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P. D. Balasubramaniam Vs. the Corporation of Madras Represented by Its Commissioner - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtChennai High Court
Decided On
Reported in(1974)2MLJ394
AppellantP. D. Balasubramaniam
RespondentThe Corporation of Madras Represented by Its Commissioner
Cases ReferredSivanarayananal v. The Corporation of Madras
Excerpt:
..... - 26 for the second half year 1968-69 and the first half year 1969-70, that he had not accounted for the items contained in the list and that in addition he had failed to submit reports called for, although reminders were issued. but section 102 provided the power for making transitory provisions, schedule ii to madras act lvi of 1961, by rule 5, clearly covers the gap brought about by the said amendment and preserves to the commissioner all the disciplinary powers which he had immediately before the enactment and coming into force of madras act lvi of 1961. the employees who had been appointed to the service of the corporation prior to the act would continue to hold office on the same tenure and under the same terms and conditions and with the same rights and privileges as to pension..........the writ petition in the first instance dismissed the same and that dismissal was affirmed by a bench in the writ appeal referred to above. the bench in the writ appeal pointed out:section 96 has been recast and in its present form, it does not speak of conferment of power to mete out any punishment. in view of this, it is urged upon us that the effect of the amendment, just referred to, was to take away the disciplinary power of the commissioner vis-a-vis the corporation employees particularly those belonging to class iii category. but section 102 provided the power for making transitory provisions, schedule ii to madras act lvi of 1961, by rule 5, clearly covers the gap brought about by the said amendment and preserves to the commissioner all the disciplinary powers which he had.....
Judgment:
ORDER

M. M. Ismail, J.

1. The petitioner herein is an assessor in the service of the Corporation of Madras. By an order, dated 7th March, 1974, the Commissioner, Corporation of Madras, directed recovery of a sum of Rs. 4,000-05 from the salary of the petitioner herein at Rs. 50 per mensem, beginning from March, 1974, payable on 31st March, 1974 onwards till the entire amount is recovered from him. This order was passed an the finding that the petitioner was responsible for the time-barred arrears of property tax in Division No. 26 for the second half year 1968-69 and the first half year 1969-70, that he had not accounted for the items contained in the list and that in addition he had failed to submit reports called for, although reminders were issued. It is this order that is sought to be quashed in the present writ petition.

2. The solid ground urged in support of this writ petition is the decision of K. N. Mudaliyar, J., dated 29th March, 1973 in W.P. No. 2451 of 1972. The learned Judge held that after the introduction of the Tamil Naidu Act (LVI of 1961) by which Section 96 of the City Municipal Corporation Act has been repealed, the Commissioner did not have the power to order recovery of the amount as he had done in the present case.

3. However, the learned Counsel for the Corporation now represents to me that the petitioner herein was in service before the coming into force of the Tamil Naidu Act (LVI of 1961) by which Section 96 of the City Municipal Corporation Act has been repealed and that therefore it is the unrepealed provisions, as preserved in the transitory provisions, that would apply to the case of the petitioner.

4. By the Tamil Naidu City Municipal Act, 1961, namely, Tamil Naidu Act (LVI of 1961), elaborate changes were made in the Madras City Municipal Act, 1919. One of the changes that was made by this amending Act was that Section 49 of the amending Act substituted a new group of sections for Sections 85 to 97 of the original Act. Section 96 of the original Act provided that the authority competent to appoint an officer or servant may impose the enumerated penalties which included recovery from pay of the whole or part of any pecuniary loss caused to the Corporation. By the amending Act, Section 96, those terms had been repealed. It is in view of this only K. N. Mudaliar, J., in the judgment referred to above came to the conclusion that after the Tamil Naidu Act LVI of 1961, the Commissioner had no power to order recovery of the amount from the pay of a corporation employee.

