IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.04.2008 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.NO.36728 of 2004 M.C.Syed Alavi .. Petitioner -vs- 1. The Superintendent, Central Prison, Coimbatore. 2. The Inspector General of Police, Chennai 600 002. 3. The State of Tamil Nadu, rep. By its Secretary, Department of Home (Prison) Fort St. George, Chennai 600 009. 4. The Registrar, Tamil Nadu State Administrative Tribunal, Chennai 600 104. ..Respondents Petition filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorarified mandamus to call for the records in O.A.No.6689 of 1998 dated 30.04.2004 on the file of the 4th respondent herein and quash the same as illegal and direct the respondents 1 to 3 to reinstate the petitioner into service with backwages and attendant benefits. For Petitioner : Mr.R.Sankarasubbu For respondents : Mr.M.Dhandapani, SGP O R D E R
(Order of the Court was made by P.K.MISRA ,J)
Heard Mr.R.Sankarasubbu, learned counsel for the petitioner and Mr.M.Dhandapani, learned Special Government Pleader counsel for the respondents.
2. The question relates to termination from service by not extending the probation in accordance with Rule 26 of the Tamil Nadu State and Subordinate Services Rules.
3. Rule 26(a)(ii) contemplates that it is the discretion of the authority either to extend the period of probation or terminate his probation and discharge the employee from service, after giving him a reasonable opportunity of showing cause against the proposed termination of probation.
4. It is no doubt true that in the present case, probation of the employee had been extended from time to time and, ultimately, when the employee had failed to pass the required test, the authority did not further extend the probation and passed the order of termination. However, as required under Rule 26(a)(ii) of the said Rules, the authority had not given him a reasonable opportunity of showing cause against the proposed termination of probation.
5. The learned counsel for the respondent vehemently contended that since enough opportunity had been availed by the employee for appearing at the examination and yet he had failed in the examination, it can be said that there was no further requirement of giving him a reasonable opportunity of showing cause against the proposed termination of probation and it would have been an empty formality.
6. If a reasonable opportunity of showing cause would have been given, it is quite possible for the employee to plead for some more time, which in the facts and circumstances of a case, the employer can accept. It is not for us to predicate what would have been the reply of the person/employee and what would have been the order passed by the employer at that stage. Since the rules as framed under Article 309 specifically require giving a reasonable opportunity, we do not think that such order can be sustained.
7. Accordingly, the writ petition is allowed. The petitioner shall be reinstated in service. Since the petitioner had not worked for the entire period and the basic fault was on the part of the petitioner, obviously, the petitioner shall not be entitled to any backwages. It is also made clear that it would be open to the appropriate authority to proceed further in accordance with Rule 26 referred to above. This order shall be implemented within a period of thirty days from the date of receipt of a copy of this order. No costs.
rg
To
1. The Superintendent,
Central Prison,
Coimbatore.
2. The Inspector General of Police,
Chennai 600 002.
3. The Secretary,
The State of Tamil Nadu,
Department of Home (Prison)
Fort St. George,
Chennai 600 009.
4. The Registrar,
Tamil Nadu State Administrative
Tribunal,
Chennai 600 104