IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.01.2010 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.35537 of 2006(T) [O.A.No.574 OF 1998] V.Amsaveni ... Petitioner Vs. 1.The District Forest Officer, Dharmapuri, Dharmapuri District. 2.The Secretary to Government, Environment and Forests, Secretariat, Chennai. ...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.574 of 1998 from the file of the Tamil Nadu Administrative Tribunal to call for the records on the file of the respondent in connection with the order of removal from service passed by him in his proceedings se.Mu.A.No.657/95 Pa 2, dated 31.12.1997 and quash the same and direct the respondent to reinstate the applicant in service with all monetary and service benefits by issuing a writ of certiorarified mandamus. For Petitioner : Mr.M.Ravi, For Respondents : Mr.A.N.Purusothaman Government Advocate (Forests) O R D E R The Original Application in O.A.No.574 of 1998 before the Tamil Nadu Administrative Tribunal is the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 2. The following are the facts as found in the writ petition. (i) The petitioner's father was employed in the Forest Department as Forest Watcher in Salem Division. he died on 24.02.1984, while he was in service. An application was made seeking compassionate appointment. It is stated that as on 25.02.1985 when the application was made, no legal heirs of her father was in employment. The Tahsildar, Omalur gave a certificate dated 10.01.1986 that no body in the family of the petitioner was in employment. Based on the said certificate relating to the indigent circumstances, the petitioner was appointed as Junior Assistant on compassionate groundby an order dated 11.12.1987. 3. While so, the charge memo under rule 17(b) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules was served on her on 08.10.1997 as per the instructions of the Forest Department dated 16.06.1997. As per the charge memo, the petitioner had suppressed the fact that one of her elder brothers was in employment. When the charge memo was issued based on the letter dated 16.06.1997 of the Forest Department, the said letter was not furnished to her. She submitted an explanation denying the charges. 4. An enquiry was conducted and the enquiry officer held that charges were not established. The enquiry officer held that since her brother was living separately after his marriage, the petitioner had no chance to know about the employment of her brother on the date of her application. It is further stated that even assuming that her brother was in employment, since he was living separately, it could not be a bar for considering the petitioner for compassionate appointment. 5. The first respondent, after accepting all the aforesaid facts, passed the impugned order dated 31.12.1997 removing the petitioner from service. The first respondent was influenced by the direction issued by the second respondent to take disciplinary action and the very order of the first respondent would make it clear that the first respondent was not inclined to dispense with service of the petitioner. 6. The petitioner filed OA.574/1998 (WP.No.35537/2006) to quash the order dated 31.12.1997 of the first respondent. 7. The respondent filed reply affidavit, refuting the allegation contained in the O.A. The following are the averments found in the reply affidavit. The petitioners father was employed in the Forest Department and he died on 24.02.1984 while he was in service. The petitioner was given compassionate appointment as Junior Assistant on 11.12.1987 and she joined duty on 14.12.1987 which was based on the certificate given by the Tahsildar, Omalur dated 10.10.1986. It was https://hcservices.ecourts.gov.in/hcservices/ brought to the notice of the District Forest Officer and the Government that the petitioner got the appointment by hiding the fact that one of her brothers