IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.03.2010 CORAM: THE HON'BLE MR.JUSTICE B.RAJENDRAN W.P.No.16827 of 2006 V.Ramamurthy ... Petitioner Versus 1. Director of School Education, Madras – 6. 2. Chief Educational Officer, Nagapattinam, Nagai Quaid-e-Milleth Dist. 3. The District Educational Officer, Nagapattinam, Nagai Quaid-e-Milleth Dist. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.813 of 1996 from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records pertaining to the order passed by the 3rd respondent in his proceedings Na.Ka.No.64/A1/95 dated 05.10.1995 and set aside the same and direct the respondents to pay the salary for the period from 04.10.1988 to 31.05.1995 treating the period as compulsory wait and settle all the retirement benefits. For Petitioner : Mrs.G.Devi For Respondents : Mrs.Lita Srinivasan, Government Advocate O R D E R The Original Application has been filed by the petitioner seeking to call for the records pertaining to the order passed by the 3rd respondent in his proceedings Na.Ka.No.64/A1/95 dated 05.10.1995 and set aside the same and direct the respondents to pay the salary for the period from 04.10.1988 to 31.05.1995 treating the period as compulsory wait and settle all the retirement benefits. On the abolition of the Tamil Nadu Administrative Tribunal, the original application stood transferred and re-numbered as W.P.No.16827 of 2006. 2. The learned counsel appearing for the petitioner would contend that the petitioner was appointed as Library Record Clerk on 22.08.1962 in Government High School, Thiruthuraipoondi. In the year https://hcservices.ecourts.gov.in/hcservices/ 1983, on 07.11.1983, there was some theft which took place in the library and ultimately it was found that 1739 books were missing. Thereafter, on 01.06.1985, the petitioner was issued a show cause notice for recovery of value of the books, for a sum of Rs.4,161.56. The petitioner submitted his explanation. While considering the petitioner's explanation, on 22.12.1987, the petitioner was directed to pay the entire amount of Rs.4,161.56. Thereafter, on 01.08.1988, the petitioner was transferred from Thiruthuraipoondi to Ayyanur. According to the petitioner, the relieving order was not issued to him and therefore, he applied for medical leave from 03.08.1988 to 03.10.1988, After expiry of the medical leave, he approached the Headmaster of Thiruthuraipoondi Higher Secondary School for relieving him so as to enable him to join duty at Ayyanur, but the petitioner was not relieved on the ground that he has to pay the sum of Rs.4,161.56 which was ordered to be recovered from him. Under those circumstances, challenging the order of recovery, the petitioner has filed O.A. No. 1124 of 1990 before the Tribunal. The Tribunal, after hearing both sides, by an order dated 26.02.1993 allowed the Original Application as prayed for. 3. According to the petitioner, he was neither allowed in the school where he was working or relieved to join the transferred place. No salary was also paid to the petitioner from 01.01.1988 to 01.08.1988. While so, a show cause notice dated 31.01.1990 was issued to the petitioner as to why he should not be dismissed from service for his unauthorised absent for two years. Immediately, the petitioner replied stating that he has not left the service, but he was not allowed to join duty inspite of his representations. But without considering the same, the impugned order of termination was passed by the third respondent. The impugned order dated 05.10.1995 was passed by the 3rd respondent without conducting any enquiry and without giving any opportunity and the petitioner was summarily terminated from service, and that too with retrospective effect from 03.08.1998 which is legally not sustainable. 4. The learned counsel appearing for the petitioner brought to the notice of this Court the judgment of the Tribunal passed in a batch of Original Applications in O.A. No. 1120 of 1989 etc., batch. The said Original Applications have been filed challenging the validity of Rule 18 (3) of Fundamental Rules in so far as it relates to orders of removal from service by following the provisions contained in FR 18 (2) and 18 (3) without any information after expiry of the leave period. The Tribunal allowed those Original Applications by a common order dated 21.10.1999 wherein in para-27 and 28, it was held thus:- "27. In some cases, F.R. 18 (3) is quashed, and in some case, without quoting F.R.18 (3), the applicants have been removed from service. Even though, F.R. 18(3) is not cited in some of the orders, challenged in the batch of those cases, it can be assumed that the extreme penalty of removal from service has been ordered only by virtue of the powers conferred under F.R. 18 (3) and there was no opportunity for the punishing authority to exercise its discretion. That is why, I am of the https://hcservices.ecourts.gov.in/hcservices/ view, that all the applicants are entitled to succeed. But, that does not mean that they need not be proceeded with in disciplinary proceedings, for their failure to resume duty, after expiry of leave. I am setting aside the orders of removal from service in these cases, on the ground that F.R. 18 (3) purporting to provide removal from service, for failure to resume duty after expiry of leave, is not valid, as the same is repugnant to Service Rules and the Constitutional Principles of equality, and for further eason that the Governor's determination is absent, even assuming but not admitting that the rule is valid. As already stated, in some of the cases, even without reference to F.R. 18 (3) punishmant has been imposed, after an elaborate enquiry under Rule 17 (b) (i) of the Service Rules. But simply because, they followed the procedure laid down in Rule 17 (b) (i), I am not in a position to accept that the extreme penalty of removal has been ordered without reference to F.R. 18 (3). Therefore, though these impugned orders are set aside in these cases, the authorities are at liberty to proceed against the applicants for their failure to resume duty after expiry of leave, in accordance with Rules 8 & 17 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. As and when such enquiry is conducted, the authorities should not be influenced by the earlier orders of removal from service passed by them and the provisions contained in F.R. 18 (3). They must consider the case afresh, after giving sufficient opportunity to the applicants to lead further evidence, if necessary. 