N.Sachithanandam v. The District Manager II, Retail Vending, TASMAC, Tiruppur

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:21.08.2009CORAMTHE HON'BLE MR. JUSTICE M.M.SUNDRESHW.P.Nos.14915, 10136, 10983, 14652, 14653 of 2009andM.P.Nos.1, 1, 1, 1, 1, 2, 2, 2 & 2 of 20091.N.Sachithanandam..... Petitioner in W.P.No.14915 of 20092.A.Shanmugam ..... Petitioner in W.P.No.10136 of 20092.V.Gunasekaran..... Petitioner in W.P.No.10983 of 20093.L.Subramanian..... Petitioner in W.P.No.14652 of 20094.S.Jayaprakash..... Petitioner in W.P.No.14653 of 2009VsThe District Manager II,Retail Vending,TASMAC, Tiruppur,.... Respondent in all W.Ps.Prayer: (In W.P.No.14915 of 2009) Petitioner filed under Article226 of the Constitution of India for issuance of a writ ofCertiorarified Mandamus calling for the records relating to theproceeding of the respondent in Na.Ka.No.2/2005/A dated 08.07.2005and quash the same in the light of the decision of this Hon'ble Courtreported in 2006 (1) C.T.C.Page 660 and consequently to direct therespondent to reinstate the petitioner as Supervisor with full backwages.(In W.P.No.10136 of 2009) Petitioner filed under Article 226 of theConstitution of India for issuance of a writ of CertiorarifiedMandamus calling for the records relating to the proceeding of therespondent in Na.Ka.No.4/2005/A dated 05.05.2005 and quash the samein the light of the decision of this Hon'ble Court reported in 2006(1) C.T.C.Page 660 and consequently to direct the respondent toreinstate the petitioner as Salesman with full back wages.(In W.P.No.10983 of 2009) Petitioner filed under Article 226 of theConstitution of India for issuance of a writ of Certiorarified https://hcservices.ecourts.gov.in/hcservices/ Mandamus calling for the records relating to the proceeding of therespondent in Na.Ka.No.2/2005/A dated 13.03.2005 and quash the samein the light of the decision of this Hon'ble Court reported in 2005(1) C.T.C.Page 660 and consequently to direct the respondent toreinstate the petitioner as Salesman with full back wages.(In W.P.No.14652 of 2009) Petitioner filed under Article 226 of theConstitution of India for issuance of a writ of CertiorarifiedMandamus calling for the records relating to the proceeding of therespondent in Na.Ka.No.4/2005/A dated 08.05.2005 and quash the samein the light of the decision of this Hon'ble Court reported in 2006(1) C.T.C.Page 660 and consequently to direct the respondent toreinstate the petitioner as Bar Assistant with full back wages.(In W.P.No.14653 of 2009) Petitioner filed under Article 226 of theConstitution of India for issuance of a writ of CertiorarifiedMandamus calling for the records relating to the proceeding of therespondent in Na.Ka.No.2/2005/A dated 12.09.2005 and quash the samein the light of the decision of this Hon'ble Court reported in 2006(1) C.T.C.Page 660 and consequently to direct the respondent toreinstate the petitioner as Supervisor with full back wages.For Petitioners : Mr.P.Muthu Krishnan, (in all W.Ps)For Respondent : Mr.J.Ravindran, (G.A.) (TASMAC) (in all W.Ps)C O M M O N O R D E RIn view of the common issues involved in the above WritPetitions, they have been taken up together and a common order ispassed.2. The petitioners in W.P.Nos.10136 and 10983 of 2009 wereappointed as Salesmen. The petitioner in W.P.No.14652 of 2009 wasappointed as a Bar Assistant and the petitioners in W.P.Nos.14653 and14915 of 2009 were appointed as Supervisors by the respondent herein.3. While they were working as Supervisors, an Order was passed bythe respondent in the year 2005 on the grounds that the petitionershave indulged in retail vending by opening liquor bottles, mixingwater with the liquor, acting against interest of the customers etc.,Thereafter, based upon the report of the officials, the ImpugnedOrders of dismissal have been passed against the petitioners in theyear 2005 dismissing them on the ground that the Special TASMAC Forcehas found the above mentioned irregularities during the surpriseinspection. Challenging the impugned orders, the present WritPetitions have been filed by the petitioners herein. https://hcservices.ecourts.gov.in/hcservices/

4. The learned counsel appearing for the petitioners submittedthat the impugned orders are liable to set aside, since without evenframing charges and without affording an opportunity, they have beenpassed in total violation of the natural justice. According to thelearned counsel, unilaterally the order of the dismissal passed bythe respondent will not sustained in the eye of law. The learnedcounsel also relied upon the judgment reported in W.P.No.28212/2008dated 21.01.2009, [S.Valliyangiri Vs. The District Manager, TamilNadu State Marketing Corporation Ltd., (Coimbatore Region), Erode],as well as the Division Bench Judgment entered in W.A.No.872 of 2009,[The District Manager, TASMAC, Coimbatore Region, Erode, Vs.S.Velliyangiri], in support of his contention that the proceedings ofthe respondent is liable to set aside, since the order of thedismissal have been passed without following the procedure and hencethe same cannot be sustained.5. Per contra of the learned Government Advocate appearing forthe respondent submitted that the Writ Petitions are liable to