was working in Government Transport Corporation as Driver. Hence, the Government instructed the first respondent in the inter departmental communication to take severe action under rule 17(b) TNCS (CCA) Rules in their letter dated 16.06.1997 for the grave mistake. Accordingly, Disciplinary Proceeding were initiated and the enquiry officer found that the charges were established. Based on such findings, the petitioner was removed from service. It is stated that there is no provision in the existing rules and guidelines relating to compassionate appointment to provide employment to one of the legal heirs, if any other legal heirs is in employment but living separately. 8. Heard the counsels on both sides. 9. The learned counsel appearing for the petitioner submits that the enquiry officer found that the charges were not established. There was no justification to pass the impugned order removing the petitioner from service, when the allegation was not proved. When the charge was not established in the enquiry, there was no scope for the first respondent to proceed further particularly when he did not record a dissent minute on the findings. On the other hand, the first respondent agreed with the findings however, the first respondent passed the order of removal on the ground that once her brother was in employment, the petitioner was not entitled to seek compassionate appointment, as per the scheme providing compassionate appointment. 10. In fact the first respondent recommended to the Government to provide compassionate appointment to one of the legal heirs, if the employed legal heirs is living separately without supporting the family of the deceased. The learned counsel for the petitioner submits that the Government issued G.O.No.155, Labour and Employment Department, dated 16.07.1993 providing for compassionate appointment even if one of the legal heirs is in employment if that legal heir is living separately without lending support to the family in distress. 11. The learned counsel appearing for the petitioner has also relied on a decision of a Division Bench of this court dated 03.11.2009 in writ appeal No.1559/2009 V.Balakrishnan v. The Joint Director of Agriculture, Tiruvannamalai and others and also the decision of the Hon'ble Apex Court in Union of India & others vs. K.P.Tiwari reported in (2003) 9 SCC 129. 12. The learned counsel also submits that the petitioner is in employment pursuant to the interim order granted by the Tribunal, while admitting the OA. The learned Government Advocate (Forests) contends that the impugned order is perfectly valid and there is no need to interfere with the same. https://hcservices.ecourts.gov.in/hcservices/ 13. I have considered the submissions made on either side. I have perused the report of the enquiry officer. The enquiry officer has categorically held that the charge of suppression of employment of the brother of the petitioner was not proved. The relevant para in the findings of the enquiry officer is extracted here under : mLj;J; jPh;khdpf;f ntz;oaJ/ Fw;wk; rhl;lg;gl;ltUf;F mtuJ FLk;gj;jpy; mtuJ mz;zd; jpU.tp. ehfuh$d;/ vd;gtUf;F ntiy fpilj;jJ bjhpahky; ngha;tpl;lJ vd;w Tw;W Vw;ff;Toajh vd;gjhFk;. Fw;wk; rhl;lg;gl;lth; jdJ rkhjhd ciuapYk;/ neuo tpsf;fj;jpYk;/ jhd; kDr; bra;j njjpapy; 25.07.1985 ,tuJ FLk;gj;jpy; vtUk; ntiyapy; ,y;iy vdt[k;/ , tuJ FLk;gj;jpy; cs;s gpw cWg;gpdh;fshd K:d;W mz;zd;khh;fSk; ,tuJ jhahiua[k; tpl;Lk;/ ,tiu tpl;Lk; gphpe;J fy;ahzk; bra;J jdpf;Foj;jdk; elj;jp te;jikahYk;/ mth;fs; ,tuJ FLk;gj;ijf; ftdpf;fhky; , Ue;jikahYk;/ mth;fs; vd;d bra;fpwhh;fs;/ vg;bghGJ ntiyapy; nrh;e;jhh;fs; vd;w tptuk; bjhpahj epiyapy; ,Ue;jjhff; Fwpg;gpLfpwhh;/ mg;go xU NH;epiy ,Ue;jjh vd vd;gij Mtz';fis itj;J Ma;t[ bra;a KoahJ. vdpDk;/ jhrpy;jhh; mth; tH';fpa 10.10.1986 ehisa rhd;wpjHpy; Fw;wk; rhl;lg;gl;lth;. FLk;gj;jpy; vtUk; ntiyapy; ,y;iy vdf; Fwpg;gpLtJ Ma;t[f;FhpaJ. , j;jifa rhd;wpjH;fs; jFe;j