IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22..01..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 24500 of 2006 and M.P. Nos. 1 and 2 of 2006 M. Thirunavukkarasu .. Petitioner Vs. The Secretary Tamil Nadu Legislative Assembly Secretariat Fort St. George Chennai 9 .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records relating to the impugned order No. 1398/2006-1 SAMaPeSe (AaNaPi-1) dated 20.7.2006 and quash the same and further direct the respondent to reinstate the petitioner in service with all concomitant benefits. For Petitioner : Mr. S. Prabhakaran for Mr. W.M. Abdul Majeed For Respondent : Mr. L.S.M. Hasan Fizal, GA ORDER
Heard Mr. S. Prabhakaran, learned counsel appearing for the petitioner and Mr. L.S.M. Hasan Fizal, learned Government Advocate representing the respondent and perused the records.
2. The petitioner challenges the order of the respondent dated 20.7.2006 in terminating his temporary service. The petitioner was an Ex-serviceman and after putting in 20 years of service, he got retired from the Indian Air Force. He attended an interview for the post of Sergeant in the Tamil Nadu Legislative Assembly. By an order dated 06.01.2006, the petitioner was appointed temporarily in the post of Sergeant in the Tamil Nadu Legislative Assembly under Rule 17(a)(i) of the Tamil Nadu Legislative Assembly Secretariat Service Rules [for short ‘Rules’]. It was also stated in paragraph 4 of the appointment order that his post was temporary and it can be terminated at any time without any notice. It is also stated that on the basis of such temporary employment, he cannot seek for any additional right while in service of the Tamil Nadu Assembly. The petitioner joined duty on 09.01.2006 accepting the said offer of employment. Subsequently, he was given a memo dated 26.5.2006 stating that he had failed to carry out the orders of the Honourable Speaker of the Assembly. The petitioner gave a reply dated 27.5.2006 stating that though he wanted to implement the orders, the Assembly guards did not come to help him. He also gave an undertaking that in future, he will be more responsible. As the respondent was not satisfied with the reply furnished by him, a charge memo was framed under Rule 33(b) of the Rules. The petitioner after seeking extension of time to submit his explanation, gave his explanation dated 15.6.2006 denying the charges levelled against him. However, instead of pursuing the remedy of conducting an enquiry and proving the charges, the respondent abandoned that course of action and invoked power under Rule 17(a)(i) of the Rules and terminated the service of the petitioner by an order dated 20.7.2006. It is this order that is under challenge as noted already.
3. Mr. S. Prabhakaran, learned counsel appearing for the petitioner submitted that though the order of termination is innocuously worded, it is based upon the alleged misconduct committed by the petitioner and, therefore, the respondent ought to have conducted an enquiry in terms of the Rules. This, according to him, is a violation of all fair play and norms and if it is allowed, it will lead to hire and fire policy and the petitioner has been condemned without being heard.
4. Per contra, learned Government Advocate representing the respondent submitted that the petitioner’s appointment was purely temporary and liable to be terminated at any time and it does not require any notice or enquiry. Further, he also submitted that the petitioner had hardly worked for a period of six months and he cannot claim any right in terms of his post. It was also submitted that the petitioner was an Ex-serviceman and the present employment is only a re-employment and in such case, the petitioner cannot invoke any right as if he was in confirmed service.
5. The order of termination, which is impugned in the writ petition, does not disclose any misconduct and it merely invokes power of the respondent in terminating the service of the petitioner. Even though the said order might have been preceded by a show cause notice and explanation, insofar as the petitioner has not been appointed in any permanent post, he cannot make any grievance out of his termination. Rule 17(a)(i) of the Rules clearly provides power on the part of the respondent to terminate the service of the petitioner at any time and this has also been indicated in the order of appointment dated 06.01.2006 which has been accepted by the petitioner. Further, the nature of enquiry, that is contemplated against the temporary employee, that too, who has rendered a service of six months, cannot be inflexible and the petitioner’s explanation was also obtained after a charge memo was framed against him.
6. As contended by the learned Government Advocate, the petitioner was only a re-employed Ex-serviceman and his services are utilised for carrying out the orders of the Speaker of the Legislative Assembly. If there is any dissatisfaction about the nature of his work, it is always open to the respondent to dispense with his services and the petitioner cannot claim any greater right as that of a regularly appointed person holding similar post.
7. A counter affidavit dated 07.11.2006 has been filed by the respondent. It is stated that for invoking power under Rule 17(f) of the Rules, no such enquiry is contemplated and that after dispensing with the service of the petitioner, a regular Sub-Inspector drawn from the Police Department by transfer of service, has been appointed and the petitioner cannot claim to any non-existing post.
8. Under these circumstances, it is clear that the contentions of the petitioner raised in the writ petition are devoid of merits. Inasmuch as the petitioner has been appointed only temporary and it does not require any continuation of service, the attack made by the petitioner against the impugned order is misconceived. There is no violation of any principles of natural justice and the impugned order of termination does not expressly cause any stigma on the work and conduct of the petitioner.
9. The Supreme Court in the judgment relating to Nepal Singh v. State of U.P. reported in (1980) 3 SCC 288, held that an order terminating the services of a temporary government servant and ex facie innocuous and if it does not cast any stigma on the government servant, it must be regarded as effecting a termination simpliciter. It was further held in paragraph 5 of the judgment as follows:
Para 5: “…. But the question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simpliciter, if the material against the government servant on which the superior authority has acted constitutes the motive and not the foundation for the order. The application of the test is not always easy. In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the government servant or, having regard to his character, conduct and suitability in relation to the post held by him it was intended simply to terminate his services. The function of the court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order.”
Para 6: “…. The material which he considered was sufficient to lead to the conclusion that the appellant, who was a temporary government servant, was not suitable for being retained in service. His general character and conduct led to that impression. There is nothing to show that the impugned order was made by way of punishment. The circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment. As we have observed, that is a conclusion which must follow from the nature of the intent behind the order. That intention can be discovered and proved, like any other fact, from the evidence on the record. In this case, it is not proved that the impugned order was intended by way of punishment.”
10. Recently, the Supreme Court in the judgment relating to Kendriya Vidyalaya Sangathan v. Arunkumar Madhavrao Sinddhaye and another ,(2007) 1 SCC 283 held that if the termination is preceded by a preliminary enquiry, even then the termination does not amount to a punishment and it is for the authorities to pursue the disciplinary action or to resort to simpliciter termination.
11. Under these circumstances, there is no case made out by the petitioner to interfere with the impugned order of termination. Accordingly, the writ petition will stand dismissed. However, there will be no order as to costs. Connected Miscellaneous Petitions are closed.
22..01..2008
Index : Yes
Internet : Yes
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To
The Secretary
Tamil Nadu Legislative Assembly
Secretariat
Fort St. George
Chennai 9
K.CHANDRU, J.
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W.P. No. 24500 of 2006
22..01..2008