B. Ramamoorthy v. The Managing Director TASMAC, Egmore, Chennai & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07 .09.2010CORAMTHE HONOURABLE Ms.JUSTICE K.B.K.VASUKI W.P.No.3188 of 2009B.Ramamoorthy .. Petitionervs.1.The Managing Director TASMAC, Egmore, Chennai.2.The General Manager (C.V.) TASMAC, Anna Salai, Chennai. 3.The District Manager (North) TASMAC Limited, B-4 Ambattur Industrial Estate, Chennai-58. .. Respondents Prayer :Writ petition filed under Article 226 of theConstitution of India praying for the issuance of Writ ofCertiorarified Mandamus, to call for the records relating to theorder of the second respondent Semu.No.8838/C.V.-2(2)/2008 dated03.12.2008 and the consequential order passed by the thirdrespondent in Semu.No.A1/67/004/2007 dated 09.11.2007 and to quashthe same and to further direct the respondents to reinstate thepetitioner with backwages, continuity of service and all otherconsequential benefits.For Petitioner : Mr.K.VasudevanFor Respondents : Mr.J.Ravindran O R D E RThe writ petition is filed against the order of the secondrespondent in his proceedings Semu.No.8838/C.V.-2(2)/2008 dated03.12.2008 and the consequential order of the third respondent inhis proceedings Semu.No.A1/67/004/2007 dated 09.11.2007 to quashthe same and to further direct the respondents to reinstate thepetitioner in service with backwages, continuity of service andall other consequential benefits. 2.The petitioner was after being sponsored through DistrictEmployment Office and after being personally interviewed appointedas Salesman by the third respondent / District Manager, TASMACLimited. While he was working in Shop No.163, the thirdrespondent inspected the shop on 11.10.2006, in the course of https://hcservices.ecourts.gov.in/hcservices/ inspection, he found the bottles lying unsealed and damaged andliquor mixed with water and sold out. The third respondent calledfor explanation from the petitioner, other salesman and salessupervisor about the damaged and unsealed bottles. The petitionerand others were also according to the petitioner under compulsionand threat of termination of their services forced to sign on paperstating that those bottles were mixed with water. All happened onthe same day 11.10.2006. One year thereafter on 07.11.2007, thethird respondent called them for oral enquiry and in the course ofwhich, the third respondent framed charges against the petitionerand other salesman and sales supervisor and conducted the enquiryby himself and passed the order of termination on 09.11.2007.Aggrieved against the same, the petitioner preferred an appeal on27.08.2008 to the second respondent/ the General Manager, TASMAC.The appeal was in pursuance of the direction issued by the HighCourt in W.P. No.23383 of 2008 disposed of and rejected. Thepresent writ petition is filed challenging the correctness of theorders passed by the respondents 2 and 3, for the relief as statedsupra. 3.According to the learned counsel for the petitioner, theimpugned termination order passed by the third respondent, withoutproperly framing charges, without any show cause notice and withoutany due enquiry is in violation of principles of natural justiceand the procedure laid down under law and is biased, arbitrary andunfair. The impugned order came to be passed by the thirdrespondent mainly on the strength of the statement obtained fromthe petitioner by compulsion and force, without considering theobjections raised on the side of the petitioner and without sendingthe bottles for testing to ascertain as to whether the contents ofthe same mixed with water or not and the conclusion arrived at bythe third respondent without giving any opportunity to thepetitioner to prove his innocence is unfounded and baseless. It isfurther contended by the learned counsel for the petitioner thatthough the impugned order is challenged on various grounds, thesecond respondent appellate authority simply rejected the appealwithout properly considering any of the objections. 4.The claim of the petitioner is seriously opposed by thelearned Additional Government Pleader appearing for the respondentsand the learned Additional Government Pleader attempted to justifythe impugned order of termination of the petitioner mainly byrelying upon the so called statement containing the signature ofthe petitioner. It is argued by the learned Additional GovernmentPleader that due enquiry is held into the act of irregularitiesfound out by the third respondent in the course of his inspectionof the shop and the petitioner and others have voluntarily giventhe statement, admitting their guilt and thereafter, the thirdrespondent proceeded to pass the impugned order of termination. Asthe petitioner admitted his participation in the irregularityamounting to misconduct, no detailed enquiry was held beforepassing the impugned order of termination. 5.Heard the rival submissions made on both sides. https://hcservices.ecourts.gov.in/hcservices/

