Madras High Court
J.Kathiravan vs The Special Commissioner And ... on 3 September, 2021
W.A.No.2215 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.09.2021
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
W.A.No.2215 of 2021
1. J.Kathiravan,
S/o.Late Jeyapal,
6th Ward, Ulamett Street,
Sentharapatty Post,
Gengavalli Taluk,
Salem District. .... Appellant/Petitioner
-vs-
1. The Special Commissioner and Director,
Land Survey and Land Tax Planning,
Chennai.
2. The District Collector,
Salem District, Salem.
3. The Assistant Director,
District Land Survey Department,
Salem-7. ... Respondents/Respondents
Prayer: Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order dated 01.11.2017 in W.P.No.16013 of 2012.
For Appellant: Mr.K.Selvaraj
For Respondents: Mr.K.V.Sajeev Kumar
Government Counsel
*****
1/18
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JUDGMENT
S.VAIDYANATHAN,J.,
AND
A.A.NAKKIRAN,J.,
This Writ Appeal has been filed, challenging the order dated
01.11.2017, passed by the learned Single Judge in W.P.No.16013 of 2012, in
and by which, the request of the Appellant for compassionate appointment
was negatived.
2. For the sake of brevity, the parties are referred to by their original
nomenclature in this Writ Appeal as “Appellant and the Respondents” in
this judgment.
3. It was averred by the Appellant that that the father of the
Appellant, namely, Jeyapal met with his demise on 10.10.1991 and the
Appellant, after completion of 12th standard in the year 2006, had sent an
application for compassionate appointment, on account of the death of his
father. The said application came to be dismissed by the District Collector /
2nd Respondent herein by an order dated 09.01.2008, aggrieved by which, he
filed the Writ Petition in W.P.No.16013 of 2012 for quashing the order of
the 2nd Respondent. Learned Single Judge, after considering all the factors
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and circumstances of the case, has dismissed the Writ Petition, on the
ground of delay and latches. Against the order of the learned Single Judge,
the Appellant is before this Court.
4. Learned Government Counsel contended that the Appellant,
having submitted the application belatedly, cannot demand a public
appointment on compassionate ground as a matter of right, as the purpose
of compassionate appointment is to tide over the immediate financial crisis,
being undergone by the family, due to the death of the breadwinner of the
family. He further submitted that the appointment on compassionate
ground cannot be considered after a lapse of a reasonable period, specified
in the Rules. Therefore, learned Single Judge has rightly declined to grant
the relief to the Appellant, which warrants no interference by this Court.
5. Learned counsel for the Appellant submitted that since the
Appellant was only 11 years old, at the time of death of his father, he
submitted an application after attaining majority, after forwarding a
representation as early as in 1993, which was within time, even when he
was a minor. Learned Single Judge, without considering the application,
which was timely submitted, has erroneously dismissed the Writ Petition on
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the ground of delay. He further submitted that the Government Orders
relied upon by the Respondents dated 08.10.2007 and 19.11.2007, are not
applicable to the case of the Appellant, as the said Government Orders
were issued, subsequent to the submission of the application. Hence, the
order of the learned Single Judge, impugned herein is liable to be set aside.
6. Heard the learned counsel on either side and perused the material
documents available on record.
7. A perusal of the case reveals that the father of the Appellant died
on 10.10.1991 and according to the Appellant, the first representation for
compassionate appointment was given by the Appellant on 02.07.1993 and
there was no order passed by the Respondents thereon. Thereafter, yet
another application was forwarded by the Appellant, which was rejected by
the 2nd Respondent herein. It is not in dispute that the Appellant was only
11 years old, when his father died in harness and was not quite eligible to
be considered for any public appointment. Subsequently, the Appellant,
after attaining majority, made an application for compassionate
appointment and his request was declined for the reason stated supra. It is
stated by the petitioner that the earlier application submitted by the
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Appellant did not evoke any response and the 2nd Respondent passed the
rejection after a lapse of two years, on the basis of the subsequent
application in the form of reminder. The said submission cannot be
accepted, as no application can be kept there is no reservation prescribed
in the matter of appointment on compassionate ground, as the main object
of providing such appointment is to overcome the immediate crisis on
sudden death of the earning member. Moreover, it is not known as to why
the mother of the petitioner did not make any application for employment
on compassionate ground and all of a sudden, the petitioner woke up from
slumber and sought for an appointment on compassionate ground in the
year 2005, viz., after a lapse of 10 years, which cannot be acceptable.
