BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/01/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P(MD)No.6847 of 2005 Stalin ... Petitioner Vs. 1.The Director of Fisheries, Exploratory Fisheries Department, Kanyakumari, Kanyakumari District. 2.The District Collector, Kanyakumari District at Nagercoil. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the order of termination issued by the second respondent in A1.40757-2005 dated 10.06.2005 and quash the same and consequently, direct the respondent to reinstate the petitioner in service. !For Petitioner ... Mr.C.K.M.Appaji ^For Respondents ... Mr.D.Sasikumar, Govt. Advocate * * * * * :ORDER
The petitioner has filed this writ petition seeking a a Writ of
Certiorarified Mandamus, to call for the records pertaining to the order of
termination issued by the second respondent in A1.40757-2005 dated 10.06.2005
and quash the same and consequently, direct the respondent to reinstate the
petitioner in service.
2. The petitioner is a post graduate holding M.Sc., M.Phil.,(Zoology)
qualification. He has completed the post graduate degree in the year 1998 from
Manonmaniam Sundaranar University. He has registered his name in the District
Employment Office, Kanyakumari at Nagercoil after completion of the course. The
Government of Tamil Nadu, P&AR Department has issued G.O.Ms.No.85 dated
04.07.2003 to fill up the Junior Assistant vacancy temporarily on gross
remuneration basis by agreement under general Rule 11 of the Tamil Nadu State
and Subordinate Services Rules. The District Employment Officer has sponsored
the name in the penal of candidates. The second respondent/District Collector,
Kanyakumari District has appointed the petitioner for the post of Junior
Assistant in the Fisheries Department on a consolidated pay of Rs.4,000/- p.m as
per the order dated 09.07.2003. He has been directed to report before the second
respondent/District Collector, Kanyakumari District, forthwith.
3. According to the petitioner, he has discharged his duties to the utmost
satisfaction of his seniors ever since the date of appointment. To his utter
shock and dismay, on 30.05.2005, the first respondent/Director of Fisheries,
Exploratory Fisheries Department, Kanyakumari District, has issued a show cause
notice dated 30.05.2005 in Na.Ka.No.353 of 2005 calling upon him to explain as
to why the second respondent/District Collector should not initiate disciplinary
proceedings against him. The show cause notice reads that on 23.05.2005, a
staff attached with ICICI Bank, Madurai Branch, has come to the office of the
first respondent and informed that the petitioner has applied for loan and for
enquiring the genuineness of the job particulars and the income certificate
issued by the first respondent. On perusal of the loan application, it has been
found that in the application, the petitioner’s designation has been mentioned
as permanent Junior Assistant and the signature and the seal of the Assistant
Director have been manipulated and no sanction has been obtained from the
Department. The first respondent by referring to the xerox copy of the income
certificate has issued the show cause notice to explain the cause within three
days.
4. The stand of the petitioner is that on receipt of the show cause notice
on 03.06.2005, he immediately got collapsed and admitted in the Government
Medical College, Nagercoil and has taken treatment and after recovery, he has
given a reply to the first respondent on 09.06.2005. In the said reply, the
petitioner has categorically denied the knowledge of the loan application and
his involvement in the fabrication of the documents. He has also questioned the
validity of the show cause notice based on the xerox copy of the document. The
second respondent without considering his valid objection has terminated him
from service on 10.06.2005. The termination order has been served by the first
respondent on the petitioner on 15.06.2005.
5. The learned Counsel for the petitioner submits that the petitioner has
been denied the right to prove his innocence and further that he has not been
communicated with the reasons for non-acceptance of his reply dated 09.06.2005
and as such, the order of termination issued by the first respondent is in
violation of principles of natural justice.
6. The contention of the learned Counsel for the petitioner is that the
petitioner has not been provided with sufficient opportunities to explain his
case and the non-conduct of the detail enquiry has led to the miscarriage of
justice. Also, it is the plea of the petitioner that the impugned order of
termination dated 10.06.2005 is in violation of Article 14 of the Constitution
of India. Furthermore, the Government of Tamil Nadu has announced the Tamil
Nadu Public Services Examinations for regularising the appointment of the
petitioner. Because of the termination order issued by the second
respondent/District Collector, he has not been permitted to appear for the
examination.
