IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.08.2011 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.3558 OF 2007 (O.A.NO.4958 OF 2001) M.Ganesan ... Petitioner Versus 1.The Principal Chenglepet Govt. Industrial Training Institute Chenglepet. 2.The Director Directorate of Employment and Training Chepauk, Chennai – 600 005. 3.The Secretary to Government Labour & Employment Training Department Fort St. George, Chennai – 600 009. ... 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.4958 of 2001 from the file of Tamil Nadu Administrative Tribunal with a prayer to (a) call for the records of the impugned order in Proc.No.Nee2/11300/94 dated 22.06.2001 regarding removal of service of petitioner passed by the 1st respondent and quash the same and consequently (b) to direct the respondents to reinstate the petitioner into service and regularise his service, and consequently, (c) to treat the period the petitioner was out of employment as duty for all purpose. For Petitioner : Mr.K.Shahul Hameed For Respondents: Mr.S.Gunasekaran Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner's father Thiru. Munusamy was working as Workshop Attender at Government Industrial Training Institute, Chenglepet. While he was in service, he died on 13.05.1975. The petitioner's mother made various representations to the Honourable Chief Minister's Cell seeking compassionate appointment to the petitioner, as the family was in indigent circumstances, after the death of his husband i.e. the petitioner's father. The Special Cell attached to the Honourable Chief Minister forwarded the same to the Director of Employment and Training, Chennai. The Director of Employment and Training, Chepauk, Chennai wrote a letter dated 04.09.1993 to the petitioner directing him to make an application to the Government Industrial Training Institute, Chenglepet with required certificates. The said letter was also addressed to the Principal, Government Industrial Training Institute, Chenglepet. In the another letter dated 15.12.1994 addressed to the Principal, Government Industrial Training Institute, Chenglepet, by the Director of Employment and Training, Chennai, it is stated that the petitioner possessed qualification for appointment to the post of Watchman. In these circumstances, the Principal, Government Industrial Training Institute, Chenglepet, issued an order dated 19.12.1994 appointing the petitioner as Watchman on compassionate ground. 2.Subsequently, the Principal, Government Industrial Training Institute, Chenglepet sent proposal to the Director, Employment and Training, Chennai, for regularisation of the services of the petitioner. In the said proposal, he sought for relaxation with regard to the petitioner's age, as he crossed 30 years of age at the time of appointment. The third respondent Government rejected the proposal for regularisation vide order dated 10.04.2001 stating that the elder brother of the petitioner got married only on 21.08.1975 i.e. after the death of the petitioner's father and therefore, it could not be taken that the petitioner's family was in indigent circumstances due to the death of his father. It is also stated that the petitioner was given employment after about 20 years from the date of death of his father. In these circumstances, the first respondent passed the impugned order dated 22.06.2001 terminating the services of the petitioner, based on the aforesaid order dated 10.04.2001 of the third respondent Government. Challenging the same, the petitioner has filed Original Application in O.A.No.4958 of 2001 before the Tamil Nadu Administrative Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 3.While admitting the Original Application on 02.08.2001, the Tribunal granted interim stay. No reply affidavit has been filed by the respondents. 4.In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.3558 of 2007. 5.Heard the submissions made on either side and perused the materials available on record. 6.The learned counsel for the petitioner submits that there was no limitation prescribed for making application for compassionate appointment before the order in G.O.Ms.No.120, Labour and Employment Department, dated 26.06.1995 was passed. The Government issued order in G.O.Ms.No.120 prescribing three years period of limitation from the date of death of the Government servant to seek compassionate appointment. Even the said order was clarified by the Government in Letter No.39924/Q1/95-1 dated 11.10.1995 stating that the aforesaid Government Order is applicable only to the deaths that occur after 26.06.1995 and not to past cases. Compassionate appointments were granted to so many persons without reference to limitation. The learned counsel for the petitioner relies on the following passage from the said letter dated 11.10.1995. "......In this connection, it is clarified that the time limit of three years period specified in the Government Order first cited is applicable only to the dependants of the Government servants those who died while in service on or after 26.6.95 and the above order are not applicable to the past cases...." 7.Hence, as rightly contended by the learned counsel for the petitioner, the impugned order is not correct in stating that the petitioner was granted compassionate appointment after twenty years. Compassionate appointment was made in terms of the then existing scheme and therefore, the petitioner could not be blamed for his appointment after twenty years, particularly when the Government made so many appointments without reference to limitation. 8.It is stated that the petitioner's father died on 13.05.1975 and the petitioner's brother got married on 21.08.1975 and that therefore, it could not be taken that the petitioner's https://hcservices.ecourts.gov.in/hcservices/ family could be in indigent circumstances. The first respondent should have resorted to compassionate appointment only after getting report as to indigent circumstances of the petitioner's family. The first respondent appointed the petitioner in 1994 and also sent proposals for regularisation of his services. In these circumstances, the proposal could not be rejected on the ground that the petitioner's brother got married subsequent to the death of his father and therefore, the family could not be said to be in indigent circumstances, as his brother was in employment. The petitioner was in employment for the past 17 years. Just because the petitioner's brother was in employment before the death of his father and had got married subsequently after three months of the death of his father, it could not be presumed that the family was not in indigent circumstances. Whether the family was in indigent circumstances or not should have been independently enquired into. It is not known as to whether any report has been sought for by the first respondent at the time of providing compassionate appointment to the petitioner. The first respondent could not set aside the compassionate appointment after 17 years on the ground that the petitioner's family was not in indigent circumstances, as his brother was in employment and got married after three months from the date of death of his father. Furthermore, the impugned order of termination was passed based on the letter dated 10.04.2001 of the third respondent Government, while the same was not furnished to the petitioner and his views were not obtained. That is, before passing the termination order, the petitioner was not heard. Hence, the impugned order is violative of principles of natural justice and the same is liable to be set aside. Further, the First Bench of this Court in V.BALAKRISHNAN VS. THE JOINT DIRECTOR OF AGRICULTURE, THIRUVANNAMALAI in W.A.No.1559 of 2009 (decided on 03.11.2009) has held that if an employee has continued for a substantial period, the same need not be disturbed. 9.For all the aforesaid reasons, the impugned order dated 22.06.2001 passed by the first respondent is quashed and the writ petition is allowed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. TK https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal Chenglepet Govt. Industrial Training Institute Chenglepet. 2.The Director Directorate of Employment and Training Chepauk, Chennai – 600 005. 3.The Secretary to Government Labour & Employment Training Department Fort St. George, Chennai – 600 009. 1 cc to M/s. K. Shahul Hameed, Advocate, Sr. 46963 1 cc to Government Pleader, Sr. 40960 W.P.NO.3558 OF 2007 (O.A.NO.4958 OF 2001) TRM (CO) kk 11/8 https://hcservices.ecourts.gov.in/hcservices/