tprhuizf;F gpwnf tH';fg;gLtJ/ mg;gog;gl;l epiyapy; jhrpy;jhUf;Fk; bjhpahj tifapy; ,tuJ FLk;gj;jpy; xUth; ntiy ghh;j;J te;jhh; vd;why; mJ bjhpahj epiyapy; ,Ue;j epfH;r;rpahfj;jhd; fUj ntz;oa[s;sJ. nkYk; Fw;wk; rhl;lg;gl;lthpd; mz;zd; jpU.tp. ehfuh$d; mtuJ njjpapy;yhj tpz;zg;gj;jpy; jhd; Typ ntiy bra;tjhff; Twpa[s;shh;. ,';nf Tl (jpU.tp. ehfuh$d;) jhd; $Pth nghf;Ftuj;Jf; fHfj;jpy; ntiy ghh;j;jij kiwj;jpUf;f tha;g;g[z;L. fy;ahzk; bra;J jhia tpl;L jdpna thH epidf;Fk; ,th;/ jhd; ntiy ,Ug;gij kiwj;jpUf;fyhk; vd vLj;Jf;bfhs;sf;Toa epiy jhd;. Vdnt gy epiyapy; Ma;t[f;Fg; gpd;dh; jhrpy;jhh; tH';fpa rhd;wpjiH itj;J ghh;f;Fk; bghGJk;/ Fw;wk; rhl;lg;gl;lthpd; mz;zhh; Flk;gj;J tpl;Lg; gphpe;J jdpahf thGk; epiyapy; mth; jhd; ntiyapy; ,y;iy vd;W bfhLj;j thf;FK:yj;ij itj;Jg; ghh;f;Fk; bghGJk;/ Fw;wk; rhl;lg;gl;ltUf;F ,tuJ FLk;gj;jpdh;fspd; K:d;W mz;zd;khh;fSk; vd;d epiyapy; ,Ue;jdh; vd bjhpe;jpUf;f tha;g;gpy;iy vd vLj;Jf; bfhs;s ntz;oa[s;sJ. 14. The said findings of the enquiry officer was accepted by the first respondent. Hence the learned counsel for the petitioner is correct in his submission that the first respondent was not justified in removing the petitioner from service after accepting the findings of the enquiry officer. When the allegation was not proved there https://hcservices.ecourts.gov.in/hcservices/ was no scope for the first respondent to remove the petitioner from service particularly after accepting the findings of the enquiry officer. 15. The removal order is not based on the allegations in the charge memo. On the other hand it is stated in the impugned order that since the scheme providing compassionate appointment does not provide for appointment to one of the legal heirs, if any one of the legal heirs is in employment, even if that legal heirs lives separately, the removal order was passed. If the first respondent wanted to remove the petitioner from service not based on the charge memo issued under rule 17(b) of the TNCS (D&A) Rules, the first respondent ought not to have straight away passed the order of removal and the petitioner should have been put on notice about the ground based on which the service of the petitioner is removed. The learned counsel for the petitioner has correctly submitted that the impugned order is thus violative of principles of natural justice. The learned counsel for petitioner has further brought to my notice the following passage from the impugned order. Mdhy; mth; ,we;j muR CHpah; FLk;gj;jpy; xU thhprhf ,Ue;Jk; mth; jpUkzk; bra;J jdpf;Foj;jdk; bra;J te;jnjhL my;yhky; mtuJ jhahUlndh jhahUld; thH;e;j j';ifa[lndh nrh;e;J thH;e;J cjtp bra;atpy;iy. vd;gij NH;epiyf; fhuz';fs; bjspthf;Ffpd;wd. ,e;epiyapy;/ ,we;j muR Chpah; Flk;gj;jpy;/ ,we;jthpd; kidtpa[k; mtuJ kfDk; jdpj;nj ,we;j muR CHpaiu KGikahf rhh;e;J thH;e;J te;Js;sdh;. ,we;jth;fspd; kw;w FLk;g cWg;gpdh;fs; (kfd;fs;) jpUkzk; bra;J jdpj;J vt;tpj bjhlh;g[k; ,y;yhky; thH;e;jjhf bjhpfpwJ. ,jid rk;ke;jg;gl;l jhrpy;jhh; tH';fpa ntiy tH';Fk; rpghhpR rhd;wpjH; bjhptpf;fpwJ. nkYk;/ ,we;jthpd;/ FLk;gk; (mtuJ kidtp kw;Wk; kfs;) epuhjuthfpa epiyapy; ,Ue;jJ vd;gjw;F vjph; Tw;Wfs; ,y;iy. ,e;epiyapy; muR bfhs;ifg;go ghh;j;jhy;/ ,we;jthpd; FLk;gk; fUiz mog;gilapy; rYif bgw jFjpahfj;jhd; cs;sJ. Mdhy;/ mtuJ FLk;g thhpR xUth; ntiyapy; ,Ue;jhh; vd;gJ tpjpKiwfSf;F vjpuhf cs;sJ. ,e;j epiyapy; murpd; bfhs;ifahd bray;gLj;j tHpKiwapy; jFe;j khw;wk; njitg;gLfpwJ. ,e;j tHf;if xU jdpg;gl;l rhjhuz eilKiwapy; ,y;yhj epiyahf fUjp muR jFe;j khw;w';fs; bra;ayhk;. fUiz mog;gilapy; ntiy bfhLf;Fk; bfhs;iffs; bray;gLj;Jk; epakd Kiwfs;/ mt;tg;bghGJ gy;ntW fhy';fspy;/ epiyikf;nfw;g khw;w';fSf;F cl;gLj;jg;gl;Ls;sd. Cjhuzkhf muR (foj vz;. 