IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20-9-2011 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR W.P.No.22500 of 2010 & M.P.No.1 of 2010, M.P.No.1 of 2011 Contempt Petition No.1667 of 2010 W.P.No.22500 of 2010 P. Brindavan ... Petitioner Vs. 1. The Managing Director, Tamil Nadu Warehousing Corporation, No.82, Annasalai, Guindy, Chennai – 600 032. 2. The Warehousing Manager, Tamil Nadu Warehousing Corporation, Dharmapuri, Dharmapuri District. 3. The Commissioner, Employment and Training, Guindy, Chennai ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records of the first respondent vide his proceedings Proc.Rc.1157/2009/E3, dated 23.9.2010 and quash the same and consequently direct the respondents to reinstate the petitioner in his post with all monetary benefits. Contempt Petition No.1667 of 2010 P. Brindavan ... Petitioner Vs. https://hcservices.ecourts.gov.in/hcservices/ 1. Buhril, The Managing Director, Tamil Nadu Warehousing Corporation, No.82, Annasalai, Guindy, Chennai – 600 032. 2. Velumani, Warehousing Manager, Tamil Nadu Warehousing Corporation, Dharmapuri, Dharmapuri District. ... Respondents Prayer: Contempt Petition filed under Section 11 of the Contempt of Court Act, praying to punish the respondents for wilful disobedience of the order of this Court dated 1.10.2010 in M.P.No.1 of 2010 in W.P.No.22500 of 2010. For Petitioner in : Mr.M.A.R.Pragash W.P.No.22500/2010 & Cont.P.1667/2010 For R-1 & R-2 in : Mr.S.A.Hafiz W.P.22500/2010 & Cont.P.1667/2010 For R-3 in W.P.22500/2010 : Mr.V.Jayaprakashnarayanan, Addl.Government Pleader COMMON ORDER By consent of both sides, the writ petition and the contempt petition are taken up for final disposal. 2. In the writ petition, petitioner has prayed for quashing the order of termination passed on 23.9.2010 and to direct the first respondent to reinstate the petitioner post with all other benefits. 3. The contempt petition is filed for the alleged violation of the interim order passed in M.P.No.1 of 2010 in W.P.No.22500 of 2010 dated 1.10.2010. 4. The petitioner is a graduate belonging to most backward community. On 6.1.2010 the first respondent sent a call letter stating that the petitioner's name was sponsored by the third respondent Employment Exchange for the post of Junior Assistant/Assistant Warehouse Manager and he was directed to appear for an interview/ written test/certificate verification on 20.1.2010 at 10.30 a.m. before the Managing Director of the first respondent Corporation. On https://hcservices.ecourts.gov.in/hcservices/ 20.1.2010 petitioner appeared for certificate verification and after verification he was permitted to write the written test and subsequently interview/oral test was conducted based on the performance in the written test. Petitioner was selected for the said post by the first respondent by order dated 25.1.2010 along with 24 others and he joined duty on 1.2.2010 as Junior Assistant/ Assistant Warehouse Manager in the second respondent office. On 4.3.2010 the first respondent issued an errata stating that in the appointment order dated 25.1.2010 the scale of pay mentioned shall be Rs.5,200-20,200/- with allowance of Rs.2,000/- per month and not Rs.2,400/-. 5. As on 29.9.2010 the petitioner completed 241 days of service. On 29.9.2010 when the petitioner reported for duty as usual, he was served with the order of termination stating that the appointment on priority basis for the dependants of ex-servicemen or serving person should not have been considered. According to the petitioner, neither in the call letter issued by the first respondent for attending interview or in the selection order issued to the petitioner it was stated that the petitioner was appointed on the basis of such priority. After interviewing more than 200 candidates sponsored by the third respondent, the petitioner and others were selected and appointed. It is stated in the affidavit that most of the candidates selected are on priority basis, however only three persons are served with the impugned order of termination while permitting others to continue in work. 6. On 13.1.2010 the petitioner received another call letter issued by the Salem Central Co-Operative Bank for appointment as salesman based on the sponsorship of the petitioner's name by the third respondent calling upon to appear for interview on 2.2.2010. Since the petitioner joined duty in the first respondent office on 1.2.2010, the petitioner did not chose to appear in the interview held on 2.2.2010. Petitioner also did not renew his employment registration, which was due for renewal in May, 2010 as he was already selected and appointed by the first respondent. 7. The above said termination order is challenged in the writ petition on the ground that the petitioner having been appointed pursuant to the interview after his name was sponsored by the third respondent Employment Exchange after undergoing the process of regular selection, and continuously worked for more than 240 days, his services cannot be terminated without conducting any enquiry or issuing any show cause notice. The appointment having been made on the basis of merit as per the written test cum oral test and the petitioner having not suppressed any fact and shown his employment registration and the credentials, the respondents are not justified in terminating the petitioner from service as he has altered his position by virtue of the appointment order by not attending the subsequent interview and also by not renewing his employment registration. https://hcservices.ecourts.gov.in/hcservices/ 8. Taking note of the said fact this Court on 1.10.2010 while admitting the writ petition, granted interim stay. The stay order having not been obeyed, petitioner has filed the Contempt Petition No.1667 of 2010. In the contempt petition, first respondent has taken a plea that even before the grant of stay the petitioner was relieved and therefore he was not permitted to rejoin duty. 9. On 8.7.2011 the learned counsel for the petitioner as well as respective learned counsel for the respondents requested this Court to take up the writ petition along with the contempt petition, pursuant to which the writ petition and contempt petition were posted together and heard. 