IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2010 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.3418 OF 2010 J.Fairose Basha ... Petitioner vs. 1. The Managing Director, Tamil Nadu State Marketing Corporation Ltd., 4th Floor, C.M.D.A. Tower II, Egmore, Chennai 600 008. 2. The Senior Regional Manager, TASMAC Ltd., Regional Manager Office, Brindhavanam Road, Fairlands, Salem 636 016. 3. The District Manager, TASMAC Ltd., Bharathipuram, Dharmapuri 636 705, Dharmapuri District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records from the 1st respondent relating to his order bearing No.Na.Ka.10324/C.V.-2(3) 2008, dated 18.03.2009 confirmed in his order bearing Na.Ka.No.18587/Q3/2009, dated 29.12.2009 confirming the order of the 3rd respondent bearing Na.Ka.No.57/2008/C.V.2 dated 14.05.2008 dismissing the petitioner from service and quash the said order dated 18.03.2009 and 14.05.2008 and consequently direct the respondents to reinstate the petitioner in service with continuity of service and backwages from 01.05.2008. For Petitioner : Mr.S.Ayyathurai For Respondents: Mr.J.Ravindran https://hcservices.ecourts.gov.in/hcservices/ O R D E R By consent of the learned counsel on either side, the writ petition is taken up for final disposal. 2. Heard Mr.S.Ayyathurai, learned counsel for the petitioner and Mr.J.Ravindran, learned Standing counsel appearing for the respondents. 3. This writ petition is filed challenging the order dated 18.03.2009 passed by the 1st respondent confirming the order dated 14.05.2008 passed by the 3rd respondent dismissing the petitioner from service and quash the said orders dated 18.03.2009 and 14.05.2008 and for a consequential direction to the respondents to reinstate the petitioner in service with continuity of service and backwages from 01.05.2008. 4. According to the petitioner, he was working as a Shop Supervisor in Shop No.2828 under the control of the 3rd respondent. On 12.01.2008, he went to the Bank to remit the sale proceeds at about 12.00 noon and after remitting the money, he went home for lunch and again went to the Bank to collect the counterfoil of the remittance challan. The procedure of remittance of TASMAC money at Dharmapuri is that money would be remitted in the morning and the Bank would issue the counterfoil of the challan only in the afternoon around 3.00 pm. After getting the counterfoil of the remittance challan, he went to the shop around 4.30 pm. The salesman T.Anbarasan told the petitioner that in the afternoon around 2.30 pm, four officers came and took 2 Old Monk Rum saying that they had taken them for testing as they seemed to be containing water and that the said officers did not allow him to say anything. Then, the petitioner went to the office of the 3rd respondent to inform about the taking away of liquor bottles on suspicion, where he was told that the flying squad led by the Krishnagiri District Manager conducted the check and took the bottles for testing. Thereafter, the said Anbarasan was placed under suspension by the 3rd respondent on 31.01.2008. 5. It is the further case of the petitioner that he received a notice on 27.03.2008 calling him for an enquiry to be held in respect of the said Anbarasan. The enquiry was conducted by Mr.Kandasamy, Head Clerk in the office of the 3rd respondent. The Enquiry Officer asked him about the allegation against the said Anbarasan and he narrated the facts. Thereafter, he received an order dated 14.05.208 from the 3rd respondent placing him under suspension (gzpapypUe;J tpLtpj;J cj;jutplg;gLfpwJ)/ In the said order, the 3rd respondent has stated that on consideration of the https://hcservices.ecourts.gov.in/hcservices/ statements recorded in the enquiry and the documents in the enquiry, it was found that he failed to discharge his duty diligently and to retain the confidence reposed in him and that in that order the petitioner was informed that he could file an appeal against the said order to the 2nd respondent. The petitioner alleges that the period of suspension by way of specific punishment has not been mentioned in the said order dated 14.05.2008 and that no charge memo was issued to him and no enquiry was conducted against him. 6. Against the order dated 14.05.2008, the petitioner filed an appeal to the 2nd respondent and made several representations to the 2nd respondent stating that he had not committed any misconduct and he was not found guilty of any misconduct and requested for setting aside the order of the 3rd respondent. The 2nd respondent finally passed an order dated 24.11.2008 confirming the order of the 3rd respondent. While that be so, the petitioner moved this court in W.P.No.3418 of 2009, which came to be disposed of on 09.10.2009 with a direction to the 1st respondent to pass orders on his appeal and the same was received by the petitioner on 29.12.2009 stating that his appeal had already been dismissed. However, a copy of the earlier order was enclosed therewith in difference to the order passed by this court. The said order is challenged by the petitioner in this petition. 