7. In short, the termination order of the second respondent dated
10.06.2005 is a non-speaking order and therefore, the petitioner prays for
allowing this writ petition in the interest of justice.
8. In response, the learned Government Advocate for the respondents
submits that the petitioner has been appointed as a contract Junior Assistant on
a consolidated salary as per the orders of the second respondent/District
Collector in his proceedings in No.A1/46194/2003 dated 09.07.2003 (as per Rule
11 of the Tamil Nadu State and Subordinate Services Rules) and he is liable for
termination at any time without any prior notice.
9. The learned Government Advocate for the respondents submits that the
petitioner has joined in the office of the Assistant Director of Fisheries on
14.07.2003 A.N as a temporary Junior Assistant and he has applied for personal
loan from ICICI Bank describing his designation as Research Assistant and has
manipulated the Pay Certificate with high income. Therefore, a show cause
notice has been served upon the petitioner and a reasonable opportunity has been
provided to him to explain his part keeping in view the principles of natural
justice. Also, the second respondent/District Collector has been informed for
taking suitable disciplinary action against the petitioner. As a matter of
fact, the petitioner has not submitted his explanation within the prescribed
time. The second respondent/District Collector, has passed orders terminating
the petitioner as a contract Junior Assistant from 10.06.2005 as per the
proceedings in No.A1/40757/2005 dated 10.06.2005 which has been duly served on
him.
10. According to the learned Government Advocate, the petitioner has been
appointed as temporary contract Junior Assistant in the event of the Tamil Nadu
Government Employees’ mass strike during the year 2003 with conditions which
have been duly sworn in by the petitioner before the Notary Public and since the
petitioner’s appointment is a contract, his contract can be terminated without
assigning any reason by the Government or its representatives. Therefore, the
writ petition filed by the writ petitioner is not maintainable either on law or
on facts and as such, the writ petition is liable to be dismissed.
11. It is to be noted that the second respondent/District Collector,
Kanyakumari District, in his proceedings dated 09.07.2003 has issued the
following order: “ORDERS:
The Govt. in the reference cited has sanctioned 500 supernumerary Junior
Assistant posts on gross remunerative basis of Rs.4000/- p.m. and requested to
fill up the posts.
2. Accordingly, the District Employment Officer, Nagercoil, has sent a
panel of names in the ref 2nd cited. Out of the list, Thiru.T.Stalin is selected
for the post of Junior Assistant on a consolidated pay of Rs.4000/- p.m. (Gross
remuneration).
3. Thiru.T.Stalin is informed that the appointment is purely on temporary
basis under rule 11 of State and Subordinate Officers Rules and he is liable for
termination at any time without any prior notice.
4. He is also informed that he is not eligible for other allowances other
than the gross remuneration of Rs.4000/-.
He should report for duty forthwith before the A.D.Fish Exploratory,
Kanniyakumari District.”
12. The first respondent has issued a show cause notice dated 30.05.2005
to the petitioner inter alia stating that ‘the petitioner in the loan
application has suppressed the fact that (i) he is a Junior Assistant on
consolidated post and has mentioned that he is a permanent Research Assistant of
Fisheries Department; (ii) he has not submitted any proper application to the
first respondent’s office seeking permission to obtain loan in his name; (iii)
for obtaining the income certificate, he has not given any proper requisition to
the first respondent’s office; (iv) instead of obtaining his income certificate,
he has suppressed his post and obtained an income certificate in respect of
Research Assistant post and has created the same voluntarily; (v) in the fake
salary certificate created by him, he has fabricated the signature of the
Assistant Director of Fisheries Department when the latter has been on leave, by
himself signing and committed the act of cheating and further, he has utilised
the seal of the Assistant Director of Fisheries Department wrongly and (vi) with
a view to obtain a loan from ICICI Bank, he has created the fake certificate by
signing like that of the Assistant Director of Fisheries Department and has also
cheated the administration of the Fisheries Department as well as the Bank
Management and has indulged in cheating and for the above allegations, he has
been asked to furnish his explanation within three days from the date of receipt
of the memorandum as to why disciplinary proceedings through the second
respondent/District Collector be initiated against him.
