IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.07.2010 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.40461 of 2006 (O.A.No.2188 of 2000) N.Saravanan ... Petitioner Vs 1.The State of Tamil Nadu, rep. by the Secretary to Govt., Small Industries(ETT.1) Department, Fort St. George, Chennai-9. 2.The Industries Commissioner & Director of Industries and Commerce, Chepauk, Chennai-600 005. 3.The Executive Engineer (Construction) Department of Industries and Commerce, Chennai Division, Thiru. V.K.Industrial Estate, Guindy, Chennai-600 032. ... Respondents Prayer: Writ petition came to be numbered by transfer of O.A.No.2188 of 2000 on the file of the Tamil Nadu Administrative Tribunal praying to call for the records of the respondents resulting in the 1st respondent impugned order G.O.(2D) No.9 SMALL INDUSTRIES (EII.1) DEPARTMENT dated 22.2.2000 and consequential order of the 3rd respondent dated 14.3.2000 issued in Proc.No.3573/EA1/98 quash the same and direct the respondents (i) to reinstate the applicant in service forthwith (ii) to regularise the service of the applicant in Junior Assistant with effect from the eligible date (iii) to treat the periods from 14.3.2000 to the date of reinstatement as duty with all attendant and monetary benefits and backwages. For Petitioner : M/s.V.R.Venkatesan For Respondents: Mr.S.Gopinathan, AGP ORDER The petitioner has challenged the order of termination passed by the 1st respondent in G.O.(2D) No.9 SMALL INDUSTRIES (EII.1) https://hcservices.ecourts.gov.in/hcservices/ DEPARTMENT dated 22.02.2000 on the ground that the petitioner's appointment made on 04.08.1998 on compassionate ground was un- lawfully terminated without any notice on 22.02.2000. 2.The learned counsel appearing for the petitioner submits that the petitioner's father late G.Navaneetha Krishnan while serving as Assistant Director died on 16.04.1997 leaving behind his wife and six children. The petitioner's mother, immediately after the death of her husband late G.Navaneetha Krishnan, submitted an application dated 02.06.1997 seeking appointment for the petitioner on compassionate ground to take care of the family. On receipt of the representation dated 02.06.1997, to select the petitioner, the 4th son of the deceased Government servant, the 2nd respondent in his proceedings dated 07.06.1997 in Na.Ka.No.56822/Pa.Aha.3/97 directed the petitioner's mother to produce the following original certificates inorder to scrutinize the petitioner's application. "1.Death Certificate 2.Legal heirship Certificate (from Thasildar) 3.Annual Income Certificate and the Certificate establishing the fact that the family under the Poverty (from Thasildar) 4.The details regarding movable and immovable and the Income deriving from those property (from Thasildar) 5.The Certificate proves the fact that whether any legal heirs working in Government or any private sector and whether they are extending any financial help to the family (from Thasildar) 6.No objection Certificate from other legal heirs. 7.The Educational Qualification Certificate (except T.C. of the Applicant)" 3.As per the above said direction issued by the 2nd respondent, the petitioner's mother obtained certificates from the Thasildar and other authorities stating that, the petitioner's elder brother one Mr.N.Suresh though employed in a college as Lecturer, was not supporting the family of the petitioner. The Thasildar has issued certificates on 09.07.1997 and 14.11.1997. The Thasildar in his certificate issued on 14.11.1997 clearly mentioned that the first son N.Suresh who was working in a private college was not extending any help as he was living separately from the family of the petitioner. With the above said certificate, the petitioner's mother approached the respondent. In the certificate issued by the Thasildar, it was also mentioned that the 2nd and 3rd daughters also got married before the death of the petitioner's father. Further, all the other legal heirs also has given No Objection Certificate to the petitioner Saravanan for getting appointment on compassionate grounds. https://hcservices.ecourts.gov.in/hcservices/ 4.Only after submission of the certificate issued by the Thasildar, the 2nd respondent on consideration of all the materials, appointed the petitioner on compassionate grounds as Junior Assistant on 04.08.1998. The petitioner joined the post on 19.08.1998 and from that day, the petitioner was continuously working without giving any room for any complaint. Whileso, when the file of the petitioner was sent for regularisation of his service, the 1st respondent on the ground that the petitioner's elder brother Suresh was working as a Lecturer in a private college but got married only after the death of his father came to the conclusion that the petitioner's elder brother Suresh having got married only after the death of the petitioner's father and living separately from the family of the petitioner, without giving any notice terminated the service of the petitioner. 5.The learned counsel appearing for the petitioner submits that the petitioner never withheld any information in respect of the petitioner's elder brother's employment anywhere. Even before he was appointed on 04.08.1998, the petitioner's mother submitted all the necessary certificates including a certificate obtained from the Thasildar on 14.11.1997 wherein the Thasildar has specifically mentioned that the petitioner's elder brother Suresh was not staying with the petitioner's family and was living separately without extending any financial or physical help to the members of the petitioner's family. Whileso, the 2nd respondent also accepting the above said factual position, namely, the appointment of the petitioner's elder brother Suresh was well aware of the fact that his elder brother was working in a private College and he was not extending any support to the family of the petitioner appointed the petitioner to the post of Junior Assistant. 