28. I make it clear that depending upon the nature, circumstances, duration of the pendency of the cases before this Tribunal, the age of the applicants and other relevant circumstances, it is open to the concerned authorities to decide whether further proceedings against any, some or all of the applicants are necessary at all. As a result, the applications are allowed and the punishment orders are set aside. However, the matters are remitted back to the concerned authorities for fresh action, if necessary, without reference to the orders already passed and the provisions contained in F.R. 18 (3)." 5. The Government did not prefer any appeal against the order dated 21.10.1999 of the Tribunal. On the other hand, the Government had implemented the order of the Tribunal by issuing G.O. Ms. No.153, Personnel and Administrative Reforms (F.R.III) Department dated 08.08.2000. In the said Government Order, the Government, after examining the order of the Tribunal has stated in Para Nos. 3 as follows:- "3. Consequent on the above orders of the https://hcservices.ecourts.gov.in/hcservices/ T.N.A.T. The question of revising the provisions of the F.R. 18 (2) in the light of the orders of Tamil Nadu Administrative Tribunal has been examined by the Government. However, such orders will take effect from the date of issue only. Hence, the following instructions are issued in continuations of the instructions issued by the Government in the letter third read above:- (i) In respect of cases, remitted back by the Tamil Nadu Administrative Tribunal, the appropriate or disciplinary authorities are directed to take suitable action as directed by the Tamil Nadu Administrative Tribunal in its order dated 21.10.1999. In such cases, the disciplinary authorities are directed to take into consideration the orders of Tamil Nadu Administrative Tribunal and examine the circumstances under which the Government servants remained absent beyond the maximum limit stipulated in Fundamental Rule 18 (1) and 18 (2) and if the disciplinary authorities consider that good and sufficient reason exist for imposing penalties enlisted in Rule 8 of Tamil Nadu Civil Service (Discipline and Appeal) Rules, suitable final orders shall be passed with reference to Rule 8 of the said Rules after due observance of the procedure. (ii) In disciplinary cases, initiated against the Government servants for their unauthorised absence beyond the permissible limit, wheein the Government servants have not filed any applications before the Tamil Nadu Administrative Tribunal challenging disciplinary action under Fundamental Rule 18 (3) the disciplinary authority shall examine the circumstances under which the Government servant remained absent, beyond the maximum limit stipulated in Fundamental Rules 18 (1) and 18 (2) and if the disciplinary authority considers that good and sufficient reasons exist for imposing penalties under Rule 8 of the Tamil nadu Civil Services (Discipline and Appeal) Rules final orders may be passed with reference to rule 8 of the Tamil Nadu Civil Service (Discipline and Appeal) Rules after due observance of procedure. (iii) In future, disciplinary cases against the Government Servants for their unauthoised absence beyond the maximum permissible limit stipulated in Fundamental Rule 18 (1) and 18 (2) shall be initiated by the disciplinary authority under Rule 17 of the Tamil Nadu Civil Service (Discipline and Appeal) Rules and the disciplinary authority considers that good and sufficient reasons exist for imposing penalties under rule 8 of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, final orders may be passed under rule 8 of the Tamil Nadu Civil https://hcservices.ecourts.gov.in/hcservices/ Service (Discipline and Appeal) Rules. iv) In respect of Government employees who have filed cases before the Tamil Nadu Administrative Tribunal challenging the charges framed or orders passed by the authorities as per the existing Fundamental Rule 18(3), which are still pending before the Tamil Nadu Administrative Tribunal, since Tribunal will pass orders drawing attention to the ruling given earlier, revised action may be pursued as indicated in item (iii) above, after informing the Tribunal, by filing suitable Miscellaneous Application, if necessary. 6. On perusal of the said Government Order, it is clear that the Government has not preferred any appeal as against the order passed by the Tribunal. On the other hand, the Government accepted the directions and norms given by the Tribunal by passing G.O.Ms.No.153 dated 08.08.2000. In that order, it was categorically stated that in respect of cases which are either remitted back by the Tribunal or pending before the Tribunal, since the matter would be agitated by the incumbents on the basis of the earlier order of the Tribunal and as the Tribunal would be bound by its own earlier order, the Government directed the authorities to file necessary application to see that the applications are withdrawn or if necessary further actions can taken up in accordance with law. According to the learned counsel for the petitioner, the petitioner would be entitled to the benefits as per the G.O.Ms.No.153 as no enquiry was conducted before passing the impugned order of termination. 