Madras High Court
S.Periyasamy vs The Executive Officer on 20 October, 2022
W.P.(MD).Nos.9300 and 9301 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.10.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).Nos.9300 and 9301 of 2017
and
W.M.P.(MD).Nos.7069, 7070, 7071, 7072,11417 and 11418 of 2017 and
11282 and 11366 of 2021
W.P.(MD).No.9300 of 2017:
S.Periyasamy ... Petitioner
Vs.
The Executive Officer,
Ayakudi Town Panchayat,
Tirunelveli District. ... Respondent
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari, to call for the records of the
respondent in its Na.Ka.No.8/2015/A1 dated 28.03.2016 and the consequential
proceedings Na.Ka.No.8/2015 dated 25.04.2017 and quash both the orders as
illegal, void and without any authority of law.
W.P.(MD).No.9301 of 2017:
S.Jesu Antony ... Petitioner
Vs.
The Executive Officer,
Ayakudi Town Panchayat,
Tirunelveli District. ... Respondent
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.9300 and 9301 of 2017
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari, to call for the records of the
respondent in its Na.Ka.No.8/2015/A1 dated 28.03.2016 and the consequential
proceedings Na.Ka.No.8/2015 dated 25.04.2017 and quash both the orders as
illegal, void and without any authority of law.
(In both Writ Petitions):
For Petitioners : Mr.V.Vijayshankar
For Respondent : Mr.Veera Kathiravan,
Additional Advocate General,
Assisted by,
Mrs.D.Farjana Ghoushia,
Special Government Pleader.
COMMON ORDER
The Writ Petitions have been filed for Writ of Certiorari to quash the
impugned orders dated 28.03.2016 and the consequential proceedings dated
25.04.2017.
2. The brief facts as stated in the affidavit of both the Writ Petitions are
that the petitioners had registered their names in the Employment Exchange,
pursuant to which their names were sponsored in the respondent Town
Panchayat in June 2001. The petitioners appeared for interview and got
selected. The petitioners were issued appointment orders on 09.07.2001. The
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W.P.(MD).Nos.9300 and 9301 of 2017
petitioners were subjected to medical examination and all other formalities. The
appointments were initially on consolidated basis of Rs.1500/- per month and
would be brought on time scale of pay on completion of 3 years of service. On
01.08.2006, the petitioners were appointed on time scale of pay with effect
from 23.06.2006. Even though, the petitioners are entitled to regularize after 3
years that is in July 2004, the petitioners were granted regularization only from
June 2006. The petitioners have completed 14 years of service. The
respondent vide order dated 01.12.2015 placed the petitioners under suspension
on the ground that the petitioners had got employment under the “Physically
Handicapped Quota” and the medical examination also revealed that the
petitioners are a normal person and they are not handicapped person, since the
very allegations against the petitioners are that the petitioners had got
employment under Physically Handicapped quota is absolutely wrong. Hence,
the petitioners constrained to file W.P.(MD).Nos.22900 and 22901 of 2015
challenging the order of suspension order. The said Writ Petitions were
dismissed vide order dated 18.12.2015 and the petitioners have filed Writ
Appeal in W.A.(MD).Nos.1467 and 1468 of 2015. The Hon'ble Division Bench
vide order dated 23.09.2016 quashed the orders of suspension holding that
there was no absolute basis in suspending the petitioners and directed to
reinstate the petitioners into service. However, liberty was granted to the
respondents/ employers to continue with the Domestic Enquiry. On 28.03.2016,
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W.P.(MD).Nos.9300 and 9301 of 2017
a charge memo was issued alleging that the petitioners have obtained
employment under Physically Handicapped quota and wrongly claimed the
priority. The petitioners submitted a detailed explanation on 14.05.2016
refuting the allegations and pointing out that the petitioners were not a
Physically Handicapped person and had not submitted any disability certificate
and not claimed any benefits / concessions on the basis of being handicapped
and also not appointed against the Physically Handicapped quota. The
petitioners submitted that when they were subjected to medical examination, it
would clearly revealed that they were not Physically Handicapped. Since their
explanation were not satisfactory, an enquiry officer was appointed and the
petitioners were called for enquiry on 28.12.2016. The petitioners appeared
before the Enquiry Officer and submitted their detailed explanation. The
petitioners requested the Enquiry Officer to conduct enquiry as per rules. But
strangely, the submission of the petitioners was not accepted by the Enquiry
Officer. No witnesses were examined and no documents were marked during
enquiry. The enquiry was concluded in just half an hour by receiving the
statement of the petitioners and the enquiry was one sided. The enquiry officer
submitted a report and the same was forwarded vide notice dated 25.04.2017
calling upon the petitioners to furnish explanation. The very allegation is
without any basis or material. Therefore, the petitioners have approached this
Court by way of filing this Writ Petition.
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W.P.(MD).Nos.9300 and 9301 of 2017
3. When the Writ Petition came up for admission, this Court has granted
interim stay. Based on the interim stay, the petitioners are continuing their
service till date.
4. The respondent have filed counter along with vacate stay petition
stating that the petitioners were not handicapped and by fraud, got an
appointment as Pump Operator. The appointment under physically handicapped
quota is proved by the records of the District Employment Exchange Office on
11.06.2001 and 20.06.2001. Based on the proceedings of the Deputy Director
for Welfare dated 27.10.2015, the respondent Town Panchayat was directed to
conduct medical examination and on medical examination, it reveals that the
writ petitioners are a normal person and not physically handicapped. Hence, the
respondent prayed to dismiss this Writ Petition.
