BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10/01/2007
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
S.A.No.1618 of 1995
1. The Headmistress,
Govt. Girls Primary School,
Arumanai.
2. The Inspector of Primary & Middle Schools,
Kuzhithurai.
Presently the Assistant Educational officer,
Kuzhithurai.
3. The State of Tamil Nadu
rep.by the District Collector,
Kanyakumari District. ... Appellants
Vs
J.Avel ... Respondent
The Second Appeal has been filed against the Judgment and Decree, dated
05.09.1994, made in A.S.No.29 of 1993, on the file of the Sub-Court,
Kuzhithurai, reversing the Judgment and Decree, dated 22.10.1992, made in
O.S.No.231 of 1984, on the file of the Principal District Munsif, Kuzhithurai.
!For appellants .. Mr.D.Gandhiraj,
Govt.Advocate
^For respondent .. No appearance
:JUDGMENT
The Second Appeal has been filed against the Judgment and Decree, dated
05.09.1994, made in A.S.No.29 of 1993, on the file of the Sub-Court,
Kuzhithurai, reversing the Judgment and Decree, dated 22.10.1992, made in
O.S.No.231 of 1984, on the file of the Principal District Munsif, Kuzhithurai.
2. The plaintiff, who is the respondent in the present second appeal had
filed a suit in O.S.No.231 of 1984, on the file of the Sub-Court, Kuzhithurai,
praying for a Judgment and Decree for recovery of arrears of salary from
October,1982 to 1983 and also for the future salary from the defendants with
interest and for an injunction to restrain the defendants from preventing the
plaintiff from doing his duties as a Sweeper in the Government Girls Primary
School, Arumanai.
3. The plaintiff had stated that he had been appointed as a Sweeper in the
Government Girls Primary School, Arumanai, in place of his mother Ponnamma, who
had expired while in service. As per the appointment order, dated 17.03.1976,
the plaintiff’s monthly salary had been fixed at Rs.60/-. On 14.10.1982, the
first defendant in the suit had unlawfully restrained the plaintiff from doing
his duty in the school. Further, the defendants had also failed to pay the
salary to the plaintiff from the month of October, 1982 onwards. Hence, the
plaintiff had filed the suit praying for the reliefs as stated therein.
4. In the written statement filed on behalf of the second defendant, it
has been stated that the plaintiff had been appointed as a part time Sweeper in
the place of Ponnamma, who had died. The plaintiff’s appointment as a part time
Sweeper was approved by the District Educational Officer, Kuzhithurai, based on
the recommendation of the Headmistress of the School. The service conditions
relating to the other employees were not applicable to the plaintiff, since he
was working as a part time Sweeper and as he was not appointed through the
Employment Exchange. Further, the conduct and character of the plaintiff was
found to be bad as he had outraged the modesty of a girl student, on 12.10.1982,
and thereafter, the plaintiff had abandoned his job from 15.10.1982. The
plaintiff was entitled to his salary only for the days during which he had
worked. Though the plaintiff was not eligible for casual leave, he had been
continuously absent on a number of days and had later abandoned his job from
15.10.1982. Therefore, the plaintiff is not entitled to claim any wages for the
days when he was absent.
5.It has been further stated in the written statement that on 03.11.1982,
the plaintiff had entered the school along with certain anti-social elements and
had obstructed certain activities of the school. Hence, he was arrested on
04.11.1982 and a case had been registered in Crime No.353 of 1982, under
Sections 147, 148, 341 and 353 of the Indian Penal Code. After the plaintiff
had abandoned his job as a part time Sweeper, one N.Selvi, who was a widow had
been appointed in his place and that the appointment was made by the
Headmistress of the School and later, approved by the Competent Authority, on
05.02.1983. Therefore, the case of the plaintiff cannot be sustained.
6.Based on the averments made on behalf of the parties concerned, the
trial Court had framed the following issues for consideration:-
“1.Whether the plaintiff abandoned his job or the defendant obstructed the
plaintiff from doing his duties?
2.Whether termination of notice is necessary or not for the termination of
plaintiff appointment?
3.Whether the plaintiff entitled to continue the service or not?
4.What is the arrears of salary?
5.Whether the suit is maintainable?
6.What is the reliefs and costs?”
7. Based on the oral and documentary evidence placed before the trial
Court, it had come to the conclusion that since the plaintiff had abandoned the
job, there was no necessity of any notice being given to him and therefore, he
was not eligible for re-appointment as prayed for by him. Further, since the
plaintiff was employed temporarily on a part time basis, he was not eligible for
the wages for the days during which he was absent from duty. The trial Court had
also found that the plaintiff ought to have sought for his reliefs before the
Competent Authorities before approaching the Civil Court by way of filing a
suit. Hence, it was held that the suit filed by the plaintiff was not proper,
as it was not in accordance with law.