7. The respondents have filed a detailed reply affidavit. In the reply affidavit, they would contend that the petitioner was responsible for the loss of the books. The locks were intact in the library however the books were missing. As per the report given by the petitioner, 7 books were missing. Whereas, on verification, it was found that 1739 books were missing and that is why the recovery order was passed holding the petitioner responsible for the loss of book. In fact, the petitioner was transferred from the post Thiruthuraipoondi to Ayyanur on 03.08.1988 and the relieving order was sent to the petitioner by Registered Post. But it was not received by him and was sent back to the Headmaster. The petitioner applied for medical leave only for 2 months from 03.08.1988 to 03.10.1988 and thereafter he did not approach the appointing authority and give any letter for his unauthorized absent. Under those circumstances, the order of termination was passed on 05.10.1995. 8. Heard both parties. On a perusal of the records, it is very clear that the petitioner was absent from 03.08.1988 without any medical leave for a long period of more than 7 years. It is very clear that in so far as removal of service for long absence, a show cause notice was issued on 31.01.1990 for which the petitioner had sent his reply. But thereafter, no enquiry was conducted and the petitioner also received a letter dated 17.05.1990 calling upon him to join duty provided he pays the amount as ordered in the earlier proceedings, but the same was not complied with by him. In the meantime, the petitioner has filed O.A. No. 1124 of 1990 before the https://hcservices.ecourts.gov.in/hcservices/ Tribunal challenging the order of recovery and the Tribunal, by an order dated 26.02.1993 allowed the Original Application setting aside the order of recovery. Thereafter, the petitioner sent a representation dated 24.11.1993 seeking posting order. Since the respondents did not issue any posting order, the petitioner filed an Original Application No. 2232 of 1994 before the Tribunal seeking a direction to the respondents to issue posting order to enable him to join duty and also to pay salary for the period from 04.10.1988. This original application was transferred to this Court and re- numbered as W.P. No. 18948 of 2006. By an order dated 10.10.2007, the said writ petition was dismissed as follows:- "3. The learned counsel for the petitioner was heard on 04.10.2007. Since the petitioner was aged about 58 years at the time of filing of the original application in the year 1994, the learned Government Advocate was directed to verify as to whether the petitioner was allowed to retire on attaining superannuation and whether retirement benefits were disbursed to him. On this day, on instruction, the learned Government Advocate submitted that as per the date of birth entered in service register, the petitioner's retirement fall on 31.05.1995. However, disciplinary proceedings were taken against the petitioner and ultimately he was removed from service by an order dated 05.10.1995 in Na.Ka.No.64/A1/95 of the Chief Educational Officer, Nagapattinam. As the petitioner had already been removed from service, the present writ petition seeking for issuance of posting orders and other benefits from 10.08.1988 does not survive. Hence, the writ petition is dismissed. No costs." 9. It is very clearly stated that the petitioner has been terminated from service pursuant to the order dated 05.10.1995 and the Court has come to the conclusion that nothing survives in the writ petition and the same has been dismissed as infructuous. But it is clearly not brought to the notice of the Court in the earlier writ petition about the pendency of the present petition, in which the order of termination itself is challenged. In any view of the matter that order of dismissal of the earlier case seeking for issuance of posting order and salary for the period from 04.10.1988 will not affect the case of the petitioner in the present case and it will not be a bar for this Court to adjudicate the validity of the order of termination passed by the third respondent, which is impugned in this writ petition. 10. Now coming to the present position, as far as the present case is concerned, the petitioner challenged the impugned order of termination with retrospective effect from 03.08.1988. In this connection, the learned counsel for the petitioner would rely upon the G.O.Ms.No.153 dated 08.08.2000. Since in this case, as rightly pointed out by the petitioner's counsel, no enquiry at all was conducted and summarily an order was passed by the third respondent terminating the petitioner from service, the G.O.Ms.No.153, dated https://hcservices.ecourts.gov.in/hcservices/ 08.08.2000 will be applicable to this case. Under those circumstances, the order passed by the third respondent dated 05.10.1995 is set aside and matter is remitted back to the third respondent to pass orders afresh in accordance with G.O.Ms.No.153 dated 08.08.2000 after giving sufficient opportunity to the petitioner within a very reasonable time. 11. With the above direction, the writ petition is allowed. No costs. Sd/- Assistant Registrar /True Coy/ Sub Assistant Registrar ogy/rsh To 1. Director of School Education, Madras – 6. 2. Chief Educational Officer, Nagapattinam, Nagai Quaid-e-Milleth Dist. 3. The District Educational Officer, Nagapattinam, Nagai Quaid-e-Milleth Dist. +One CC to the Mr.V.Raghupathi, Advocate Sr.No.19701 +One CC to the Government Pleader Sr.No.19981 W.P.No.16827 of 2006 MS(CO) 19/11/2010 https://hcservices.ecourts.gov.in/hcservices/