Compassionate appointment cannot be demanded as a matter of right and
only to safeguard the family, which is in distress on account of demise of
the employee / earning member of the family and to come out from the
indigenous circumstances, such appointments are widely made. I have also
considered various judgments of the Apex Court and rendered a finding with
regard to compassionate appointment in the case of S.Gowtham Balu The
Managing Director, Tamil Nadu Electricity Generation and Distribution
Corporation, 144, Anna Salai, Chennai – 600 002 and another
[W.P.(MD)Nos.4129, 7045, 16624 and 20786 of 2014] decided on
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W.A.No.2215 of 2021
24.09.2018.
5. The Apex Court in the case of Bhawani Prasad Sonkar vs. Union
of India reported in 2011 (4) SCC 209), held as under:
"20. Thus while considering a claim for employment on
compassionate ground, the following factors have to be borne
in mind:
(i) Compassionate employment cannot be made in the
absence of rules of regulations issued by the Government or a
public authority. The request is to be considered strictly in
accordance with the governing scheme, and no discretion as
such is left with any authority to make compassionate
appointment de~hors the scheme.
(ii) An application for compassionate employment must
be preferred without undue delay and has to be considered
within a reasonable period of time.
(iii)An appointment on compassionate ground is to meet
the sudden crisis occurring in the family on account of the
death or medical invalidation of the bread~winner while
in service. Therefore, compassionate employment cannot be
granted as a matter of course by way of largesse irrespective of
the financial condition of the deceased/incapacitated
employee-s family at the time of his death or incapacity,
as the case may be.
(iv) Compassionate employment is permissible only to one
of the dependants of the deceased/incapacitated employee viz.
Parents, spouse, son or daughter and not to all relatives, and
such appointments should be only to the lowest category that is
Class III and IV posts."
6. In view of the foregoing discussions and following the judgments of
the Apex Court as well as this Court, in the considered opinion of this Court,
the claim of the petitioner, that too after a lapse of nearly 10 years, has no
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W.A.No.2215 of 2021
substance and the Writ Petition is liable to be dismissed. Accordingly, this
Writ Petition stands dismissed. No costs.
The Writ Petitioner, who was employed in the disciplined force, was
charged with the offence of illegal gratification and was caught red-handed.
Since he was arrested and remanded to judicial custody, he was placed
under suspension on 25.04.2014. After suspension, there was no progress in
initiation of departmental proceedings, which resulted in revocation of the
suspension of the Writ Petitioner by the learned Single Judge. Aggrieved by
the said order, Government preferred this appeal and when the matter was
taken up for hearing during admission, this Court expressed its
dissatisfaction over the act of the Appellants in non-initiation of the
departmental proceedings and directed the Commissioner of Police,
Madurai to file a status report.
8. The Status Report filed by the 2nd Appellant is bereft of particulars
with regard to commencement of any departmental proceedings and
reinstatement and it creates a lot of doubts in the minds of this Court. It is
not known as to what prevented the Appellants in initiation of departmental
proceedings against the Writ Petitioner, as a delinquent charged with a
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serious and grave offence has been allowed to wander scot-free for quite a
long time. The Hon'ble Supreme Court in the case of Stanzen Toyotetsu
India Private Limited vs. Girish v. and others, reported in (2014) 3 SCC
636, has clearly laid down a dictum that in case trial in a criminal case is
not completed within a period of one year, there is no hindrance on the
part of the employer to proceed with the departmental proceedings. The
Supreme Court in the said judgment nowhere stated that the time limit is
not applicable to trap cases. Had the departmental enquiry been initiated
immediately after his suspension, by this time, it would have been
concluded and brought to a logical conclusion.
9. It is quite natural that if a public servant is kept under suspension
for long time, any Court will hold that the suspension should be revoked and
the delinquent should be posted in a non-sensitive post, which has been
done by the learned Single Judge vide order impugned herein, in terms of
the judgment of the Apex Court in State of TN vs. Promod Kumar IPS and
another and Ajay Kumar Choudhary vs. Union of India through its
Secretary and another (supra). One of us (SVNJ) elaborately dealt with the
issue of suspension in W.P.No.13 of 2021 (V.Mohanraj vs. The Secretary
and two others), and passed a detailed order on 06.01.2021, holding as
under:
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"6. Considering the facts and circumstances of this
case, this Court is not going to direct the respondents to
promote the petitioner to the post of Inspector by including
him in the panel and it is for the respondents to consider
the same. It is needless to mention that if any departmental
proceedings have been commenced or initiated, it is open
to the respondents to proceed with the same so as to bring
the proceedings to a logical end, dehors pendency of the
criminal case, as both criminal proceedings as well as
departmental proceedings can go on simultaneously and the
criminal case should be proved beyond reasonable doubt by
adducing oral and documentary evidence, whereas charges
in the departmental proceedings should be established on
the basis of preponderance of probabilities. If Criminal
Proceedings are not initiated or concluded within one year
from the date of FIR, there is no hindrance on the part of
the employer to proceed with the departmental proceedings
on day to-day basis and bring the issue to a logical end at
the earliest point of time and the employee will have to
participate in the departmental proceedings and shall not
attempt to adopt dilatory tactics.
