IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.11.2010 CORAM: THE HONOURABLE MR.JUSTICE V. DHANAPALAN W.P.Nos.26071 to 26080 of 2008 and M.P.Nos.1 of 2010 in W.P.Nos.26071 to 26080 of 2008, M.P.Nos.2 of 2010 in W.P.Nos.26071 to 26073, 26075 & 26077 to 26080 of 2008 & M.P.Nos.2 of 2008 in W.P.Nos.26071 to 26080 of 2008 V.Parvathi .. Petitioner in W.P.No.26071 of 2008 R.Ravi .. Petitioner in W.P.No.26072 of 2008 M.Prakasam .. Petitioner in W.P.No.26073 of 2008 G.Senthil .. Petitioner in W.P.No.26074 of 2008 K.Somasundaram .. Petitioner in W.P.No.26075 of 2008 P.Kaveri .. Petitioner in W.P.No.26076 of 2008 S.Sarala .. Petitioner in W.P.No.26077 of 2008 A.Singaram .. Petitioner in W.P.No.26078 of 2008 S.R.Shanthi .. Petitioner in W.P.No.26079 of 2008 A.Chellappa .. Petitioner in W.P.No.26080 of 2008 Vs. 1. The Commissioner of Town Panchayats Kuralagam, Chennai – 108. 2. The Collector Trichy District, Trichy. 3. The Assistant Director of Town Panchayat Trichy Zone, Trichy. 4. The Executive Officer, Mettupalayam Town Panchayat Trichy District. 5. The Appointment Committee, Mettupalayam Town Panchayat, Trichy District. ...Respondents 1 to 5 in all the WPs 6. R.Sampath 7. V.Srinivasan 8. R.Natarajan 9. S.Krishnamoorthy 10. A. Balakrishnan ...Respondents 6 to 10 in WP.26071/08 https://hcservices.ecourts.gov.in/hcservices/ R.Sampath V.Srinivasan R.Natarajan A.Balakrishnan ...Respondents 6 to 9 in WP.Nos.26072, 26073, 26075, 26077, 26078, 26078, 26079/08 ...Respondents 6 to 8 in WP.26080/08 A. Balakrishnan ...6th Respondent in WP.26074/08, 26076/08 (R-6 to R-8 impleaded as per Court order dated 17.04.2009 in M.P.No.3 of 2008 in W.P.No.26071/08 and R-9 impleaded as per Court order dated 17.04.2009 in M.P.No.4 of 2008 in W.P.No.26071/08 and R-10 impleaded as per Court order dated 26.04.2009 in M.P.No.1 of 2009 in W.P.No.26071/08.) Writ petitions filed under Article 226 of Constitution of India praying for issuance of Writs of Certiorari by calling for the proceedings of the first respondent viz. the Commissioner of Town Panchayat in its No.NMK.7990/2008/A3 dated 24.09.2008 and the consequential proceedings of the Executive Officer, Mettupalayam viz., the 4th respondent in Na.Ka.No.21 of 2007 dated 14.10.2008 and quash the same. For Petitioners : Mr.V.Vijay Shankar For R1 to R3 : Mr.S.Gopinathan Addl. Govt. Pleader For R4 : Mr.J.Raja Kalifulla For R6 to R8 : Mr.S.K.Mani For R9 : Mr.K.Selvaraj For R10 : Mr.G.Rajagopal, Senior Counsel for M/s.G.R.Associates C O M M O N O R D E R In all these writ petitions, facts, questions and all other issues are common. Therefore, the same are disposed of by a common order. 2. The petitioners question the orders passed by the first respondent, namely, the Commissioner of Town Panchayat dated 24.09.2008 and the consequential proceedings of the Executive Officer, Mettupalayam Town Panchayat, Trichy, the 4th respondent herein dated 14.10.2008, terminating the services of the petitioners, seeking to quash all the orders in these writ petitions. 3. According to the petitioners, they were sponsored for appointment by the District Employment Exchange, Trichy District in March 2007 for the post of Sanitary Workers in the Mettupalayam Town https://hcservices.ecourts.gov.in/hcservices/ Panchayat in pursuance of the communication signed by the fourth respondent, which called for names from the Employment Exchange to fill up 11 vacancies. They were called for interview and on being satisfied with their qualifications and also on the basis of marks, they were appointed by the Executive Officer, Mettupalayam Town Panchayat on 27.04.2007 in the scale of pay of Rs.2,550-3200. After one year of their service, vide proceedings of the fourth respondent dated 09.05.2008, they were confirmed and made permanent in their capacity with effect from 02.05.2008. In this capacity, they are all working in the fourth respondent Town Panchayat. 3a. While that being so, suddenly, without any show cause notice or opportunity of hearing or without any enquiry, the fourth respondent passed impugned proceedings dated 14.10.2008 cancelling the appointment orders of the petitioners. It is the case of the petitioners that a perusal of the said order reveals that the orders of cancellation were purportedly made upon the directions given by the first respondent in his proceedings dated 24.09.2008 to cancel the appointment of the petitioners on the ground that there were alleged irregularities in sponsoring of their names by the District Employment Exchange. As per the direction of the first respondent, the fourth respondent had issued the impugned orders of cancellation of appointments. 3b. It is submitted by the petitioners that they were appointed for the said post of Sanitary Workers in the month of March 2007 and came in regular line after following all the norms. Therefore, they became Civil Servants and they are entitled to the protection of Article 311 of the Constitution of India. Being permanent employees, the services of the petitioners cannot be dispensed with without holding enquiry or without giving them an opportunity of hearing. Therefore, the impugned orders are arbitrary and violative of principles of natural justice and the petitioners have challenged not only the orders of cancellation passed by the fourth respondent dated 14.10.2008, but also the order of communication sent by the first respondent to the District Collector, Trichy dated 24.09.2008, on the ground that they were appointed after following the regular process of selection pursuant to sponsorship of their names by the District Employment Exchange, Trichy District and they also became permanent employees. They cannot be terminated without following the procedures contemplated under law as mandated under Article 311(2) of the Constitution of India. Therefore, it is their claim that the impugned orders are legally infirmed and liable to be set aside. 