10. The first respondent has filed counter affidavit stating that the list of candidates were called for from the third respondent for filling up 31 vacancies of Junior Assistant/Assistant Warehousing Manager in Tamil Nadu Warehousing Corporation through direct recruitment and the Employment Exchange viz., the third respondent sent a list of 200 candidates for selection at the ratio of 1:5. The candidates sponsored by the employment exchange were informed to attend the interview pursuant to which 57 candidates attended the written test followed with interview conducted from 20.1.2010 to 22.1.2010 out of which 24 candidates, including the petitioner, were selected by the Selection Committee on merits. By the proceedings of the first respondent dated 25.1.2010 petitioner and other selected candidates were informed of selection. 11. In the order it is stated that the appointment is temporary and they can be terminated without issuing any notice and without assigning any reason and also stated that they shall not have any claim for being put on probation unless their services are regularised. They were directed to undergo the period of probation for two years within a continuous period of three years and they are governed by the Tamil Nadu Warehousing Corporation General and Staff Regulations, 1965 as amended from time to time. Out of the 24 selected candidates, three candidates including the petitioner, who were dependants of ex- servicemen/service personnel, did not produce any such certificate during certificate verification. Only after receipt of information from the third respondent to confirm as to whether those three candidates belong to such category, first respondent asked them to confirm the status through proceedings dated 3.7.2010 and the third respondent by letter dated 8.7.2010 informed the respondents 1 and 2 that six candidates, who have been selected are not coming under the priority category followed by the Government and on the basis of the information furnished by the third respondent petitioner was terminated by the first respondent by order dated 23.9.2010 with immediate effect. The scale of pay mentioned in the appointment order was Rs.5200-20200 + Grade pay of Rs.2,000/- per month and the petitioner joined duty on 1.2.2010. An errata was issued on 4.3.2010 stating that the allowance https://hcservices.ecourts.gov.in/hcservices/ is Rs.2,000/- instead of Rs.2,400/-. It is the only contention of the first respondent that the appointment order having been issued temporarily, petitioner's service can be terminated without assigning any reason and without giving any notice. 12. The learned counsel for the petitioner submitted that the petitioner has registered his name in the employment exchange on 22.5.2001 as the son of the ex-serviceman with registration No.2526/2001 and the said registration was renewed in 2004 upto 11.5.2007 and the next renewal was stated as May, 2010. In the meantime the first respondent issued a call letter to appear for interview, pursuant to which he appeared and he was selected and joined in the post on 1.2.2010. His name was again sponsored for appointment in Salem Central Co-Operative Bank as salesman and interview was fixed on 2.2.2010 at 10.00 a.m. As the petitioner was given appointment in the first respondent Corporation and the petitioner having joined in the second respondent office on 1.2.2010, he did not participate in the interview on 2.2.2010. The petitioner also did not renew his employment registration in May, 2010 as he is already in employment. The learned counsel also contended that the petitioner has not suppressed any fact and the first respondent having selected and appointed and permitted the petitioner to join, the petitioner has altered his position and at this stage, terminating the petitioner's service on any mistake committed by the third respondent is unjust and illegal. Further, the first respondent has not given any notice or conducted any enquiry before terminating his service, who has also completed more than 240 days of service in a year. Therefore, the order passed by the first respondent on 23.9.2010 is liable to be set aside and the petitioner is entitled to continue in service. 13. The learned counsel for the first respondent submitted that the petitioner's name was wrongly sponsored by the third respondent and was selected and appointed on temporary basis and as per the intimation received from the third respondent stating that his name was wrongly sponsored, his appointment is terminated and there is no illegality in the said order. 14. Heard the learned Additional Government Pleader for the third respondent. Even though the third respondent was served on 4.11.2010 no counter affidavit is filed by the third respondent. 