5. Heard Mr.V.Vijayshankar, learned counsel for the petitioner and
Mr.Veera Kathiravan, learned Additional Advocate General, assisted by,
Mrs.D.Farjana Ghoushia, learned Special Government Pleader appearing for
the respondent and perused the records.
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.9300 and 9301 of 2017
6. The learned Additional Advocate General vehemently submitted that
that the petitioners had obtained job by committing fraud and relied on the
communication of the Employment Exchange Officer, which extracted
hereunder:
OPEN COMPETITION/PRIORITY/GENERAL
PHYSICALLY HANDICAPPED.
3033/97. S.Periasamy, 1.5.76. SSLC & NTC Pump
25.10.93. S/o.P.Senthur, Hindu. Mechanic & Selected
Pandian, Maraver. NAC.Pump Mechanic
C/o.Dharmar,
Arunthathiar Theru,
10/1/3, Hospital,
East Side, Ayikudy Post.
PHYSICALLY HANDICAPPED.
22/87. S.Jesu Antony, 17.5.69. SSLC failed
7.87. S/o.Simiyoonraj, Christian. Selected
Agarakattu Post Nadar.
& Village,
Ayikudy Via,
Shencottah Tk.
627 852.
The respondents further submitted that charge memo and the enquiry was
completed. The challenge before this Hon’ble Court is the subsequent notice
along with the enquiry report. Charge memos and enquiry notices cannot be
challenged before any Court of law. If there is any violation in the principles of
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W.P.(MD).Nos.9300 and 9301 of 2017
natural justice, then alone it can be challenged before the Court of law. If the
charges are vague, this Court has power to interfere with. The very filing of the
Writ Petitions are not maintainable and this Court has no jurisdiction to
entertain these Writ Petitions, since the very charge memo is challenged.
7. The learned counsel appearing for the petitioners submitted that the
very basis of the issuance of charge memo itself is illegal. The contention of
the petitioners is that they had never ever stated that they are Physically
Handicapped either before the Employment Exchange or before the respondent
authorities. When the petitioners were recruited on consolidated pay,
immediately a medical examination was conducted and the report says that the
petitioners are not handicapped. At this point of time itself, the respondent
ought to have stated that the recruitment is only for the Physically Handicapped
and the petitioners are not eligible. Having allowed the petitioners based on the
medical certificate to continue their service for the past 14 years, suddenly, the
respondent cannot wake up and dismiss the writ petitioners from service stating
that the petitioners had committed a fraud. The very charge is vague and the
respondents ought to be restrained from proceeding further in the enquiry
proceedings and relied on a judgment rendered in the case of Anant R.Kulkarni
Vs. Y.P. Education Society and others reported in (2013) 6 SCC 515 is
extracted hereunder:
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W.P.(MD).Nos.9300 and 9301 of 2017
“15. In Surath Chandra Chakrabarty Vs. State of West
Bengal, this Court held, that it is not permissible to hold an
enquiry on vague charges, as the same do not give a clear
picture to the delinquent to make out an effective defence
as he will be unaware of the exact nature of the allegations
against him, and what kind of defence he should put up for
rebuttal thereof. The Court observed as under: (SCC p.553
para 5)
“5. ... The grounds on which it is proposed to take action
have to be reduced to the form of a definite charge or
charges which have to be communicated to the person
charged together with a statement of the allegations on
which each charge is based and any other circumstance
which it is proposed to be taken into consideration in
passing orders has also to be stated. This rule embodies a
principle which is one of the specific contents of a
reasonable or adequate opportunity for defending oneself.
If a person is not told clearly and definitely what the
allegations are on which the charges preferred against him
are founded, he cannot possible, by projecting his own
imagination, discover all the facts and circumstances that
may be in the contemplation of the authorities to be
established against him”.
8. This Court had given its anxious consideration on the rival
submissions. On scrutiny of the registration card of the petitioners, it is seen the
petitioners had registered themselves in a General Category before the
Employment Exchange and there is no evidence to allege that the petitioners
have registered under physically handicapped category and they have never
ever claimed priority quota under physically handicapped. Even the medical
examination report filed at the time of joining the service, had stated that the
petitioners are not physically handicapped. When the respondents failed to
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W.P.(MD).Nos.9300 and 9301 of 2017
notice the same at the time of appointment, more so at the time of joining,
cannot allowed to state this allegation after 14 years of service of the
petitioners. Moreover, it is the mistake committed by the Employment
Exchange by circulating a letter stating that the petitioners have registered
under Physically Handicapped category. The mistake committed by the
Employment Exchange cannot be saddled on the petitioner.
9. The petitioners had registered themselves in the General Category and
had served for the past 14 years, hence based on merits and on equity the
petitioners are bound to continue in the service. Therefore, the enquiry and the
impugned notice are liable to be quashed and the same is quashed. The
respondents are directed to allow the petitioners to continue in service.
10. In view of the above, the Writ Petitions are allowed. There shall be
no order as to costs. Consequently, connected miscellaneous petitions are
closed.
20.10.2022
Index : Yes / No
Internet : Yes/ No
Nsr
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.9300 and 9301 of 2017
S.SRIMATHY, J.
Nsr
To
The Executive Officer,
Ayakudi Town Panchayat,
Tirunelveli District.
W.P.(MD).Nos.9300 and 9301 of 2017
20.10.2022
https://www.mhc.tn.gov.in/judis
