BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/12/2009 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA W.P.(MD) No.1391 of 2009 & M.P.(MD)Nos.1 to 3 of 2009 Murugesan .. Petitioner Vs. 1. The President, Kulanthiranpattu Panchayat, Alangudi Taluk, Pudukkootai District. 2. The Block Development Officer, (Village Panchayat), Karambakudi Block, Alangudi Taluk, Pudukkottai District. 3. The District Collector, Pudukkottai, PUdukkottai District. ..Respondents * * * Prayer Petition filed under Article 226 of the Constitution of India to issue Writ of Certiorarified Mandamus calling for the records of the first respondent pertaining to his proceedings in Na.Ka.No.1 of 2008 dated 17.07.2008 and quash the same as illegal and directing the first respondent to reinstate the petitioner to the service. * * * !For Petitioner ... Mr.K.Baalasundharam ^For Respondents... Mr.S.C.Herold Singh, Govt. Advocate :ORDER
By consent of the learned counsel appearing on either side, the main
petition is taken up for final disposal.
2. The challenge in this petition is to the order passed by the
first respondent in his proceedings in Na.Ka.No.1 of 2008 dated 17.07.2008
terminating the petitioner with a prayer to quash the same.
3. The background facts are hereunder :
(i) The petitioner was appointed as a Panchayat Assistant by the
first respondent by his proceedings dated 16.01.2006. As the petitioner
suffered severe attack of Poly-arthritis in the last week of March 2008, he
applied for leave from 27.03.2008 to 30.04.2008 enclosing the Medical
Certificate. Thereafter, he joined duty on 01.05.2008. The petitioner was
unable to continue his service from 02.05.2008 and as such, he has applied for
leave from 02.05.2008 to 16.06.2008, but the said leave application sent through
registered post was returned as the first respondent refused to receive the
same. Thereafter, a show-cause notice dated 29.05.2008 was served on the
petitioner through registered post on 30.05.2008. The petitioner submitted his
explanation to the first respondent by registered post on 02.06.2008.
Thereafter, when the petitioner went to the office of the first respondent on
17.06.2008, the first respondent informed him that he was terminated from
service and the petitioner was not allowed to join duty. The petitioner neither
received any notice for enquiry nor the termination order and the termination
order was passed without conducting any proper enquiry.
(ii) The petitioner made representation dated 30.06.2008 to the
respondents 2 and 3 marking a copy to the first respondent. A representation
dated 21.07.2008 was also given to the third respondent and the said
representations were not considered and as such, the petitioner filed a writ
petition in W.P.No.7110 of 2008 seeking for a direction to the first respondent
to allow the petitioner to join duty and only, thereafter, the first respondent
concocted the charge memo, suspension order and termination order. The said writ
petition was dismissed by this Court on the ground that the petitioner was
already terminated and also given liberty to the petitioner to challenge the
termination order. It is submitted that the petitioner received the copy of the
charge memo, suspension order and termination order only at the time of filing
earlier writ petition in W.P.No.7110 of 2008. Under the above said
circumstances, the petitioner has been constrained to approach this Court.
4. The learned counsel for the petitioner contended that the
impugned termination order was passed against the petitioner without affording
any opportunity and without conducting any enquiry in the manner known to law.
It is contended that except serving the show-cause notice, the first respondent
neither served with the charge memo nor the termination order till date of
filing this writ petition. It is contended that the petitioner came to know
even in respect of passing the impugned order of termination only after filing
the earlier writ petition. The learned counsel would also submit that the
representations given by the petitioner were not considered by the first
respondent in spite of the acknowledgement of the same. It is further contended
that the termination order passed without conducting any enquiry in the manner
known to law is liable to be quashed. In support of his contention, learned
counsel for the petitioner would place reliance on the following decisions :
(1)P.Adhikesavelu V. The District Collector, Thiruvallur reported in 2004 (2)
L.W. 577 ;
(2)A.Uma Rani V. District Collector reported in 2008 (5) MLJ 11 ; and
(3)R.Palanivel V. Commissioner, Gingee Panchayat Union reported in 2008 (5) MLJ
1284 ;
5. Per contra, Mr.S.C.Herold Singh, learned Government Advocate
submitted that there is no illegality in the impugned order of termination
passed by the first respondent. It is contended that the petitioner was given
opportunity before passing the impugned order as admittedly, a show-cause notice
was served on him. The learned counsel for the respondents would further
contend that in spite of serving the show-cause notice, the petitioner has not
chosen to give any explanation and as such, the first respondent come to the
conclusion that the petitioner has nothing to explain in respect of the charges
framed against him and accordingly, the impugned order of termination was
passed. It is further contended that the petitioner is having an alternative
remedy of preferring an appeal and as such, the writ petition itself is not
maintainable.
