Madras High Court
K.Veluthai vs The District Collector on 27 February, 2025
2025:MHC:813
W.P.(MD)No.9071 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.02.2025
CORAM
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
W.P.(MD)No.9071 of 2019
and
W.M.P.(MD)No.7060 of 2019
K.Veluthai ... Petitioner
Vs.
1.The District Collector,
Collectorate,
Theni District, Theni.
2.The Child Development Project Officer,
Andipatti Panchayat Union,
Andipatti, Theni District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the records
relating to the first respondent order passed in Se.Mu.Naa.Kaa.No.
4586/m/12014 dated 23.05.2016 and quash it consequently direct the
respondents to pay the accumulated retirement benefits of 35 years
within the time limit as fixed by this Court.
For Petitioner : Mr.G.M.Xavier
For Respondents : Mr.G.V.Vairam Santhosh,
Additional Government Pleader.
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1/10
W.P.(MD)No.9071 of 2019
ORDER
Under assail is the termination order passed by the first respondent
dated 23.05.2016.
2.It is the case of the petitioner that he had worked as Anganvadi
Worker initially and drawn remuneration of Rs.90/-. She was made as
permanent worker and paid Rs.200/- per month with effect from
01.04.1991. Thereafter, her service was regularized with effect from
01.06.2004 as temporary Anganwadi Worker, in the Anganwadi Centre
situated in Usilampatti village, Andipatti Panchayat Union. She was
terminated from service vide order of the first respondent dated
23.05.2016 for the only reason of long absence from duty more
specifically absence from 12.09.2015 onwards. Except long absence, no
other charge memo involving any moral turpitude was issued on her
during her 35 years of entire service. She informed her immediate
supervisor and requested them to grant leave to take care of her
daughter's prenatal period and leave the head quarters. But, she was
shocked to note that in a period of her absence, various letter dated
22.01.2016, 03.02.2016, 07.03.2016 and 24.03.2016 were sent sent to he
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residential address and based on the said communications which were
not served on her, she was terminated from service. Hence, writ petition.
3.The learned counsel appearing for the petitioner would submit
that G.O.(Ms.)No.4 dated 05.01.1995 enumerates that to terminate the
service of temporary service of employee who is absenting more than 6
months, but, it is subject to the Rule 18 of the Tamil Nadu State
Employees (Discipline and Appeal) Rules. Therefore, terminating the
services without conducting any departmental enquiry and without
furnishing enquiry proceedings to the writ petitioner, passing a
termination order is illegal and the same is liable to be set aside. He
would submit that ex-parte enquiry proceedings is bad in law since non
compliance of principles of natural justice and the order impugned needs
to be set aside in the interest of justice.
4.Per contra, the learned Additional Government Pleader
appearing for the respondent would submit that the petitioner absented
herself unathorizedly from 12.09.2015 and the same was causing
problems to the Anganwadi Centre. Though the petitioner was directed
to appear for enquiry, the petitioner did not appear before the authorities
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concerned. He would submit that summons were sent through postal and
the same was returned back with an endorsement stating that the
petitioner is not residing in the address. Even the enquiry conducted by
the Village Administrative Officer revealed that the petitioner was not
residing in the address for more than 7 months. He would submit that
after following due procedure contemplated under law, the departmental
action was initiated and during disciplinary proceedings, the petitioner
has not availed the opportunity to defend her case and therefore, the
order impugned came to be passed.
5.This Court has considered the rival submissions made on either
side and perused the materials on record.
6.It is seen from the records that the petitioner was absent from
12.09.2015 onwards. In the order impugned dated 23.05.2016, it has
been stated that the petitioner was summoned vide orders dated
22.01.2016, 03.02.2016 and 07.03.2016 and there was no information
about the petitioner and thereafter, a letter dated 24.03.2016 was sent to
the petitioner directing her to appear before the second respondent on
04.04.2016 at 03.00 pm. The petitioner did not turned up. Thereafter,
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postal letter was also returned stating that the petitioner is not residing in
the address. It is further stated in the impugned order that based on G.O.