bedismissed on the ground of latches, since in all the cases, theimpugned orders have been passed in the year 2005 and there are noproper explanations for not approaching this Court earlier.According to the learned Government Advocate, the reasons assigned inthe Writ Petitions that the petitioners are illiterate and poorcannot be the reasons for condoning the delay. In respect of thesaid contention the learned Government Advocate relied upon theJudgment in W.P.No.26913 of 2008 dated 26.06.2009,[Mr.S.Krishnamoorthy Vs. The Managing Director, Tamil Nadu StateMarketing Corporation Ltd., and The District Manager, Tamil NaduState Marketing Corporation Ltd.,] to the effect that in view of thedelay the Writ Petitions are liable to be dismissed.6. It is not in dispute that in the Judgment referred by thelearned counsel appearing for the petitioners as well as therespondent, the impugned orders were passed in the year 2005. In theJudgment of this Court in W.P.No.28212/2008 dated 21.01.2009,[S.Valliyangiri Vs. The District Manager, Tamil Nadu State MarketingCorporation Ltd., (Coimbatore Region), Erode], the learned singleJudge ordered reinstatment without backwages. The said order waspassed by taking into consideration of the fact that the petitionertherein approached the Court bilaterally. The said Judgment has alsobeen upheld by the Division Bench in W.A.No.872 of 2009, [TheDistrict Manager, TASMAC, Coimbatore Region, Erode, Vs.S.Velliyangiri,]. Therefore, this Court opines that there is noconsiderable force in the argument made by the respondent. 7. In this connection it is useful to refer the following passageof the Division Bench.5. In our opinion, such an argument cannot beaccepted. The Apex Court in the judgments reported in https://hcservices.ecourts.gov.in/hcservices/ 2005 (7) SCC 518 and 1999 (3) SCC 60, State of HaryanaVs. Satyandra Singh Rathora, has held that when anorder involves civil consequences and consequentlyamounts to stigma, the same cannot be passed withoutthere being a charge memo, enquiry and finding as tothose charges. Though in the judgment inLakshmanakumar's case, cited supra, this Court onconsidering a summary dismissal, observed that theTASMAC was entitled to proceed against the employee interms of the contract, that does not mean that such asummary dismissal can be ordered in the event suchorder causes stigma.6. We have perused the nature of charges. Thecharges are very serious, particularly when theyallege that the employee has adulterated the liquorand he has misappropriated the money, caused loss tothe TASMAC and to the Government. These are all majormisconducts, of course, warranting a seriouspunishment and in that case, a punishment of dismissalcould be inflicted only on proper enquiry even in thecase of a contract employee, especially when theemployee had denied the charges by giving explanation.8. Therefore, this Court is of the opinion that mere delay inapproaching the Court cannot be the ground for declining the relief,in view of the Judgment of the Division Bench cited supra. It is alsoseen that the Tamilnadu State Marketing Corporation Ltd., is party tothe both referred cases. Therefore, this Court opines that thecontention of the learned counsel appearing for the respondents thatthe Writ Petitions are liable to be dismissed and the order passed bythe learned single Judge in W.P.No.26913 of 2008 dated 26.06.2009,Mr.S.Krishnamoorthy Vs. The Managing Director, Tamil Nadu StateMarketing Corporation Ltd., and The District Manager, Tamil NaduState Marketing Corporation Ltd., cannot be sustained and are liableto be rejected. Further it is seen that in the present case, theimpugned order has been challenged only on the ground of violation ofnatural justice. It is a settled principle of law that once it hasbeen held that the principles of natural justice is not followed,then the Court is to set aside the order impugned, with liberty tothe respondent to proceed in accordance with law. Mere violation ofthe natural justice will not entitle a person to get out of thecharges. In the present case, it is not dispute that the respondentis the competent authority to initiate the proceedings. In therecent judgment reported in 2008 (5) CTC 285, [Union of India Vs.Y.S.Sandhu, Ex-Inspector], the Hon'ble Supreme Court held that in acase, where principle of natural justice are not followed, the Courtwill have to set aside the order with a direction to the authoritiesto proceed from the stage where it stood before alleged violation of https://hcservices.ecourts.gov.in/hcservices/ natural justice. The said Judgment was not been brought before theDivision Bench of this Court. 9. Therefore, this Court while setting aside the impugned orderspassed by the respondent herein directs the respondent to proceedagainst the petitioners in accordance with law, if they are sodesired.10. The Writ Petitions are allowed to the extent as indicatedabove.Sd/-Asst. Registrar/True Copy/Sub.Asst. Registrar.krkTo:The District Manager II,Retail Vending,TASMAC, Tiruppur.+ 5 cc to Mr.P.Muthukrishnan, CC SR.40644 to 40648/09+ 5 cc to Mr.J.Ravindran, CC SR.41524, 41529/09 and41526 to 41528/09.W.P.Nos.14915, 10136, 10983, 14652, 14653 OF 2009RB (CO)A.S./16.09.2009