6. I have carefully considered the rival contentions put forward by
either sides and perused the materials available on record including the
impugned order of termination.
7. At the outset, it is to be stated that the first respondent has
chosen to pass a cryptic and non-speaking order of termination. A perusal of
the impugned order reveals that the first respondent without conducting any
enquiry in the manner known to law passed the impugned order. It is seen that
except serving the show-cause notice, the first respondent has not followed any
other established procedures, viz., conducting enquiry and thereafter issuing
the order. It is pertinent to note that the petitioner has come forward with the
categorical version that neither the charge memo nor the termination order was
served on him. But the first respondent has chosen to state in his counter that
the said charge memo, suspension order and the termination order were served on
the petitioner by affixture by the Village Administrative Officer. Contrary to
the above statement, in the very same counter it is stated that the suspension
order was served through Makkalnala Paniyalar instead of Village Administrative
Officer. It is subsequently stated in the very same paragraph that the
petitioner refused to receive the suspension order, charge memo and the
termination order. But the relevant dates were not mentioned in para 19 of the
counter. It is pertinent to note that even in paragraph 7 of the counter, it is
not clearly stated whether the affixutre was made in the presence of any
witnesses or they have followed the procedure in respect of serving notice
through affixture and there is no material placed before this Court to
substantiate their claim to the effect that the said documents were served on
the petitioner through affixture.
8. Be it as it may, even assuming if not admitting that the said
documents were served on the petitioner, it is not open to the first respondent
to straightaway issue the impugned termination order without conducting any
enquiry in the manner known to law. Admittedly, the first respondent has not
conducted any enquiry before passing the impugned order as the impugned order
itself reveals that the enquiry was not conducted. Therefore, this Court has no
hesitation to hold that the impugned order of termination was passed in flagrant
violation of principles of natural justice.
9. This Court in P.Adhikesavelu V. The District Collector,
Thiruvallur, reported in 2004-2 L.W. 577 held as follows :
“10. It is also not in dispute that the Rural Development Department, by
proceedings dated 20.11.2001 clarified that even while exercising the powers
conferred under Section 84 of the Act, the Presidents of the village panchayats
shall not terminate the services of any servants of panchayat, without giving
any reasonable opportunity to defend their case.
11. In the instant case, it is apparent on the face of records that the
petitioner was not given any such opportunity to defend his case, before passing
the impugned resolution, which is contrary to the procedure and also violates
the principles of natural justice. In my considered opinion, the impugned
resolution is liable to be quashed and the same is hereby quashed. Consequently,
the proceedings of the third respondent/President, Veeraganallur Panchayat,
appointing the fourth respondent as a part time clerk is also quashed.”
10. In yet another decision in A.Uma Rani V. District Collector
reported in 2008 (5) MLJ 11 has held that,
“12. In the peculiar facts and circumstances of the present case and
keeping in view the ratio of the aforesaid decision, it is held that in the
absence of enquiry relating to some of the allegations, which required some
positive evidence on the side of the respondents, the impugned order cannot be
sustained.”
11. This Court in R.Palanivel V. Commissioner, Gingee Panchayat
Union reported in 2008 (5) MLJ 1284 has held as hereunder :
“16. The impugned order does not indicate the basis on which the
allegations were said to have been proved. Whereas, it proceeds on the basis
that the explanations offered by the petitioner are false and without any basis.
