The Commissioner, Villupuram Municipality vs S. Vijayakumaran and The Government of Tamil Nadu

K. Chandru, J.—The appellant is the Commissioner of the Villupuram Municipality. The Municipality, having been aggrieved of the order of

the learned single Judge dated 29.3.2006 in W.P. No. 4673 of 2006, have filed the present appeal.

The first respondent herein has been working as a Noon Meal Organizer in the Kamaraj Higher Secondary School, Villupuram Town, coming

under the appellant Municipality and he was suspended from service by proceedings of the appellant dated 06.10.2004 pending enquiry. On the

basis of the said proceedings dated 06.10.2004, the appellant/Commissioner of Municipality charge sheeted the first respondent and issued

Charge Memo dated 19.4.2005 and the charges, which are found in annexure to the Charge Memo are very serious. Aggrieved by the action of

the appellant Municipality, the first respondent/writ petitioner filed W.P. No. 4673 of 2006 challenging the order of suspension.

The ground taken by the petitioner/first respondent in the writ petition was that keeping an employee under prolonged suspension is violation of

principles of natural justice and also violation of Article 21 of the Constitution of India. He had also taken a plea that the Government had framed

guidelines that an employee, who is suspended, should be reinstated within 45 days from the day of suspension.

Before the learned Judge, it transpires, the appellant did not file any counter. The learned Judge found that no charge memo was given to the

petitioner and inspite of several adjournments, the learned Counsel for the appellant had not informed the Court about the issuance of Charge

Memo. However, in the papers filed along with the appeal, the appellant has filed Charge Memo dated 19.4.2005 and also stated that the Charge

Memo sent to the first respondent by Speed Post came back unserved as he refused to receive the same. However, this fact was not mentioned

by the first respondent in his affidavit and he was mostly concentrating on attacking the suspension order passed against him. If the first respondent

had really refused to receive the Charge Memo and later on pleaded before this Court that Charge Memo was not issued to him, it is a serious

matter and it cannot be condoned. Further, the learned Judge, as seen from the order under appeal, found that the disciplinary action was being

delayed and after more than 1-� years, it had not taken place and that the guidelines framed by the Government were not followed. The learned

Judge further held that the first respondent/petitioner was kept under suspension beyond a period of six months, which is a reasonable time, and

that the charges were of trivial nature, and accordingly, set aside the order of suspension and directed the respondents to reinstate the writ

petitioner in service with all benefits. The learned Judge also ordered payment of salary for the period from 06.10.2004 to 31.3.2006 further

directing the respondents to reinstate the petitioner in service within a period of two weeks from the date of receipt of a copy of that order and

recover the amounts from the appellant. It is also surprising to note that when the suspension order alone is under attack in the writ petition, as to

how a direction to reinstate the petitioner can be made without permitting them to conduct the enquiry against the charges of serious misconduct. In

fact, though the charge memo was under existence, the same was not brought to the knowledge either by the appellant or by the first respondent.

Aggrieved by the said order, the appellant Municipality has filed the present writ appeal.

We have heard Mr. M. Devarajan, the learned Counsel appearing for the petitioner as well as Mr. Arumugam, learned Counsel appearing of

the first respondent and Mr. Raja Kalifulla, learned Government Pleader appearing for the respondents 2 and 3 and have gone through the

records.

We have perused the guidelines issued by the Secretary to Government dated 11.8.2003 and we are unable to agree with the principle that the

said guidelines can be used as a source of power for revoking suspension of employees, who are working under the Dr. M.G.R. Nutritional Food

Scheme. At the best, it is only a guideline for the authorities and it cannot have any statutory force. All that the guideline indicated to the

subordinate officers was that the necessity to conduct an enquiry promptly and not to place the employees under suspension for unduly long period

so as to cause financial strain to the Government. We hold that so long as the power of suspension is available to the Government, the order of

suspension cannot be revoked solely on the ground that the enquiry has not been completed.

In the present case, factually it is found that a Charge Memo has been issued to the first respondent and he had refused to receive the same.

Further, we do not think that the charges framed against him are trivial in nature. The work of the Noon Meal Organiser itself is to ensure that the

nutritious meal is supplied to the students. But in this case, though the strength of the children was 300, the first respondent had prepared food only

for 225 persons and as such, there was shortage of food on that particular day. This would have involved a number of children going hungry

without the noon meal. In many places, it is only substantive food that the children of poor family take. This cannot be viewed in a light manner

considering the nature of duties endowed upon the first respondent. However, it is a matter which has to be gone into in the enquiry proposed by

the appellant. We do not find any justification for interfering with the order of suspension passed by the appellant Municipality and the order of the

learned single Judge is liable to be set aside.

In the light of the above, the writ appeal is allowed setting aside the order of the learned single Judge dated 29.3.2006 made in W.P. No. 4673

of 2006. However, there will be no order as to costs.

The first respondent shall be kept under suspension and shall be paid the Subsistence Allowance in accordance with law. We also direct the

appellant Municipality to conduct the enquiry in an expeditious manner and to complete the same within a period of three months from the date of

receipt of a copy of this order and pass final orders on merits and in accordance with law. The learned Counsel for the first respondent also agreed

to advise his client to co-operate in participating in the enquiry. Consequently, W.A.M.P. No. 1291 of 2006 shall stand closed.