IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.08.2009 CORAM THE HON'BLE MR. JUSTICE M.M.SUNDRESH W.P.Nos.14915, 10136, 10983, 14652, 14653 of 2009 and M.P.Nos.1, 1, 1, 1, 1, 2, 2, 2 & 2 of 2009 1.N.Sachithanandam ..... Petitioner in W.P.No.14915 of 2009 2.A.Shanmugam ..... Petitioner in W.P.No.10136 of 2009 2.V.Gunasekaran ..... Petitioner in W.P.No.10983 of 2009 3.L.Subramanian ..... Petitioner in W.P.No.14652 of 2009 4.S.Jayaprakash ..... Petitioner in W.P.No.14653 of 2009 Vs The District Manager II, Retail Vending, TASMAC, Tiruppur, .... Respondent in all W.Ps. Prayer: (In W.P.No.14915 of 2009) Petitioner filed under Article 226 of the Constitution of India for issuance of a writ of Certiorarified Mandamus calling for the records relating to the proceeding of the respondent in Na.Ka.No.2/2005/A dated 08.07.2005 and quash the same in the light of the decision of this Hon'ble Court reported in 2006 (1) C.T.C.Page 660 and consequently to direct the respondent to reinstate the petitioner as Supervisor with full back wages. (In W.P.No.10136 of 2009) Petitioner filed under Article 226 of the Constitution of India for issuance of a writ of Certiorarified Mandamus calling for the records relating to the proceeding of the respondent in Na.Ka.No.4/2005/A dated 05.05.2005 and quash the same in the light of the decision of this Hon'ble Court reported in 2006 (1) C.T.C.Page 660 and consequently to direct the respondent to reinstate the petitioner as Salesman with full back wages. (In W.P.No.10983 of 2009) Petitioner filed under Article 226 of the Constitution of India for issuance of a writ of Certiorarified https://hcservices.ecourts.gov.in/hcservices/ Mandamus calling for the records relating to the proceeding of the respondent in Na.Ka.No.2/2005/A dated 13.03.2005 and quash the same in the light of the decision of this Hon'ble Court reported in 2005 (1) C.T.C.Page 660 and consequently to direct the respondent to reinstate the petitioner as Salesman with full back wages. (In W.P.No.14652 of 2009) Petitioner filed under Article 226 of the Constitution of India for issuance of a writ of Certiorarified Mandamus calling for the records relating to the proceeding of the respondent in Na.Ka.No.4/2005/A dated 08.05.2005 and quash the same in the light of the decision of this Hon'ble Court reported in 2006 (1) C.T.C.Page 660 and consequently to direct the respondent to reinstate the petitioner as Bar Assistant with full back wages. (In W.P.No.14653 of 2009) Petitioner filed under Article 226 of the Constitution of India for issuance of a writ of Certiorarified Mandamus calling for the records relating to the proceeding of the respondent in Na.Ka.No.2/2005/A dated 12.09.2005 and quash the same in the light of the decision of this Hon'ble Court reported in 2006 (1) C.T.C.Page 660 and consequently to direct the respondent to reinstate the petitioner as Supervisor with full back wages. For Petitioners : Mr.P.Muthu Krishnan, (in all W.Ps) For Respondent : Mr.J.Ravindran, (G.A.) (TASMAC) (in all W.Ps) C O M M O N O R D E R In view of the common issues involved in the above Writ Petitions, they have been taken up together and a common order is passed. 2. The petitioners in W.P.Nos.10136 and 10983 of 2009 were appointed as Salesmen. The petitioner in W.P.No.14652 of 2009 was appointed as a Bar Assistant and the petitioners in W.P.Nos.14653 and 14915 of 2009 were appointed as Supervisors by the respondent herein. 3. While they were working as Supervisors, 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 have been passed against the petitioners in the year 2005 dismissing them on the ground that the Special TASMAC Force has found the above mentioned irregularities during the surprise inspection. Challenging the impugned orders, the present Writ Petitions have been filed by the petitioners herein. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned counsel appearing for the petitioners submitted that the impugned orders are liable to set aside, since without even framing charges and without affording an opportunity, they have 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 have been passed without following the procedure and hence the same cannot be sustained. 5. Per contra of the learned Government Advocate appearing for the respondent submitted that the Writ Petitions are liable to be dismissed on the ground of latches, since in all the cases, the impugned orders have 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 Petitions that the petitioners are 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 Petitions are liable to be dismissed. 6. 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.Valliyangiri 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. 7. In this connection it is useful to refer the following passage of the Division Bench. 5. In our opinion, such an argument cannot be accepted. The Apex Court in the judgments reported in https://hcservices.ecourts.gov.in/hcservices/ 2005 (7) SCC 518 and 1999 (3) SCC 60, State of 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. 6. We have perused the nature of 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. 8. 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 Tamilnadu 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 respondents that the Writ Petitions are liable to be dismissed and the order passed by the learned single Judge 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 are liable to be 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 respondent 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 https://hcservices.ecourts.gov.in/hcservices/ natural justice. The said Judgment was not been brought before the Division Bench of this Court. 9. Therefore, this Court while setting aside the impugned orders passed by the respondent herein directs the respondent to proceed against the petitioners in accordance with law, if they are so desired. 10. The Writ Petitions are allowed to the extent as indicated above. Sd/- Asst. Registrar /True Copy/ Sub.Asst. Registrar. krk To: The District Manager II, Retail Vending, TASMAC, Tiruppur. + 5 cc to Mr.P.Muthukrishnan, CC SR.40644 to 40648/09 + 5 cc to Mr.J.Ravindran, CC SR.41524, 41529/09 and 41526 to 41528/09. W.P.Nos.14915, 10136, 10983, 14652, 14653 OF 2009 RB (CO) A.S./16.09.2009 https://hcservices.ecourts.gov.in/hcservices/