Madras High Court
State Of Tamil Nadu Rep.By vs M.Tamilselvi on 29 September, 2021
1 W.A.No.1935 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.09.2021
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
W.A.No.1935 of 2021
and CMP.No.12507 of 2021
1.State of Tamil Nadu rep.by
The Secretary to Government,
Health and Family Welfare (K1) Department,
Fort St.George,
Chennai – 600 009.
2.The Director of Medical
and Rural Health Services,
Chennai – 600 006 ... Appellants
Vs.
M.Tamilselvi ... Respondent
Prayer: Writ appeal is filed under clause 15 of the Letter Patent praying to
allow the WA setting aside the order of the Honourable Court, dated
06.11.2020 made in W.P.No.27423 of 2005.
For Appellants : Mr.K.T.S. Tippu Sultan
Government Advocate
For Respondent : Mr.R.Thirugnanam
https://www.mhc.tn.gov.in/judis
2 W.A.No.1935 of 2021
JUDGMENT
(Judgement of the Court was made by S.VAIDYANATHAN, J.)
The present writ appeal has been preferred by the Government
challenging the order in W.P.No.27423 of 2005 dated 06.11.2020.
2. The order passed by the respondents by which the punishment of
removal from service imposed by the respondents has been converted into
one of compulsory retirement and the relevant paragraphs of the order are
extracted below:-
9. On a careful perusal of the records and the
submission made by the learned counsel for the petitioner it
is seen that the petitioner was aged about 12 years at the
time of the death of her father and the submission that the
petitioner has not suppressed any fact, is not acceptable.
Therefore, under these circumstances, it cannot be stated
that the petitioner is not aware of fact though she was
working in the said Department for 10 years. Further,
there is also a fault on the part of the Department that at
the time of giving appointment, the Tahsildar, who had
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given certificate, should have verified the records properly.
Hence, the petitioner alone cannot be blamed and the
respondents also having played a part on the wrong
committed by the petitioner. It means that the petitioner
colluded with the officials got false certificate and obtained
appointment. At one point of time, based on the complaint
received from the Unemployed Pharmacist Union, on
verification of the complaint, the officials in order to escape
from their responsibility had taken action against the
petitioner. However, this Court cannot encourage such
action of the petitioner. There is no merit in the Writ
petition and hence, the same is liable to be dismissed.
10. However, this Court is of the opinion that the
officials of the Department is also having some part in the
wrong committed by the petitioner and the petitioner alone
cannot be held responsible for that. Hence, the order of
removal from service is modified as compulsory
retirement”.
3. According to the appellant, the respondent herein /writ petitioner
suppressed the fact that the mother was in employment as a Staff Nurse in
Government service and obtained compassionate appointment as her father
Subramanian who was working as a Health Assistant in Primary Health
https://www.mhc.tn.gov.in/judis
Centre, Nallur died on 01.05.1984. It is stated that on coming to know that
there was a suppression of fact, the employee was charge sheeted not only
on the aforesaid scope but also that a false certificate has been produced
regarding the employment and employment of family members obtained
from the Thasildar, Virudhachalan. After due enquiry it was established that
the writ petitioner suppressed the material fact that the mother was working
in the Government service and therefore, the punishment of removal from
service was awarded. It is also true that the respondent herein was 12 years
old at the time of demise of her father but the factum that while seeking an
appointment on compassionate ground as per the Government order no
other person would be employed in the entire family to enable another
person to get employment. In the present case on hand, as there is a
suppression of fact which has been duly established in the domestic enquiry,
the removal from service is perfectly valid and the learned Single Judge
ought not to have converted the said punishment of dismissal from service
into one of compulsory retirement.