3c. The petitioners stated that a reading of the impugned orders shows that the first respondent had directed the Assistant Director of Town Panchayat to conduct an internal enquiry, which, they were not aware of. When such a report was relied on by the first respondent, it is obligatory on his part to forward a copy of the same to them. According to them, on obtaining explanations thereof and after https://hcservices.ecourts.gov.in/hcservices/ following the procedures as per law, the respondents would have proceeded further in this matter. Hence, they submitted that the impugned orders suffer from legal infirmity, as the respondents have not even verified the genuineness of the list received from the Employment Exchange before cancelling the appointment orders. 4. The second respondent, viz., the District Collector has filed a counter, wherein, it is stated that the petitioners were appointed as Sanitary Workers in Mettupalayam Town Panchayat through Employment Exchange. One Mr.M.K.Rajendran sent a representation on 13.06.2008 that the petitioners were appointed illegally and without following rules. Hence, an enquiry was ordered to be held by the Personal Assistant (Accounts) to the Collector, Tiruchirappalli regarding their appointments. The enquiry reveals that the then Executive Officers N.Murugesan and P.Muthukumarasamy have committed serious irregularities and appointed the petitioners without following the guidelines prescribed, such as educational qualification, age, experience and physical fitness and without awarding proper marks for the qualification and had found in guilty on that score. On receipt of the Enquiry report, the second respondent, the District Collector issued charge memo under Section 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules on the said officers. Further, the 1st respondent issued suitable directions to the second respondent to cancel the appointments granted to the petitioners. Consequently, the second respondent issued orders to the fourth respondent to implement the said directions. Further, the third respondent had also by a note order instructed the fourth respondent to implement the directions of the first and second respondents, based on which, the fourth respondent has proceeded further in dismissing the petitioners from service. 4a. According to the second respondent, during 2007, Sanitary Workers were appointed in Mettupalayam Town Panchayat and the appointments were duly made by the Appointment Committee of the Town Panchayat consisting of the Chairman of the Committee and another member along with the Executive Officer of the Town Panchayat. Since certain irregularities were pointed out, the District Collector, Tiruchirappalli had ordered for an enquiry into the alleged irregularities levelled in the appointments of the said 11 Sanitary Workers in the Town Panchayat, Mettupalayam. Based on that, a discreet enquiry was conducted by the enquiry officer over the matter and he submitted a report to the Collector, in which, the enquiry Officer had given his findings with regard to the irregularities committed by the Executive Officers N.Murugesan and P.Muthukumarasamy, who have given appointments to the 11 Sanitary workers without following the guidelines. Based on the said findings, the District Collector framed charges and had issued charge memo to the said Executive Officers. Action has been initiated in respect of 11 persons appointed by them and the first respondent instructed the second respondent to take action to cancel the said 11 irregular appointments of the Sanitary https://hcservices.ecourts.gov.in/hcservices/ Workers. 4b. Further, in the counter of the 2nd respondent, it is stated that it is also instructed by the Assistant Director of Town Panchayats to implement the order of the Commissioner of Town Panchayats and the District Collector as per G.O.Ms.No.205 RD Department dated 23.03.1989. Ultimately, the Executive Officer, by his proceedings in R.C.No.21/2007 dated 14.10.2008 dismissed the said 11 Sanitary Workers with effect from the forenoon of 15.10.2008. It is further contended that since the appointment itself was found to be wrong, it was inevitable for passing orders dismissing the petitioners. Hence, there is no violation of the principles of natural justice. 4c. Also, it is the case of the second respondent in the counter that in the same Government Order, necessary rules have been framed under the title, the Tamil Nadu Town Panchayat Establishment (Punishment and Appeal) Rules 1988 Section 15 (Sub rule 1 to 3) of these rules, which provides with powers to the Town Panchayat Officer and Director of Town Panchayats to decide certain matters as under: "(i) The Executive Authority shall decide all matters relating to discharge of reversion of personnel on abolition of posts and reemployment of discharged personnel and any other matters relating to conditions of service of the establishment under Town Panchayats not dealt within these rules in consultation with the Town Panchayat Officer concerned. (ii) The District Town Panchayat Officer may on a reference made to him under sub rule (1) or suo moto call for the connected papers relating to any establishment matters from the Executive Authority of the Town Panchayat and pass such orders as he deems fit. Such order shall be carried out by the Executive Authority. (iii) The order passed under sub rule (2) by the District Town Panchayat Officer shall be subjected to such special or general orders as may be issued by the Director of Town Panchayats in any particular case or class of cases as the case may be" 4d. It is admitted in the counter of the second respondent that the District Collector has ordered in his proceedings in Na.Ka.1378/2008, TP.2, dated 13.11.2008, the Executive Officer of Mettupalayam Town Panchayat to allow the petitioners to resume duty and ultimately, the Executive Officer, Mettupalayam Town Panchayat vide proceedings in Na.Ka.No.21/2007 dated 15.11.2008 has allowed them to resume duty and they are now working in the said Town Panchayat. Therefore, the respondents prayed for vacating the interim orders as https://hcservices.ecourts.gov.in/hcservices/ also dismissal of the writ petitions. 