Madras High Court
C.Jagan vs The Managing Director on 26 March, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.03.2014 Coram The Hon'ble Mr. Justice S.NAGAMUTHU W.P.No.7307 of 2014 C.Jagan ... Petitioner vs. 1.The Managing Director, Tamil Nadu State Marketing Corporation Ltd., (TASMAC), Chennai-600 008 2.The Senior Regional Manager, TASMAC Regional Office, Salem-636 016 3.The District Manager, Tamil Nadu State Marketing Corporation Ltd., TASMAC Vellore-632 001 ... Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records of the 3rd respondent passed in his proceedings Se.Mu.Na.Ka.A2/1225/CV/2013 dated 27.11.2013 and to quash the same and to direct the respondents to reinstate the petitioner in service with continuity of service, back wages and other attendant benefits from the original order of dismissal dated 22.06.2011 within a time limit as fixed by this Court. For Petitioner .. Mr.S.Sathiamurthi For Respondents .. Mr.S.Muthuraj,G.A. ORDER
The petitioner was formerly a Salesman, attached to TASMAC Shop No.11255 at Sembedu, Gudiyatham, Vellore District. The District Manager, TASMAC Vellore/the third respondent herein, conducted surprise inspection in the said shop, on 10.12.2010 and found certain irregularities. Therefore, the petitioner was placed under suspension with effect from 13.12.2010. Thereafter, the District Manager issued a memo by his proceedings, in Na.Ka.No.A2/1225/CV/2010, dated 10.01.2011, calling upon the petitioner to show cause as to why he should not be dismissed from service for the above stated alleged irregularities. The petitioner submitted his explanation. Thereafter, the District Manager, by his proceedings, in Se.Mu.Na.Ka.A2/1225/CV/2011, dated 22.06.2011, passed an order dismissing the petitioner from service. This order came to be passed even without holding any enquiry. As against the said order, the petitioner filed an appeal to the Senior Regional Manager, the second respondent herein. In the said appeal memorandum, the petitioner had specifically contended that there were no charges framed, no enquiry held, no opportunity afforded and the order of dismissal came to be passed in an arbitrary manner. Without considering all his objections, the second respondent, namely, the Senior Regional Manager, by his proceedings in Se.Mu.Na.Ka.No.864/2011/E, dated 22.09.2011, confirmed the order of dismissal. As against the same, the petitioner filed a revision to the Managing Director, namely, the first respondent herein. Since the said revision was not considered, the petitioner was forced to file a writ petition in W.P.No.16412 of 2012, seeking appropriate direction to the first respondent to dispose of the revision within a time frame. The said writ petition was allowed by this Court, by order dated 28.06.2012, by which, this Court issued a direction to the first respondent to dispose of the revision petition filed by the petitioner on 11.10.2011 within a period of one month from the date of receipt of a copy of that order. In pursuance of the same, the first respondent, by his proceedings in Na.Ka.No.9692/R1/2011, dated 15.11.2012, dismissed the revision, thereby confirming the order of dismissal.
2. Challenging the above orders, the petitioner filed yet another writ petition in W.P.No.32705 of 2012. In that writ petition, this Court found that the dismissal order was arbitrary inasmuch as the same came to be passed without affording any opportunity to the petitioner and without holding proper enquiry. Accordingly, this Court, by order dated 25.7.2013, set aside the said order, however, this Court remanded the matter back to the third respondent herein for passing appropriate orders, after holding proper enquiry by appointing an Enquiry Officer.
3. After the said order, it appears that by his proceedings, in Na.Ka.No.A2/1225/CV/2010, dated 24.09.2013, the third respondent appointed the Godown Manager as Enquiry Officer. The Enquiry Officer called the petitioner and recorded his statement. Based on the same, he submitted his report on 31.10.2013, holding the petitioner guilty of the above allegations. Based on the same, the third respondent has now passed the impugned order, in Se.Mu.Na.Ka.A2/1225/CV/2013, dated 27.11.2013, dismissing the petitioner from service. Challenging the said order, the petitioner is before this Court with this writ petition.