7. Respondents have not filed counter. However, they have produced the records, in which draft counter was annexed and a copy of it was also made available to the petitioner. 8. Mr.S.Ayyathurai, learned counsel for the petitioner has vehemently contended that the authorities have neither issued any charge memo to the petitioner nor conducted any enquiry and no opportunity of hearing was given to the petitioner and the impugned order of termination passed by the 3rd respondent was mechanically confirmed by respondents 1 and 2 in appeal and revision, respectively. He would further contend that the non-adherence of the principles of natural justice in the matter of relieving the petitioner or terminating him would amount to violation of the principles of natural justice. 9. On the other hand, Mr.J.Ravindran, learned counsel for the respondent Corporation, on instructions, would contend that the Flying Squad conducted an inspection and the report would reveal that the caps of some IMFS bottles were found pasted using Fevi Quick paste and it also had different colours of labels and that the samples were also collected. Based on the inspection report, an enquiry was conducted and irregularities were found against the salesman, Mr.T.Anbarasan. He would further submit that the https://hcservices.ecourts.gov.in/hcservices/ statements recorded in the enquiry and the documents placed in the enquiry were taken into consideration and the same were used against the petitioner for passing of the impugned order. Therefore, it cannot be construed that there was no enquiry and that the procedures have not been followed. 10. Learned counsel for the respondent Corporation, on going through the records pointed out from the parawar remarks that an enquiry was conducted by the District Manager, TASMAC Ltd., Dharmapuri on 03.04.2008 in respect of T.Anbarasan and the enquiry proved that the petitioner/shop Supervisor was also responsible for the loose sales and water mixing by the salesman which was contrary to the rules of TASMAC and that the shop Supervisor is over all in charge of the shop. 11. I have considered the submissions made by the learned counsel on either side and perused the entire records produced before this court and analysed the relevant materials for consideration. 12. It is not in dispute that the petitioner was employed as a Supervisor at Shop No.2828 of the respondent Corporation from the year 2003 and that he has furnished the required deposit amount as per the terms and conditions of appointment. It is seen that on 12.01.2008, there was an inspection in the Shop by the Flying Squad. The team found some loose sales of liquor. Some IMFS bottles which were diluted by water mixing were kept for sale by Mr.Anbarasan, salesman of the Shop. The petitioner being the Shop Supervisor, who is supposed to be present in the Shop at the time of inspection was not found in the Shop. It is seen that the petitioner had gone to the Bank for remittance of the sale proceeds of the shop. Based on the inspection report, enquiry was conducted in respect of the salesman T.Anbarasan and the 1st respondent has taken into account that the Shop Supervisor, i.e. the petitioner herein was also responsible for the loose sales and water mixing by the salesman, T.Anbarasan. Therefore, the 3rd respondent passed an order dated 14.05.2008 terminating the petitioner from the services of the Corporation and he has been relieved from the office. 13. But, the petitioner claims that he has not been terminated from service and that the order passed by the 3rd respondent is only a suspension order. However, he preferred an appeal before the 2nd respondent, which was dismissed confirming the order of the 3rd respondent holding that the termination of the petitioner is valid. Aggrieved by the same, the petitioner filed a revision before the 1st respondent and the revisional authority also confirmed the order of the 2nd respondent thereby confirming the order of the 3rd respondent. https://hcservices.ecourts.gov.in/hcservices/ 14. A perusal of the entire records would reveal that no charge memo was filed against the petitioner and no enquiry was conducted in respect of the petitioner. It is a settled principle that under the Service Law jurisprudence, removal from service is a major punishment, which could be imposed after following the procedures contemplated under the relevant Rules and after providing a reasonable and fair opportunity of hearing to the employee. In this case, the 3rd respondent has neither issued any charge memo nor conducted any enquiry against the petitioner in particular; he has proceeded to relieve the petitioner from service taking into consideration the enquiry conducted against the salesman, T.Anbarasan. Therefore, this court has every reason to hold that the 3rd respondent has neither followed any procedure contemplated under the Rules nor afforded an opportunity of hearing to the petitioner by conducting appropriate enquiry. Therefore, the impugned order passed by the 3rd respondent warrants interference by this court. 