IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20/09/2002
CORAM
THE HONOURABLE MR. JUSTICE P.K.MISRA
W.P.NO.2048 OF 1999
R.Madhavan ..... Petitioner
-Vs-
The Managing Director
Tamil Nadu Medicinal Plant Farms
and Herbal Medicine Corporation Ltd.,
Arignar Anna Goverment Hospital
Arumbakkam
Madras 106 ..Respondent
Petition filed under Article 226 of the Constitution of India for the
issue of writ Certiorari as stated therein.
For petitioner :Mr.A.V.K.Ezhilmani
for
Mr.U.Thirumuruganandam
For respondent: Mr.K.Jeyakumar
:ORDER
Heard the learned counsel appearing for the parties.
2.In this writ petition, prayer has been made for quashing the order
of termination issued by the respondent. Though several contentions have been
raised, it is unnecessary to deal with all those contentions as in my opinion
the contention relating to vulnerability of the impugned order on the ground
that no show cause notice has been served on the petitioner is to be accepted.
It is not disputed that the petitioner after working on N.M.R. basis for a
few years had been regularly appointed and had continued in employment for
considerable period under the Corporation. Suddenly, at that stage, without
any notice to show cause, the services of the petitioner was terminated.
3.The learned counsel appearing for the respondent has submitted that
such termination took place as the initial appointment was irregular inasmuch
as the name of the petitioner had not been sponsored by the employment
exchange and according to the respondent this was in violation of the
provisions contained in G.O.Ms.790 Labour dated 5.7.71. In my opinion, this
ground for termination of service cannot be allowed to stand. Even though the
respondent was aware that the petitioner’s name had not been sponsored, the
petitioner had been regularly appointed. If such an objection would have been
raised at the stage of initial appointment as a casual labourer or at the time
of regular appointment, it is quite possible that the petitioner would have
taken steps to get himself registered in the employment exchange. Even
assuming that there was some irregularity in the initial appointment and the
petitioner was appointed to the post erroneously, he was allowed to continue
on the said post for a long time and he could not have been removed from the
service in the garb of rectification of the mistake as the doctrine of
acquiescence is applicable to such cases. This position is clear in view of
the decision of the Supreme Court in A.I.R. 1977 SC 112 (NAYAGAR CO-OPERATIVE
CENTRAL BANK V. NARAYAN) and a Division Bench decision of Allahabad High
Court in 1997 LLJ III (Suppl) 4 (PUSHPA LATA SAXENA V. CHANCELLOR, AGRA
UNIVERSITY, LUCKNOW 7 OTHERS). Moreover, the stand taken by the respondent in
support of the termination, therefore, cannot be accepted. Moreover, in the
absence of any notice such unilateral order of termination of the employee was
illegal. In such view of the matter, the order of termination is quashed and
it must be taken that the petitioner is continuous in service and there is no
break in service.
4.The next question is as to whether the petitioner should be paid the
wages for the period during which he could not work due to the action of the
respondent. It appears that after filing of the writ petition, pursuant to
the interim order passed by this Court, the petitioner has been reinstated.
At that time, this Court had directed that the person should be reinstated and
should be paid the minimum scale of pay in the post in which he had been
placed before the impugned order of termination.
5.Having regard to the facts and circumstances and keeping in view the
financial condition of the Corporation, I feel in the interest of justice, it
would be appropriate to give a direction that no back wages would be payable
to the petitioner from the date of termination till reinstatement pursuant to
the interim order passed by the High Court. However, the aforesaid period
shall be treated as part of the service period of the petitioner for all other
purposes, that is for the purpose of calculating subsequent increments,
pension and seniority, but, no back wages should be paid for that period. So
far as the period subsequent to the reinstatement is concerned, the petitioner
has been paid only the minimum pay scale attached to that post. In the
interest of justice, I feel so far as that period is concerned, the petitioner
should be paid the regular salary from the date of reinstatement till today.
The arrears for the aforesaid period should be calculated and paid to the
petitioner within four months from the date of communication of the order.
6.This writ petition is accordingly allowed subject to the aforesaid
observation. There will be no order as to costs.
20-09-2002
index:yes
internet:yes
sal
To
The Managing Director
Tamil Nadu Medicinal Plant Farms
and Herbal Medicine Corporation Ltd.,
Arignar Anna Goverment Hospital
Arumbakkam
Madras 106