Madras High Court
A.Thiyagarajan vs The Managing Director on 16 August, 2023
W.P.No.697 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.08.2023
CORAM :
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Writ Petition No.697 of 2020
A.Thiyagarajan ... Petitioner
Vs.
1.The Managing Director,
Tamil Nadu State Marketing Corporation Limited,
4th Floor,
CMDA Tower-II, Egmore,
Chenni – 600 008.
2.The District Manager,
Tamil Nadu State Marketing Corporation Limited,
SIDCO Industrial Estate Complex,
Kudikadu,
Cuddalore – 607 005. … Respondents
Writ Petition filed under Article 226 of Constitution of India, praying
for issuance of Writ of Certiorarified Mandamus calling for the records
relating to impugned order in Sa.Mu.Ka.2534/R.V.1/2010 dated 11.02.2010
passed by the second respondent and quash the same, consequently direct the
respondents to reinstate the petitioner with backwages, continuity of service
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W.P.No.697 of 2020
and all attendant benefits.
For Petitioner : Mr.A.Velmurugan
For Respondents : Mr.C.Ramesh,
Standing Counsel for
TASMAC
ORDER
This writ petition has been filed by the petitioner to call for the records
relating to impugned order in Sa.Mu.Ka.2534/R.V.1/2010 dated 11.02.2010
passed by the second respondent and quash the same, consequently direct the
respondents to reinstate the petitioner with backwages, continuity of service
and all attendant benefits.
2. The facts of the case in a nutshell:
The petitioner was appointed as sales personnel of the Tamil
Nadu State Marketing Corporation Ltd (for brevity TASMAC), Cuddalore
region and by proceeding of the second respondent vide No.A1/390/03 dated
14.01.2003, he was serving as sales personnel in Nanjalur till 31.08.2005
from the date of the appointment and then transferred to Chidambaram and
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W.P.No.697 of 2020
Bhuvanagiri. Thereafter, he was transferred to Vadaku Thittai (Shop
No.2534) and was working from 20.04.2007 till 10.02.2010. On 11.02.2010,
article was published in Dinamalar Tamil Daily stating that a case was
registered against the petitioner and he was absconded. Despite of the above
said paper news; the second respondent has not given any opportunity to the
petitioner to explain the circumstances and dismissed from service by letter
vide in Sa.Mu.Ka.2534/R.V.1/2010 dated 11.02.2010. Thereafter, criminal
case was also registered against the petitioner in C.C.No.19 of 2012 and later,
he was acquitted from the same by District Munsif cum Judicial Magistrate,
Parankipettai vide order dated 15.03.2019. Subsequent to the same, the
petitioner has approached the second respondent by way of representation
dated 01.07.2019 along with the judgment in C.C.NO.19 of 2012 for
reinstatement and the second respondent has not taken any steps to reinstate
the petitioner. Hence, the petitioner has come forward with the present writ
petition.
3. Learned counsel for the petitioner submitted that only based on the
news article in Tamil daily Dhinamalar dated 11.02.2010, the second
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W.P.No.697 of 2020
respondent dismissed the petitioner from service, which is violation of
principles of natural justice. The criminal case which was filed against the
petitioner vide C.C.No.19 of 2012 on the file of District Munsif Cum Judicial
Magistrate, Parankipettai also ended in acquittal by judgment dated
15.03.2019. Despite the acquittal made by the concerned criminal court, the
second respondent did not reinstate the petitioner. Hence he has given
representation to the second respondent dated 01.07.2019 to reinstate the
petitioner based on the order passed by the criminal court in C.C.No.19 of
2012 dated 15.03.2019 but the second respondent did not initiate any action
to reinstate the petitioner into service of the TASMAC.
4. Learned counsel for the petitioner would further submit that no show
cause notice, no enquiry, no opportunity was given to the petitioner by the
second respondent, before passing the order of dismissal dated 11.02.2010.
The above termination order dated 11.02.2010 is in violation of fundamental
rules as enshrined in the Constitution of India.
5. Learned counsel for the petitioner contended that the second
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respondent ought to have thoroughly enquired about the news published in
the newspaper and then should have taken a decision, whether to initiate
action against the petitioner are not, if so, appropriate orders would have
been passed, but, in the present case, nothing was done. Just based on the
newspaper news, termination order dated 11.02.2010 was issued and the
petitioner is striving for his livelihood without any job from 11.02.2010 i.e.,
for the past 20 years.
6. Learned counsel for the petitioner has relied on the orders passed by
this Court in a similar case and the same is reads as follows:
(i) In the case of P.Murugesan Vs. The Senior Regional Manager,
TASMAC, Tiruchirapalli District and another in W.P.No.17409 of 2012
dated 21.08.2017.
(ii) In the case of TASMAC Paniyalargal Sangam (AITUC), Rep. by
its President Vs. The Tamil Nadu State Marketing Corporation Limited,
Rep. by its Chairperson, Egmore, Chennai and others in W.P.No.31390 of
2007 dated 12.04.2010.
7. Learned standing counsel appearing for the respondents filed a
counter affidavit dated 28.06.2023 on behalf of the second respondent. For
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better appreciation, the relevant paragraphs are extracted hereunder:
“7. It is further submitted that his appointment is temporary
in nature an he involved in various activities and manufactured
duplicate liquors and bottles. And further the petitioner caused
loss to the Government, so dismissal from service on 11.02.2010.
8. It is further submitted that eventhough the petitioner has
acquittal from the criminal case, there is no bar to proceed by the
department enquiry and take action separately against the
petitioner, so the impugned order passed by the second respondent
by dismissing the petitioner from service on 11.02.2010 is valid.”