4. The learned counsel for the respondent/writ petitioner submitted
that the father was employed as a Health Assistant in Primary Health
https://www.mhc.tn.gov.in/judis
Centre, Nallur and the respondent/writ petitioner was 12 years old studying
8th standard at that time. It was stated that the mother was employed in the
Government Hospital Virudhachalam but unfortunately she left with another
man and that her siblings and she were brought up only by the paternal
grandfather. The mother was receiving monthly pension and the same was
handed over to the grandfather. The respondent also produced a certificate
to the effect that a sum of Rs.4356/- was drawn by her mother as income
which according to the respondent/writ petitioner is a yearly pension. In the
income certificate the mother's wages have also not been included. He has
also relied upon G.O.Ms.No.155 dated 16.07.1993 which is extracted as
follows:-
GOVERNMENT OF TAMIL NADU
Abstract
Public Services – Appointment on compassionate grounds – indigent
circumstances of families of deceased Government Servant – Provident Fund
& Death – cum – Retirement Gratuity not to be included – Appointment to
one member if another member was already employed in the family of the
deceased – Clarification – Issued
Labour and Employment Department
G.O.Ms.No.155 Dated: 16.07.1993
Read:
1.G.O.Ms.No.225 Labour &Employment dated: 15.02.1972
2.G.O.Ms.No.560 Labour &Employment dated: 03.08.1977
3.G.O.Ms.No.998, Labour &Employment dated: 02.05.1981
https://www.mhc.tn.gov.in/judis
4.Govt.Lr.No.18274/N1/82-3 Labour &Employment dated: 09.07.1982
5.G.O.Ms.No.73 Employment Service dated: 26.10.1983
6.G.O.Ms.No.08 Employment Service dated: 07.01.1987
7.G.O.Ms.No.567 Labour &Employment dated: 11.04.1990
Read also:
8.G.O.Ms.No.23.Labour &Employment dated: 10.02.1993
ORDER
One of the conditions prescribed under the scheme of
appointment on compassionate grounds formulated in the
G.O.first read above is that the family of the deceased Government
servant should be in “indigent circumstances”. Another condition
introduced in the G.O.third read above is that if there is already
any earning member in the family of the Government servant who
died in harness the other dependents of the deceased Government
Servant will not be eligible for compassionate appointment.
2. The Government have re-examined the above mentioned
conditions. The expression “indigent circumstances”has not been
precisely defined. It has been left mostly to the subjective
satisfaction of the appointing authorities. Therefore the Service
Associations have represented that this condition be deleted. The
family of a deceased Government Servant is entitled to Provident
Fund accumulations, family benefit, Death – cum -retirement
Gratuity, Encashment of leave at credit at the time of death, etc.
The Government consider that those amounts or the interest
earnings that will accure on depositing these amount need not be
taken into consideration. It is therefore necessary to ascertain
whether the family is having immovable property like houses,
land, etc. the income from which is substantial to sustain the
family without any extra help. The Government therefore direct
that the criteria for indigent circumstances is that the family
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should not own any house or landed properties or if owned, the
income from which is insufficient sustain the faimily. Certificate
from the Tahsildar to this effect will have to be produced.
3. In regard to the second condition mentioned inpara 1
above, it is considered that if a member of the family is already in
employment and supports the family then the restriction may be
applied. When a dependent of the family is employed, the factors to
ascertained are, whether he is regularly employed and is actually
supporting the family, If that persons was employed even before the
death of the government servant and was living separately without
extending any help to the family, then the case of other eligible
dependants will considered.
4. However, the restriction that only one of the dependants
will entitled for appointment on compassionate grounds will
continue.
5. Only the dependants of the deceased Government Servant
Viz.wife/husband/son/unmarried daughter will be eligible for
appointment. If the widow is not educationally qualified/eligible for
appointment, she could be given a job like sweeper. The
Government also direct that a married daughter who is deserted by
her husband and living with the family of the deceased Government
servant and widowed or divorced daughter living with the family
may be considered, if the widow of the deceased Government
Servant gives her consent in writing".
5. It is also further stated that the mother of the respondent herein has
given No Objection Certificate to the respondent/writ petitioner. He
contended that in terms of the G.O. when there are indigenous
circumstances and that if any of the family member is already employed and
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living separately without extending any help in the family then the case of
the other eligible dependents may be considered. According to the
respondent/writ petitioner, she has not suppressed any fact about the
mother's employment and only for the reason stated supra, it was not
disclosed till the filing of the affidavit before this Court. He further
submitted that the learned Single Judge has converted the punishment of
removal from service into one of compulsory retirement and the same need
not be interfered with.