15. I have considered the rival submissions made by the learned counsel on either side. 16. The point for consideration is whether the termination order passed by the first respondent dated 23.9.2010 is justified on the facts and circumstances of the case. 17. The petitioner's name along with 199 other candidates was https://hcservices.ecourts.gov.in/hcservices/ sponsored by the third respondent to the first respondent for selection to the post of 31 vacancies of Junior Assistant/Assistant Warehousing Manager. Petitioner belongs to most backward community. Out of the 200 candidates sponsored, only 57 candidates attended the written test and interview, out of which 24 candidates alone were selected on merits and on communal rotation. Petitioner along with 24 others were appointed as per the order dated 25.1.2010. In the said order it is stated that the appointment is on temporary basis and probation will be ordered before regularisation. Petitioner joined as Junior Assistant in the second respondent Office on 1.2.2010 and served for more than 240 days. 18. Petitioner's name was sponsored for subsequent selection in Salem Central Co-Operative Bank to attend for interview on 2.2.2010 and the petitioner did not appear for interview due to his selection already made by the first respondent. Petitioner also did not renew his employment registration in May 2010 as he was selected and appointed by the first respondent by order dated 25.1.2010 and joined in the post on 1.2.2010. 19. The only point urged by the learned counsel for the first respondent is that the third respondent wrongly sponsored petitioner's name as a ward of ex-serviceman and there is no quota for the ward of the ex-serviceman. The said fact could have been verified by the third respondent before sponsoring the petitioner's name or at the time of selection by the first respondent or at least at the time of permitting the petitioner to join in the second respondent office. It is not the case of the petitioner that the petitioner has suppressed any fact and claimed appointment. In the absence of any suppression of fact and the petitioner having been selected on sponsorship through employment exchange and subjected to written test and oral test and allowed to join duty on 1.2.2010 and allowed to continue for more than 240 days, the first respondent is not justified in terminating the petitioner from service, that too without issuing any notice or opportunity of hearing. Admittedly the third respondent only committed a mistake even according to the first respondent. The first respondent having appointed the petitioner by order dated 25.1.2010, petitioner has got a vested right to continue in the post as the post is a sanctioned post, though appointment is given temporarily. Petitioner's service is also not found fault with in any manner by the respondents 1 and 2. 20. If the petitioner's service is terminated for want of vacancy, the contention of the respondent that the appointment being temporary, petitioner need not be put on notice can be justified. In the absence of such a contention, the first respondent is not entitled to terminate the petitioner merely because the third respondent committed a mistake in sponsoring petitioner's name. Petitioner having been appointed in the first respondent corporation, has lost his chance to participate in the selection before the Salem Central Co-Operative Bank and also failed to renew the employment registration and thereby https://hcservices.ecourts.gov.in/hcservices/ he has altered his position due to the appointment already given. 21. The Honourable Supreme Court in the decision reported in AIR 2009 SC 2375 : (2009) 12 SCC 40 (Uma Nath Pandey v. State of Uttar Pradesh) in paragraph 19 (in AIR) held that, "19. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice." It is also a principle of law that even in matters of discharge, the authority concerned cannot act arbitrarily. Therefore the first respondent is not justified in terminating the petitioner's appointment, that too without any notice or opportunity of hearing. 22. In view of the above, the impugned order is set aside. The petitioner shall be restored to duty without backwages but with continuity of service from the date of termination, within a period of four weeks from the date of receipt of copy of this order. 23. The writ petition is disposed of with the above direction. As final order is passed in the writ petition, the contempt petition filed against the interim order passed in the writ petition, is dismissed. There is no order as to costs. Connected miscellaneous petition is closed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar vr To 1. The Managing Director, Tamil Nadu Warehousing Corporation, No.82, Annasalai, Guindy, Chennai – 600 032. 2. The Warehousing Manager, Tamil Nadu Warehousing Corporation, Dharmapuri, Dharmapuri District. https://hcservices.ecourts.gov.in/hcservices/ 3. The Commissioner, Employment and Training, Guindy, Chennai. 4. Mr.Buhril, The Managing Director, Tamil Nadu Warehousing Corporation, No.82, Annasalai, Guindy, Chennai – 600 032. 5. Mr.Velumani, Warehousing Manager, Tamil Nadu Warehousing Corporation, Dharmapuri, Dharmapuri District. +1cc to Mr.S.A.Hafiz, Advocate Sr 58170 +1cc to Mr.M.A.R.Pragash, Advocate 58438 VSN(CO) km/7.10. W.P.Nos.22500/2010 & Cont.P.No.1667/2010 https://hcservices.ecourts.gov.in/hcservices/