IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 18.09.2008 CORAM THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN W.P.No.13230 of 1987 V.Ramarathinam .. Petitioner Versus 1.The Government of Tamil Nadu rep. by Commissioner & Secretary to Govt. Education Department Fort St.George, Madras 9. 2.The Director of Public Libraries Madras.8 3.The District Library Officer Tanjore. .. Respondents Writ petition is filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the records relating to the impugned order of the second respondent in Na.Ka.7617/m2/85 dated 6.1.1986 and quash the same as illegal and direct the respondents to reinstate the petitioner in service with full back wages, continuity of service and all other attendant benefits and privileges. For Petitioner : Mr.V.Seshiyan For Respondents: Mrs.Geetha Thamaraiselvan, Government Advocate O R D E R This writ petition is directed against the proceedings of the second respondent dated 6.1.1986, whereby the appeal preferred by the petitioner against the order of the third respondent dated 19.3.1979 removing him from the service of the District Central Library, was rejected. 2.The factual matrix necessary for the disposal of the writ petition are as under: The petitioner was appointed as Assistant Librarian in the District Central Library, Tanjore on 20.8.1964. Originally he was working at Tanjore and he was transferred to Aduthurai Branch Local Library and later to Sholapuram Branch Library. While he was working as Assistant Librarian at Sholapuram Branch Library, he was suspended from service https://hcservices.ecourts.gov.in/hcservices/ with effect from 19.12.1978 in contemplation of taking disciplinary action against him. Thereafter a charge memo was issued to him on 7.2.1979 containing as many as 53 charges. As directed by the third respondent, the petitioner submitted his explanation to the charge memo and subsequently without conducting any enquiry in the matter, the petitioner was removed from service as per the order passed by the third respondent dated 19.3.1979. Against the said order, the petitioner preferred a statutory appeal before the second respondent and the said appeal was also dismissed as per order dated 21.9.1979. Aggrieved by the order of the appellate authority, the petitioner preferred a further appeal before the first respondent as provided under Rule 36 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. Though the appeal was filed within the statutory period, the first respondent did not pass orders on the statutory appeal. Therefore the petitioner preferred a writ petition before this Court in W.P.No.4292 of 1985 and this Court as per order dated 29.4.1985 directed the first respondent to dispose of the appeal within six weeks from the date of receipt of a copy of the order. Subsequently the matter was considered by the second respondent again and as per order dated 6.1.1986, the second respondent rejected the same and aggrieved by the said proceedings, the petitioner has come up with the present writ petition. 3.In the counter affidavit filed on behalf of the respondents, it was their case that on account of the grave irregularities committed by the petitioner during his service as Assistant Librarian, he was issued with a charge sheet and after receipt his explanation, the petitioner was asked as to whether he requires the matter to be enquired into by appointing an enquiry officer, to which the petitioner has submitted that he was not prepared to appear before any such enquiry officer and as such after considering the explanation so submitted by the petitioner, the authorities have passed the order of removal from service. The appeal preferred by the petitioner was also considered by the appellate authority independently and the appellate authority came to a categorical conclusion that the charges framed against the petitioner were proved and as such the said order does not require interference in the present writ petition. 4.The learned counsel for the petitioner contended that when there were series of charges framed against the petitioner and that too under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, the respondents should have conducted an enquiry before terminating the service of the petitioner and as such the very proceedings is liable to be set aside. 5.Per contra, the learned Government Advocate appearing for the respondents submitted that very serious charges were framed against the petitioner and as the petitioner has not opted for conducting enquiry into the charges and he has categorically stated before the authorities that there was no necessity to conduct an enquiry, no such enquiry was conducted and therefore it was too late for the petitioner to contend that the very order passed by the authorities are vitiated on account of violation of the mandatory provisions of the Tamil Nadu Civil Services (Disciplinary and Appeal Rules). https://hcservices.ecourts.gov.in/hcservices/ 6.It is found that as many as 53 charges were framed against the petitioner and all those charges were denied by the petitioner in his written statement filed before the third respondent. The charges were framed under Rule 17(b) of the Tamil Nadu Cil Services (Disciplinary and Appeal Rules) and the said Rule provides