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2010 Supreme(Mad) 5324
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
S.Jothimani
Versus
The Director, Motor Vehicles Maintenance Department & Another
W.P.No.44180 of 2006 (O.A.No.5504 of 2000)
Decided On : 08-12-2010
For the Petitioner:Mr.P.Mohanraj for Mr.P.Rajendran, Advocate.
For the Respondents:: Mr.R.Murali, G.A.
The court emphasized the application of Rule 19(1) of the Tamil Nadu Government Servants Conduct Rules and upheld the right of the Government to conduct an enquiry in case of such misconduct by a Government servant.
Headnote:
Blacksmith - Employment Dismissal - Tamil Nadu Government Servants Conduct Rules - Rule 19(1) - Summary: The court discussed the application of Rule 19(1) of the Tamil Nadu Government Servants Conduct Rules, which prohibits contracting a second marriage without prior permission. The court highlighted that the law relating to marriage is governed purely by personal law and that the charges against the petitioner were proved even on the basis of his admission. The court also emphasized that the penalty of dismissal was justified and that the court cannot modify the penalty based on sympathy or sentiment.
Fact of the Case:
The petitioner, a blacksmith, challenged his dismissal from service for contracting a second marriage without prior permission.
Finding of the Court:
The court found that the charges against the petitioner were proved, and the penalty of dismissal was justified.
Issues: 1. Misconduct in contravening Rule 19(1) of the Tamil Nadu Government Servants Conduct Rules. 2. Justification of the penalty of dismissal. 3. Court's power to modify the penalty under Article 226 of the Constitution.
Ratio Decidendi: The court emphasized the application of Rule 19(1) of the Tamil Nadu Government Servants Conduct Rules and upheld the right of the Government to conduct an enquiry in case of such misconduct by a Government servant. The court also highlighted that a well-reasoned order of the Department cannot be interfered with on the basis of sympathy or sentiment.
Final Decision: The Writ Petition was dismissed, and no cost was ordered.
The petitioner was working as a Blacksmith in the Government Automobile Workshop at Hasthampatti, Salem. He filed Original Application No.5504 of 2000 before the Tamil Nadu Administrative Tribunal challenging the order dated 1.6.2000 passed by the 1st respondent, namely Director, Motor Vehicles Maintenance Department, Chennai, by which the 1st respondent imposed the penalty of dismissal from service. Even though the order had stated that the petitioner had right to appeal to the State Government within 60 days, the petitioner did not avail the alternate remedy provided under the Rules. On the contrary, in the Original Application filed before the Tribunal in paragraph 7, he had declared that he had not filed any alternate remedy under the relevant Rules and he also filed an application in M.A.No.5389 of 2000 to waive the alternate remedy.
2. The Tribunal admitted the Original Application and also granted an interim stay on 29.11.2000. A Vacate Stay Application was filed. In the vacate stay application, the Tribunal curiously recorded that the petitioner was charged on the ground that he has got married for the second time without prior permission of the Government and the Rule 19 of the Tamil Nadu Government Servants Conduct Rules provides for an appropriate permission of the Government to be obtained for contracting second marriage. The Tribunal did not vacate the interim order and made the Stay absolute. This finding of the Tribunal is startling.
3. Rule 19 of the Tamil Nadu Government Servants Conduct Rules has two different applications. In case a person, who is governed by personal law, contracts more than one marriage, then the question of prior permission of the Government will arise. In case the personal law do not provide polygamous marriage, the question of prior permission of the Government will not arise. The Government cannot legalize what is impermissible in law. Therefore, the Tribunal had misdirected itself in confirming the stay order. However, it is rather unfortunate that the State Government did not file any appeal against the order of the Tribunal dated 29.11.2000, which on the face of it is per se illegal and not supported by Rules.
4. Before the Tribunal on behalf of the respondents, counter affidavit dated 31.8.2000 was filed. In view of the abolition of the Tribunal, the matter stood transferred to this Court and renumbered as W.P.No.44180 of 2006.
5. The facts leading to the termination of the petitioner are as follows:
(i) The petitioner while he was working in the 2nd respondent workshop filed a nomination in the name of one J.Amuda claiming to be his wife on 11.8.1986 so as to avail the Family Benefit Scheme. Subsequently, he filed another nomination to include the name of J.Lakshmi on 24.4.1990 for the Provident Fund Scheme. In view of the filing of two nominations in the name of two different wives, the petitioner was asked to give his explanation. The petitioner on 28.9.1992 gave a reply requesting further time for giving explanation. Since he failed to submit his explanation, once again he was reminded to submit explanation. In the letter dated 18.1.1993, the petitioner informed that after consulting the elders in the family, he can arrive a conclusion only through the court and he should be given time to obtain the orders of the Court and submit the same along with explanation. Even after three years, as the petitioner did not submit explanation, the further time was given.
(ii) In the meanwhile, the alleged second wife of the petitioner J.Lakshmi sent a legal notice through an advocate that after six months of joining Government service, the first wife Amudha (who is none other than her elder sister) was eloped with one Thoongappan and also married him in the year 1987. Therefore, Lakshmi is the only legally wedded wife and the whereabouts of Amuda are not known. Since there was no marriage existing between Amudha and the petitioner Jothimani, the Department was directed to r