Though the respondent in their counter affidavit has contended that the
appointment of the petitioner is not in accordance with the procedure and that
he was not sponsored by the employment exchange, it is not the ground for
termination and therefore, it is not open to the respondents to gain support
from the counter affidavit. It is settled law that the impugned order has to
stand or fall, for the reasons contained therein and that the respondents cannot
improve their case by the averments in the counter affidavit. The petitioner
was a part-time employee. Serious charges of misappropriation has been levelled
against the petitioner and that he cannot be simply be terminated without
holding a regular departmental enquiry. Termination on the grounds of
misappropriation certainly casts a stigma. When an employee has denied the
charges by way of explanation, the authorities have no other alternative, except
to conduct a detailed enquiry and give sufficient opportunity to the employee.
When statute contemplates a procedure for termination of an employee, part-time
employees are also entitled to the protection under Article 311 (2) of the
Constitution of India and that the procedure contemplated under the Tamil Nadu
Panchayat Act or any other Rule has to be followed. Therefore, I am of the view
that the impugned order passed in violations of the principles of natural
justice, warrants interference. Accordingly, the impugned order of termination
is set aside and the matter is remitted back to the second respondent to conduct
an enquiry into the charges, after giving sufficient opportunity to the
petitioner. However, in respect of regularisation is concerned, it depends upon
the decision in the disciplinary proceedings.”
12. The principle laid down by this Court in the decisions cited
supra is squarely applicable to the case on hand as in this case also
admittedly, the impugned order of termination was passed without affording any
opportunity to the petitioner and without conducting any enquiry in the manner
known to law.
13. The learned counsel for the respondents made a feeble attempt to
contend that the petitioner is also having an alternative remedy of preferring
an appeal and as such, this writ petition is not maintainable. I am unable to
countenance with such argument as it is well-settled that in the event of
violation of principles of natural justice, this Court can very well interfere
in the impugned order. It is well settled by the Hon’ble Apex Court that
availability of an alternative remedy is itself not a bar for invoking the writ
jurisdiction of this Court. It is relevant to refer to the decision of the
Hon’ble Apex Court in Committee of Management & Anr. V. Vice Chancellor & Ors.
reported in 2009 (1) Supreme 101, wherein, the Hon’ble Apex Court held as
hereunder :
“20. Apart from the fact that a statutory authority cannot consider the
validity of a Statute, as has been urged before us by Mr.Choudhari, it is beyond
any doubt or dispute that availability of an alternative remedy by itself may
not be a ground for the High Court to refuse to exercise its jurisdiction. It
may exercise its writ jurisdiction despite the fact that an alternative remedy
is available, inter alia, in a case where the same would not be an efficacious
one.
21. Furthermore, when an order has been passed by an authority without
jurisdiction or in violation of the principles of natural justice, the superior
courts shall not refuse to exercise their jurisdiction although there exists an
alternative remedy. In this context, it is appropriate to refer to the
observations made by this Court in the case of Whirlpool Corporation V.
Registrar of Trade Marks, Mumbai & Ors (1998) 8 SCC 1 :
“15. …. But the alternative remedy has been consistently held by this
Court not to operate as a bar in at least three contingencies, namely, where the
writ petition has been filed for the enforcement of any of the Fundamental
Rights or where there has been a violation of the principle of natural justice
or where the order of proceedings are wholly without jurisdiction or the vires
of an Act is challenged. ….”
(See also Guruvayoor Devaswom Managing Committee & Anr. V. C.K.Rajan &
Ors. (2003) 7 SCC 546).”
14. In view of the aforesaid reasons, this Court is constrained to
set aside the impugned proceedings and accordingly, the proceedings of the first
respondent in Na.Ka.No.1 of 2008 dated 17.07.2008 is hereby quashed.
Consequently, the first respondent is directed to reinstate the petitioner
within a period of two weeks from the date of receipt of a copy of this order.
It is made clear that it is open to the respondent herein to conduct fresh
enquiry in the manner known to law by giving effective opportunity to the
petitioner to defend his case.
K.N.BASHA, J.
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15. It is made clear that in the event of conducting fresh enquiry,
the same shall be completed within a period of twelve weeks from the date of
receipt of a copy of this order.
This petition is ordered accordingly. No costs. Consequently,
connected miscellaneous petitions are closed.
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To
1. The President,
Kulanthiranpattu Panchayat,
Alangudi Taluk,
Pudukkootai District.
2. The Block Development Officer,
(Village Panchayat),
Karambakudi Block,
Alangudi Taluk,
Pudukkottai District.
3. The District Collector,
Pudukkottai,
PUdukkottai District.