S.Arumugam v. The Commissioner Pudupalayam Thiruvannamalai-Shambuvarayar District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.4.2009CORAMTHE HON'BLE MR.JUSTICE P.JYOTHIMANIANDTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESANW.A.No.818 of 20071. The Collector Thiruvannamalai-Shambuvarayar District Thiruvannamalai.2. The Personal Assistant (Noon Meal) to the Collector Thiruvannamalai-Shambuvarayar District Thiruvannamalai. ..AppellantsVs.1. S.Arumugam2. The Commissioner Pudupalayam Thiruvannamalai-Shambuvarayar District. ..RespondentsPRAYER: Against filed under Clause 15 of the Letters Patent the orderof the learned Single Judge dated 18.9.2006 made in W.P.No.17842 of2006 writ petition praying to issue a writ of certiorarified mandamusto call for the records relating to the impugned order of the secondrespondent in Mu.Mu.28958/94 dated 30-6-95 and quash the same anddirect the respondents to reinstate the petitioner in service withall attendant benefits.For Appellants :Mr.R.ThirugnanamSpecial Government PleaderFor Respondents:No appearanceJUDGMENT(Delivered by P.JYOTHIMANI,J.)Heard the learned Special Government Pleader for the appellants.2. This appeal is directed against the order of the learnedSingle Judge dated 18.9.2006 made in W.P.No.17842 of 2006, by which https://hcservices.ecourts.gov.in/hcservices/ the learned Single Judge has set aside the impugned order of thesecond appellant dated 30.6.1995, by which the first respondentherein, who was the original writ petitioner, was dismissed fromservice.3. The brief facts relating to the filing of the writ petitionare that the first respondent was appointed as a part-time Noon MealOrganizer under the second respondent. It appears that a charge memowas issued by the second appellant on 19.10.1994, alleging that thefirst respondent has overstayed on leave after the expiry of thesanctioned leave from 16.6.1994 to 15.7.1994 and therefore, itamounted to willful disobedience of the orders of the superiors inrejoining the duty. It is the admitted fact that the firstrespondent has submitted his explanation to the charge memo on15.11.1994, denying the charges. In spite of the same, the secondappellant has passed the order dated 30.6.1995, dismissing the firstrespondent from service, without conducting any enquiry. The orderof dismissal, which was challenged in the writ petition, passed bythe second appellant has given a reason that the Panchayat UnionCommissioner, Pudupalayam has given a report stating that the firstrespondent has not given leave application after 30.11.1994 and thatthe first respondent is unfit to join duty and continue to work.It is purely based on the said report of the Panchayat UnionCommissioner, Pudupalayam, the second appellant passed the impugnedorder on 30.6.1995, dismissing the first respondent from service. 4. It is clear, on the face of the impugned order of dismissaldated 30.6.1995, that (i) the second appellant has not conducted anyenquiry, especially in the circumstances that the first respondenthas submitted his explanation, denying the charges, and straight awaypassed the order of dismissal, which has to be set aside, on thebasis of the violation of the principles of natural justice; and(ii) the impugned order shows as if the second appellant has reliedupon a report of the Panchayat Union Commissioner, Pudupalayam andplacing reliance on such a report, without furnishing a copy of thesame to the first respondent/ delinquent officer, is patently againstthe principles of law.5. The learned Special Government Pleader, who is appearing forthe appellants, would now submit that the post held by the firstrespondent was part-time Noon Meal Organizer and as per theGovernment Order, the post of Noon Meal Organizer is not governed byany Service Rules and therefore, according to him, the finding of thelearned Judge that there is a violation of Rule 17(b) of the TamilNadu Civil Service (Discipline and Appeal) Rules, is not correct. Hehas also produced the Government Order. 6. We have perused the Government Order. A reference toG.O.Ms.No.370, Backward Classes Welfare, Nutritious Meal Programmeand Social Welfare Department, dated 16.4.1989 makes it clear that https://hcservices.ecourts.gov.in/hcservices/ the persons employed under the Nutritious Meal Programme, sanctionedby the Government Order, are only part-time workers and they are notgoverned by any Service Rules. The Government Order further statesthat the orders regarding the terms and conditions of service,disciplinary procedure and appointments would be issued separately.The Government Order is as follows:"GOVERNMENT OF TAMIL NADUABSTRACTTAMIL NADU GOVERNMENT NUTRITIOUS MEAL PROGRAMME –Employees working under the Programme made Permanentpart-time employees of the respective Local Bodies –OrderedBACKWARD CLASSES WELFARE, NUTRITIOUS MEAL PROGRAMME AND SOCIAL WELFARE DEPARTMENTG.O.Ms.No.370Dated: 16.4.19891. G.O.Ms.No.875, Public (TPEP) Department, dated 28.5.19822. G.O.Ms.No.858, Public (TPEP) Department, dated 28.5.19823. G.O.Ms.No.277, Public (CMNMP) Department, dated 22.2.19834. G.O.Ms.No.1243, Public (CMNMP) Department, dated 31.7.1984ORDERIn the G.O. first cited, the Government haveintroduced a scheme for the supply of free nutritiousNoon Meal to the poor children covering the age groupfrom 2 to 10 with