IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:18.09.2009
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
W.P.No.10306 of 2009
and
M.P.Nos.1&2 of 2009
V.Ranganathan ...petitioner
Vs.
The District Manager-II,
Tamil Nadu State Marketing
Corporation Limited (TASMAC)
Tirupur. ...Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus calling for the entire records leading to the issue of order dated 16.05.2005 in Na.Ka.No.4/2005/A on the file of the respondent herein and quash the same and direct the respondent to reinstate the petitioner in service with continuously of service and full backwages.
For Petitioner : Mr.L.Mouli
For Respondents : Mr.J.Ravindran
for TASMAC
ORDER
The petitioner was working as a bar attender with the respondent. While he was working as Supervisor, an Order was passed by the respondent in the year 2005 on the grounds that the petitioners have indulged in retail vending by opening liquor bottles mixing water with the liquor, acting against interest of the customers etc. Thereafter, based upon the report of the officials, the Impugned Orders of dismissal has been passed against the petitioner in the year 2005 dismissing him on the ground tht the special TASMAC Force has found the above mentioned irregularities during the surprise inspection. Challenging the impugned order, the present Writ Petition is filed by the petitioner herein .
2. The learned counsel appearing for the petitioner submitted that the impugned order is liable to set aside, since without even framing charges and without affording an opportunity, it has been passed in total violation of the natural justice. According to the learned counsel, unilaterally the order of the dismissal passed by the respondent will not sustained in the eye of law. The learned counsel also relied upon the judgment reported in W.P.No.28212/2008 dated 21.01.2009, [S.Valliyangiri Vs. The District Manager, Tamil Nadu State Marketing Corporation Ltd.,(Coimbatore Region), Erode], as well as the Division Bench Judgment entered in W.A.No.872 of 2009 [The District Manager, TASMAC, Coimbatore Region, Erode, Vs. S.Velliyangiri], in support of his contention that the proceedings of the respondent is liable to set aside, since the order of the dismissal has been passed without following the procedure and hence the same cannot be sustained.
3. Per contra of the learned Government Advocate appearing for the respondent submitted that the Writ Petition is liable to be dismissed on the ground of latches, since , the impugned order has been passed in the year 2005 and there are no proper explanations for not approaching this Court earlier. According to the learned Government Advocate, the reasons assigned in the Writ Petition that the petitioner is illiterate and poor cannot be the reasons for condoning the delay. In respect of the said contention the learned Government Advocate relied upon the Judgment in W.P.No.26913 of 2008 dated 26.06.2009, [Mr.S.Krishnamoorthy Vs. The Managing Director, Tamil Nadu State Marketing corporation Ltd., and The District Manager, Tamil Nadu State Marketing Corporation Ltd.,] to the effect that in view of the delay the Writ Petition is liable to be dismissed.
4. It is not in dispute that in the Judgment referred by the learned counsel appearing for the petitioners as well as the respondent, the impugned orders were passed in the year 2005. In the Judgment of this Court in W.P.No.28212/2008 dated 21.01.2009,[S.Velliyangiri Vs. The District Manager, Tamil Nadu State Marketing Corporation Ltd.,(Coimbatore Region), Erode], the learned single Judge ordered reinstatment without backwages. The said order was passed by taking into consideration of the fact that the petitioner therein approached the Court bilaterally. The said Judgment has also been upheld by the Division Bench in W.A.No.872 of 2009, [The District Manager TASMAC, Coimbatore Region, Erode, Vs. S.Velliyangiri,]. Therefore, this Court opines that there is no considerable force in the argument made by the respondent.
5. In this connection it is useful to refer the following passage of the Division Bench.
“In our opinion , such an argument cannot be accepted. The Apex Court in the judgments reported in 2005 (7) SCC 518 and 1999 (3) SCC 50, State or Haryana Vs. Satyandra Singh Rathora, has held that when an order involves civil consequences and consequently amounts to stigma, the same cannot be passed without there being a charge memo, enquiry and finding as to those charges. Though in the judgment in Lakshmanakumar’s case, cited supra, this Court on considering a summary dismissal, observed that the TASMAC was entitled to proceed against the employee in terms of the contract, that does not mean that such a summary dismissal can be ordered in the event such order causes stigma.
We have persued the nature or charges. The charges are very serious, particularly when they allege that the employee has adulterated the liquor and he has misappropriated the money, caused loss to the TASMAC and to the Government. These are all major misconducts, of course, warranting a serious punishment and in that case, a punishment of dismissal could be inflicted only on proper enquiry even in the case of a contract employee, especially when the employee had denied the charges by giving explanation.”
6. Therefore, this Court is of the opinion that mere delay in approaching the Court cannot be the ground for declining the relief, in view of the Judgment of the Division Bench cited supra. It is also seen that the Tamil Nadu state Marketing Corporation Ltd., is party to the both referred cases. Therefore, this Court opines that the contention of the learned counsel appearing for the respondent that the Writ Petition is liable to be dismissed and the order passed by the learned single Jugde in W.P.No.26913 of 2008 dated 26.06.2009, Mr.S.Krishnamoorthy Vs. The Managing Director, Tamil Nadu State Marketing Corporation Ltd., and the District Manager, Tamil Nadu State Marketing Corporation Ltd., cannot be sustained and is liable tobe rejected. Further it is seen that in the present case the impugned order has been challenged only on the ground of violation of natural justice. It is a settled principle of law that once it has been held that the principles of natural justice is not followed, then the Court is to set aside the order impugned, with liberty to the respondehnt to proceed in accordance with law. Mere violation of the natural justice will not entitle a person to get out of the charges. In the present case, it is not dispute that the respondent is the competent authority to initiate the proceedings. In the recent judgment reported in 2008 (5) CTC 285, [Union of India Vs. Y.S.Sandhu, Ex-Inspector], the Hon’ble Supreme Court held that in a case, where principle of natural justice are not followed, the Court will have to set aside the order with a direction to the authorities to proceed from the stage where it stood before alleged violation of natural justice. The said Judgment was not been brought before the Division Bench of this Court.
7. Therefore , this Court while setting aside the impugned order passed by the respondent herein directs the respondent to proceed against the petitioner in accordance with law, if he is so desired.
8. The Writ Petition is allowed to the extent as indicated above.
Consequently the connected miscellaneous petitions are also closed. No costs.
18.09.2009.
Index :Yes/No
Internet :Yes/No
gv
To
The District Manager II,
Tamil Nadu State Marketing
Corporation Limited (TASMAC)
Tirupur.
M.M.SUNDRESH,J
gv
W.P.No.10306 of 2009
and
M.P.Nos.1&2 of 2009
18.09.2009.