G.Pencilaiya v. The Zonal Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 26.11.2021 Coram THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR W.P.No.22347 of 2012 G.Pencilaiya .... Petitioner Vs.

1. The Zonal Officer, Zone-IX, Corporation of Chennai, No.583/370, Anna Salai, Saidapet, Chennai-15.

2. The Commissioner, Corporation of Chennai, Chennai-3.

3. The Secretary, Department of Town Panchayat, Administration & Water Supply, St. George Fort, Chennai 600 009.

... Respondents Prayer:

This writ petition has been filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records from the first and second respondents pertaining to the proceedings in No.k/m/9/e/f/vz;/m4-0161-2011 dated 3.3.2011 and quash the same consequently direct the respondents 1 and 2 to consider the petitioner's service from 01.05.1972 to 30.06.2009 i.e. by including the suspension/dismissal period from 09.10.1988 to 19.07.2006 and grant all the retirement benefits to the petitioner as per the petitioner's last representation made on 09.03.2012 and pass orders.

For Petitioner : Mr.T.S.N.Prabhakaran For Respondents: Mr.R.Gopinath (Corporation) for R1 and R2 Mr.T.Arunkumar, Addl. Govt. Pleader for R3

ORDER

This petition has been filed to quash the proceedings dated 3.3.2011 and consequently direct the respondents 1 and 2 to consider the petitioner's service from 01.05.1972 to 30.06.2009 i.e. by including the suspension/dismissal period from

09.10.1988 to 19.07.2006 and grant all the retirement benefits to the petitioner as per the petitioner's last representation made on 09.03.2012

2. The case of the writ petitioner in nutshell is as follows:

The petitioner had entered into service as scavenger in 1966 in Chennai Corporation and his service was regularised on 01.05.1972. On 09.10.1988, he had been placed under suspension due to arrest, on the false complaint under Section 147, 148, 324 and 302 r/w Section 34 of IPC. After investigation, charge sheet was filed before the Sessions Judge, Chengalpattu and the case was numbered as S.C.No.9 of 1990. After Trial, he was sentenced to life imprisonment on 18.04.1990. Thereafter, he filed an appeal before this court in C.A.312/1991 and a Division Bench of this court vide order dated 04.09.2000, set aside order of the conviction and sentence imposed on the petitioner. Thereafter, inview of continuous attempts made by the petitioner before the respondents, he has been reinstated into service on 19.07.2006.

But, only after retirement on 30.06.2009, he came to know that he was reinstated, without continuity of service i.e. as a new recruit. Though the petitioner made several representations seeking retirement benefits with all back wages, the first respondent by proceedings dated 03.03.2011, had rejected the claim of the petitioner. Hence this writ petition.

3. The learned counsel for the petitioner submitted that the first respondent had issued the impugned order dated 03.03.2011 stating that the petitioner is not eligible for retirement benefit, since he was reinstated into service on 28.07.2006 as a new recruit. But, the stand taken by the respondents is unsustainable. The petitioner is entitled for subsistence allowance, during the suspension period. Further, his service has to be taken into account from the date of his initial appointment and so that, he is entitled for retirement benefits also. However, the respondent has passed the impugned order, without providing any opportunity of hearing to petitioner. Even after the impugned order, the petitioner has made several representations including on 11.04.2011, 09.03.2011 and 29.03.

2011 to consider the service rendered by him from the date of his initial appointment and to grant retirement benefit. But, the representations were still pending before the respondents and no order has been passed on it. Hence, the impugned order is liable to be quashed and the direction may be issued to consider the representations of the petitioner.

4. The learned counsel appearing for the respondents submitted that, since the petitioner was appointed as a fresh candidate on 28.07.2006, he is not entitled for pensionary benefits and hence, his claim was rejected.

5. Heard the rival submissions made by the counsels to both the parties and I have perused the materials on record.

6. A perusal of the impugned order shows that, no opportunity of hearing is granted to the petitioner. Without hearing the petitioner, his claim for pensionary benefit was rejected by the respondents. Therefore, the impugned order was passed by the first respondent, in violation of Natural Justice and hence, the same is liable to be quashed.

7. Accordingly, it is ordered as follows.

i) The impugned order passed by the first respondent is quashed.

2. The first and second respondents are directed to consider the petitioner's representations and pass order on its own merits, in accordance with law, after providing an opportunity to the writ petitioner, within a period of 12 weeks from the date of receipt of a copy of this order.

8. With the above directions, this writ petition is allowed. No costs.

Sd/- Assistant Registrar(CS-VII) //True Copy// Sub Assistant Registrar mst To

1. The Zonal Officer, Zone-IX, Corporation of Chennai, No.583/370, Anna Salai, Saidapet, Chennai-15.

2. The Commissioner, Corporation of Chennai, Chennai-3.

3. The Secretary, Department of Town Panchayat, Administration & Water Supply, St. George Fort, Chennai 600 009.

+1cc to M/s.R.Gopinath Standing Counsel, S.R.No.61392 +1cc to the Government Pleader, S.R.No.62200 W.P.No.22347 of 2012 AK-II(CO) SB(04/01/2022)