effect from 1st July, 1982. TheGovernment have also sanctioned for each of the schoolcentres in the non-Central Kitchen areas, the post ofone part-time cook and one helper to assist the cook tobe appointed per day from among the local residents. Inthe G.O. second cited, the Government have ordered thatthe children in the age group of 2, 3 and 4 will becatered to by the Child Welfare Centres to be organizedby the Department of Social Welfare through thecommunity development Blocks. Each centre has beenordered to be managed by the Child Welfare Organizerwith 2 Child Welfare Assistants under the over allcontrol of the Block Development Office. In the G.O.third cited, the Government have sanctioned the creationof 33,831 post of part-time Nutritious Meal Organizers, https://hcservices.ecourts.gov.in/hcservices/ one in each School Building Centre under all types ofmanagements and under all the administrative Departmentsdetailed in the G.O. with a payment of a Honorarium toeach of the organizer. In the G.O. fourth cited,sanction was accorded to the creation of 3360 temporaryposts of part-time Nutritious Meal Organizers, Cooks andHelpers for appointment in School Feeding Centresthereby extending the scheme to school children in theage Group 10 to 15 from 15th September, 1984. Thus thepersons employed under the Nutritious Meal Programmesanctioned above are only part-time workers not governedby any service rules. The cooks and helpers appointedin the schools and called consolidated amount for allthe months except during Summer vacation. More than 2lakhs of employees employed under the programme remainas temporary part-time workers from the date of regularappointment. Consequent on the representations made bythe Nutritious Meal Organizers Associations from time totime, the Government have carefully examined thequestion of giving them no accountancy so that they maybe motivated to work more effective, by dedicatingthemselves towards the successful implementation of theprogramme. Since the programme is one of the socialwelfare resources like other developmental programmesimplemented by the development with the Assistance ofthe Local Bodies, these employees cannot be continued onadhoc basis for ever. The Government have therefore,now decided to appoint the employees working under theprogramme of the post Part-time employees of therespective local bodies. Accordingly, Government directthat all the Child Welfare Organizers, Child WelfareAssistants, Nutritious Meal Organizers, cooks questionof giving them so and helpers employed under theprogramme, be made Permanent Part-time employee of therespective Local Bodies, viz., Panchayats, PanchayatUnion Municipalities and the Municipal Corporations, asthe case may be, excluding employees of Integrated ChildDevelopment Services Centre.2. Further, orders in regard to their terms andcondition of service, disciplinary procedures andappointments will be issued separately. Pending issueof further orders of Government on the matters, theexisting orders on the subject issued by the Governmentfrom time to time should be followed."7. It is not the case of the learned Special Government Pleaderthat pursuant to the said Government Order, the Government has issuedany order regarding the terms and conditions of service anddisciplinary procedure to be followed in the disciplinary https://hcservices.ecourts.gov.in/hcservices/ proceedings. In any event, as correctly submitted by the learnedSpecial Government Pleader, as per the Government Order in existenceas on date, the post of Noon Meal Organizer is only part-time and isnot governed by the Service Rules.8. In such view of the matter, there is no difficulty toconclude that the order of the learned Judge, as if Rule 17(b) of theTamil Nadu Civil Service (Discipline and Appeal) Rules is applicable,may not be correct. But that does not mean that the order passed bythe second appellant, dismissing the first respondent, could bevalidated, especially in the circumstances that, on the face of it,it is arbitrary, since not only no opportunity has been given by thesecond appellant before passing such order of dismissal, but also theorder proceeds on the basis of a report stated to have been given bythe Panchayat Union Commissioner, Pudupalayam, copy of which has notbeen, admittedly, furnished to the first respondent/delinquentofficer. Under such circumstances, it is not possible to accept thecontention of the learned Special Government Order that, due to thereason of reliance placed on Rule 17(b) of the Tamil Nadu CivilService (Discipline and Appeal) Rules, the order of the learned Judgeshould be set aside. For the reasons aforesaid, we see no reason to interfere withthe order of the learned Judge. The writ appeal fails and the sameis dismissed. However, it is needless to state that it is alwaysopen to the appellants to proceed with the first respondent, if soadvised, as against the charges framed against him, afresh. No costs.Consequently, M.P.No.1 of 2007 is closed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarsasiTo1. The Collector Thiruvannamalai-Shambuvarayar District Thiruvannamalai.2. The Personal Assistant (Noon Meal) to the Collector Thiruvannamalai-Shambuvarayar District Thiruvannamalai.+ 1 c.c. to The Government Pleader. S.R.No.15373.W.A.No.818 of 2007GV (CO)GSK 24.04.2009.