R. Karuppanan vs The Registrar General cum The Principal Revenue Control Officer, Chennai and Others

The Honourable Mr. Justice S. Manikumar

Challenge in this writ petition is to quash the order dated 28.06.2011, preventing the Petitioner from discharging his duties.

According to the Petitioner, he has been appointed as a Junior Assistant on temporary basis on consolidated pay by the District Collector,

Karur District, the second Respondent herein, by an order dated 07.07.2003. He was posted to Karur Registration Department. On 02.03.2009,

a show cause notice has been issued by the Registrar General cum Principal Revenue Control Officer, the first Respondent herein, alleging that on

18.02.2005, the Vigilance and Anti Corruption Department conducted an inspection in the Sub Registrar''s office, and that the Petitioner was

found in possession of two pocket notes containing entries of loan received for a sum of Rs. 10,000/- and Rs. 8,000/- each and that there were

entries of daily repayment of Rs. 200/- and Rs. 100/- without prior permission from the Department. When the Petitioner submitted an explanation

stating that the loan amount was received by his brother and mother-in-law and not by the Petitioner and as the transaction was of the year 2005,

no documents were available with any one of them and thus denied the charges and by an order, dated 14.07.2010, the Petitioner was transferred

to the office of the Sub Registrar, Melakarur, Karur Taluk, the fourth Respondent herein. Thereafter, the Petitioner, by impugned order, dated

28.06.2011, was terminated from service. On the abovesaid pleading, the Learned Counsel for the Petitioner stated that the punishment imposed,

is violative of principles of natural justice and prayed for interference.

When the matter came up for hearing on 27.07.2011, this Court directed, Mr. B. Pugalendhi, learned Special Government Pleader, to get

appropriate instructions as to whether the termination of a temporary employee appointed on consolidated pay, without enquiry on the charges

levelled against him, could be justified in terms of any Government orders or rules. On this day, when the matter came up for hearing, the learned

Special Government Pleader prayed time to file counter affidavit. As the point involved is limited, and only a question of law is involved, there is no

reason as to why a counter affidavit is required, when the facts are already available on record. It is well settled in a writ of certiorari, counter

affidavit is required, when there is a dispute in facts. In view of the above, this Court is inclined to proceed with the case on the basis of available

materials, on merits.

Assailing the correctness of the above order, Learned Counsel for the Petitioner submitted that the impugned order of the second Respondent is

in violation of the principles of natural justice, as no charge memo has been issued and enquiry has been conducted by the second Respondent. He

further submitted that the order being stigmatic, the Petitioner ought to have been provided with an opportunity of hearing.

Going through the impugned order and the material on record, this Court is of the considered view that even a temporary employee paid on

consolidated pay is entitled to have an opportunity of hearing under Article 311(2) of the Constitution of India. Merely because, the Petitioner is a

temporary employee paid on consolidated salary, he cannot be deprived of the constitutional protection under Article 311(2) of the Constitution of

India. In Nar Singh Pal v. Union of India reported in 2000 (3) SCC 558, the Apex Court, at Paragraphs 6,8 and 10, held as follows:

The Appellant, although a casual labour, had acquired temporary status. Once an employee attains the ""temporary"" status, he becomes entitled to

certain benefits one of which is that he becomes entitled to the constitutional protection envisaged by Article 311 of the Constitution and other

articles dealing with services under the Union of India. The services were terminated on account of the allegation of assault made against the

Appellant. The order of termination in instant case, cannot be treated to be a simple order of retrenchment. It was an order passed by way of

punishment and, therefore, was an order of dismissal which, having been passed on the basis of preliminary inquiry and without holding a regular

departmental inquiry, cannot be sustained.

In the above reported case, the Apex Court has extracted the observations of Krishna Iyer, J. in Gujarat Steel Tubes Ltd. and Others Vs.

Gujarat Steel Tubes Mazdoor Sabha and Others, , at paragraph 53 and it is as follows:

Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be

misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether

disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the

true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this

test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of

the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an

innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal

order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the inquiry and proceeds to

terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as

on simple termination, are given and non-injurious terminology is used.

Perusal of the Government order in G.O.(D2) No. 165 Commercial Taxes and Registration Department (H2) Department, dated 18.09.2007,

shows that after considering the preliminary report, the Government have issued orders to take disciplinary action against one Assistant, two Junior

Assistants and two office assistants working in the office of the Sub Registrar, Mela Karur Taluk relating to financial irregularities and in not

maintaining proper accounts. The Government, have specifically directed, the Registrar General, Chennai-28, to conduct disciplinary action as per

the Tamil Nadu Civil Services (Discipline and Appeal) Rules and provide a reasonable opportunity to defend the charges. By taking a suo motu

decision to the effect, that such procedure need not be followed, in respect of temporary employees paid on consolidated pay, the Registrar

General cum the Principal Revenue Control Officer, the first Respondent herein, vide G.O. Letter No. 10810/V1/2005, dated 08.10.2010, has

addressed a letter to the Government and accordingly terminated the services of the Petitioner, without holding any regular enquiry. Such an

approach in the opinion of this Court is opposed by the right of opportunity of hearing guaranteed under Article 311(2) of the Constitution of India.

Even a temporary employee has to be provided with an opportunity of hearing, when serious charges are imputed against him. Merely because, he

is paid a consolidated salary, he cannot be denied of the opportunity.

For the reasons stated supra, this Court is inclined to set aside the impugned order, dated 28.06.2011. Accordingly, the impugned order is set

aside and the writ petition is allowed and consequently a direction is issued to the Respondents to reinstate the Petitioner in service. It is open to

the Respondents to formulate specific charges, under Rule 17(b) of the above said rules and take appropriate disciplinary action against the

Petitioner, if the respondents desired to do so. With the above directions, the writ petition is allowed. No costs.