M. Thirunavukkarasu v. The SecretaryTamil Nadu Legislative AssemblySecretariat

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22..01..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 24500 of 2006and M.P. Nos. 1 and 2 of 2006M. Thirunavukkarasu.. Petitioner Vs.The SecretaryTamil Nadu Legislative AssemblySecretariat Fort St. GeorgeChennai – 9 .. Respondents Petition filed under Article 226 of the Constitution of India seekingfor issuance of writ of Certiorarified Mandamus calling for therecords relating to the impugned order No. 1398/2006-1 SAMaPeSe(AaNaPi-1) dated 20.7.2006 and quash the same and further direct therespondent to reinstate the petitioner in service with all concomitantbenefits.For Petitioner: Mr. S. Prabhakaran for Mr. W.M. Abdul MajeedFor Respondent : Mr. L.S.M. Hasan Fizal, GAORDERHeard Mr. S. Prabhakaran, learned counsel appearing for thepetitioner and Mr. L.S.M. Hasan Fizal, learned Government Advocaterepresenting the respondent and perused the records. 2.The petitioner challenges the order of the respondent dated20.7.2006 in terminating his temporary service. The petitioner wasan Ex-serviceman and after putting in 20 years of service, he gotretired from the Indian Air Force. He attended an interview for thepost of Sergeant in the Tamil Nadu Legislative Assembly. By anorder dated 06.01.2006, the petitioner was appointed temporarily in https://hcservices.ecourts.gov.in/hcservices/ the post of Sergeant in the Tamil Nadu Legislative Assembly under Rule17(a)(i) of the Tamil Nadu Legislative Assembly Secretariat ServiceRules [for short 'Rules']. It was also stated in paragraph 4 of theappointment order that his post was temporary and it can be terminatedat any time without any notice. It is also stated that on the basisof such temporary employment, he cannot seek for any additional rightwhile in service of the Tamil Nadu Assembly. The petitioner joinedduty on 09.01.2006 accepting the said offer of employment.Subsequently, he was given a memo dated 26.5.2006 stating that he hadfailed to carry out the orders of the Honourable Speaker of theAssembly. The petitioner gave a reply dated 27.5.2006 stating thatthough he wanted to implement the orders, the Assembly guards did notcome to help him. He also gave an undertaking that in future, hewill be more responsible. As the respondent was not satisfied withthe reply furnished by him, a charge memo was framed under Rule 33(b)of the Rules. The petitioner after seeking extension of time tosubmit his explanation, gave his explanation dated 15.6.2006 denyingthe charges levelled against him. However, instead of pursuing theremedy of conducting an enquiry and proving the charges, therespondent abandoned that course of action and invoked power underRule 17(a)(i) of the Rules and terminated the service of thepetitioner by an order dated 20.7.2006. It is this order that isunder challenge as noted already.3.Mr. S. Prabhakaran, learned counsel appearing for thepetitioner submitted that though the order of termination isinnocuously worded, it is based upon the alleged misconduct committedby the petitioner and, therefore, the respondent ought to haveconducted an enquiry in terms of the Rules. This, according to him,is a violation of all fair play and norms and if it is allowed, itwill lead to hire and fire policy and the petitioner has beencondemned without being heard.4.Per contra, learned Government Advocate representing therespondent submitted that the petitioner's appointment was purelytemporary and liable to be terminated at any time and it does notrequire any notice or enquiry. Further, he also submitted that thepetitioner had hardly worked for a period of six months and he cannotclaim any right in terms of his post. It was also submitted thatthe petitioner was an Ex-serviceman and the present employment is onlya re-employment and in such case, the petitioner cannot invoke anyright as if he was in a confirmed service. 