4. I have heard the learned counsel for the petitioner and Mr.S.Muthurai, learned Government Advocate appearing for the respondents and also perused the records carefully.
5. The preliminary objection raised by the learned Government Advocate is that the petitioner has got right of appeal against the impugned order and therefore, this writ petition is not maintainable. But the learned counsel for the petitioner Mr.S.Sathiamurthi would submit that though it is true that a right of appeal is available to the petitioner, since the impugned order has been passed in gross violation of principles of natural justice, even without filing any appeal, the petitioner has got right to approach this Court under Article 226 of the Constitution of India.
6. In my considered opinion, the learned counsel for the petitioner Mr.S.Sathiamurthi is right in his submission. It is well settled that availability of alternative remedy is not a total bar on the power of this Court under Article 226 of the Constitution of India to subject an order under judicial review. The power of this Court under Article 226 of the Constitution of India has not been limited by any of the provisions of the Constitution of India. But in course of time, the Courts have evolved a self imposed restriction, by which, the higher judiciary have been holding that if there is alternative remedy available statutorily, which will give efficacious remedy to the individual aggrieved party, the writ jurisdiction may not be invoked in general. But this self imposed restriction is subject to certain deviations. One such exception is when the order under challenge has been passed in gross violation of principles of natural justice, without affording any opportunity.
7. In this case, I am fully convinced that the impugned order has been passed without following the principles of natural justice and without following the procedure known to law. Therefore, I hold that the writ petition is maintainable.
8. Now reverting to the facts of the case, as I have already narrated, no charge memorandum was ever issued to the petitioner, specifying the allegations. The learned Government Advocate would however submit that the proceedings of the third respondent, dated 10.01.2011, should be construed as a charge memorandum. But, I find it very difficult to accept the said contention because a plain reading of the said memorandum would go to show that it is nothing but a show cause notice calling upon the petitioner to show cause as to why he should not be dismissed. Nowhere it is stated that it is a charge memorandum. Therefore, I am not prepared to accept the contention of the learned Government Advocate that the proceedings of the third respondent, dated 10.01.2011, is a charge memorandum.
9. Assuming that the said proceedings is a charge memorandum, in the earlier round of proceedings, the order of dismissal came to be passed without holding any enquiry. Three authorities, namely, the disciplinary authority, the appellate authority as well as the revisional authority did not consider that the order of dismissal was passed without following the procedure established by law, more particularly, the principles of natural justice. It was in those circumstances, in the earlier writ petition in W.P.No.327905 of 2012, this Court was constrained to set aside the order of dismissal. It was only to afford an opportunity to the third respondent, this Court remanded the matter back to the third respondent with liberty to hold proper enquiry, by following the principles of natural justice by appointing an Enquiry Officer.
10. Now the question is whether the said order of this Court has at least been scrupulously followed by the third respondent.
11. From the impugned order it could be seen that one Godown Manager was appointed as an Enquiry Officer. The records further reveal that the said Enquiry Officer, probably, was not aware of the procedure to be followed in disciplinary proceedings, more particularly, in the matter of holding domestic enquiry. Records reveal that he simply called the petitioner, recorded his statement and on considering the same submitted his report. This is not the enquiry which was meant in the order passed by this Court in the earlier writ petition. The enquiry cannot be an empty formality. It should be real, so as to satisfy the legal requirements. It is not explained to the Court as to why specific charges were not framed. Similarly, it is not explained to the Court as to why no witness was examined in support of the charges and it is not explained to the Court as to why the report of the Enquiry Officer was not furnished to the delinquent, calling upon further explanation from him. Thus, it is crystal clear that the impugned order has been passed in gross violation of the principles of natural justice and the procedure known to law relating to disciplinary proceedings. Therefore, this order cannot be allowed to sustain.
