Madras High Court
I. Krishnan vs The District Elementary on 26 February, 2013
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.02.2013
CORAM
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P.No.5159 of 2008
I. KRISHNAN
HEADMASTER (RETIRED),
PANCHAYAT UNION ELEMENTARY SCHOOL,
NADUVLUR PALLAKKADU VILLAGE,
GENGAVALLI TK SALEM DT. ... PETITIONER
Vs.
1 THE DISTRICT ELEMENTARY
EDUCATION OFFICER,
SALEM DT. SALEM
2 THE ASSISTANT ELEMENTARY
EDUCATION OFFICER,
GENGVALLI TK SALEM DT. ... RESPONDENTS
PRAYER: Writ petitions have been filed under Article 226 of the Constitution of India to issue a writ of Certiorari, to quash the order of the first respondent dated 6.12.2007 vide Moo.Mu.No.7354 /Aa3/2007 and records of the second respondent dated 24.12.2007 vide Na.Ka.Nop. 1032/Aa1/2007 with consequential relief for issuance of a writ in the nature of mandamus, to direct the respondents to treat the period of suspension of 246 days from 14.07-1992 to 17-03-1993 as the one spent on duty as compulsory wait or pay him the arrears of monetary benefits by granting the increments due from 1.10.1992 to 30.06.2002 and to pay the monetary benefits on refixation of pay from 19.10.1992 in the post of Headmaster.
For petitioner : Mr.A.Arulmozhi
For respondents : Mr.Karthikeyan, G.A.
****
O R D E R
The petitioner prays for issuance of a writ in the nature of Certiorari, to quash the order of the first respondent, dated 6.12.2007 issued vide Moo.Mu.No.7354/Aa3/2007, and order of the second respondent dated 24.12.2007 issued vide Na.Ka.Nop.1032/Aa1/2007, with consequential relief of issuance of a writ in the nature of mandamus, to direct the respondents to treat the period of suspension of 246 days from 14.07-1992 to 17-03-1993 as the one spent on duty or compulsory wait and pay the arrears of monetary benefits by granting the increments due from 1.10.1992 to 30.06.2002 and also to pay the monetary benefits on refixation of pay from 19.10.1992 on the post of Headmaster.
2 The petitioner was appointed as Higher Grade Teacher in the year 1965 and upgraded as Technical Teacher in the year 1966. The petitioner served as Secondary Grade Teacher until 1994.
3 The petitioner challenged the order of promotion of his juniors by filing O.A.No.6927 of 1993 before the learned Tamil Nadu Administrative Tribunal, wherein the learned Tribunal ordered to promote the petitioner vide order, dated 18.11.1993 with all consequential benefits.
4 During the proceedings before the learned Tribunal, the petitioner was placed under suspension by the District Elementary Educational Officer on 14.7.1992, on contemplated enquiry for grave charges.
5 The petitioner filed O.A.No.4268 of 1992 before the learned Tamil Nadu Administrative Tribunal, wherein the order of suspension was stayed. The Original application thereafter was also allowed by setting aside the suspension order, vide order, dated 18.11.1996.
6 Inspite of fact that the order of suspension was set aside, the respondents did not allow the petitioner to join duty till 17.3.1993.
7 The petitioner superannuated from on 31.05.2003, but the terminal benefits were not released to the petitioner. The petitioner filed another O.A.No.4051 of 2003 for direction to release retiral benefits which was allowed by the learned Tribunal on 15.12.2003 and direction was issued to grant regular pension and terminal benefits to the petitioner with interest.
8 The period from 14.7.1992 to 16.3.1993, i.e. 246 days was treated by the respondent to be as earned leave for 163 days, earned leave on personal reason with 50% of salary qua remaining 83 days.
9 The petitioner preferred an appeal against this decision for treating the period as earned leave, but no action was not taken on the appeal. The petitioner therefore, again filed representation with the first respondent on 15.4.2008 to treat the suspension period as compulsory wait period/Duty period for monetary benefit, but no action has been taken on the representation of the petitioner.
10 The petitioner filed another representation on 17.8.2004 for fixing his pay on par with his junior Mrs.A.Saroja with effect from the date of her promotion on 9.10.1992. On the said representation also, no orders were passed.
11 The petitioner filed W.P.No.26672 of 2007 which was disposed by this Court by directing the respondents to pass final order on the representation of the petitioner within six weeks. It was in pursuance to the order passed by this Court, the petitioner filed fresh representation on 15.11.2007 which was rejected vide impugned order.
12 The learned counsel for the petitioner did not pressed any other relief, except that the period of suspension is required to be treated as period for compulsory wait/duty period.
13 It is vehemently contended by the learned counsel for the petitioner, that the order of suspension was stayed by the learned Tamil Nadu Administrative Tribunal and that no departmental enquiry was held against the petitioner on any charge of misconduct therefore, there was no question of period of suspension being treated as period spent on leave, i.e. Earned leave or earned leave on personal reason.
14 The impugned order therefore, is challenged being on the face of it, not only arbitrary, but without jurisdiction. It is contended that it was not open to the respondents to deny consequential benefits flowing from the order passed by the learned Tamil Nadu Administrative Tribunal, in setting aside the order of suspension.
15 The learned counsel for the respondents admitted the fact, that no departmental enquiry was held. Once no departmental enquiy was held, there was no option with the respondents, but to treat the period of suspension as duty period.
16 The impugned order rejecting the claim of the petitioner for treating the period of suspension as duty/compulsory wait period, therefore on the face of it, totally arbitrary, thus hit article 14 of the Constitution of India, besides being without jurisdiction.
17 The order of suspension in absence of any departmental proceedings would be void and on its revalidation employees get a right to challenge such an order.
18 Consequently, the writ petition is allowed. The impugned order is set aside. Writ in the nature of mandamus is issued, directing the respondents to treat the period of suspension of the petitioner to be duty period/compulsory wait period and pay to the petitioner, all consequential benefits, i.e. salary for the said period, within two months of the receipt of certified copy of this order.
19 It is made clear that if consequential benefits are not paid within two months of the date of receipt of certified copy of this order, the petitioner shall also entitled to interest for belated payment at the rate of 12% p.a. from the date due till the date of payment.
No costs.
26.02.2013 Index: Yes/No Internet:Yes/No vaan To 1 THE DISTRICT ELEMENTARY EDUCATION OFFICER, SALEM DT. SALEM 2 THE ASSISTANT ELEMENTARY EDUCATION OFFICER, GENGVALLI TK SALEM DT.
VINOD K.SHARMA, J.
vaan W.P.No.5159 of 2008 Dated: 26.02.2013