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Judgment
Honourable Mr. Justice Vinod K. Sharma
The petitioner has approached this Court with a prayer for issuance of a writ in the nature of certiorari, for quashing the order dated 28.12.2010
vide which the petitioner had been removed from service, as Over Head Tank Operator of Puthirampattu Village in Pudhupalayam Panchayat
Board, Polur Panchayat Union, Thiruvannamalai District. The petitioner was selected as Over Head Tank Operator by the Appointment
Committee and the selection was approved by the Puthupalayam Panchayat Board vide its resolution dated 3.1.2003, and consequent thereto, the
petitioner was appointed on 20.1.2003.
That without holding any enquiry, the petitioner was removed from service on 16.4.2008 by the President, Puthupalayam Panchayat Board,
respondent No. 4. The petitioner filed representation against his removal and the third respondent vide order dated 23.3.2009 held that the
termination of the petitioner was not in accordance with law, and accordingly asked for explanation from respondent No. 4, but no action was
taken by respondent No. 4 to recall the order of removal.
The petitioner challenged the order of his removal, by filing W.P. No. 12359 of 2010. The writ petition was allowed by setting aside the order
of removal. The Divisional Development Officer, Polur was directed to hold enquiry and pass appropriate orders on the show cause notice dated
23.3.2009 after giving an opportunity of hearing to the petitioner.
In pursuance of the order passed by this Court, the Divisional Development Officer confirmed the order dated 16.4.2008, without holding any
further enquiry.
The petitioner submits that the impugned order is punitive in nature, therefore could not be passed without holding departmental enquiry.
The impugned order is also challenged on the ground that the order is without jurisdiction, as the fourth respondent or the third respondent has
no jurisdiction to terminate/or pass order of removal qua the services of the petitioner. The respondent No. 3 is also not competent to confirm the
order passed by respondent No. 4.
In support of the submissions, the Learned Counsel for the petitioner referred to Section 102 of the Tamil Nadu Panchayats Act, 1994, which
stipulates the framing of service rules by the State Government. It is the case of the petitioner as also of the State that no rule as envisaged u/s 102
of the Tamil Nadu Panchayats Act, 1994 has been framed to regulate the services of the employees working in the Panchayat Union.
The disciplinary proceedings against the employees are to be dealt with u/s 106 of the Tamil Nadu Panchayats Act, 1994, which reads as
follows:-
Power to punish officers and servants - Subject to such control as may be prescribed, the Executive Authority, the Commissioner or the Secretary
may censure, fine, withhold increments or promotions from, or reduce to a lower rank in the seniority list, or to a lower post or time scale or to a
lower stage in a time- scale, suspend, remove or dismiss any officer or servant in the service of Village Panchayat or Panchayat Union Council or
the District Panchayat, as the case may be, for any breach of departmental rules or discipline, or for carelessness, unfitness, neglect of duty or
other misconduct.
A reading of Section 106 of the Act shows, that it is the Commissioner, being an executive authority, is entitled to hold disciplinary proceedings
against the employees of the Panchayat Union, in the absence of any rules u/s 102 of the Act. Further more, in the absence of service rules, the
employee cannot be removed from service without following the basic principle of natural justice, as order of removal can only be passed by way
of punishment.
Learned Counsel for the State, contends that the petitioner was only a temporary employee, therefore, it was within the jurisdiction of the
respondents, to terminate the services of the petitioner, without holding any enquiry or following the principle of natural justice.
It is also the contention of the Learned Counsel for the State that rules are not applicable to the temporary employee.
On consideration I find that the writ petition deserves to succeed. The stand of the State Counsel on the face of it is, misconceived, being
against the settled principle of law.
Even temporary employee cannot be removed from service without following due process of law being by way of punishment. The employee,
whether temporary or probationer, be punished only by following the principle of natural justice. It is only when the service of temporary employee
is terminated in terms of appointment with attaching any stigma then the enquiry can be dispensed with.
Further more, reading of Section 106 of the Tamil Nadu Panchayats Act, 1994, shows that there is no distinction between the temporary or
permanent employee.
The impugned order thus is against the statute and patently without jurisdiction, having not been passed by competent persons, besides, being
in violation of principle of natural justice cannot be sustained in law. Consequently, this writ petition is allowed and the impugned order is set aside.
The petitioner shall be entitled to all the consequential benefits. No costs. Consequently, connected MPs are closed.