S.Selvaraj vs The State Of Tamil Nadu on 9 June, 2009
DATED : 09.06.2009CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.31463 OF 2006
S.Selvaraj .. Petitioner
Vs.
1.The State of Tamil Nadu
rep. by
the Secretary to Government,
Revenue Department,
Fort St. George,
Chennai-9.
2.The Tahsildar,
Palayamkottai,
Tirunelveli District. .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to quash the order of the first respondent in letter No.23712/7-2/97 dated 21.8.97 read with the connected proceedings of the second respondent in Memo No.A3/3126/95 dated 29.10.97, and to direct the respondents to treat the period of suspension from 28.6.91 to 12.1.95 as on duty, and to pay the salary due to the application for the said period as the applicant was acquitted by the criminal court. For Petitioner : Mr.S.Vadivelu
For Respondents: Mr.P.Gurunathan, GA
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ORDER
Heard both sides. In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.31463 of 2006.
2.The petitioner had filed O.A.No.9975 of 1997, challenging an order of the first respondent, dated 21.8.1997 and the connected proceedings of the second respondent, dated 29.10.1997.
3.By the impugned order, the petitioner was informed that he will not be paid wages for the period from 28.06.1991 to 12.01.1995 being the period under which he was kept under suspension. He was told that the fundamental rules will not apply to part time village assistants and therefore, his request for grant of wages was rejected.
4.The petitioner was employed as a Thalaiyari in the Keezhathiruvengadanathapuram Village, Palayamkottai Taluk since the year 1958. Subsequently, the post was redesignated as a Village servant and further, renamed as Village Assistant. The post of Village Assistant was governed by the Rules framed under Article 309 of the Constitution and were known as Tamil Nadu Village Servant Service Rules, 1980. Under Rule 13 of the said rules, the age of superannuation was fixed as 60 years. Under Rule 15, it was stated that the fundamental rules and Tamil Nadu Leave Rules are not applicable to these posts.
5.The petitioner was placed under suspension on 26.09.1991 for having got involved in a criminal case in Crime No.153/1991, Moolakaraipatti Police Station in connection with offences under Sections 147, 148 and 302 IPC and that he was in the custody from 28.06.1991.
6.The petitioner was arrayed as Accused No.4 in the criminal case. After trial in Sessions Case No.432/1993, the petitioner was acquitted, by a judgment dated 16.12.1994.
7.Pursuant to the acquittal, the petitioner was reinstated in service on 12.1.1995. However, the petitioner was not paid salary from the date of suspension till he was restored to service. Therefore, the petitioner filed the original application before the Tribunal, seeking for salary since his appeal to the respondent was negatived. Therefore, the short question that arises for determination is that notwithstanding non application of fundamental rules, whether the petitioner is entitled for wages for the period he was kept under unemployment.
8.On notice from the Tribunal, the respondents have filed a reply affidavit, dated 26.11.1998. In paragraph 6 of the reply affidavit, it has been averred as follows:
"6. ... it is submitted that the applicant was appointed as Village Servant which was governed by Tamil Nadu Village Servants Service Rules, 1980 and the post was purely on part time basis. Hence, the individual could not be considered as a Government servant and provisions of Fundamental Rules will not apply to him. The part time employees are not eligible for the grant of subsistence allowance. The individual was not granted any subsistence allowance for his suspension since he is not a regular full time Government Servant. He has been paid only consolidated amount during his service. The services of the Village Servants has been now brought to regular establishment and they have been made as full time Government servants only with effect from 1.6.95 as per G.O.Ms.No.625, Revenue Department, dated 6.7.95. Further, the Village Servants prior to the above said Government Order were not eligible for any leave and they could be granted leave only on loss of pay. Hence, the period of absence of the Village servant in which he was under suspension could not be treated as duty as the provisions of Fundamental Rule will not apply to him as he was only a part time Village Assistant at that time."
9.In this context, it is necessary to refer to certain decisions of the Supreme Court, which will have a bearing on this issue. It is well settled that if an employee, who is not governed by any Rules or terms of contract of employment but kept under suspension by the employer and if the terms of contract do not provide for temporary suspension, then the employer is bound to pay full wages to their workmen. The Supreme Court vide its decision reported in Balvantrai Ratilal Patel vs. State of Maharashtra reported in AIR 1968 SC 800 has observed in para 4, which is as follows: "4. The general principle therefore is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension. On the other hand, if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment will be made in accordance therewith. This principle applies with equal force in a case where the Government is an employer and a public servant is an employee with this qualification that in view of the peculiar structural hierarchy of Government administration, the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned. It follows therefore that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. On general principles therefore the government like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. The Government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. As we have already pointed out, the question as to what amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions of the statute or statutory rules made in that connection."
10.Further, the same principle was reiterated by the Supreme Court vide its decision in V.P.Gidroniya vs. State of Madhya Pradesh and another reported in (1970) 1 SCC 362. The relevant passage found in paragraph 8 may be usefully extracted below: "8. ...It is equally well-settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it could be withheld. The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting is important. The suspension in the latter case is always an implied term in every contract of service. When an emyloyee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service required of him during a particular period. In other words the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must obey."