6.As referred to above, the impugned order is mainly basedon the statement given by the petitioner and his co-employees byname Xavier and Sakthivel, the genuineness, authenticity andvoluntary nature of the same is seriously objected to herein. Theperusal of the impugned order dated 09.11.2007 enclosed at pages 1to 3 of the typed set of papers reveal that the allegedirregularities is found out on the date of the inspection dated11.10.2006 and the statement was purported to be recorded on thesame day, the petitioner along with others suspended from serviceon 19.10.2006 but the next date of enquiry is only on 07.11.2007,on which date except questioning the petitioner and others aboutthe so called statement, admitting their guilt, no further enquiryis held and the third respondent/ the District Manager has arrivedat conclusion that the act of irregularities so committed by thepetitioner and others is serious in nature resulting in damage tothe reputation of the shop and revenue loss to the Government andproceeded to terminate the services of the petitioner and others.Thus the impugned order is as rightly argued by the learned counselfor the petitioner, not the outcome of any show cause notice andcharge memo duly issued to the petitioner followed by detailedenquiry after giving adequate opportunity to the petitioner andothers for being personally heard in accordance with the procedureknown to law. The so called inspection, the oral enquiry, therecording of the statement and the final order all passed by oneand the same authority i.e. The District Manager and the same asrightly pointed out by the learned counsel for the petitionersuffers from violation of procedure as well as principles ofnatural justice. The petitioner has in his appeal memorandum dated27.08.2008 challenged the correctness of the manner in which theimpugned order is passed on serious grounds and what circumstancesthe statement is obtained from them etc., however, the secondrespondent appellate authority has without duly considering thesame confirmed the order of the third respondent. Both theauthorities concerned, while passing the impugned orders, have noregard for any statutory and legal procedure in the matter oftermination of service. They have failed to understand that theorder of termination of service is likely to result in civilconsequences rendering the petitioner jobless and earningless andthe petitioner is now deprived of his source of livelihood. Whenthat being the serious consequences of the impugned order upon thedelinquent, the impugned order should be free from unfairness andarbitrariness and is not malafide. However, the impugned orderherein, for the discussion held above is to be necessarily heldotherwise. The learned counsel for the petitioner has also drawnthe attention of this Court to the order dated 17.12.2008 in W.P.No.29723 of 2008 filed by one Sakthivel, who is one of the otherco-employee, who suffered an order of termination dated 09.11.2007.Our High Court has after considering the entire facts andcircumstances arrived at conclusion that the impugned order suffersfor want of principles of natural justice. Our High Court has heldso by applying the law laid down in the Supreme Court and our HighCourt in the Judgments reported in (1) 1999 (3) SCC 60 in DiptiPrakash Banerjee vs. Sathyendra Nath Bose, National Centre for https://hcservices.ecourts.gov.in/hcservices/ basic Sciences, (2) 2005 (7) SCC 518 in State of Haryana vs.Sathyendar Singh Rathore and (3) 2006 (1) CTC 660 High Court 660in V.L.Lakshmana kumar vs. The District Manager, TASMAC Limited,wherein it is laid down that the findings arrived at in respect ofthe misconduct without regular departmental enquiry and without anyopportunity given to the employee concerned is a nullity and is tobe simply ignored. The petitioner being similarly placed person isalso entitled to the similar relief and the impugned order oftermination is hence liable to be interfered with. 7.In the result, the impugned order of termination dated09.11.2007 passed by the third respondent as confirmed by thesecond respondent on 03.12.2008 is set aside and the respondentsare directed to reinstate the petitioner with all backwages andother service benefits within two weeks from the date of receipt ofcopy of this order, however with liberty given to the respondents,to proceed against the petitioner in accordance the procedure laiddown under law, if warranted. The writ petition is orderedaccordingly. No costs. Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarkjTo1.The Managing Director TASMAC, Egmore, Chennai.2.The General Manager (C.V.) TASMAC, Anna Salai, Chennai. 3.The District Manager (North) TASMAC Limited, B-4 Ambattur Industrial Estate, Chennai-58.1 cc to Mr.J.Ravindran, Advocate, Sr.No.675911 cc to Mr.K.Vasudevan, Advocate, Sr.No.66566W.P.No.3188 of 2009MG {CO}TP/15.11.2010.