Violation of natural justice and false affidavit in employment termination case

1. The petitioner has come forward to file the present writ petition, seeking for a declaration that the action of the respondents in denying employment to the petitioner with effect from 1.5.2005 is illegal, against the principles of natural justice, arbitrary and violative of Article 14 of the Constitution of India and for a consequential direction to the respondents to reinstate the petitioner in service with effect from 01.05.2005 with full back wages, continuity of service and other attendant benefits.

2. Even though the petitioner has sought for a declaration after five years, this Court after noting that in respect of the same respondent, a Division Bench had entertained the writ petition after five years and hence, the writ petition was admitted.

3. Even after notice, when no counter affidavit was filed, this court adjourned the matter from time to time and directed counter affidavit to be filed by the respondents. Accordingly, a counter affidavit dated Nil (March 2011) was filed by the District Manager, TASMAC, Coimbatore sworn to by one C.Subramanian who also hold the

rank of a Deputy Collector under the Revenue Service of the State Government.

4. The case of the petitioner was that he was appointed as a shop Salesman in the retail vending IMFL shop run by the respondent Tamil Nadu State Marketing Corporation Ltd., (TASMAC). He was working in Shop No.1605. He was denied employment with effect from 01.05.2005. On 02.05.2005, he was given a Show Cause Notice as to why he should not be dismissed from service as he was found guilty of selling liquor on the early morning illegally and he was asked to give his reply within three days. The petitioner gave his explanation denying the charges. It was stated that TASMAC shop is used to be opened at 8.00 a.m. and closed at 12.00 Midnight. Even after the closing hours, between 12.01 a.m and 8.00 a.m., the petitioner along with two others M/s.Prithviraj and Chandrasekar used to stay in the shop itself. On the morning of 01.05.2005, Prithviraj, who is the Bar attender in order to answer the nature's call went out of the shop by opening the shutter. It was at that time, the District Manager S.Soundarapandian was passing through that area and he questioned as to why the shop was opened at that time. For that Prithviraj replied that there was only one shutter to the shop and only by opening the shutter, they can go out for any purpose. At the time of such enquiry, the petitioner claimed that he was sleeping inside the shop. Notwithstanding their reply, the petitioner and the two other employees were denied employment.

5. When Prithviraj, the Bar attender approached this Court, challenging his non-employment, this Court by an order dated 04.10.2007 in W.P.No.31223 of 2007 set aside the order of termination dated 08.05.2005 and he was reinstated. Another employee by name Chandrasekaran was also reinstated on 26.06.2007 itself on an appeal being made to the Senior Regional Manager. It was stated that the petitioner sent several representations and none of his representation was considered. It is only the petitioner, who was left high and dry. Therefore, the petitioner has come forward to seek for a declaration that his non-employment was not valid. This was in the absence of any written order of termination passed against the petitioner.

6. But however, in the counter affidavit dated Nil (March 2011), the respondents took a plea that there was an inordinate delay in filing the writ petition. Without prejudice to the contention of delay, in paragraphs 5 and 6 of the counter affidavit, it was averred as follows:-

"5. Without prejudice the above, I submit that the petitioner was appointed as Bar Tender in the TASMAC Shop No.1557 by order dated 02.02.2004. On 08.04.2004, the Senior Regional Manager, TASMAC, Coimbatore made surprise inspection in the above shop and found that the shop personnel indulged in the adulteration of liquor. The petitioner was caught red-handed and since, t