5.The order of termination, which is impugned in the writpetition, does not disclose any misconduct and it merely invokes powerof the respondent in terminating the service of the petitioner. Eventhough the said order might have been preceded by a show cause noticeand explanation, insofar as the petitioner has not been appointed inany permanent post, he cannot make any grievance out of his https://hcservices.ecourts.gov.in/hcservices/ termination. Rule 17(a)(i) of the Rules clearly provides power onthe part of the respondent to terminate the service of the petitionerat any time and this has also been indicated in the order ofappointment dated 06.01.2006 which has been accepted by thepetitioner. Further, the nature of enquiry, that is contemplatedagainst the temporary employee, that too, who has rendered a serviceof six months, cannot be inflexible and the petitioner's explanationwas also obtained after a charge memo was framed against him. 6.As contended by the learned Government Advocate, thepetitioner was only a re-employed Ex-serviceman and his services areutilised for carrying out the orders of the Speaker of the LegislativeAssembly. If there is any dissatisfaction about the nature of hiswork, it is always open to the respondent to dispense with hisservices and the petitioner cannot claim any greater right as that ofa regularly appointed person holding similar post. 7.A counter affidavit dated 07.11.2006 has been filed by therespondent. It is stated that for invoking power under Rule 17(f)of the Rules, no such enquiry is contemplated and that afterdispensing with the service of the petitioner, a regular Sub-Inspectordrawn from the Police Department by transfer of service, has beenappointed and the petitioner cannot claim to any non-existing post.8.Under these circumstances, it is clear that the contentionsof the petitioner raised in the writ petition are devoid of merits.Inasmuch as the petitioner has been appointed only temporary and itdoes not require any continuation of service, the attack made by thepetitioner against the impugned order is misconceived. There is noviolation of any principles of natural justice and the impugned orderof termination does not expressly cause any stigma on the work andconduct of the petitioner.9.The Supreme Court in the judgment relating to Nepal Singh v.State of U.P. reported in (1980) 3 SCC 288, held that an orderterminating the services of a temporary government servant and exfacie innocuous and if it does not cast any stigma on the governmentservant, it must be regarded as effecting a termination simpliciter.It was further held in paragraph 5 of the judgment as follows:Para 5:".... But the question which calls for determination inall such cases is whether the facts satisfy thecriterion repeatedly laid down by this Court that anorder is not passed by way of punishment, and is merelyan order of termination simpliciter, if the materialagainst the government servant on which the superiorauthority has acted constitutes the motive and not thefoundation for the order. The application of the testis not always easy. In each case it is necessary toexamine the entire range of facts carefully and https://hcservices.ecourts.gov.in/hcservices/ consider whether in the light of those facts thesuperior authority intended to punish the governmentservant or, having regard to his character, conduct andsuitability in relation to the post held by him it wasintended simply to terminate his services. The functionof the court is to discover the nature of the order byattempting to ascertain what was the motivatingconsideration in the mind of the authority whichprompted the order."Para 6: ".... The material which he considered was sufficientto lead to the conclusion that the appellant, who was atemporary government servant, was not suitable forbeing retained in service. His general character andconduct led to that impression. There is nothing toshow that the impugned order was made by way ofpunishment. The circumstance that a disciplinaryproceeding had been instituted against him earlier doesnot in itself lead to the inference that the impugnedorder was by way of punishment. As we have observed,that is a conclusion which must follow from the natureof the intent behind the order. That intention can bediscovered and proved, like any other fact, from theevidence on the record. In this case, it is not provedthat the impugned order was intended by way ofpunishment." 10.Recently, the Supreme Court in the judgment relating toKendriya Vidyalaya Sangathan v. Arunkumar Madhavrao Sinddhaye andanother ,(2007) 1 SCC 283 held that if the termination is preceded bya preliminary enquiry, even then the termination does not amount to apunishment and it is for the authorities to pursue the disciplinaryaction or to resort to simpliciter termination.11.Under these circumstances, there is no case made out by thepetitioner to interfere with the impugned order of termination.Accordingly, the writ petition will stand dismissed. However, therewill be no order as to costs. Connected Miscellaneous Petitions areclosed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ griToThe SecretaryTamil Nadu Legislative AssemblySecretariat Fort St. GeorgeChennai – 91 cc To The Government Pleader, SR.2527.W.P. No. 24500 of 2006 PUR(CO)RVL 29.01.2008