13. To the show cause notice dated 30.05.2005, the petitioner has given
his reply dated 09.06.2005 stating that he has not obtained any loan from ICICI
Bank and further that he has not submitted any application form to the Bank and
as such, there is no reason for him to suppress his post or for furnishing the
application form and also to indulge in cheating and moreover, there is no
necessity for him to create fake certificate and that her has not been furnished
with the photo copy of the fake certificate as mentioned in the reference to the
letter of the Assistant Director of Fisheries Department dated 30.05.2005, etc.
Significantly, the petitioner has stated that he has been suffering from heart
pain and from 30.05.2005, he has been admitted in the Aasaripallam Medial
College and has taken treatment and recovered and he is taking bed rest and
therefore, there is a delay in submitting his explanation to the show cause
notice dated 30.05.2005.
14. However, the second respondent/District Collector, by his proceedings
dated 10.06.2005 has passed an order mentioning that the appointment of the
petitioner who has been serving as temporary Junior Assistant, will be
terminated from the date of termination order being passed thereto, because of
his misconduct as per the report of the Assistant Director of Fisheries
Department dated 30.05.2005 as made mention of in Reference No.2 of the
aforesaid proceedings. Accordingly, the first respondent/ Assistant Director of
Fisheries Department, Kanyakumari District by his proceedings dated 15.06.2005
in pursuance of the proceedings of the second respondent dated 10.06.2005, has
terminated the petitioner’s appointment with effect from 10.06.2005 F.N. from
the post of Junior Assistant and has marked a copy to the second respondent and
other authorities.
15. The learned Counsel for the petitioner in support of the contention
that the termination order passed by the second respondent dated 10.06.2005 is
invalid one because of the simple fact that for the allegations of misconduct
levelled against the petitioner, no charge memo or enquiry have been conducted
and in the absence of any finding as to the charges levelled against the
petitioner, the termination of the petitioner’s appointment even though he has
been appointed on a contract basis, is an illegal one in the eye of law, relies
on the decision of this Court in V.L.Lakshmanakuamr v. The District Manager,
“TASMAC” Limited, Madurai District, Madurai and another reported in 2006(1) CTC
660, at page 661, wherein at paragraph 7, it is observed as follows:
“7. The Apex Court, in more than one case, has held that when an order of
termination involves civil consequences and consequently amounts to stigma, the
same cannot be passed without there being a charge memo, enquiry and the finding
as to those charges. This proposition of law has been recently reiterated by the
Apex Court in the judgment State of Hariyana Vs. Satyender Singh Rathore,
2005(7) SCC 518. In that Judgment, the Supreme Court has relied upon the earlier
judgment Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for
basic Sciences, 1999(3) SCC 60, and has held that if findings were arrived at in
an enquiry as to misconduct behind the back of the officer or without a regular
departmental enquiry, the simple order of termination is to be treated as
“founded” on the allegations and will be bad.”
16. He also brings it to the notice of tis Court the decision of this
Court in A.Lakshmanan v. State of Tamil Nadu reported in 2010(1) CTC 159 at page
160, whereby and whereunder, it is laid down thus:
“It is a specific case of the petitioner that no relevant records have
been furnished and at the relevant point of time, he put in charge of three seas
and that only on perusal of the Tapal Disbursement Registrar for the year 2001
would reveal that the reasons for delay in following up of the cases. The
Enquiry Officer in his finding, has stated that the perusal of the case records
relating to the above case except that fact that no follow up has been made. The
Enquiry Officer has not given a categorical finding as to whether the petitioner
alone contributed to the said delay or some other officials had also contributed
to the delay. The Enquiry Officer has not assigned proper reasons and that may
be due to the fact that the charge No.1 itself is very vague. The disciplinary
authority, viz., the third respondent based on the said finding, imposed the
punishment of censure.
