Madras High Court

M.Vijayakumar vs The District Manager on 8 March, 2022

                                                                                     W.P.No.36749 of 2015


                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 08.03.2022

                                                              CORAM
                                      THE HONOURABLE MR.JUSTICE V.PARTHIBAN
                                                    W.P.No.36749 of 2015 and
                                                        M.P.No.1 of 2015

                     M.Vijayakumar                                                      ...Petitioner
                                                               Vs.
                     The District Manager,
                     Tamil Nadu State Marketing Corporation Limited
                      (TASMAC), Thiruvannamalai.
                                                                                    ...Respondents
                     Prayer:
                          Writ Petition filed under Article 226 of the Constitution of India
                     praying Writ of Certiorarified Mandamus by calling for the records of
                     the respondent in its Na.Ka.R.V.2/1920/2014 dated 17.03.2015 and
                     quash the same and consequently direct the respondent to reinstate
                     the petitioner back into service with all attendant and monetary
                     benefits.
                                   For Petitioner         :     Mr.V.Rajinikanth,

                                   For Respondents        :     Mr.Arumuga Rajan,
                                                                Government Advocate

                                                              ORDER

The case of the petitioner is that he was appointed as salesman

at TASMAC Retail Outlet Shop No.9316 on January 2004. He was

posted at Puluthiyur Village initially. He was granted consolidated

wages every month as Rs.2,000/-. While he was working in the said

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outlet, a surprise inspection was conducted on 07.08.2014. As an

after effect of the inspection, the petitioner was placed under

suspension and a charge sheet was also issued containing several

articles of charges. The substance of the charges against the

petitioner was during the surprise inspection conducted on

07.08.2014, it was found that certain liquor bottles appeared to have

been adulterated and also there was shortage of amounts. An enquiry

was initiated into the charges and ultimately the petitioner came to

be dismissed from service vide proceedings dated 17.03.2015.

Challenging the proceedings of the respondent herein, the petitioner

was before this Court.

2. Mr.N.Bala Murali Krishnan, learned counsel for the petitioner

would submit that while imposing the extreme penalty of dismissal

from service, the Corporation had not followed the procedure

contemplated in the regulations and in complete violation of

principles of natural justice.

3. According to the learned counsel, the petitioner was called

for an enquiry and few questions were put to him by the Enquiry

Officer and thereafter the report was submitted. No witnesses were

examined nor the petitioner was given any opportunity of letting any

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evidence or cross examine any witness. Merely on the basis of

unilateral inspection report prepared behind the back of the

petitioner, coupled with fact of eliciting some statement from the

petitioner, the Enquiry Officer held the charges proved.

4. The disciplinary authority over-looking the grave infirmities

in the conduct of the enquiry has imposed extreme penalty of

dismissal from service. The order therefore suffered from ex-facie

illegality and liable to be interfered with. The learned counsel would

also submit that under similar circumstances, an employee who was

dismissed from service by the respondent / Corporation approached

this Court in W.P.No.17409 of 2012 and this Court passed a detailed

order allowing the Writ Petition vide order dated 21.08.2017. A copy

of the order passed in the above Writ petition has been produced

before this Court for consideration.

5. Mr.Arumuga Rajan, learned Government Advocate appeared

on behalf of the Corporation and a counter affidavit has been filed. In

the counter affidavit, though it is stated that the enquiry was

conducted following the procedure and the petitioner was provided

with an opportunity, but specifically, it has not been spelt out in the

counter refuting the allegations that no witnesses were examined nor

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any materials were marked in terms of the procedure contemplated

for such conduct of enquiry. Nothing has been stated in clear terms

that principles of natural justice have been complied with

scrupulously.

6. On the other hand, this Court finds from the report that no

proper procedure has been adopted at all while imposing the extreme

punishment of dismissal from service on the petitioner.

7. In regard to this Court's order allowing the similar challenge,

this Court would like to refer to paragraph 4 to 12 of the order which

are extracted hereunder;

"4. Mr. V.Rajinikanth, learned counsel appearing for the petitioner vehemently contended that except recording the statements from the petitioner, no enquiry was conducted by examining any witnesses and marking documents. Further, the first respondent, while dismissing the appeal filed by the petitioner and confirming the order of dismissal, has stated that the petitioner was not in a position to disprove the charge against him. Needless to mention that in terms of the legal position, it was incumbent upon the prosecution to prove the charge against the petitioner and not otherwise.

Moreover, every administrative action, which results in civil consequences has to satisfy established principles of

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natural justice and in the instant case, no such procedure has been followed by the respondents. Not following the established principles of natural justice, it has to be held that the order of dismissal passed against the petitioner is per se illegal and void.

