Madras High Court
M.Selvi vs The Executive Officer on 21 October, 2021
W.P.(MD)No.14475 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.10.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.14475 of 2014
M.Selvi ... Petitioner
vs.
1.The Executive Officer,
Sundarapandiyam Town Panchayat,
Virudhunagar District.
2.V.Ganesan ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records pertaining to the impugned order of removal from service passed
by the first respondent in Na.Ka.No.138/11 dated 07.08.2014, served on
the petitioner on 28.08.2014, to quash the same and consequently to
direct the respondents to reinstate the petitioner in service in the post of
Sanitary Worker, Sundarapandiyam Town Panchayat with back wages,
continuity of service and all other attendant benefits.
For Petitioner :Mr.A.Rahul
For R-1 :Mr.Veeravel Pandian
for J.Gunaseelan Muthiah
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https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.14475 of 2014
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus, to quash the impugned order of removing the petitioner from
service passed by the first respondent, dated 07.08.2014 and to direct the
respondents to reinstate the petitioner in service in the post of Sanitary
Worker with back wages.
2.Heard Mr.A.Rahul, learned Counsel appearing for the petitioner
and Mr.Mr.Veeravel Pandian, learned Counsel appearing for the first
respondent.
3.The petitioner was appointed as a Sweeper/Sanitary Worker on
27.04.2007 in Mamsapuram Town Panchayat and it is stated by the
petitioner that her appointment was through Employment Exchange.
While in service, the petitioner was placed under suspension by the first
respondent by order, dated 15.04.2011. It was stated in the order of
suspension that the petitioner was unauthorizedly absent from duty from
05.03.2011 till the date of suspension and that an enquiry into grave
charges is contemplated against the petitioner and it appears that the
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W.P.(MD)No.14475 of 2014
petitioner made several representations to revoke the order of suspension
and to pay the petitioner subsistence allowance. The petitioner filed a
Writ Petition earlier in W.P.(MD)No.10394 of 2013 challenging the order
of suspension and the said Writ Petition was disposed of by directing the
first respondent to pay subsistence allowance till the completion of
enquiry. Later a charge memo was issued to the petitioner on
10.07.2013.
4.It is stated by the petitioner that the first respondent signed the
charge memo only on 10.03.2014. After receiving the charge memo on
20.03.2014, it is stated by the petitioner that she submitted a
representation to pay subsistence allowance. It is admitted by the
petitioner that an Enquiry Officer was appointed. From the impugned
order, it is seen that the Enquiry Officer was appointed and he submitted
his report, dated 06.08.2014. Based on the Enquiry Officer's report, it is
seen that the first respondent passed the impugned order, dated
07.08.2014 removing the petitioner from service. As against the order of
dismissal, the petitioner has come forward with the present Writ Petition.
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W.P.(MD)No.14475 of 2014
5.The learned Counsel for the petitioner submitted that even
though the Enquiry Officer drew the report on 06.08.2014, it is seen that
the order of dismissal is dated 07.08.2014. He further submitted that it is
impossible between 06.08.2014 and 07.08.2014 to give sufficient
opportunity to the petitioner to submit her explanation to the enquiry
report. Since it is mandatory that the Disciplinary Authority should serve
a copy of the enquiry report, the learned Counsel for the petitioner
submitted that the impugned order is liable to be quashed on the short
ground of violation of principles of natural justice.
6.The learned Counsel appearing for the first respondent submitted
that the petitioner has committed several delinquencies for which the
petitioner is liable to be terminated.
7.Except the statements making serious allegations against the
petitioner, there is no record to hold that the charges against the
petitioner are true. Be that as it may, the Enquiry Officer submitted a
report just one day prior to the order of removal. If it is mandatory that
the report of Enquiry Officer should be furnished to the petitioner and an
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W.P.(MD)No.14475 of 2014
opportunity should be given to the delinquent before passing the order of
dismissal, the impugned order cannot be sustained.
8.The learned Counsel appearing for the petitioner relied upon the
judgment of the Honourable Supreme Court in the case of Managing
Director, E.C.I.L., Hyderabad vs B.Karunakar reported in 1994 Supp
(2) SCC 391, wherein, the Honourable Supreme Court has held that it is
mandatory to serve a copy of the enquiry report to the charged Officer at
least from the date of judgment in Ramzan Khan case, dated 20.11.1990.
(reported in (1991) 1 SCC 588)
9.In the said circumstances, this Court cannot resist but hold that
the dismissal order passed by the first respondent is vitiated by non
furnishing of Enquiry Officer's report to the petitioner. Hence, the
impugned order passed by the first respondent, dated 07.08.2014 is set
aside. However, liberty is given to the first respondent to initiate fresh
proceedings in accordance with law. The first respondent is directed to
reinstate the petitioner into service and confer all monetary benefits to
the petitioner. It is stated by the learned Counsel appearing for the
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W.P.(MD)No.14475 of 2014
petitioner that till 2014, the petitioner was paid subsistence allowance
and thereafter, the impugned order was passed dismissing the petitioner
from service. Since the order of termination is now set aside, the
petitioner is entitled to regularization of the period of suspension as the
petitioner was kept away from work not on her fault but on the basis of
proceedings, which was concluded by the impugned order which is
quashed by this order. No costs.
Index :Yes / No 21.10.2021
Internet :Yes
tmg/cmr
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.14475 of 2014
S.S.SUNDAR, J.
tmg/cmr
Order made in
W.P.(MD)No.14475 of 2014
21.10.2021
https://www.mhc.tn.gov.in/judis/