5. However, one fact that has to be considered, as far as the present case is concerned, is, as I have pointed out already, the petitioner was in the service of the Corporation even before the commencement of Tamil Naidu Act LVI of 1961. With reference to the amendments introduced by this Act, Section 102 of that Act made some transitory provisions. Section 102(1) of the amending Act stated that in regard to the first constitution of the central committee, any circle committee, the corporation accounts committee, the contracts committee, the licence appeals committee or the appointments committee in accordance with the provisions of the principal Act as amended by that Act and otherwise in first giving effect to the said provisions, they shall be read subject to the rules in Schedule II. Schedule II contains five rules and the fifth rule is:

5. Every person included in the Corporation establishment immediately before the date of the commencement of this Act and who was employed by the Corporation wholly or mainly in connection with the affairs of the Corporation immediately before the said date shall, on and from that date, hold his office in the Corporation by the same tenure, at the same remuneration and upon the same tenure, and upon the same terms and conditions and with the same rights and privileges as to pension and gratuity and other matter as he would have held the same on the date aforesaid if this Act had not been passed and shall continue to do so unless and until his remuneration, terms and conditions and his rights and privileges are so altered as to be on the whole not less favourable to him than those to which he was entitled immediately before the said date.

This rule came up for consideration before this Court in Sivanarayananal v. The Corporation of Madras by its Commissioner and The Revenue Officer, Corporation of Madras W.P. No. 4779 of 1965 and W.A. No. 188 of 1967 arising therefrom. In that case, pending disciplinary proceedings and before final orders were passed, the Commissioner placed a Class III employee under suspension. The jurisdiction of the Commissioner to take disciplinary proceedings against the employee was challenged in that writ petition on the basis of the deletion of Section 96 by the amending Act LVI of 1961 referred to already. Kailasam, J., who dealt with the writ petition in the first instance dismissed the same and that dismissal was affirmed by a Bench in the writ appeal referred to above. The Bench in the writ appeal pointed out:

Section 96 has been recast and in its present form, it does not speak of conferment of power to mete out any punishment. In view of this, it is urged upon us that the effect of the amendment, just referred to, was to take away the disciplinary power of the Commissioner vis-a-vis the Corporation employees particularly those belonging to Class III category. But Section 102 provided the power for making transitory provisions, Schedule II to Madras Act LVI of 1961, by Rule 5, clearly covers the gap brought about by the said amendment and preserves to the Commissioner all the disciplinary powers which he had immediately before the enactment and coming into force of Madras Act LVI of 1961. The employees who had been appointed to the service of the Corporation prior to the Act would continue to hold office on the same tenure and under the same terms and conditions and with the same rights and privileges as to pension and gratuity and other matters as before the amending Act. This phraseology, in our opinion, is broad enough to cover disciplinary proceedings, Kailasam, J., was, therefore, right in taking the view that the Commissioner did have the power to take disciplinary proceedings against the appellant and inflict such punishment as he may under Section 96.

The above observation of the Bench fully applies to the facts of this case. The Bench had pointed out clearly that the power to take disciplinary proceedings against the appellant in that case and inflict such punishment as the Commissioner may under Section 96 was preserved. As I have pointed out already, the power to order recovery from the pay is one of the punishments that can be imposed by the Commissioner under Section 96 and it is that power which is said to have been preserved by Section 102 of the amending Act and Rule 5 of Schedule II to the amending Act in the judgment of the Bench referred to above in respect of employees who were in service of the Corporation prior to the Tamil Naidu Act LVI of 1961.

6. Mr. B. Krishnamurthy, learned Counsel for the petitioner, sought to distinguish the judgment of the Bench by pointing out that the said judgment was concerned merely with the power of the Commissioner to suspend a Corporation employee during the pendency of the disciplinary proceedings. I am unable to accept this argument, in view of the law laid down by the Bench as to the effect, of Section 102 and Rule 5 of Schedule II to the amending Act LVI of 1961, in the extract of the judgment, given above. Consequently following that judgment, I hold that the Commissioner had the power to order recovery of the amount from the pay of the petitioner.

7. Therefore, the Writ Petition fails and is dismissed. There will be no order as to costs.


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