125-gp1-85 ntiytha;g;g[g; gzp (gp1) Jiw) ,uz;L kidtpah; cs;s Flk;gj;jpy; Tl/ mtuJ kidkhh; vtnuDk; rk;ghjpf;Fk; epiyapy; ,y;yhky; epuhfjpahf jdpj;J tplg;gLk; NH;epiyapy; mtUf;F jFjpf;nfw;g VnjDk; xU muR gzpapid tH';fyhk; vd epakd Kiwapy; khw;w';fs; bra;J https://hcservices.ecourts.gov.in/hcservices/ Mizaplg;gl;Ls;sJ/ Fwpg;gplj;jf;fJ. ,e;j tifahd/ tHf;fj;Jf;F Vw;g epakd Kiwapy; khw;wk; bra;a[k; mjpfhuk; ntiyapy; mkh;j;Jk; mjpfhhpf;F (---) ,y;yhikapdhy; jw;bghGJ eilKiwapy; ,Uf;Fk; tpjpKiwfs;/ kw;wk; tHpKiwfspd; go ,t;tHf;F jPh;khdpf;fg;gLfpwJ. 16. Having stated so in strong words, the first respondent was not justified in terminating the services particularly, in view of the above said conclusions of the first respondent. The ultimate order removing the petitioner from service is not consistent with the conclusions reached by the first respondent, as extracted above. Hence, the impugned order is bad and illegal. 17. The learned counsel appearing for the petitioner is also correct in his submissions that the Government have issued G.O.No.155, Labour and Employment Department, dated 16.07.1993 making it clear that employment of one of the legal heirs is not a bar to provide employment to another legal heir, if the employed person is living separately and not supporting the family. The relevant passage from G.O.155 is extracted here under : "..... It is considered that if a member of the family is already in employment and supports the family then the restriction may be applied. When a dependent of the family is employed, the factors to be ascertained are, whether he is regularly employed and is actually supporting the family. If that persons was employed even before the death of the Government Servant and was living separately without extending any help to the family, then the case of the other eligible dependents will be considered." 18. The relevant passage in para 6 of the judgment of the Division Bench of this court dated 03.11.2009 in WA.No.1559/2009 relied on by the learned counsel for the petitioner. The relevant passage in para 6 of the judgment of the Division Bench in W.A.No.1559 of 2009, relied on by the learned counsel for petitioner is extracted here under: "...... for a moment, we do not approve the manner in which he has obtained the employment. At the same time, it is also to be seem that in the instant case nearly after four years, the State Government has moved to cancel the appointment. Nothing is placed on record as to what action was taken against the officers, who are responsible for the disputed appointment and delayed action on the part of the Government. Almost similar facts were there in the two matters which have been referred https://hcservices.ecourts.gov.in/hcservices/ herein in the sense that the persons were sought to be removed after passing of good number of years. Besides, by now, nearly 15 years have gone since the time the appellant has been initially appointed, and, therefore, we do not thing that it will be fair to disturb his employment." 19. The judgment of the Hon'ble Apex Court in (2003) 9 SCC 129 is also squarely applicable to the facts of the case. Para 4 of the judgment is extracted here under : "4. It is unnecessary in this case to examine either questions of law or fact arising in the matter. Suffice to say that the respondent has been appointed now and has been in service for more than five years. We do not think, it would be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood." 20. In this case admittedly, when the charge sheet was issued she completed 10 years of service. By this, time she has completed 22 years of service. Taking into account all the above circumstances the impugned order passed by the first respondent is quashed. Accordingly, the writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsh To 1.The District Forest Officer, Dharmapuri, Dharmapuri District. https://hcservices.ecourts.gov.in/hcservices/ 2.The Secretary to Government, Environment and Forests, Secretariat, Chennai. 1 cc To Mr.M.Ravi, Advocate, SR.3940 1 cc To The Spl. Government Pleader, (Forest)SR.104 WP.No.35537 of 2006 rsn(co) pmk.10.3.2010 https://hcservices.ecourts.gov.in/hcservices/