6. Heard both sides and perused the materials available on record.
7. It is not in dispute that the writ petitioner/respondent herein joined
the services on compassionate ground without disclosing the fact that the
mother was employed and this fact has been admitted by the respondent/writ
petitioner in the affidavit at paragraph No. 3. The contention of the
respondent is that the grandparents were taking care of the children,
including the respondent and the respondent's mother was handing over the
pension amount to the paternal grandfather. It is no doubt true that
compassionate appointment can be considered not only on the ground of
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indigenous circumstances, but also on the ground of family member who
got the benefit of appointment on compassionate ground living separately.
But in the present case on hand, this factum was not informed to the
appellants. That apart, though the application for compassionate
appointment itself was beyond three years on account of collusion between
the officials and parties, as rightly held by the learned Single Judge, the said
appointment was favourably considered earlier. Even though action has
been initiated by the appellants as early as in 2002 there is no iota of
evidence as to whether the person, who has issued a forged certificate has
been proceeded with. The learned Single Judge's observation at paragraph
No.9 that there could be a collusion between the officials who gave a false
certificate and the writ petitioner for obtaining the appointment based
thereon, cannot be ruled out. As corruption has penetrated into the blood of
many of the Government Officials, the observation made by the learned
Single Judge on this score cannot be interfered with, as we are in entire
agreement in this regard which could have been committed by both parties,
namely, the appellants and the respondent.
https://www.mhc.tn.gov.in/judis
8. The learned Single Judge clearly held that though the
respondent/writ petitioner has committed fault, the officials of the
department must have played some part in inducing the respondent to
commit wrong by the respondent/writ petitioner and therefore, learned
Single Judge ought not to have converted the removal from service into one
compulsory retirement. Having completed more than 10 years of service, the
Government may have to extend the pensionary benefits to the person
provided if she had joined the services prior to introduction of New
Provident Fund, and for the wrong doer, there is no need for the
Government to extend the tax payers money by means of pensionary
benefit. As there is suppression of fact in getting the employment, we are of
the view that the order of the learned Single Judge need to be interfered
with, with regard to paragraph No.10 alone and as a detailed enquiry has
been conducted and the employer has been found guilty of the charges, in
the opinion of this Court, the punishment imposed by the appellants stands
restored. The Apex Court in the case of Director General of Police,
Railway Protection Force vs. Rajendra Kumar Dubey (Civil Appeal
No.3820 of 2020, dated 25.11.2020) with reference to its judgment
rendered in the case of Union of India vs. P.Gunasekaran, reported in
https://www.mhc.tn.gov.in/judis
(2015) 2 SCC 610 has held that unless the punishment is disproportionate
and shocks the conscience of the Court, the punishment imposed by the
employer need not be interfered with. For the sake of convenience the
relevant paragraph of the judgment is extracted below:-
"13. Under Articles 226/227 of the Constitution of
India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the
enquiry, in the case the same has been conducted in
accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on
which findings can be based;
(vi) correct the error of fact however grave it
may appear to be;
(vii) go into the proportionality of punishment
unless it shocks its conscience."
9. In the present case on hand, as there is a suppression of fact and
that there are materials produced in the enquiry and the department has
established the charges, we are of the view that the order impugned in the
writ petition is perfectly valid and the same is restored. If the errant officials
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are in service, it is needless to mention that the appellants must take action
and show them the doors.
10. With the above observation writ petition is allowed and the order
of the W.P.No.27423 of 2005 dated 06.11.2020 is hereby set aside. No
costs. Consequently connected miscellaneous petition is also closed.
(S.V.N.J.,) (A.A.N.J.,)
29.09.2021
dpq
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
https://www.mhc.tn.gov.in/judis
To
1.The Secretary to Government,
State of Tamil Nadu
Health and Family Welfare (K1) Department,
Fort St.George,
Chennai – 600 009.
2.The Director of Medical
and Rural Health Services,
Chennai – 600 006
https://www.mhc.tn.gov.in/judis
S.VAIDYANATHAN, J.
and
A.A.NAKKIRAN, J.
dpq
W.A.No.1935 of 2021
and CMP.No.12507 of 2021
29.09.2021
https://www.mhc.tn.gov.in/judis