5. In support of the legal contention, the learned counsel also relied upon the decision of the Division Bench of this Court dated 29.10.2013 in W.A.No.1801 of 2012, wherein, the Division Bench has extracted the observations of another Division Bench in its order in paragraphs 6 and 7. For the sake of clarity, the same are extracted hereunder:

6.Expressing concern over lack of proper mechanism to initiate disciplinary proceedings against TASMAC employees and expressing the need to have a proper disciplinary procedure, in para 8 of the judgment in W.A.No.27 of 2009 dated 27.01.2009, the Division Bench has held as under:

"8.Be that as it may, we have come across a number of cases where allegations of adulteration and other serious misconduct levelled against the TASMAC salesmen, whose services came to be terminated based on certain letters said to have been given by the concerned TASMAC salesmen admitting their guilt on the spot. Since numerous cases of this

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nature are being reported, it is high time that the appellant corporation instead of resorting to such shortcut method of terminating the services, even after noting such serious allegations of misconduct by such TASMAC employees, they can well be advised to take proper disciplinary action before resorting to termination of the services of such employees in order to have effective disciplinary control over those employees. Such a procedure can be followed in the matter of taking disciplinary action against these employees, especially, for imposing the extreme punishment of dismissal.

It is high time that the appellant corporation who is stated to have employed several thousand salesmen to run the TASMAC shops set up a separate machinery for following the proper disciplinary procedure so that any action taken by TASMAC can be justified when the same is challenged before the Court of law. It will also have an effective control over such employees in the matter of their day-to-day administrative control over their employees. Irrespective of serious allegations of adulteration, sale of empty bottles and such other misconduct, the salesmen got away with such punishment for not following the proper disciplinary procedure while imposing the punishment on them......"

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7. In respect of the similarly placed person in W.A.No.872 of 2009 dated 02.07.2009, the Division Bench, referring to the judgment of the Honourable Supreme Court in State of Haryana Vs. Satyendra Singh Rathore (2005 (7) SCC 518) took the view that there cannot be a summary dismissal of an employee, which causes stigma and has civil consequences. In para 5 and 6, the Division Bench has held as under:

"5.In our opinion, such an argument cannot be accepted. The Apex Court in the judgments reported in 2005 (7) SCC 518 and 1999 (3) SCC 60, referred supra, has held that when an order involves civil consequences and consequently amounts to stigma, the same cannot be passed without there being a charge memo, enquiry and finding as to those charges. Though in the judgment in Lakshmanakumar's case, cited supra, this Court on considering a summary dismissal, observed that the TASMAC was entitled to proceed against the employee in terms of the contract, that does not mean that such a summary dismissal can be ordered in the event such order causes stigma.

                                             6.We     have    perused     the      nature    of
                                       charges.      The    charges     are   very    serious,


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                                                                                                    W.P.No.36749 of 2015


                                       particularly     when        they   allege          that    the

employee has adulterated the liquor and he has misappropriated the money, caused loss to the TASMAC and to the Government. These are all major misconducts, of course, warranting a serious punishment and in that case, a punishment of dismissal could be inflicted only on proper enquiry even in the case of a contract employee, especially when the employee had denied the charges by giving explanation."

8. In that case also, the facts are almost identical and the Division Bench of this Court categorically held that the authorities have to conduct enquiry so as to comply with the principles of natural Justice before passing the order of dismissal of the employee. Accordingly, the Division Bench directed the respondents therein to reinstate the appellant therein in service, without any backwages.

9. This Court has given its anxious consideration to the legal submissions and the factual aspects, after perusing the materials and the pleadings.

10. The issue raised on the compliance in terms of law, is squarely covered by the decision of the Division Bench of this Court in W.A.No.1801 of 2012 dated 29.10.2013 as extracted above.

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11. Even otherwise, the facts and circumstances of the case warrant the interference of this Court, since the order of dismissal, which resulted in adverse civil consequences on the petitioner, cannot be passed without following the due process of law. Hence, the order of dismissal of the petitioner from service cannot be allowed to stand any further.

12. In the light of the above narrative and the legal position as per the order passed by the Division Bench, this Court has no hesitation to allow the writ petition. In the circumstances, the impugned orders dated 12.03.2011 and 13.08.2011 are set aside and the respondents are directed to reinstate the petitioner in service with all benefits except backwages for the period of non-employment. The said direction shall be complied with, within a period of two weeks from the date of receipt of a copy of this order."

8. This Court in consideration of the entirety of the facts and

circumstances finds the present case exactly fit into the above legal

framework as laid down by Division Bench followed by Single Judge.

9. For the above said reasons, the Writ Petition is allowed and

the impugned order in Na.Ka.R.V.2/1920/2014 dated 17.03.2015 is

hereby set aside.

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10. The respondents are directed to reinstate the petitioner into

service with all consequential and attendant benefits on a notional

basis including continuity of service.

11. It is clarified that the petitioner is not entitled to backwages

during the period of his non-employment.