that in every case where it was proposed to impose on a member of a service or on a person holding the Civil Post under the State, any of the penalties specified in items (iv), (vi) and (viii) in Rule 8, the grounds on which it was proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of the allegation on which each charge was based and of any other circumstances which it was proposed to take into consideration in passing orders on the case. The delinquent shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires an oral enquiry or to be heard in person or both. It further provides that oral enquiry shall be held if such an enquiry is desired by the person charged or was directed by the authority concerned. Even if a person charged has waived an oral enquiry, such enquiry shall be held by the authority concerned in respect of the charges which are not admitted by the person charged and it should be proved only through the evidence of witnesses. The said provision also mandates that during the enquiry, oral evidence shall be taken as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnessess to give evidence in person and to have such witnesses called as he may wish. 7.The provision as contained under Rule 17(b) of the Rules relating to major penalty proceedings and it contemplates that even if an order of enquiry has been dispensed with at the instance of the delinquent, still the authorities were obliged to conduct an enquiry in case the charges were not admitted by the petitioner. There is nothing to indicate in the impugned order to the effect that oral enquiry was waived by the petitioner. Even if there was such waiver, still the authorities have to conduct the enquiry, inasmuch as the charges leveled against the petitioner were not admitted by him. Therefore, there is clear violation of the mandatory provisions of Rule 17(b) of the Tamil Nadu Cil Services (Disciplinary and Appeal Rules) and as such the very proceedings initiated against the petitioner is liable to be quashed. 8.When the respondents have framed as many as 53 charges against an employee and that too by way of major penalty proceedings, the respondents should have taken the matter with little seriousness and an enquiry officer should have been appointed. The Government cannot take the matter so lightly when it comes to the career of an employee. The petitioner was appointed against a substantial post and he was functioning in the post when the respondents have decided to take action against him of the alleged misconduct. In such circumstances, they should have followed the procedure as contemplated under the relevant Service Rules. The Statue itself clearly states that the delinquent should be given an opportunity to state his case. Since the termination of the petitioner has been resorted to without conducting any enquiry and that too in the face of the denial of the charges by the petitioner, the proceedings initiated against the delinquent clearly is vitiated. https://hcservices.ecourts.gov.in/hcservices/ 9. In DELHI TRANSPORT CORPORATION v. D.T.C. MAZDOOR CONGRESS reported in (1991 SUPPL.(1) SCC 600, the Apex Court held that a permanent employee of a statutory Authority, Corporation or instrumentalities under Article 12 of the Constitution of India got a lien on the post till he attains superannuation or compulsorily retired and held thus:- " 231. The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has a stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired. 232. The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them." 10.The Apex Court in D.K. YADAV v. J.M.A. INDUSTRIES LTD. reported in (1993 (3) SCC 259) underlined the necessity of conducting departmental enquiry before the termination of the service of an employee and held thus:- "14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice." 11.It is also represented by the learned counsel for the petitioner that the petitioner has already attained the age of superannuation and as such there is no question of reinstatement of the petitioner in https://hcservices.ecourts.gov.in/hcservices/ service. The petitioner is out of service from 19.3.1979 onwards on account of the order passed by the third respondent, which was ultimately confirmed by the order in appeal by the second respondent. 12.Therefore, while setting aside the order of the third respondent as confirmed by the order of the second respondent, I direct the respondents to pay 50% of the backwages to the petitioner and all other retrial benefits due to him as if he was in service till the date of his superannuation. Since the matter has been pending from 1987, the respondents shall disburse all the benefits due to the petitioner as expeditiously as possible and in any case within a period of three months from the date of receipt of a copy of this order. 13.The writ petition is allowed subject to the above direction. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rpa To 1. The Commissioner & Secretary to Govt. Government of Tamil Nadu Education Department Fort St.George, Madras 9. 2.The Director of Public Libraries Madras.08 3.The District Library Officer Tanjore. 2 cc To Mr.V.Seshaiyan, Advocate, SR.53477, 52948. WP.No.13230 of 1987 RSM(CO) RVL 13.10.2008 https://hcservices.ecourts.gov.in/hcservices/