IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07 .09.2010 CORAM THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI W.P.No.3188 of 2009 B.Ramamoorthy .. Petitioner vs. 1.The Managing Director TASMAC, Egmore, Chennai. 2.The General Manager (C.V.) TASMAC, Anna Salai, Chennai. 3.The District Manager (North) TASMAC Limited, B-4 Ambattur Industrial Estate, Chennai-58. .. Respondents Prayer : Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to call for the records relating to the order of the second respondent Semu.No.8838/C.V.-2(2)/2008 dated 03.12.2008 and the consequential order passed by the third respondent in Semu.No.A1/67/004/2007 dated 09.11.2007 and to quash the same and to further direct the respondents to reinstate the petitioner with backwages, continuity of service and all other consequential benefits. For Petitioner : Mr.K.Vasudevan For Respondents : Mr.J.Ravindran O R D E R
The writ petition is filed against the order of the second respondent in his proceedings Semu.No.8838/C.V.-2(2)/2008 dated 03.12.2008 and the consequential order of the third respondent in his proceedings Semu.No.A1/67/004/2007 dated 09.11.2007 to quash the same and to further direct the respondents to reinstate the petitioner in service with backwages, continuity of service and all other consequential benefits.
2.The petitioner was after being sponsored through District Employment Office and after being personally interviewed appointed as Salesman by the third respondent / District Manager, TASMAC Limited. While he was working in Shop No.163, the third respondent inspected the shop on 11.10.2006, in the course of inspection, he found the bottles lying unsealed and damaged and liquor mixed with water and sold out. The third respondent called for explanation from the petitioner, other salesman and sales supervisor about the damaged and unsealed bottles. The petitioner and others were also according to the petitioner under compulsion and threat of termination of their services forced to sign on paper stating that those bottles were mixed with water. All happened on the same day 11.10.2006. One year thereafter on 07.11.2007, the third respondent called them for oral enquiry and in the course of which, the third respondent framed charges against the petitioner and other salesman and sales supervisor and conducted the enquiry by himself and passed the order of termination on 09.11.2007. Aggrieved against the same, the petitioner preferred an appeal on 27.08.2008 to the second respondent/ the General Manager, TASMAC. The appeal was in pursuance of the direction issued by the High Court in W.P. No.23383 of 2008 disposed of and rejected. The present writ petition is filed challenging the correctness of the orders passed by the respondents 2 and 3, for the relief as stated supra.
3.According to the learned counsel for the petitioner, the impugned termination order passed by the third respondent, without properly framing charges, without any show cause notice and without any due enquiry is in violation of principles of natural justice and the procedure laid down under law and is biased, arbitrary and unfair. The impugned order came to be passed by the third respondent mainly on the strength of the statement obtained from the petitioner by compulsion and force, without considering the objections raised on the side of the petitioner and without sending the bottles for testing to ascertain as to whether the contents of the same mixed with water or not and the conclusion arrived at by the third respondent without giving any opportunity to the petitioner to prove his innocence is unfounded and baseless. It is further contended by the learned counsel for the petitioner that though the impugned order is challenged on various grounds, the second respondent appellate authority simply rejected the appeal without properly considering any of the objections.
4.The claim of the petitioner is seriously opposed by the learned Additional Government Pleader appearing for the respondents and the learned Additional Government Pleader attempted to justify the impugned order of termination of the petitioner mainly by relying upon the so called statement containing the signature of the petitioner. It is argued by the learned Additional Government Pleader that due enquiry is held into the act of irregularities found out by the third respondent in the course of his inspection of the shop and the petitioner and others have voluntarily given the statement, admitting their guilt and thereafter, the third respondent proceeded to pass the impugned order of termination. As the petitioner admitted his participation in the irregularity amounting to misconduct, no detailed enquiry was held before passing the impugned order of termination.
5.Heard the rival submissions made on both sides.
6.As referred to above, the impugned order is mainly based on the statement given by the petitioner and his co-employees by name Xavier and Sakthivel, the genuineness, authenticity and voluntary nature of the same is seriously objected to herein. The perusal of the impugned order dated 09.11.2007 enclosed at pages 1 to 3 of the typed set of papers reveal that the alleged irregularities is found out on the date of the inspection dated 11.10.2006 and the statement was purported to be recorded on the same day, the petitioner along with others suspended from service on 19.10.2006 but the next date of enquiry is only on 07.11.2007, on which date except questioning the petitioner and others about the so called statement, admitting their guilt, no further enquiry is held and the third respondent/ the District Manager has arrived at conclusion that the act of irregularities so committed by the petitioner and others is serious in nature resulting in damage to the reputation of the shop and revenue loss to the Government and proceeded to terminate the services of the petitioner and others. Thus the impugned order is as rightly argued by the learned counsel for the petitioner, not the outcome of any show cause notice and charge memo duly issued to the petitioner followed by detailed enquiry after giving adequate opportunity to the petitioner and others for being personally heard in accordance with the procedure known to law. The so called inspection, the oral enquiry, the recording of the statement and the final order all passed by one and the same authority i.e. The District Manager and the same as rightly pointed out by the learned counsel for the petitioner suffers from violation of procedure as well as principles of natural justice. The petitioner has in his appeal memorandum dated 27.08.2008 challenged the correctness of the manner in which the impugned order is passed on serious grounds and what circumstances the statement is obtained from them etc., however, the second respondent appellate authority has without duly considering the same confirmed the order of the third respondent. Both the authorities concerned, while passing the impugned orders, have no regard for any statutory and legal procedure in the matter of termination of service. They have failed to understand that the order of termination of service is likely to result in civil consequences rendering the petitioner jobless and earningless and the petitioner is now deprived of his source of livelihood. When that being the serious consequences of the impugned order upon the delinquent, the impugned order should be free from unfairness and arbitrariness and is not malafide. However, the impugned order herein, for the discussion held above is to be necessarily held otherwise. The learned counsel for the petitioner has also drawn the attention of this Court to the order dated 17.12.2008 in W.P. No.29723 of 2008 filed by one Sakthivel, who is one of the other co-employee, who suffered an order of termination dated 09.11.2007. Our High Court has after considering the entire facts and circumstances arrived at conclusion that the impugned order suffers for want of principles of natural justice. Our High Court has held so by applying the law laid down in the Supreme Court and our High Court in the Judgments reported in (1) 1999 (3) SCC 60 in Dipti Prakash Banerjee vs. Sathyendra Nath Bose, National Centre for basic Sciences, (2) 2005 (7) SCC 518 in State of Haryana vs. Sathyendar Singh Rathore and (3) 2006 (1) CTC 660 High Court 660 in V.L.Lakshmana kumar vs. The District Manager, TASMAC Limited, wherein it is laid down that the findings arrived at in respect of the misconduct without regular departmental enquiry and without any opportunity given to the employee concerned is a nullity and is to be simply ignored. The petitioner being similarly placed person is also entitled to the similar relief and the impugned order of termination is hence liable to be interfered with.
7.In the result, the impugned order of termination dated 09.11.2007 passed by the third respondent as confirmed by the second respondent on 03.12.2008 is set aside and the respondents are directed to reinstate the petitioner with all backwages and other service benefits within two weeks from the date of receipt of copy of this order, however with liberty given to the respondents, to proceed against the petitioner in accordance the procedure laid down under law, if warranted. The writ petition is ordered accordingly. No costs.
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To
1.The Managing Director
TASMAC, Egmore, Chennai.
2.The General Manager (C.V.)
TASMAC, Anna Salai, Chennai.
3.The District Manager (North)
TASMAC Limited, B-4
Ambattur Industrial Estate,
Chennai 58