6.Whileso, the respondent cannot take any adverse inference that the petitioner wilfully withheld any information about the employment of his elder brother Suresh prior to the appointment of the petitioner as Junior Assistant on compassionate grounds. Whileso, the 1st respondent before passing the order of termination, should have given a reasonable opportunity to dispel the above said mis- conception. As the 1st respondent has not given any notice or held any enquiry, the petitioner's services have been wrongly terminated as against the principles of Natural justice and aggrieved by this the petitioner also came before the Tamil Nadu Administrative Tribunal and the Tribunal also by order dated 28.03.2000, considering the fact that the petitioner was appointed after consideration of all the necessary documents, by taking into account the employment of the petitioner's elder brother was very well brought to the notice of the 2nd respondent before the employment of the petitioner, granted interim stay. In view of the interim stay, the petitioner has been in service for the last 12 years. 7.Under these circumstances, the learned counsel appearing for the petitioner also relied upon the judgment of this Court to support https://hcservices.ecourts.gov.in/hcservices/ his case that if an employee is allowed to continue for more than 5 years it would not be fair and justifiable to uproot the family by terminating the service without proper enquiry or notice. 8.Heard the counsel on either side. 9.Prima facie, the petitioner's father late G.Navaneetha Krishnan while serving as Assistant Director died on 16.04.1997. The petitioner's mother made an application requesting the 2nd respondent to appoint the petitioner on compassionate ground on 02.06.1997. After receipt of the representation dated 02.06.1997, the 2nd respondent by issuing a letter called upon the petitioner's mother to submit all the relevant details regarding the death certificate, legal heir certificate, annual income certificate, details regarding movable and immovable property, whether any legal heir is working in Government or private sector, and whether they are extending any financial help to the family (certificate of Thasildar proving the fact), and no objection certificate from other legal heir and educational qualification. 10.The petitioner's mother on receipt of the letter dated 07.06.1997 issued in Na.Ka.No.56822/Pa.Aha.3/97 obtained certificate from Thasildar dated 09.07.1997 and 14.11.1997 in the said certificate dated 14.11.1997 it is clearly mentioned that her elder son Suresh, though employed in a private college, was not extending any financial or physical support to the petitioner's family. Only after the submission of the above said certificate, the 2nd respondent have considered all the certificates including the certificate issued by the Thasildar dated 14.11.1997. When the 2nd respondent was very well aware of the fact that the petitioner's elder brother Suresh was employed and he was not extending any support to the petitioner's family, the 2nd respondent on the basis of G.O.Ms.No.155 dated 16.07.1993 which enables the appointing authority to appoint other eligible dependents on the ground that if any person already employed before the death of Government servant was living separately without extending any help to the family, appointed the petitioner on 04.08.1998 on compassionate grounds and this appointment cannot be found fault with. 11.Had the 2nd respondent rejected the request of the petitioner on the basis that the petitioner's elder brother was already working in the college as lecturer, the petitioner could have got any other employment by this time. But only in view of his appointment on 04.08.1998, the petitioner did not seek employment anywhere else, thus the petitioner also became over-aged now and therefore he would not be in a position to seek any better employment anywhere. 12.Subsequently, as rightly submitted by the learned counsel appearing for the petitioner, this Court also in its judgments in similar cases has held that if a person is appointed on compassionate https://hcservices.ecourts.gov.in/hcservices/ ground and subsequently allowed to continue for more than 5 years, such appointments should not be ordinarily cancelled, lest the family depending upon such employment will be totally up-rooted. Prima facie, the petitioner in the present case also by virtue of an inter order of stay of the impugned order dated 28.03.2000 granted by the Tribunal has been working for the past 12 years. 13.In this context, it is useful to refer a judgment of the Hon'ble Supreme Court reported in (2003) 9 Supreme Court Cases 129 (UNION OF INDIA AND OTHERS V. K.P.TIWARI) wherein it is held that in as much as the respondent having been appointed and continuing in service for more than five years, it would not be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood. Following the above said decision of the Supreme Court, this Court in W.P.No.19687 of 2006 by order dated 16.11.2006 has held that if any one appointed on compassionate ground is allowed to work for five years, after completion of five years, the said appointment cannot be cancelled, as it would otherwise affect the right of the person appointed and also his family, on that basis by setting aside the impugned dismissal order, issued further direction to regularise the service of compassionate appointment. As this order was passed following a judgment of Supreme Court, I have also followed the abovesaid order in another similar writ petition No.42681 of 2006 dated 22.06.2010. 14.In the light of the above discussion, on the basis of G.O.Ms.No.155, dated 16.07.1993 and the judgment of the Supreme Court mentioned supra, the impugned order, which is under challenge, is unsustainable. 15.In this view of the matter, this writ petition stands allowed by setting aside the impugned order dated 22.02.2000 without order as to cost. In view of the fact that the petitioner has been working for the past 12 years, this Court directs the respondents to regularise the service of the petitioner by keeping in mind, the long service of 12 years put in by the petitioner in the office of the 2nd respondent within a period of four months from the date of receipt of a copy of this order. 16.Accordingly, this writ petition is allowed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar pri https://hcservices.ecourts.gov.in/hcservices/ To 1.The State of Tamil Nadu, rep. by the Secretary to Govt., Small Industries(ETT.1) Department, Fort St. George, Chennai-9. 2.The Industries Commissioner & Director of Industries and Commerce, Chepauk, Chennai-600 005. 3.The Executive Engineer (Construction) Department of Industries and Commerce, Chennai Division, Thiru. V.K.Industrial Estate, Guindy, Chennai-600 032. + 1 cc to the Government Pleader SR.56014 + 1 cc to Mr.V.R. Venkatesan, advocate SR.55838 W.P.No.40461 of 2006 (O.A.No.2188 of 2000) BK(CO) EU 12.10.10 https://hcservices.ecourts.gov.in/hcservices/