BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/08/2011 CORAM THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.8039 of 2011 R.Karuppanan ... Petitioner Vs 1.The Registrar General cum The Principal Revenue Control Officer, Chennai. 2.The District Collector Karur District, Karur. 3.The District Registrar, Karur District, Karur. 4.The Sub Registrar Melakarur, Karur District. 5.The Tahsildar, Karur Taluk, Karur. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the second respondent, dated 28.06.2011 in Na.Ka.No.A3/26523/2010 and quash the same and consequently direct the second respondent to reinstate the petitioner with backwages with all attendance benefits. !For petitioner ...Mr.R.Vijayakumar ^For respondents...Mr.B.Pugalendhi Special Government Pleader :ORDER
Challenge in this writ petition is to quash the order dated 28.06.2011,
preventing the petitioner from discharging his duties.
2. According to the petitioner, he has been appointed as a Junior
Assistant on temporary basis on consolidated pay by the District Collector,
Karur District, the second respondent herein, by an order dated 07.07.2003. He
was posted to Karur Registration Department. On 02.03.2009, a show cause notice
has been issued by the Registrar General cum Principal Revenue Control Officer,
the first respondent herein, alleging that on 18.02.2005, the Vigilance and Anti
Corruption Department conducted an inspection in the Sub Registrar’s office, and
that the petitioner was found in possession of two pocket notes containing
entries of loan received for a sum of Rs.10,000/- and Rs.8,000/- each and that
there were entries of daily repayment of Rs.200/- and Rs.100/- without prior
permission from the Department. When the petitioner submitted an explanation
stating that the loan amount was received by his brother and mother-in-law and
not by the petitioner and as the transaction was of the year 2005, no documents
were available with any one of them and thus denied the charges and by an order,
dated 14.07.2010, the petitioner was transferred to the office of the Sub
Registrar, Melakarur, Karur Taluk, the fourth respondent herein. Thereafter, the
petitioner, by impugned order, dated 28.06.2011, was terminated from service. On
the abovesaid pleading, the learned counsel for the petitioner stated that the
punishment imposed, is violative of principles of natural justice and prayed for
interference.
3. When the matter came up for hearing on 27.07.2011, this Court directed,
Mr.B.Pugalendhi, learned Special Government Pleader, to get appropriate
instructions as to whether the termination of a temporary employee appointed on
consolidated pay, without enquiry on the charges levelled against him, could be
justified in terms of any Government orders or rules. On this day, when the
matter came up for hearing, the learned Special Government Pleader prayed time
to file counter affidavit. As the point involved is limited, and only a question
of law is involved, there is no reason as to why a counter affidavit is
required, when the facts are already available on record. It is well settled in
a writ of certiorari, counter affidavit is required, when there is a dispute in
facts. In view of the above, this Court is inclined to proceed with the case on
the basis of available materials, on merits.
4. Assailing the correctness of the above order, learned counsel for the
petitioner submitted that the impugned order of the second respondent is in
violation of the principles of natural justice, as no charge memo has been
issued and enquiry has been conducted by the second respondent. He further
submitted that the order being stigmatic, the petitioner ought to have been
provided with an opportunity of hearing.
5. Going through the impugned order and the material on record, this Court
is of the considered view that even a temporary employee paid on consolidated
pay is entitled to have an opportunity of hearing under Article 311(2) of the
Constitution of India. Merely because, the petitioner is a temporary employee
paid on consolidated salary, he cannot be deprived of the constitutional
protection under Article 311(2) of the Constitution of India. In Nar Singh Pal
v. Union of India reported in 2000 (3) SCC 558, the Apex Court, at Paragraphs
6,8 and 10, held as follows:
“The appellant, although a casual labour, had acquired temporary status.
Once an employee attains the “temporary” status, he becomes entitled to certain
benefits one of which is that he becomes entitled to the constitutional
protection envisaged by Article 311 of the Constitution and other articles
dealing with services under the Union of India. The services were terminated on
account of the allegation of assault made against the appellant. The order of
termination in instant case, cannot be treated to be a simple order of
retrenchment. It was an order passed by way of punishment and, therefore, was
an order of dismissal which, having been passed on the basis of preliminary
inquiry and without holding a regular departmental inquiry, cannot be
sustained.”
6. In the above reported case, the Apex Court has extracted the
observations of Krishna Iyer, J. in Gujarat Steel Tubes Ltd., v. Mazdoor Sabha
reported in 1980(2) SCC 593, at paragraph 53 and it is as follows:
“53.Masters and servants cannot be permitted to play hide and seek with
the law of dismissals and the plain and proper criteria are not to be
misdirected by terminological cover-ups or by appeal to psychic processes but
must be grounded on the substantive reason for the order, whether disclosed or
undisclosed. The Court will find out from other proceedings or documents
connected with the formal order of termination what the true ground for the
termination is. If, thus scrutinised, the order has a punitive flavour in cause
or consequence, it is dismissal. If it falls short of this test, it cannot be
called a punishment. To put it slightly differently, a termination effected
because the master is satisfied of the misconduct and of the consequent
desirability of terminating the service of the delinquent servant, is a
dismissal, even if he had the right in law to terminate with an innocent order
under the standing order or otherwise. Whether, in such a case the grounds are
recorded in a different proceeding from the formal order does not detract from
its nature. Nor the fact that, after being satisfied of the guilt, the master
abandons the inquiry and proceeds to terminate. Given an alleged misconduct and
a live nexus between it and the termination of service the conclusion is
dismissal, even if full benefits as on simple termination, are given and non-
injurious terminology is used.”
7. Perusal of the Government order in G.O.(D2) No.165 Commercial Taxes and
Registration Department (H2) Department, dated 18.09.2007, shows that after
considering the preliminary report, the Government have issued orders to take
disciplinary action against one Assistant, two Junior Assistants and two office
assistants working in the office of the Sub Registrar, Mela Karur Taluk relating
to financial irregularities and in not maintaining proper accounts. The
Government, have specifically directed, the Registrar General, Chennai-28, to
conduct disciplinary action as per the Tamil Nadu Civil Services (Discipline and
Appeal) Rules and provide a reasonable opportunity to defend the charges. By
taking a suo motu decision to the effect, that such procedure need not be
followed, in respect of temporary employees paid on consolidated pay, the
Registrar General cum the Principal Revenue Control Officer, the first
respondent herein, vide G.O.Letter No.10810/V1/2005, dated 08.10.2010, has
addressed a letter to the Government and accordingly terminated the services of
the petitioner, without holding any regular enquiry. Such an approach in the
opinion of this Court is opposed by the right of opportunity of hearing
guaranteed under Article 311(2) of the Constitution of India. Even a temporary
employee has to be provided with an opportunity of hearing, when serious charges
are imputed against him. Merely because, he is paid a consolidated salary, he
cannot be denied of the opportunity.
8. For the reasons stated supra, this Court is inclined to set aside the
impugned order, dated 28.06.2011. Accordingly, the impugned order is set aside
and the writ petition is allowed and consequently a direction is issued to the
respondents to reinstate the petitioner in service. It is open to the
respondents to formulate specific charges, under Rule 17(b) of the above said
rules and take appropriate disciplinary action against the petitioner, if the
respondents desired to do so. With the above directions, the writ petition is
allowed. No costs.
RR
To
1.The Registrar General cum
The Principal Revenue Control Officer,
Chennai.
2.The District Collector
Karur District, Karur.
3.The District Registrar,
Karur District, Karur.
4.The Sub Registrar
Melakarur, Karur District.
5.The Tahsildar,
Karur Taluk, Karur.