5. The fourth respondent, who passed the ultimate order of dismissal filed counter and the similar contention as stated by the second respondent is also made therein. Among other things, it is inter alia contended by the 4th respondent that the petitioners were appointed as Sanitary Workers in Mettupalayam Town Panchayat through Employment Exchange. One Mr.M.K.Rajendran sent a representation on 13.06.2008 that the petitioners were appointed illegally and without following the rules. An enquiry was ordered to be held by the Personal Assistant (Accounts) regarding appointment of the petitioners. The enquiry revealed that the then Executive Officers N.Murugesan and P.Muthukumarasamy have committed serious irregularities and appointed the petitioners without following the guidelines prescribed such as educational qualification, age, experience and physical fitness. Hence, the second respondent issued a charge memo under Section 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules on the said officers. Further, the first respondent issued suitable directions to the second respondent to cancel the appointments granted to the petitioners. Ultimately, the fourth respondent by his proceedings in R.C.No.21/2007 dated 14.10.2008 passed the orders of dismissal from service against the said 11 Sanitary Workers. All other statements made by the respondent Nos. 6 & 8 are as common as that of the second respondent in the counter. 6. Pending these writ petitions, three persons, namely, R.Sampath, V.Srinivasan and R.Natarajan filed an impleading petition claiming that they have been working as scavengers on daily basis in Mettupalayam Town Panchayat. Apart from them, three others who were sponsored through the Employment Exchange also have been working on the same line and they have acquired several years of experience ranging from 12 to 15 years. It is reiterated that after their selection as Scavangers, as per the Government Order, they ought to have been treated as Scavangers on a consolidated basis for one year and to be absorbed as Permanent Scavangers in the succeeding year, but to the contrary, the authorities of Mettupalayam Town Panchayat had flagrantly violated the said Government Order. Therefore, they are the necessary parties to be heard in these writ petitions, since any decision in these cases would affect their claim of absorption. 7. Similarly, a person by name A.Balakrishnan filed a petition to implead him as a party respondent claiming that he is a permanent resident of Mettupalayam and a social worker. He came to know that the writ petitioners in the above writ petitions and various others were appointed to the Town Panchayat as Scavangers without following the rules and regulations. Therefore, he would submit that he is an interested person to be heard in these matters and wanted his name to be impleaded as a party respondent in the writ petitions. https://hcservices.ecourts.gov.in/hcservices/ 8. Mr.V.Vijay Shankar, learned counsel for the petitioners has strenuously contended that the petitioners were appointed after their names were sponsored through Employment Exchange and after following the due procedures contemplated under Rules. Upon satisfaction of the eligibility criteria as also after conducting interview, they were appointed and made permanent. They attained several status of services by virtue of their permanency. Therefore, the orders of dismissal passed against them should be done only in accordance with the rules by following the procedures under law, such as, issuing show cause notice, affording an opportunity of hearing to them and holding an enquiry, as otherwise, according to him, the orders of dismissal would be construed exfacie illegal, arbitrary, contrary to law and in violation of the principles of natural justice. 8a. In support of his contentions, learned counsel for the petitioners has relied on the following : (i) a decision of the Hon'ble Supreme Court reported in (1986) 3 SCC 277 in the case of Jarnail Singh v. State of Punjab "31. In the instant case as we have stated already hereinbefore that though the impugned order was made under the camouflage or cloak of an order of termination simpliciter according to the terms of the employment, yet considering the attendant circumstances which are the basis of the said order of termination, there is no iota of doubt in inferring that the order of termination had been made by way of punishment on the ground of misconduct and adverse entry in service record without affording any reasonable opportunity of hearing to the petitioners whose services are terminated and without complying with the mandatory procedure laid down in Article 311(2) of the Constitution of India. 