1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:10.10.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal (MD) No.953 of 2011 and M.P.(MD).No.1 of 2011 The Project Director/Member Secretary, Tamil Nadu State Aids Control Society, Chennai-8. :Appellant/1st respondent -Vs- 1.M.Lakshmi :1st respondent/Petitioner 2.The District Director, Tamil Nadu State Aids Control Society, Chennai-8. 3.The Medical Officer, (incharge), Integrated Counselling & Testing Center, Government Hospital, Sathiyamangalam, Erode District. :Respondents 2 & 3/Respondents 2 & 3 Appeal filed under Clause 15 of the Letters Patent, against the order, dated 27.06.2011, passed by the learned Single Judge of this Court in W.P.(MD) No.5245 of 2011. Petition filed under article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records relating to the impugned order issued by the first respondent PROC No.03389/A1/TNSACS/2010 dated 11.5.2010 and quash the same and consequently direct the respondents hereinto forthwith reinstate the petitioner in Service as Lab Technician with arrears of Salary and all other monetary benefits accrued to the service of the petitioner with a reasonable time. For appellant .. Mr.M.V.Venkataseshan For respondents 2 & 3 .. Mr.V.Pandi, Government Advocate JUDGMENT (Order of the Court was made by K.N.BASHA, J.) This writ appeal is directed against the order of the writ Court, dated 27.06.2011, made in W.P.(MD).No.5245 of 2011 with the prayer to set aside the said order. 2.The first respondent herein challenged the order of termination, dated 11.05.2010, relieving her from the service as Lab Technician. The main contention of the first respondent herein in the writ petition is that without framing charges and without holding any enquiry in the manner known to law, the termination order was passed against her, however, the appellant and other official respondents contended that there is no infirmity or illegality in the said order of termination, as the said order was passed only after serving show cause notice and considering the explanation offered by the first respondent and also after conducting an enquiry. The writ Court has not accepted the contention of the authority viz., the appellant herein and held that the impugned order of termination was passed without conducting any enquiry in the manner known to law and in violation of the principles of natural justice. The writ Court has also, after setting aside the impugned order of termination, observed that it is open to the authorities to proceed against the first respondent herein, if they chooses to do so, after framing charges and after conducting an enquiry in the manner known to law. Being aggrieved against the said order of the writ https://hcservices.ecourts.gov.in/hcservices/ 2 Court, the present writ appeal is preferred by the appellant. 3.The learned counsel for the appellant contended that the impugned order of termination was passed only after serving the show cause notice and after obtaining explanation and after conducting proper enquiry. It is contended that the writ petition itself is not maintainable, as the appellant is the society registered under the Societies Registration Act. It is further contended that the first respondent is only a temporary employee and as such, there is no necessity of either issuing a notice or conducting any enquiry. It is submitted that there is a separate service rules framed for the services of the employees of the appellant. The learned counsel for the appellant would further submit that all these aspects have been overlooked by the writ Court and as such, the impugned order passed by the writ Court is liable to be set aside. 4.We have carefully considered the submission of the learned counsel for the appellant and also perused the order of the writ Court, apart from perusing the impugned order of termination passed against the first respondent herein. 5.Before proceeding to consider the order passed by the writ Court, it is relevant to refer to the impugned order of termination, dated 11.05.2010 The perusal of the said order reveals that the said order is nothing but a cryptic and non speaking order. It is to be stated that in the said order, after referring to the report submitted by the enquiry officer and report of the District Programme Manager, Erode and the statement of the first respondent herein, it is merely stated that the first respondent, Lab Technician is relieved from the service of TANSACS immediately for the following lapses. Thereafter, in the second paragraph, it is stated about the lapse committed by the first respondent to the effect that the first respondent has wrongly diagnosed a patient as HIV positive. In the third and fourth paragraphs, it is stated that the first respondent has to hand over the charge to Thiru.Sivakumar, Lab Technician, immediately and in the last