7. In this regard, the Hon'ble Supreme Court in the
case of Stanzen Toyotetsu India Private Limited vs. Girish
v. and others, reported in (2014) 3 SCC 636, has clearly
laid down a dictum as under:
“19. In the circumstances and taking into
consideration all aspects mentioned above as
also keeping in view the fact that all the three
Courts below have exercised their discretion in
favour of staying the on-going disciplinary
proceedings, we do not consider it fit to vacate
the said order straightaway. Interests of justice
would, in our opinion, be sufficiently served if
we direct the Court dealing with the criminal
charges against the respondents to conclude the
proceedings as expeditiously as possible but in
any case within a period of one year from the
date of this order. We hope and trust that the
Trial Court will take effective steps to ensure
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that the witnesses are served, appear and are
examined. The Court may for that purpose
adjourn the case for no more than a fortnight
every time an adjournment is necessary. We also
expect the accused in the criminal case to co-
operate with the trial Court for an early
completion of the proceedings. We say so
because experience has shown that trials often
linger on for a long time on account of non-
availability of the defense lawyers to cross-
examine the witnesses or on account of
adjournments sought by them on the flimsiest of
the grounds. All that needs to be avoided. In
case, however, the trial is not completed within
the period of one year from the date of this
order, despite the steps which the Trial Court has
been directed to take the disciplinary
proceedings initiated against the respondents
shall be resumed and concluded by the Inquiry
Officer concerned. The impugned orders shall in
that case stand vacated upon expiry of the
period of one year from the date of the order.
20. In the result, we allow these appeals
but only in part and to the extent indicated
above. The parties are left to bear their own
costs.”
8. For the purpose of brevity, this Court makes it very
clear that if any criminal proceedings have been initiated
after commencement of the departmental proceedings, the
one year time limit mentioned supra will not apply to those
cases and the departmental proceedings shall go on
uninterruptedly. Invariably, the offenders, who have
committed grave offences, are being acquitted on the
ground of benefit of doubt, owing to missing link in the
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W.A.No.2215 of 2021
chain of events and are trying to get back the entire
backwages and for those persons, employment itself is a
lottery.
9. In the present case on hand, even according to the
petitioner, a charge memo has been issued as early as on
18.12.2015 and in case any departmental proceedings had
already commenced, the same shall be proceeded on a day
to-day basis without adjourning the matter beyond seven
working days at any point of time and brought to a logical
conclusion at the earliest. The petitioner shall co-operate
for early attainment of the proceedings.”
10. The order of suspension is not a punishment and the relationship
between the employer and the employee subsists even during the period of
suspension. When there is master and servant relationship, the suspension
can be effected by the employer and it cannot be questioned except on
certain grounds like competence of the Authority issuing the said order,
want of jurisdiction, contrary to the Rules, etc. When the order of
suspension has been questioned by the Writ Petitioner, the learned Single
Judge, taking note of the fact that no departmental enquiry was initiated,
allowed the Writ Petition and directed the Appellants to reinstate and post
the Writ Petitioner in a non-sensitive post, which is perfectly valid in the
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eye of law and is in consonance with the ratio laid down by the Apex Court
and is justified, as tax payers money should not be wasted in the form of
payment of subsistence allowance without extracting any work. In the
interim order dated 23.08.2021, it was observed that the order of the
learned Single Judge was not complied with, on the ground of filing of this
Writ Appeal. When there is no stay of the order of the learned Single Judge
in the Writ Appeal, the Order should have been complied with and it is not
known whether the Writ Petitioner has filed any contempt petition or not
and had any contempt petition been moved before this Court, this Court
would have taken serious note of the disobedience of the orders of the
learned Single Judge.