This Court is alive to the settled position of law that normally in
respect of the disciplinary, this Court cannot act as an appellate forum to
reappreciate the materials to find out what made in the minds of the Enquiry
Officer as well as the disciplinary authority. But, there is one exception to
the said settled position of law. If the findings of the disciplinary authority.
As already held above, the charge No.1 itself is benefit of any particulars and
the finding of the Enquiry Officer is also based on no reasons. Therefore, in
the considered opinion of this Court, the findings of the Enquiry Officer that
charge No.1 has been proved, on the fact of it, to be perverse and consequently
the impugned order of censure passed by the third respondent against the
petitioner is liable to be quashed.”
17. The learned Counsel for the petitioner further seeks in aid the
decision of the Honourable Supreme Court in Dipti Prakash Banerjee v. Satyendra
Nath Bose National Centre for Basic Sciences, Calcutta and others reported in
(1999) 3 Supreme Court Cases 60, at pages 61 and 62, wherein it is held as
hereunder:
“Point 1: If findings are arrived at in an enquiry as to misconduct,
behind the back of the officer or without a regular departmental enquiry, simple
order of termination is to be treated as ‘founded’ on the allegations and will
be bad. If however enquiry was not held, no findings were arrived at and the
employer was not inclined to conduct an enquiry but at the same time, he did not
want to continue the employee against whom there were complaints, it would only
be a case of motive and the order would not be bad. Similar is the position if
employer did not want to enquire into truth of allegations because of delay in
regular departmental proceedings or he was doubtful about securing adequate
evidence. In such a circumstance, the allegations would be motive and not
foundation and simple order of termination would be valid.
Point 2: There is considerable difficulty in finding out whether in a
given case where the order of termination is not a simple order of termination,
the words used in the order can be said to contain a ‘stigma’. It depends on
facts and circumstances of each case and language or words used to ascertain
whether termination order contains stigma.
Point 3: Material which amounts to stigma need not be contained in
termination order of a probationer but might be contained in documents referred
to in the termination order or in its annexures. Such documents can be asked
for, or called for, by any future employer of the probationer. In such a case,
employee’s interests would be harmed and therefore termination order would stand
vitiated on the ground that no regular enquiry was conducted.
It is true that the Supreme Court in some of the cases has held that
termination order is not punitive where employee has been given suitable
warnings or has been advised to improve himself or where he has been given a
long rope by way of extension of probation. However, in all such cases, there
were simple orders of termination which did not contain any words amounting to
stigma. On the other hand, there is a stigma in the impugned order which cannot
be ignored because it will have effect on the appellant’s future. Stigma need
not be contained in termination order but may also be contained in an order or
proceeding referred to in termination order or in an annexure thereto and would
vitiate the termination order.”
18. At this juncture, it is useful for this Court to quote Rule 11 of the
Tamil Nadu State and Subordinate Services Rules, relating to the appointment by
agreement which runs as follows:
“11. Appointment by agreements.- (1) When in the opinion of State
Government Special provisions inconsistent with any of these rules or of any
other rules made under the proviso to article 309 of the Constitution of India
or continuing by Article 313 of that Constitution (hereinafter referred to in
this rule as the said rules) are required in respect of conditions of service,
pay and allowances, pension, discipline and conduct with reference to any
particular post, or any of them, it shall be open to the State Government to
make an appointment to such post otherwise than in accordance with these rules
or the said rules and to provide by agreement with the person so appointed for
any of the matters in respect of which in the opinion of the State Government
special provisions are required to be made and to the extent to which such
provisions are made in the agreement, nothing in these rules or the said rules
shall apply to any person so appointed in respect of any matter for which
provision is made in the agreement.
Provided that in every agreement, made in exercise of the powers conferred
by this rule it shall further be provided that in respect of any matter in
respect of which no provision has been made in the agreement the provisions of
these rules or of the said rules shall apply.
(2) A person appointed under sub-rule(1) shall not be regarded as a member
of the service in which the post to which he is appointed is included and shall
not be entitled by reason only of such appointment to any preferential claim to
any other appointment in that or any other service.”