paragraph, it is stated that the Block Medical Officer is requested to relieve the first respondent herein immediately. There is no whisper about the explanation offered by the petitioner or any enquiry conducted in the manner known to law. Therefore, the writ Court has rightly held that the perusal of the impugned order of termination does not reflect that the authority concerned before passing the impugned order of termination framed the charges against the first respondent herein and thereafter, conducted an enquiry in the manner known to law. The writ Court also placed reliance on the First Bench decision of this Court in V.C.Baskar Vs. The Project Director in W.P.No.11079 of 2009, wherein the First Bench in a similar matter set aside the impugned order. The writ Court has also considered the submissions made by the appellant, regarding the maintainability of the writ petition and held that in view of the violation of the principles of natural justice, the writ petition is maintainable, as the authority concerned has not conducted any enquiry in the manner known to law. 6.The learned counsel for the appellant has also strenuously contended that the first respondent, being a temporary employee, is not entitled to be heard or any enquiry need to be conducted and further separate rules are framed in respect of the service conditions of such employees by the appellant. We are not able to countenance such contention for the reason that it is held by the Hon'ble Apex Court in A.P. State Federation of Co- operative Spinning Mills Ltd., and another Vs. P.V.Swaminathan, reported in (2001) 10 Supreme Court Cases 83, that even in respect of an employee appointed for fixed period, in the event of termination, the authority concerned should follow the principles of natural justice and also should follow a fair procedure. The Hon'ble Apex Court has held as hereunder: "An order of termination of a temporary employee or a https://hcservices.ecourts.gov.in/hcservices/ 3 probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the Court. But the Court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same. On examining the assertions made in the counter-affidavit in the present case, it is not possible to hold that the appellant employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question. In fact, the letter of the Commissioner for Handlooms and Director of Handlooms and Textiles dated 19.05.1993 was the foundation for the employer to terminate the services and as such the Division Bench was justified in holding that the order of termination, though on the face of it was innocuous, was based upon a misconduct. The period of appointment of the respondent being for a period of 3 years, it stood expired on 06.08.1994. The order of termination was passed on 10.06.1993. Notwithstanding the conclusion that the order of termination is vitiated, the respondent cannot seek enforcement of reinstatement by way of a mandamus but all the same, he would be entitled to all his benefits flowing from the terms of appointment for the period 10.06.1993 to 06.08.1994." 7.This Court also in R.Tirupathy and others Vs. The District Collector Madurai and others, reported in 2006 (2) CTC 574, held that even a temporary employee also entitled to fair hearing and fair enquiry with impartial mind and failure to provide such opportunity amounts to failure of principles of natural justice. 8.The principles, laid down by the Hon'ble Apex Court and this Court in the decisions cited supra, are squarely applicable to the facts of the instant case, as in this case also inspite of making a serious allegation against the first respondent herein, she was terminated without even framing charges and without conducting any enquiry in the manner known to law. The writ Court has rightly set aside the impugned order of termination and also observed that the appellant viz., the authority is at liberty to proceed against the first respondent herein, if they chooses to do so, after framing charges and after conducting an enquiry in the manner known to law. 9.In view of the reasons stated above, we are of the considered view that the appellant has not made out any ground warranting interference in the impugned order of the writ Court. Hence, the writ appeal is dismissed Consequently, connected miscellaneous petition is also dismissed. No costs. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: 1.The District Director, Tamil Nadu State Aids Control Society, Chennai-8. 2.The Medical Officer, (incharge),Integrated Counselling & Testing Center, Government Hospital, Sathiyamangalam, Erode District. 3.The Additional Public Prosecutor,Madurai Bench of Madras High Court,Madurai +1CC to M/s.M.V.Venkataseshan, Advocate. SR.No.35121. RP/21.10.2011/3P/5C. Judgment in W.A (MD) No.953 of 2011,10.10.2011 https://hcservices.ecourts.gov.in/hcservices/