15. An analysis of the order passed by the appellate authority as well as the revisional authority would reveal that they have not applied their mind to go into the very basis of the order and also to see that the order in question has been passed after following the procedures contemplated by conducting the enquiry and affording an opportunity of hearing and also following the principles of natural justice. Therefore, the orders passed by the appellate authority as well as the revisional authority also suffer from legal infirmity, since the authorities have not applied their mind and have mechanically confirmed the orders passed by the 3rd respondent. 16. In similar circumstances, this court, in a decision reported in 2006 (1) CTC 660 (V.L.Lakshmanakumar vs. The District Manager, "TASMAC" Limited, Madurai District, Madurai and another), following the judgments of the Supreme Court reported in (2005) 7 SCC 518 (State of Haryana vs. Satyender Singh Rathore) and (1999) 3 SCC 60 (Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences), set aside the termination order of the petitioner therein on the ground that no enquiry was conducted. 17. Recently, the Hon'ble Supreme Court in Satwati Deswal vs. State of Haryana reported in 2010 (1) SCC 126, held as follows:- "8. Apart from that, on a cursory look of the statutory provision of the Constitution of the Parishad Working Committees, it would be clear that before imposing any major penalty against an employee, namely, an order of termination of service, an inquiry must be held in the manner specified in the statutory rules by which the disciplinary authority shall frame definite charges on the basis of allegations on which an inquiry https://hcservices.ecourts.gov.in/hcservices/ shall be proposed and opportunity must be given to the employee to submit a written statement stating therein whether he/she desires to be heard in person and no order of termination also can be passed without the approval of the Managing Committee. ... 9. Accordingly, the impugned judgment of the High Court is set aside and the order of termination passed against the appellant is quashed and the Writ Petition stands allowed. However, it would be open to the authorities, if they so desire, to initiate disciplinary proceedings against the appellant for her termination from service and if such disciplinary proceedings are initiated, the authorities shall give proper opportunity of hearing and permit the parties to adduce evidence in support of their respective stands and after giving such opportunity, the disciplinary authorities thereafter shall give hearing to the appellant and then pass a final order on the question of termination of service of the appellant in compliance with the statutory rules concerned applicable to the appellant." 18. From the reading of the above, it is manifestly clear that before passing an order of termination from service, an enquiry must be held in the manner specified in this regard by which the disciplinary authority shall frame definite charges on the basis of allegations on which an enquiry shall be proposed and an opportunity must be given to the employee. Therefore, the impugned orders which are under challenge in this writ petition are against the established rules and procedures and are in violation of the principles of natural justice and therefore, they are liable to be set aside. 19. For the foregoing reasons, the writ petition is allowed and the impugned orders passed by the respondents are set aside. However, liberty is given to the respondents to initiate appropriate disciplinary proceedings against the petitioner, if so advised and pass final orders after affording sufficient opportunity to him. The respondents are directed to reinstate the petitioner in service within a period of four (4) weeks from the date of receipt of a copy of this order. On the given facts and circumstances of this case, it is made clear that the petitioner shall not be entitled for backwages for the period during which he was out of employment. No costs. Consequently, connected M.P.No.3 of 2010 is closed. Sd/- Asst.Registrar. https://hcservices.ecourts.gov.in/hcservices/ /true copy/ Sub Asst.Registrar. abe To : 1. The Managing Director, Tamil Nadu State Marketing Corporation Ltd., 4th Floor, C.M.D.A. Tower II, Egmore, Chennai 600 008. 2. The Senior Regional Manager, TASMAC Ltd., Regional Manager Office, Brindhavanam Road, Fairlands, Salem 636 016. 3. The District Manager, TASMAC Ltd., Bharathipuram, Dharmapuri 636 705, Dharmapuri District. 1 cc to Mr.J. Ravindran, Advocate, Sr. 25726 1 cc to Mr.S. Ayyathurai, Advocate, Sr. 25389 W.P.No.3418 of 2010 AKR (CO) kk 4/5 https://hcservices.ecourts.gov.in/hcservices/