The petitioner has come forward with this petition challenging the order of the second respondent dated 03.06.2008 made in N1/62887/2007 and consequently directing the respondents to absorb or reinstate the petitioner as overseer from the post of Technical Assistant.
2.The learned counsel appearing for the petitioner submits that the petitioner is a Diploma holder in Civil Engineering and he was appointed as Technical Assistant under the third respondent. It is contended that the petitioner has been appointed on temporary basis as per the order dated 12.11.2007 imposing certain conditions that the petitioner is liable for summary dismissal without any notice. It is contended by the learned counsel for the petitioner that though the petitioner is working on temporary basis, he is also entitled to be heard before passing the impugned order as per the established procedure by following the principles of natural justice. The learned counsel for the petitioner further contended that the impugned order dated 03.06.2008 was passed suddenly during the pendency of the writ petition as the writ petition was originally filed seeking for the relief of absorbing the petitioner on regular basis as Overseer by virtue of G.O.Ms.No.96 RD & PR (ES) Department dated 06.06.2008.
3.The learned counsel for the petitioner submitted that there is one other reason to contend that only because of filing of this writ petition, the termination order was passed suddenly during the pendency of the writ petition, which necessitated the petitioner to amend the prayer as ordered by this Court. It is contended that the impugned order was passed on the ground that the petitioner was continuously absent from 04.03.2008 and such allegation was made behind the back of the petitioner without any departmental enquiry and even without issuing show cause notice to explain such allegation levelled against the petitioner herein and as such the impugned order is liable to be quashed. In support of his contention, the learned counsel for the petitioner placed reliance on the decision of this Court in Lakshmanakumar Vs. The District Manager, "TASMAC" Limited reported in 2006(1) CTC 660.
4.Heard Mr.Herold Singh, learned Government Advocate appearing for the respondents on the submissions made by the learned counsel for the petitioner.
5.It is contended by the learned Government Advocate that the petitioner, being a temporary employee, is liable to be terminated at any time. The learned Government Advocate would further submit that even in the appointment order issued to the petitioner, it is clearly stated that the post is only temporary and as such he is liable to be terminated at any time without notice. Therefore, it is contended that there is no infirmity or illegality in the impugned order warranting the interference of this Court.
6.I have carefully considered the contentions put forward by either side and also perused the entire materials available on record, including the impugned order.
7.The fact remains that the petitioner has come forward with different prayer initially in this writ petition seeking for the relief of absorbing the petitioner who was working as Technical Assistant in the third respondent Panchayat Union as Overseer and only during the pendency of this writ petition, the petitioner came to know about the passing of the impugned order dated 03.06.2008 terminating the petitioner from the post of Technical Assistant. It is brought to the notice of this Court that this impugned order was served on the petitioner only on 01.07.2008. A perusal of the impugned order reveals that the petitioner was terminated only on the ground that he was absent from 04.03.2008. Therefore, this Court has no hesitation to hold that the impugned order was passed only on certain allegations and as such the second respondent ought to have given an opportunity to the petitioner by issuing the show cause notice for giving explanation to such allegation of alleged unauthorised absence to the duty.
8.Though it is pointed out by the learned Government Advocate that the petitioner has been appointed only on temporary basis, the second respondent having passed the impugned order of termination on the basis of certain allegations ought to have given an opportunity to the petitioner by issuing a show cause notice.
9.It is relevant to refer a decision of the Hon'ble Apex Court in A.P.State Federation of Coop. Spinning Mills Ltd., Vs. P.V.Swaminathan reported in 2001 (10) SCC 83, wherein it was held that;
"The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the Court. But the Court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the Court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed."
10.The learned counsel for the petitioner rightly placed reliance on the decision of this Court in Lakshmanakumar Vs. The District Manager, "TASMAC" Limited reported in 2006(1) CTC 660. This Court in that decision has held as follows;
"The Apex Court, in more than once case, has held that when an order of termination involves civil consequences and consequently amounts to stigma, the same cannot be passed without there being a charge memo, enquiry and the finding as to those charges. This proposition of law has been recently reiterated by the Apex Court in the judgement State of Hariyana V. Satyender Singh Rathore, 2005(7) SCC 518. In that judgment, the Supreme Court has relied upon the earlier judgment Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, 1999 (3) SCC 60, and has held that if findings were arrived at in an enquiry as to misconduct behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad."
11.This Court in R.Tirupathy and others Vs. The District Collector, Madurai and others reported in 2006 (2) CTC 574 has also held that temporary employee is also entitled for a fair hearing and fair enquiry with impartial mind and failure to provide such opportunity, amounts to failure of principle of natural justice.
12.In view of the above said principles laid down by the Hon'ble Apex Court as well as this Court in the decision cited supra, this Court has no hesitation to hold that the impugned order of termination dated 03.06.2008 was passed by the second respondent in flagrant violation of principles of natural justice and accordingly, this writ petition is allowed and the impugned order dated 03.06.2008 passed in N1/62887/2007 by the second respondent is hereby quashed. It is open to the respondents to take appropriate action in the manner known to law, if the respondents desire so. Consequently connected miscellaneous petition is closed. No costs.
gcg To
1.The Director, Rural Development and Panchayat Raj, Panagal Building, Saidapet, Chennai.
2.The District Collector, Tirunelveli District, Tirunelveli.
3.The Commissioner, Nanguneri Panchayat Union, Nanguneri.
4.The Addl. Public Prosecutor, Madurai Bench of Madras High Court, Madurai.