8. Learned standing counsel appearing for the respondents on
instruction submitted that no enquiry has been conducted till date, since the
petitioner was only appointed on temporary basis.
9. Heard the learned counsel on either side and perused the materials
available on record.
10. In the present case on hand, the petitioner was dismissed from
service on 11.02.2010 by the second respondent based on the newspaper
news, which was published in Tamil Daily called Dhinamalar dated
11.02.2010, wherein, it was mentioned that the petitioner was running a fake
wine factory at Bhuvanagiri and it is in violation of rules and regulation of
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TASMAC and hence, the petitioner is terminated and in the impugned order
it was mentioned that since the petitioner is a temporary employee and in the
interest of the administration, pending enquiry, he was dismissed from
service with effect from 11.02.2010 A.N.
11. The main grievance of the petitioner is that no show cause notice,
no opportunity of hearing, no enquiry was conducted before the order of
dismissal dated 11.02.2010 was issued by the second respondent. Even
though it is mentioned in the dismissal order dated 11.02.2010 (impugned
order), pending enquiry, the petitioner is relieved from service with effect
from 11.02.2010 A.N. and in this aspect, learned counsel appearing for the
second respondent was directed by this Court to get instruction whether any
enquiry was pending as on date and the learned counsel on instruction
submitted that no enquiry is pending as mentioned in the impugned order and
till date, even after 13 years, the second respondent has not proposed to
initiate any proceedings against the petitioner.
12. The criminal case was also registered against the petitioner in
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Crime No.29 of 2010 for the offences under Section 420, 468, 471 read with
109, 37 IPC and Section 4(1) (i) (TNP) Act read with 4(1) (aaa) Transport
TNP Act and the same was ended in acquittal vide order dated 15.03.2019 by
the District Munsif cum Judicial Magistrate, Parankipettai. After acquitting
from the criminal case, the petitioner has given representation before the
second respondent, however, the same was not considered.
13. Even though the petitioner is a temporary staff as per the
appointment order issued by the second respondent dated 14.01.2003 and
appointed on contract basis for consolidated pay of Rs.2000/-0, the second
respondent without relying on the newspaper news published in Dhinamalar
Newspaper dated 11.02.2010, ought to have enquired, whether the petitioner
is having a fake wine factory at Bhuvanagiri, which he has failed to do so.
Further, this Court in similar case passed similar orders in W.P.Nos. 17409 of
2012 and 12.04.2010 and the relevant paragraphs are extracted hereunder:
(i) In the case of P.Murugesan Vs. The Senior Regional Manager,
TASMAC, Tiruchirapalli District and another in W.P.No.17409 of 2012
dated 21.08.2017, it was held as follows:
“10. Even otherwise, the facts and circumstances of the
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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.
11. 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.”
(ii) In the case of TASMAC Paniyalargal Sangam (AITUC), Rep. by
its President Vs. The Tamil Nadu State Marketing Corporation Limited,
Rep. by its Chairperson, Egmore, Chennai and others in W.P.No.31390 of
2007 dated 12.04.2010, it was held as follows:
“The writ petition is filed by a trade union of employees
engaged by respondents TASMAC. They have come forward to
challenge the Service Rules framed by the respondent TASMAC
with reference to the employees engaged by them. The union is
aggrieved by Rule 11(1), which reads as follows:
11.TERMINATION OF SERVICES: In the event of the
Corporation not having any further need of any employee's
services, the appointing authority can dispense with the services
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of an employee as follows:-
(i) in the case of a temporary employee with immediate
notice of termination.
2. This Court in B.Sivakumar Vs. The Managing
Director, TASMAC Ltd. in W.P.No.6304 of 2009 dated
15.03.2010, in paragraph 12 held as follows:
Therefore, in the light of the above, when a workman is
completely covered by the provisions of Section 41 of the Tamil
Nadu Shops and Establishments Act, 1947 as well as the Model
Standing Orders framed under Industrial Employment
(Standing Orders) Act, 1946, the application of which is
guaranteed by virtue of Section 12A Industrial Employment
(Standing Orders) Act, 1946, any termination contrary to these
enactments would be void.”
Therefore, merely because, the contractual terms are
framed as a Rule, it does not mean that the employees are
without statutory remedy as held by this Court in the above said
case.
3. Therefore, it is unnecessary to strike down the Rule
framed by the Corporation. It is suffice to state that in case of
termination, the Corporation will also take note of other
statutory safeguards which are provided for employees and it is
in their own interest, they follow the various labour enactment
which are applicable to them. This care taken by the TASMAC
will reduce the number of cases which are filed before this
Court on technical violation in dispensing with their service.”
14. In view of the above factual matrix of the case, this Court is of the
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considered view that the impugned order passed by the second respondent is
liable to be quashed and the same is hereby quashed. Hence, the respondents
are directed to reinstate the petitioner with back wages, continuity of service
and all attendant benefits, within a period of 12 weeks (three months) from
the date of receipt of a copy of this order.
15. In the result, this writ petition stands allowed with the aforesaid
observation and direction. No costs.
16.08.2023
(vm)
Index : Yes/No
Speaking Order : Yes/No
To:
1.The Managing Director,
Tamil Nadu State Marketing Corporation Limited,
4th Floor,
CMDA Tower-II, Egmore,
Chenni – 600 008.
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W.P.No.697 of 2020
2.The District Manager,
Tamil Nadu State Marketing Corporation Limited,
SIDCO Industrial Estate Complex,
Kudikadu,
Cuddalore – 607 005.
J.SATHYA NARAYANA PRASAD,J.
vm
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W.P.No.697 of 2020
16.08.2023
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