32. The position is now well settled on a conspectus of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the court in such case, will lift the veil and https://hcservices.ecourts.gov.in/hcservices/ will see whether the order was made on the ground of misconduct, inefficiency, or not. In the instant case we have already referred to as well as quoted the relevant portions of the averments made on behalf of the State- respondent in their several affidavits alleging serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners, which were taken into consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following the procedure provided in Article 311(2) of the Constitution of India, while considering the fitness and suitability of the appellants for the purpose of regularising their services in accordance with the government circular made in October, 1980. Thus the impugned orders terminating the services of the appellants on the ground that “the posts are no longer required” are made by way of punishment." (ii) another decision of the Supreme Court reported in (1996) 8 SCC 280 in the case of Director General of Police v. Mrityunjoy Sarkar "3. In the discharge order, it was stated that the respondents had exercised the power under Rule 34(b) of the West Bengal Service Regulations (Part I) and the instructions contained in Memo No. 4145(2) dated 22-11-1985 of the Assistant Inspector General of Police, West Bengal. It is not in dispute that the Commissioner of Labour in his letter dated 5/7-9-1985 had informed the appellants that the list of the names forwarded by the Employment Exchange was a fake one and their names were fabricated as they do not correspond to the entries in the Employment Exchange. Consequently, he directed the appellants to take action according to rules. It would thus be clear that the foundation for discharge is production of fake list of persons from the Employment Exchange for recruitment as Armed Reserved Constables. If that is accepted, then it would cause a stigma on the respondents for future recruitment as they have produced fictitious record to secure employment. Principles of natural justice require that they should be given reasonable opportunity of representation in the enquiry to be conducted and appropriate orders with reasons in support thereof need to be passed. It is settled legal position and the said procedure has not been followed. Under these circumstances, the High Court had not committed any error in dismissing the appeal. It would be open to the appellants to issue notice to all the respondents and consider their case and then pass appropriate orders with reasons, however brief they may be, in support thereof within a period of six weeks from the https://hcservices.ecourts.gov.in/hcservices/ date of the receipt of this order. The said notice shall be given to the respondents stating the grounds on which they seek to discharge them and the respondents are directed to submit their objections, if any, and the material in support thereof within one month thereafter. After receipt of the objections, the appellants are directed to consider the objections and pass appropriate orders within six weeks thereafter and to communicate the same to all the respondents with acknowledgement due. The order, as stated earlier, should contain concise reasons in support of their conclusions." (iii) a Supreme Court decision reported in (1998) 8 SCC 194 in the case of Basudeo Tiwary v. Sido Kanhu University "12. The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to the Act, rules, statutes and regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or regulations, etc., a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry, the person whose appointment is under enquiry will have to be issued a notice. If notice is not given to him, then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha case1. In such an event, we have to hold that in the provision, there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, statute, rule or regulation etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35(3) in this case will have to be read. https://hcservices.ecourts.gov.in/hcservices/ 13. Admittedly in this case, notice has not been given to the appellant before holding that his appointment is irregular or unauthorised and ordering termination of his service. Hence the impugned order terminating the services of the appellant cannot be sustained." (iv) another decision of the Hon'ble Supreme Court reported in (2000) 3 SCC 239 in the case of V.P.Ahuja v. State of Punjab "5. The observation of the High Court that: “The impugned order is not stigmatic and nothing at all has been urged that may detract from such an order being passed during the currency of probation.” is surprising, to say the least. The order by which the services of the appellant were terminated has already been quoted by us above. The order, ex facie, is stigmatic as also punitive. The order is founded on the ground that the appellant had failed in the performance of his duties administratively and technically. It is for this reason that the services of the appellant were terminated. As pointed out above, the order, ex facie, is stigmatic. " (v) yet another decision of the Supreme Court reported in (2000) 5 SCC 152 in the case of Vchandra Prakash Shahi v. State of U.P. "27. The whole case-law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulum; right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi case that there was a conflict of decisions on the question of an order being a simple termination order or a punitive order, but every time the Court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of “motive” and “foundation” was always kept in view. 28. The important principles which are deducible on the concept of “motive” and “foundation”, concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability