BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/01/2011 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE MR.JUSTICE R.SUBBIAH W.A.(MD) No.207 of 2010 J.Christiyana Bhagyavathi ... Appellant Vs. 1.The Commissioner of Labour, Fort St., George, Chennai-6. 2.The Chief Inspector of Factories, Fort St., George, Chennai. 3.The Inspector of Factories, Door No.23, Kamala Street, Tallakulam, Madurai - 625 002. ... Respondents Appeal filed under Clause 15 of the Letters Patent against the order, dated 30.11.2009 in W.P.(MD)No.7998 of 2007. !For Appellant ... Mr.C.M.Arumugam ^For Respondents ... Mr.R.Janakiramulu, Special Government Pleader. :JUDGMENT
R.SUBBIAH,J.
This writ appeal is directed against the order, dated 30.11.2009 passed in
W.P(MD)No.7988 of 2007 whereby the learned single Judge dismissed the writ
petition filed by the appellant.
2.The question that falls for consideration in this writ appeal is whether
the termination of service of the appellant is correct and valid since she
failed to clear her departmental examination during the probation period.
3.The facts which are necessary to decide the above referred question
raised in this appeal are as follows:
a)The appellant herein appointed as Junior Assistant in the office of the
third respondent on 31.07.1996 on compassionate grounds on account of the death
of her husband. During the period of employment, she was ordered to appear her
departmental examination in order to complete her probation. While the situation
stood thus, the appellant was transferred to the Department of Factories
Inspection on 6.9.2000 and hence, she could not complete her departmental
examination as contemplated under Rule 34(a) of the Tamil Nadu Special Rules for
Ministerial Posts.
b)She had written the departmental examination on two times but she could
not successfully get through. She was also given an extension under Rule 28 to
complete her departmental examination. But she could not complete the
examination within the stipulated period of one year. Hence, she requested the
respondents to permit her to complete the examination as she was entitled to
write the examination for five times as provided in the rules. But the appellant
request was not considered by the respondents and finally on 02.01.2007, the
second respondent has passed the impugned order terminating her service without
any prior notice to show cause as to why she should not be terminated for not
completing the departmental examination. Aggrieved over the same, the
petitioner filed the writ petition. The learned single Judge by order, dated
30.11.2009 dismissed the writ petition. Hence, the present writ appeal.
3.Learned counsel appearing for the appellant submitted that there is no
rule to terminate an employee who has not successfully completed her
departmental examination. The completion of departmental examination is required
only for the purpose of promotion in the employment. Hence, the impugned order
passed by the second respondent is liable to be quashed.
4.Per contra, the learned Special Government Pleader submitted that under
Rule 26 (b)(1) of the Tamil Nadu State and Subordinate Service Rule, if a
probationer fails to acquire the special qualification or to pass the special
tests if any, prescribed in the Special Rules or to acquire such other
qualifications as may be declared by the State Government or by the appointing
authority with the approval of the State Government to be equivalent to the said
special qualifications or special tests, the appointing authority shall, by
order, discharge him from the service unless the period of probation is extended
under Rule 28. He further submitted that under Rule 28 probation can be extended
only for a period of five years and not beyond that. Moreover under Rule
26(b)(ii) of the Tamil Nadu State and Subordinate Service Rule, which states if
such a person is appointed by direct recruitment and has not acquired the test
qualification even within the maximum period of five years, his probation shall
be terminated. While that being so, no infirmity could be found in the order
passed by the second respondent in terminating the services of the appellant for
non completion of departmental test.
5.We have considered the submissions made on either side and perused the
materials available on record.
6.In view of the submissions made on either side, the question that has to
be decided whether the termination of service could be considered as a proper
recourse for non clearance of departmental examination within the stipulated
time. The issue involved has already been answered by this Court in the judgment
reported in 1997 III CTC 723 (G.Varadan Vs. The Chief Judicial Magistrate)
wherein it has been held as follows:
“21.The respondent himself has stated in the counter affidavit that the
petitioner was an approved probationer, apart from the fact that under the order
dated 01.07.1971 it is declared that the petitioner has completed the period of
probation. This being the position, Rule 30(c)(i) and (ii) will have a bearing
on the point in controversy. Admittedly, under the order dated 01.07.1971 the
period of probation of the petitioner has been declared as completed. It may be
added that the probation period of the petitioner was also not extended. If the
appointing authority considered the probationer not suitable for such membership
in service he could have discharged from service after giving him a reasonable
opportunity of showing cause against the action proposed to be taken. The
respondent has not taken action under this rule”.
7.In the instant case, absolutely no show cause notice was issued as to
why the appellant has not completed the departmental examination within the
stipulated period. Moreover, in our considered view, the failure to pass the
test can only result in non promotion or non sanctioning of increment/non
declaration of probation. Hence, applying the principle laid down in the case
referred above, for the reasons stated supra, the impugned order passed by the
second respondent is liable to be quashed. Accordingly, the same is hereby
quashed and the order of the learned single Judge is set aside. The respondents
are directed to reinstate the appellant with continuity of service without
backwages within a period of four weeks from the date of receipt of a copy of
this order. The writ appeal is allowed. No costs.
sms
To
1.The Commissioner of Labour,
Fort St., George,
Chennai-6.
2.The Chief Inspector of Factories,
Fort St., George,
Chennai.
3.The Inspector of Factories,
Door No.23, Kamala Street,
Tallakulam,
Madurai – 625 002.