19. This Court worth recalls the decision of the Honourable Supreme Court
in Parshotam Lal Dhingra v. Union of India reported in AIR 1958 SUPREME COURT
36, wherein it is held that ‘services of a temporary Government servant can be
terminated as per contract or giving notice and such termination does not vest
him with civil consequences thereof.’
20. Even an ad hoc officiation can be terminated on the grounds of (a)
unfitness, (b) regular appointee joining or coming back after deputation or
leave, (c) exigencies of public service and (d) in case of post abolition, as
per the decision in C.D.Dubey v. Union of India reported in 1975 (1) SLR 580.
21. As far as the present case is concerned, the appointment of the
petitioner as Junior Assistant is purely on temporary basis as per Rule 11 of
the Tamil Nadu State and Subordinate Services Rules. Even in the appointment
order issued to the petitioner as per the proceedings of the second respondent
dated 09.07.2003, it is clearly mentioned that the petitioner’s appointment as
Junior Assistant is a temporary one on gross remuneration of Rs.4,000/- p.m.
(consolidated pay).
22. Even though in regard to the allegations levelled against the
petitioner as per the proceedings issued by the Assistant Director of Fisheries
Department dated 30.05.2005, no formal charges have been framed against the
petitioner and Domestic Enquiry has been conducted by appointing a Domestic
Enquiry Officer, yet the petitioner has been required to submit his explanation
as to why as per the Government Servants’ Conduct Rules, disciplinary
proceedings may not be initiated against him by the second respondent/District
Collector, within three days from the date of receipt of the same. The
petitioner has not submitted his explanation within time and he has submitted
his explanation on 09.06.2005. Based on the report of the Assistant Director of
Fisheries Department, the second respondent/District Collector has passed the
impugned order on 10.06.2005 mentioning that his appointment will be terminated
from the date of termination order being passed thereto. Accordingly, the
Assistant Director of Fisheries Department by his letter dated 15.06.2005 has
terminated the services of the petitioner as Junior Assistant appointed on
contract basis with effect from 10.06.2005 F.N.
23. In the instant case on hand, the appointment of the petitioner as
temporary Junior Assistant on consolidated pay of Rs.4,000/- p.m. has been made
as per Rule 11 of the Tamil Nadu State and Subordinate Services Rules and by
this rule, the petitioner’s temporary appointment as Junior Assistant can be
terminated at any time without any prior notice. It cannot be denied by the
petitioner that his appointment is a contractual one and he has sworn to an
affidavit containing 16 conditions before the Notary Public on 07.08.2003.
24. Inasmuch as the petitioner’s services as temporary Junior Assistant
has been terminated as per the order of the Assistant Director of the Fisheries
Department dated 15.06.2005 with effect from 10.06.2005 F.N., this termination
does not vest the petitioner with any civil consequences and the termination of
the petitioner is only a termination simpliciter and there is no material before
this Court to infer mala fides. On perusing the impugned order of the second
respondent dated 10.06.2005, this Court is of the considered view that the said
order is not an irrelevant one or based on extraneous considerations. Per
contra, the order of the second respondent dated 10.06.2005 in terminating the
petitioner’s services, is purely a valid and sustainable one in the eye of law
and the termination is not an punishment and more so, the said termination does
not deprive him of any right, in the considered opinion of this Court.
25. Also, because of the fact that the petitioner’s appointment is a
temporary one on a contract basis and that too, for a gross remuneration of
Rs.4,000/- p.m., he has no right to the post. Only if he has a right to the
post, the termination of service will by itself a punishment and he will be
entitled to the protection of Article 311 of the Constitution of India, as
opined by this Court.
26. In the present case on hand, the termination order of the petitioner
is a simpliciter one and suffice it for this Court to point out that the
petitioner’s termination in the post of Junior Assistant as per contract, is a
valid one and his termination does not vest him with civil consequences thereof
and viewed in that perspective, the present writ petition fails.
27. In the result, this writ petition is dismissed leaving the parties to
bear their own costs.
rsb
To
1.The Director of Fisheries,
Exploratory Fisheries Department,
Kanyakumari,
Kanyakumari District.
2.The District Collector,
Kanyakumari District at
Nagercoil.