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2010 Supreme(Mad) 1189
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
V. Ramamurthy
Versus
Director of School Education, Madras & Others
W.P.No.16827 of 2006
Decided On :24-03-2010
For the Petitioner:Mrs. G. Devi, Advocate.
For the Respondents:Mrs. Lita Srinivasan, Government Advocate.
Termination without conducting an enquiry and the applicability of G.O.Ms.No.153 in disciplinary cases.
Headnote:
Termination - Service Rules - F.R. 18(3) - G.O.Ms.No.153 - [ABSENCE FROM DUTY] - [Tamil Nadu Civil Services (Discipline & Appeal) Rules, F.R. 18(3)] - The court discussed the implications of F.R. 18(3) and G.O.Ms.No.153 in the context of the petitioner's termination from service, emphasizing the need for conducting an enquiry before passing termination orders and the applicability of G.O.Ms.No.153 in such cases.
Fact of the Case:
The petitioner, a Library Record Clerk, was terminated from service with retrospective effect due to unauthorized absence. The petitioner challenged the termination order, citing lack of enquiry and reliance on G.O.Ms.No.153.
Finding of the Court:
The court found that the petitioner's termination without conducting an enquiry was not sustainable and directed the authorities to pass orders afresh in accordance with G.O.Ms.No.153 after giving the petitioner sufficient opportunity.
Issues: Unauthorized absence, lack of enquiry before termination, applicability of G.O.Ms.No.153
Ratio Decidendi: Termination without conducting an enquiry and summarily passing orders is not valid. G.O.Ms.No.153 provides guidelines for disciplinary cases and should be followed in such instances.
Final Decision: The writ petition is allowed, and the order of termination is set aside. The matter is remitted back to the authorities to pass orders afresh in accordance with G.O.Ms.No.153 after giving sufficient opportunity to the petitioner.
1. The Original Application has been filed by the petitioner seeking to call for the records pertaining to the order passed by the 3rd respondent in his proceedings Na.Ka.No.64/A1/95 dated 05.10.1995 and set aside the same and direct the respondents to pay the salary for the period from 04.10.1988 to 31.05.1995 treating the period as compulsory wait and settle all the retirement benefits. On the abolition of the Tamil Nadu Administrative Tribunal, the original application stood transferred and renumbered as W.P.No.16827 of 2006.
2. The learned counsel appearing for the petitioner would contend that the petitioner was appointed as Library Record Clerk on 22.08.1962 in Government High School, Thiruthuraipoondi. In the year 1983, on 07.11.1983, there was some theft which took place in the library and ultimately it was found that 1739 books were missing. Thereafter, on 01.06.1985, the petitioner was issued a show cause notice for recovery of value of the books, for a sum of Rs.4,161.56. The petitioner submitted his explanation. While considering the petitioners explanation, on 22.12.1987, the petitioner was directed to pay the entire amount of Rs.4,161.56. Thereafter, on 01.08.1988, the petitioner was transferred from Thiruthuraipoondi to Ayyanur. According to the petitioner, the relieving order was not issued to him and therefore, he applied for medical leave from 03.08.1988 to 03.10.1988, After expiry of the medical leave, he approached the Headmaster of Thiruthuraipoondi Higher Secondary School for relieving him so as to enable him to join duty at Ayyanur, but the petitioner was not relieved on the ground that he has to pay the sum of Rs.4,161.56 which was ordered to be recovered from him. Under those circumstances, challenging the order of recovery, the petitioner has filed O.A. No. 1124 of 1990 before the Tribunal. The Tribunal, after hearing both sides, by an order dated 26.02.1993 allowed the Original Application as prayed for.
3. According to the petitioner, he was neither allowed in the school where he was working or relieved to join the transferred place. No salary was also paid to the petitioner from 01.01.1988 to 01.08.1988. While so, a show cause notice dated 31.01.1990 was issued to the petitioner as to why he should not be dismissed from service for his unauthorised absent for two years. Immediately, the petitioner replied stating that he has not left the service, but he was not allowed to join duty inspite of his representations. But without considering the same, the impugned order of termination was passed by the third respondent. The impugned order dated 05.10.1995 was passed by the 3rd respondent without conducting any enquiry and without giving any opportunity and the petitioner was summarily terminated from service, and that too with retrospective effect from 03.08.1998 which is legally not sustainable.
4. The learned counsel appearing for the petitioner brought to the notice of this Court the judgment of the Tribunal passed in a batch of Original Applications in O.A. No. 1120 of 1989 etc., batch. The said Original Applications have been filed challenging the validity of Rule 18 (3) of Fundamental Rules in so far as it relates to orders of removal from service by following the provisions contained in FR 18 (2) and 18 (3) without any information after expiry of the leave period. The Tribunal allowed those Original Applications by a common order dated 21.10.1999 wherein in para-27 and 28, it was held thus:-
"27. In some cases, F.R. 18 (3) is quashed, and in some case, without quoting F.R.18 (3), the applicants have been removed from service. Even though, F.R. 18(3) is not cited in some of the orders, challenged in the batch of those cases, it can be assumed that the extreme penalty of removal from service has been ordered only by virtue of the powers conferred under F.R. 18 (3) and there was no opportunity for the punishing authority to exercise its discretion. That is why, I am of the view, that all