11.The Supreme Court in the context of the definition of the term 'workman' found under Section 2(s) of the I.D. Act held that even a part time workman is entitled for protection under the Act. Vide its judgment in New India Assurance Co. Ltd. v. A. Sankaralingam reported in (2008) 10 SCC 698. It is necessary to refer to the following passages found in para 13 and 14, which are as follows: "13. On the contrary, the preponderance of judicial opinion that a workman working even on a part-time basis would be entitled to benefit of Section 25-F of the Act is clear from the various judgments which we have referred to above. In Silver Jubilee Tailoring House case5 which is a judgment rendered by a three-Judge Bench of this Court, the question was as to whether the workers who were paid on piece-rate basis though working in the shop, were workmen in terms of Section 2(s) of the Act. That is what the Court had to say: (SCC p.502, para 11) 11. The question for decision was whether the agarias were workmen as defined by Section 2(s) of the Industrial Disputes Act of 1947 or whether they were independent contractors. The Court said that the prima facie test to determine whether there was relationship between employer and employee is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the employee is to do but also the manner in which he has to do the work. In other words, the proper test according to this Court is, whether or not the master has the right to control the manner of execution of the work. The Court further said that the nature of (sic) extent of the control might vary from business to business and is by its nature incapable of precise definition, that it is not necessary for holding that a person is an employee, that the employer should be proved to have exercised control over his work, that even the test of control over the manner of work is not one of universal application and that there are many contracts in which the master could not control the manner in which the work was done. (emphasis supplied) For arriving at this conclusion, the Supreme Court referred to various judgments of this Court including Birdhichand Sharma case4 but distinguished the judgment in Shankar Balaji Waje case1 (rendered by two Hon ble Judges) by observing that the workman who was claiming that status was not called upon to attend duties in the factory itself as he was permitted to take the tobacco from the factory owner and role the bidis at his residence at any time without any fixed hour of work and that there was absolutely no supervision of the so-called employer over his work. In conclusion, the Bench observed in Silver Jubilee Tailoring House case, SCC p. 510, para 37: 37. That the workers are not obliged to work for the whole day in the shop is not very material. There is of course no reason why a person who is only employed part-time, should not be a servant and it is doubtful whether regular part-time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in Section 2(14) of the Act, even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be a person employed within the meaning of the sub-section. Therefore, even if he accepts some work from other tailoring establishments or does not work whole time in a particular establishment, that would not in any way derogate from his being employed in the shop where he is principally employed. (emphasis supplied)
14. It will be seen from a perusal of the aforequoted passages that the observations made therein clearly suggest that a workman employed on a part-time basis but under the control and supervision of an employer is a workman in terms of Section 2(s) of the Act, and is entitled to claim the protection of Section 25-F thereof, should the need so arise. The fact that the workman was working under the control and supervision of the appellant employer is admitted on all sides. We also find that the preponderance of judicial opinion in the High Courts is also to this effect. As a sample we reproduce passages from two such judgments"
12.The Supreme court even on the question as to what should be the salary payable to an employee on his restoration to service on being acquitted by a criminal court had considered the issue vide its judgment in Brahma Chandra Gupta v. Union of India, reported in (1984) 2 SCC 433. The following passage found in para 6 of the said judgment may be usefully extracted below: "6. ...The appellant was a permanent UDC who has already retired on superannuation and must receive a measure of socio-economic justice. Keeping in view the facts of the case that the appellant was never hauled up for departmental enquiry, that he was prosecuted and has been ultimately acquitted, and on being acquitted he was reinstated and was paid full salary for the period commencing from his acquittal, and further that even for the period in question the concerned authority has not held that the suspension was wholly justified because three-fourth of the salary is ordered to be paid, we are of the opinion that the approach of the trial court was correct and unassailable. The learned Trial Judge on appreciation of facts found that this is a case in which full amount of salary should have been paid to the appellant on his reinstatement for the entire period. We accept that as the correct approach. We accordingly allow this appeal, set aside the judgment of first appellate court as well of the High Court and restore the one of trial court with this modification that the amount decreed shall be paid with 9 per cent interest p.a. from the date of suit till realisation with costs throughout."
13.Therefore, it must be stated that if the fundamental rules applied to the Village Servants, then the period of suspension can be regulated in terms of those rules. In the absence of those rules, a person who is suspended without any authority has to be paid full wages in terms of the rulings of the Supreme Court extracted above. Hence, the impugned order is liable to be set aside and the petitioner is entitled to get full wages for the period of his suspension.
14.The writ petition is, therefore, allowed and the respondents are directed to pay full wages for the period from 28.06.1991 to 12.01.1995 together with interest at 6% per annum. This exercise shall be carried out by the respondents within a period of 12 weeks from the date of receipt of copy of this order. However, there will be no order as to costs.
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