(Ms.)No.4 dated 05.01.1995 and as per Rule 18 of the Tamil Nadu State
Employees (Discipline and Appeal) Rules, the employee, who has
absented for more than six months, he/she has to be terminated from the
service. Accordingly, the writ petitioner has not turned up for more than
six months and order of termination has been passed.
7.It is the main contention of the learned counsel for the petitioner
that in the order impugned, it has not been mentioned that whether
charge memo has been issued or whether enquiry officer was appointed
to conduct departmental enquiry and the departmental enquiry was
conducted in ex-parte. There is no second show cause notice issued to
the petitioner before passing the order impugned as per the service Rules
applicable to the petitioner. The learned counsel for the petitioner
vehemently would submit that non-availability of the address for serving
letter and the report submitted by the Village Administrative Officer are
all concocted for the purpose of passing order impugned. The
respondents have violated the procedure and the action of the first
respondent passing order impugned is violation of the Article 311 of the
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Constitution of India. To strengthen his contention, he has relied upon
the judgment of the Division Bench of this Court in W.A.(MD)No.605 of
2022 dated 22.07.2022 in a case of The District Collector, Sivagangai,
Sivagangai District & Anr. Vs. K.R.Kanimozhi to show that the
authorities have not conducted any enquiry before issuing order of
termination except issuing some show cause notice and therefore, the
principles of natural justice are clearly violated.
8.It is seen from the counter filed by the second respondent that
the petitioner was not holding a civil post and hence, the protection
under Article 311 of the Constitution of India is not available to her and
in fact, Anganwadi Workers are only part-time employees employed
under a scheme and that they were not brought into regular employment
by the Government so far and that no rules were framed relating to
pursuing of departmental action or the application of Tamil Nadu Civil
Services (Discipline and Appeal) Rules and that being a part time
employee. Further, it is also stated that as per G.O.(Ms)No.4 dated
05.01.1995 and reiterated in Govt.Letter No.152 dated 11.08.2003, on
issuing notice and on receiving explanation, the authority can pass
orders on the basis of the explanation within a period of 21 days.
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9.It is seen from the order impugned that the order of termination
has been passed based on the Rule 18 of the Tamil Nadu State
Employees (Discipline and Appeal) Rules. However, in the counter, it
has been stated that the petitioner is not come under the purview of the
Tamil Nadu Civil Services (Discipline and Appeal) Rules. It is not the
case of the respondents that initial show cause notice was issued to the
petitioner calling for explanation for her unauthorized absence. It is also
not the case of the respondents that enquiry officer was appointed to
conduct enquiry after furnishing of charge and charges were also served
to the petitioner or tried to serve same, thereafter, enquiry was conducted
in ex-parte. The respondents have not filed any documents relating to
the charges levelled as against the petitioner and the enquiry proceedings
conducted. It is not the case of the respondents that the petitioner was
frequently availed leave or unauthorized absent from service.
10.Considering the above facts and circumstances, the
respondents have not provided reasonable opportunity to the petitioner to
defend her case. It is stated in the counter affidavit that a report has been
received from the Village Administrative Officer stating that the
petitioner was not residing in the address for more than 7 months. The
respondents have not place any acceptable documents with regard to the
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alleged misconduct committed by the petitioner. It is not in dispute that
the petitioner had put in service of 35 years and hence, the order of
termination from service is shockingly disproportionate to the
delinquency committed by the petitioner. The procedures contemplated
under service Rules was also not followed by the first respondent.
11.In the light of the above discussions, there is merit in this writ
petition, which warrant to interfere with the order impugned.
Accordingly, the order impugned dated 23.05.2016 is hereby quashed
and this writ petition is allowed on the following terms:-
i) the petitioner is permitted to retire on superannuation and the
respondents are directed to disburse all retirement benefits, which are
eligible to the petitioner.
ii) the period of absence shall be treated as “No Work No Pay”.
iii) there shall be no order as to costs. Consequently connected
miscellaneous petition is closed.
NCC : Yes / No 27.02.2025
Index : Yes / No
gns
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To
1.The District Collector,
Collectorate,
Theni District, Theni.
2.The Child Development Project Officer,
Andipatti Panchayat Union,
Andipatti, Theni District.
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M.JOTHIRAMAN, J.
gns
27.02.2025
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