Board and while that appeal was pending, she also presented in this Court W.P.No. 6431/1978. In the said Writ Petition, the prayer of the petitioner was for the issue of a writ of mandamus directing the respondent-Trust Board to dispose of her appeal with an additional prayer for payment of subsistence allowance to her till the disposal of the writ petition. That writ petition came to be allowed on 31st August, 1978.

Since the Board on 20.5.1978 passed the resolution setting aside the order of dismissal dated 10.3.1974, it may be presumed that the petitioner is in service. But, as pointed out by the learned counsel for the respondent-Board, Bye-law 9(3) of the Mysore City Improvement Trust Board, Civil Services (Classification, Control and Appeal) Bye-Laws, 1967, (hereinafter referred to as the Bye-law), in cases similar to the one on hand suspension order made before the passing of the first dismissal order automatically gets revived and continued till a fresh enquiry is completed and findings recorded and action taken thereon. The said Bye-law reads as follows:

"Where a penalty of dismissal, removal or compulsory retirement from service imposed on a Board Servant under suspension is set aside in appeal or review under these bye laws and the case is remitted for further enquiry or action or with any other directions, the order of his suspension shall be deemed to have been continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders."

Having regard to the Bye-law, it is not possible to issue a writ of mandamus as prayed for by the petitioner to reinstate her in service until the enquiry is over. Thereafter depending on the findings on the enquiry appropriate action is bound to be taken by the respondent-Board itself.

However, the learned counsel appearing for the petitioner sought the permission of this court to amend the writ petition, so that the petitioner couldchallenge the validity of the Bye-law 9(3) of the Bye-Laws. If such permission is accorded, it will be introducing a new element and permitting the petitioner to agitate a fresh cause of action in these proceedings. That being impermissible, the oral prayer made is rejected. It is open to the petitioner to challenge the validity of the said Bye law by appropriate and separate proceedings.

The only prayer that survives for consideration is whether the petitioner is entitled to subsistence allowance while the enquiry is in progress Admittedly, the enquiry is in progress de novo and it is not denied in the statement of objections filed by the respondent that the petitioner has not been paid subsistence allowance from a given point of time. Therefore, the respondent is bound to pay subsistence allowance to the petitioner while the enquiry is in progress in accordance with the Bye laws. Therefore, a direction shall issue to the respondent to pay the subsistence in accordance with its Bye laws till the enquiry is completed. In the result, this writ petition partly succeeds and partly fails to the extent indicated as above. Rule will issue accordingly.

In the circumstances, there will be no order as to costs.