8.The plaintiff had filed an appeal in A.S.No.29 of 1993, on the file of
the Sub-Court, Kuzhithurai. The lower appellate Court had framed the following
points for consideration, which are as follows:-
“1.Whether the plaintiff is entitled to continue his employment?
2.Whether the first defendant has restrained the plaintiff from performing his
duties?
3.Whether the plaintiff is entitled for the arrears of salary of Rs.720/- from
1982 to 1983?
4.Whether the plaintiff is entitled to a decree of injunction as prayed for?
5.Whether the suit filed by the plaintiff is sustainable?
6.What are the other reliefs available for the appellant / plaintiff ?”
9. The lower appellate Court had come to the conclusion that since a
proper show cause notice had not been given by the appropriate authorities
before passing the order from terminating the plaintiff from service, the
defendants were not entitled to prevent the plaintiff from continuing in
service. Hence, the plaintiff was entitled to be paid arrears of salary of
Rs.720/- , as calimed by him. It was also found by the lower appellate Court
that there were certain discrepancies in the allegations made by the defendants
with regard to the issue of the plaintiff having outraged the modesty of a girl
student. It was also found that there was no proof of the plaintiff having
abandoned his service. Therefore, the lower appellate Court had come to the
conclusion that the termination of service of the plaintiff by the defendants
was illegal. If an allegation had been made against the plaintiff with regard to
the outraging the modesty of a girl student or about the charge of his raping a
girl student, the plaintiff ought to have been given an opportunity of defending
himself against the said charges. It had also been held that since no such
opportunity had been given to the plaintiff, mere allegations cannot be taken as
proof of the alleged act.
10. Aggrieved by the conclusions arrived at by the lower appellate Court,
the present second appeal has been filed by the appellant herein.
11.The Second Appeal has been admitted by this Court on the following
substantial question of law:-
“1.Whether a suit for declaration and injunction be maintainable to compel the
employer to continue to keep a temporary employee in employment when
particularly the employee has abandoned his duties?”
The Second Appeal has been filed on the various grounds raised therein.
The appellant has stated, inter alia, that the first appellate Court had erred
in reversing the findings of the trial Court by decreeing the suit as prayed for
by the plaintiff. The lower appellate Court had come to the wrong conclusion by
admitting the claims of the plaintiff. The plaintiff had no right to continue in
service, since he was working only on a temporary basis. Further, the lower
appellate Court had erred in its findings, since it is the plaintiff who had
abandoned the service, after he was found to have outraged the modesty of the
girl student of the school. In such circumstances, the findings of the lower
appellate Court cannot be sustained in law or on facts and therefore, the
plaintiff is not entitled to continue in service or to be paid the arrears of
salary for the period during which he was absent from duty.
12.The learned Government Advocate, who had appeared on behalf of the
appellants had submitted that the plaintiff was not entitled to file a suit with
regard to the conditions of his service, as it is prohibited by Section 9 of the
Civil procedure Code, 1908. The plaintiff may be entitled to raise the issue of
his alleged illegal termination from service only before the authorities
concerned, as provided in the service rules applicable to him or by way of
raising an industrial dispute before the appropriate forum. In such
circumstances, a Civil Suit preferred by the plaintiff is not maintainable. It
was also submitted that the trial Court was right in coming to the conclusion
that the plaintiff was not entitled to the reliefs prayed for by him, as his
appointment was of a temporary nature and on the condition that he could be
ousted from service at any time without assigning any reason. The plaintiff had
abandoned the service after he was found to have outraged the modesty of a girl
student and therefore, he is not eligible to continue in service.
13.With regard to the substantial question of law, which has been raised
before this Court in the present second appeal, the learned Government Advocate
for the appellant had submitted that the suit for declaration and for injunction
cannot be maintained to compel the employer to continue an employee in service,
especially, when he is a temporary employee and more particularly when the
employee had himself abandoned the service.
14.On a persual of the records placed before this Court and based on the
averments made on behalf of the parties concerned, this Court is of the
considered view that the findings of the lower appellate Court cannot be
sustained, since it is found, on the evidence available, that the employee had
himself abandoned the service.
15. Further, the plaintiff has not shown that his appointment was of a
permanent nature and that he was entitled to the reliefs he had prayed for in
the suit. On the contrary, it is seen that the plaintiff had been appointed only
temporarily, on a part-time basis. If he was aggrieved, he could have opted to
challenge his termination from service, in accordance with the Service Rules
applicable to him, before the appropriate forum or authority established by law.
16. In such view of the matter, the Second Appeal is allowed setting aside
the findings of the lower appellate Court in its Judgment and Decree, dated
05.09.1994, made in A.S.No.29 of 1993, on the file of the Sub-Court,
Kuzhithurai. Consequently, the judgment and decree of the Principal District
Munsif, Kuzhithurai, dated 22.10.1992, made in O.S.No.231 of 1984, stands
restored. No costs.
To:
1. The Sub-Court, Kuzhithurai,
2. The Principal District Munsif,
Kuzhithurai