11. Finding that no prima facie case has been made out by the
Appellants herein, we are not inclined to interfere with the orders of the
learned Single Judge. Accordingly, this Writ Appeal is disposed of with the
following directions:
i) The Appellants are directed to revoke the suspension order and
reinstate the Writ Petitioner on or before the end of November, 2021;
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ii) It is open to the Appellants to initiate departmental proceedings
against the Writ Petitioner and if any commenced or initiated, the same
shall be proceeded with, dehors pendency of the criminal case, as both
criminal proceedings as well as departmental proceedings can go on
simultaneously, as there is no hindrance on the part of the employer to
proceed with the departmental proceedings, if the Criminal Proceedings are
not initiated or concluded within one year from the date of FIR (not from
the date of filing of Charge Sheet, as filing of Charge Sheet in the Criminal
Court is a herculean task and will take years together), in view of the fact
that the criminal case should be proved beyond reasonable doubt by
adducing oral and documentary evidence, whereas charges in the
departmental proceedings should be established on the basis of
preponderance of probabilities. In the event of the delinquent employees,
including the Writ Petitioner, having less than one year of service and in the
absence of pension rules to proceed against them, after retirement, then
there is no need for strict observance of the waiting period;
iii) The Disciplinary Authority shall proceed with the enquiry on a day
to-day basis without adjourning the matter beyond seven working days at
any point of time and bring the issue to a logical conclusion at the earliest,
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but not later than six months from today. The petitioner shall co-operate
for early attainment of the proceedings;
iv) If the Writ Petitioner refuses to participate in the enquiry, ex-
parte enquiry may be conducted, final decision in the ex-parte may be
taken and communicated to the Writ Petitioner. This will enable the Writ
Petitioner to participate in the enquiry without protracting it. Till final
orders are passed by the disciplinary authorities, the Writ Petitioner cannot
approach the Court further to stall the proceedings;
v) For the suspension period, the subsistence allowance needs to be
paid in terms of the Rules, provided the employee does not leave the Head
Quarters and it is open to the employer to verify the residence of the
employee that has been furnished by him/her to whether the employee is
residing there or not. In case the employee is not found therein, then the
subsistence allowance can be stopped, as the employee should not leave
the Head Quarters without prior permission;
vi) The enquiry should not be stalled, citing the reason of non
availability of documents. If the documents are taken by the DVAC or other
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Departments or filed before the Court, certified copies of those documents
can be obtained by the Department and in the event of any such request
made, other Departments are bound to furnish the same, in order to enable
the concerned Department to proceed with the enquiry against the
delinquent and DVAC or other Departments should not be a party for non-
conduct of enquiry;
vii) The documents, which are going to be relied upon by the
Department in the domestic enquiry, will have to be furnished to the Writ
Petitioner. Wherever it is not possible and documents are voluminous, the
Writ Petitioner will be permitted to take notes of those documents for the
purpose of effective defence in the enquiry;
viii) In case Departmental action is not taken against the delinquent
in time, the Officer, who is responsible for non-initiation of Departmental
Proceedings should be taken to task, on the presumption that the said
Officer is in collusion with the delinquent employee and adverse remarks
against the Officer, who is responsible to take action shall be entered in the
Service Register and he/she should not be allowed to be promoted further
and reversion to the post in which that person / Officer was appointed shall
be the minimum punishment to him/her;
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ix) The Appellants / Officials in other Departments, while taking a
decision, shall bear in mind the order of this Court dated 06.01.2021 made
in W.P.No.13 of 2021 in entirety.
12. It is very painful to state here that demand of bribe has become a
fashion and such a shameful / begging act is measured, depending upon the
work / Department. In olden days, for doing extra works, bribe was
demanded in Revenue, Registration, Corporation, etc., Departments and of
late, corruption is in existence almost in all Departments, because of the
quiescent attitude of the Government Higher Officials. The root of
corruption extended its branches to a larger extent and started affecting
the society like termite. The Officials responsible for initiation of
departmental proceedings in time must be taught about the seriousness of
the enquiry to be conducted, especially when there is a criminal case
pending against delinquent employees and a training must be imparted to
them to teach as to what would be the consequences hereafter in case they
shirk their responsibilities. This judgment shall not be treated to be passed
in respect of the present Appellant Police Department alone and the
guidelines mentioned supra shall be scrupulously followed by all the
Departments.
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13. The Chief Secretary and Director General of Police, Chennai are
directed to send a circular to all Departments, with regard to the guidelines
to be followed, by distinguishing the difference between an ordinary
suspension arising out of departmental proceedings and the deemed
suspension on account of arrest and remand, pursuant to registration of a
criminal case, especially under P.C.Act. No costs. Consequently, connected
Miscellaneous Petition is closed.
[S.V.N,J.,] [A.A.N,J.,]
03.09.2021
Index: Yes / No
Internet: Yes / No
Speaking Order / Non Speaking Order
ar
S.VAIDYANATHAN,J.
and
A.A.NAKKIRAN,J.
ar
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W.A.No.2215 of 2021
W.A.No.2215 of 2021
03.09.2021
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