12. Before parting with this order, I am constrained to make certain observations against the respondents. This is not the first occasion that this Court has come across with an order, wherein the order of dismissal was passed without issuing charge memorandum, without holding any enquiry and also without proper consideration of the materials available on record. Several writ petitions had been filed in the past before this Court with the similar complaint against TASMAC. This Court had seen in number of writ petitions that the dismissal order of Salesmen in TASMAC Shops had been passed without following the procedure established by law, such as framing of charges, holding enquiry and following the proper procedure. Many such orders have been interfered with by this Court. Though repeatedly this Court has been passing such orders impressing upon the authorities of the TASMAC that they should follow the procedure established by law, they show scant respect to such orders of this Court, which is evident from the fact that the practice of passing arbitrary orders of dismissal, without issuing charge memorandum and without following the procedure established by law still continues. As a matter of fact, few writ petitions of this kind came up for hearing last week. At that time, the learned Additional Advocate General Mr.Arvindh Pandian appeared in those cases for the respondent-TASMAC. He informed the Court that now, on his legal advice, a Circular has been issued by the Managing Director to all the TASMAC authorities concerned as to how an enquiry should be conducted in respect of the charges. Recording that, yesterday I disposed of a number of writ petitions hoping that in future, the disciplinary authorities, who are part of the TASMAC, will scrupulously follow the procedure. If this practice of passing arbitrary orders continue, this Court may have to think of imposing cost. The learned Additional Advocate General submitted that this practice will not continue.
13. The instant case is a classic example, where a poor man, who is at the lowest cadre of service, earning a paltry amount, has been driven to the Court repeatedly to file one after another writ petitions against the authorities, challenging the arbitrary orders. This conduct of the third respondent cannot be appreciated at all. In appropriate cases, it is absolutely necessary for this Court to impose cost to meet the ends of justice. This Court, as a matter of fact, proposed to impose a cost of Rs.25,000/- (Rupees twenty five thousand only) on the third respondent to be paid to the petitioner. But the learned Government Advocate made a fervent submission to this Court that some leniency may be shown to the respondents and it is because of the said fervent request made by the learned Government Advocate and because of the concession shown by the learned counsel for the petitioner, thereby giving up his right to demand for cost, I desist from imposing cost upon the third respondent, hoping that the third respondent will reinstate the petitioner forthwith.
14. Normally when this Court interferes with an order of dismissal on the ground of failure to follow the procedure established by law, this Court would remand the matter back to the authorities concerned for holding enquiry, by following the procedure established by law. But in this matter, I am not inclined to do so, because, this is the third round of litigation and in the earlier round of litigation itself this Court remanded the matter back to the third respondent to pass orders, after holding proper enquiry. That order has not even been followed by the third respondent. Apart from that, going by the triviality of the charges, going by the fact that the disciplinary proceeding was initiated in the month of January 2011, the repeated litigations, which the petitioner had to face and all the other attending circumstances, I am not inclined to remand the matter back to the third respondent, instead I am inclined to set aside the impugned order with a consequential direction to the third respondent to drop all further proceedings and to reinstate the petitioner in service within a period of four weeks from the date of receipt of a copy of this order.
15. In the result, the writ petition is allowed. The impugned order is set aside with a direction to the third respondent to drop all further proceedings against the petitioner in this regard and to reinstate the petitioner in service within a period of four weeks from the date of receipt of a copy of this order and the petitioner will be entitled for 50% of back wages from the date of dismissal i.e. from 22.06.2011 till the date of reinstatement. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.
26.03.2014 msk Index:Yes/No Internet:Yes/No To
1.The Managing Director, Tamil Nadu State Marketing Corporation Ltd., (TASMAC), Chennai-600 008
2.The Senior Regional Manager, TASMAC Regional Office, Salem-636 016
3.The District Manager, Tamil Nadu State Marketing Corporation Ltd., TASMAC Vellore-632 001 S.NAGAMUTHU,J.
Msk W.P.No.7307 of 2014 26.3.2014