Madras High Court
M. Fathima Begum vs The Tamilnadu State Aids Control ... on 7 November, 2014
Author: N. Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07-11-2014 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.34097 of 2013 M.P.No.1 of 2013 M. Fathima Begum ... Petitioner Vs. 1. The Tamilnadu State Aids Control Society, rep.by its Project Director, No.417 Pantheon Road, Egmore, Chennai - 600 008. 2. The Director, Department of Public Health & Medicine, DMS Campus, Teynampet, Chennai - 600 018. 3. The Deputy Director, Department of Family and Health Welfare, Perambalur District. 4. The District Collector, Perambalur and District. ... Respondents PRAYER : This writ petition is filed under Article 226 of the Constitution of India with a prayer to issue a Writ of Certiorarified Mandamus calling for the records relating to the order of the first respondent issued in his proceedings No.02541/STD/A8/TANSACS/2010, dated 14.12.2010 and the consequential review order issued in his letter R.C.No.2541.STD/A8/TANSACS/2011 dated 20.7.2011 and quash the termination order and direct the respondents to reinstate the petitioner with continuity of service back wages and all service benefits, etc. For Petitioner : Mr.R.Sureshkumar For 1st Respondent : Mr.R.Rathina Thara For Respondents 2 to 4: Mr.P.Chinnadurai Date on which reserved for orders Date of Pronouncement of orders 9-10-2014 07-11-2014 O R D E R
This writ petition is filed challenging the order dated 14.12.2010 terminating the services of the petitioner, which was reaffirmed in the order dated 20.7.2011 by the first respondent in the petition filed seeking review and for a direction to reinstate the petitioner with continuity of service, back wages, and all service benefits.
2. The brief facts necessary for disposal of the writ petition are as follows:
(a) Petitioner passed M.A. degree and she was selected and appointed after her name was sponsored by the Employment Officer in Government Headquarters Hospital, Perambalur as Counselor in STD Clinic by appointment order dated 15.9.2008 passed by the District Collector, Perambal.ur with consolidated salary of Rs.6,500/- per month on temporary basis. She reported for duty and served from the said date. In the appointment order issued by the District Collector dated 15.9.2008 it is stated that the relative state seniority will be reckoned from the date of joining the post.
(b) Petitioner served in the said post without any complaint for over 2 years. On 7.10.2010 the Project Director visited the Perambalur Hospital and AIDS Control Centres and based on the alleged inspection, petitioner was issued with a show cause notice on 26.10.2010 stating that when surprise inspection of the hospital and certain workplaces were made on 7.10.2010, there are evidences of negligence on the part of the petitioner viz., not attending the clients properly; documents are not properly maintained; the petitioner was found absent on 7.10.2010 without getting prior permission of the Medical Officer; as a counselor petitioner failed to maintain STD colour coded drug stock register on daily basis; and tried to influence the senior and superior officer at the District Headquarters Hospital, Perambalur with external pressure.
(c) An explanation was called for from the petitioner within three days and the petitioner submitted her explanation on 30.10.2010 and denied all the allegations. The second respondent sent a report to the first respondent with remarks of the Medical Officer of Government Hospital, Perambalur on 15.11.2010.
(d) According to the petitioner, the immediate superior officer viz., Medical Officer, STD OP General Hospital, Perambalur forwarded the explanation of the petitioner denying the allegations along with his comments, specifically stating that the petitioner is working with dedication from the date of joining without any complaint as no complaint with regard to her performance was received at any time; she used to obey the orders of the Higher Officials and she is showing courtesy towards patients and the allegation levelled against the petitioner are not true.
(e) It is the case of the petitioner that in spite of denying the allegations, the first respondent terminated the petitioner by order dated 14.12.2010. In the termination order it is stated that in view of petitioner's poor performance, non-maintenance of records, indifferent attitude towards clients, created stigma and purposeful violation of normal functioning of State Aids Control Society (SACS) and therefore petitioner's service as Counselor in the Tamil Nadu State Aids Control Society Programme is terminated with immediate effect.
(f) Aggrieved over the said order passed without conducting any enquiry in spite of denial of allegations made, petitioner filed review petition seeking revocation of the order of termination dated 14.12.2010 and the said request was rejected by the first respondent without stating any reason by order dated 20.7.2011.
(g) The above said orders are challenged in this writ petition contending that the petitioner having been appointed by the District Collector as Project Counselor and having performed her service for over 2 years without any blemish, which was certified by the Medical Officer, the termination of petitioner's service on the basis of mere allegation which were not proved, is in violation of the principles of natural justice and the request to revoke the order having been rejected without any reason, first respondent has arbitrarily acted, which is in violation of Article 14 of the Constitution of India and therefore the orders are liable to be set aside with direction to reinstate the petitioner with all consequential benefits.
3. The above said prayer is opposed by the first respondent by filing counter affidavit contending as follows:
(i) The Tamil Nadu State Aids Control Society is a registered Society under the Tamil Nadu Societies Registration Act, 1975 vide registration No.165 of 1994 and it is an autonomous body having separate legal entity, established with an object and aim to prevent and control HIV/AIDS epidemic in the State. The global funds received from WHO (World Health Organisation) and UNICEF, etc., are disbursed through the National AIDS Control Organisation, New Delhi. The Society has its own service rules and the temporary employees are governed by the contract service agreement. There is no deep and pervasive control of the Government over the Society. As such the writ petition filed against the order of the first respondent is not maintainable.
(ii) This Court has already held that writ petition is not maintainable against the Society in W.P.No.11672 of 2009 and the same has been confirmed by the Division Bench in W.A.No.1895 of 2009.
(iii) It is further contended in the counter affidavit that the Project Director of the Society made a surprise field visit to the STI Clinic on 7.10.2010 along with other officials of the first respondent; the District Revenue Officer, Perambalur District; District Programme Manager, Perambalur District; and along with other staff of the respective SIT Clinic and the petitioner was found to be absent from the Counseling Centre without any intimation to her Supervising Authority and the contact made over telephone to the petitioner also did not materialise. The Project Director interacted with the female Sex Workers regarding the services rendered by the petitioner and he was informed that the petitioner as SIT Counselor was rude and it was also informed that the performance of the petitioner was poor, indifferent attitude towards the clients, which has created stigma on the implementation of the programme.
(iv) It is also stated in the counter affidavit that the District Programme Manager, Perambalur District, who is the immediate Superior Officer, through his letter dated 25.10.2010 stated that the petitioner deliberately does not attend monthly review meeting, did not maintain records properly, absent during duty hours, and not adhering to the instructions of the superiors and requested necessary action. Based on the said letter, petitioner was terminated as she was only a temporarily appointed person.
(v) The Society, which receives global funds for effective implementation of the programme for the welfare of people living with HIV/AIDS spend enormous amounts towards extensive training, induction training, refresher training every year, etc., and the Society with its sustained efforts has brought down HIV/AIDS in the State from 1.63% to 0.36%. The unauthorised absence of the Counselor, besides causing hardship to the people, will drastically lead to spreading of HIV/AIDS.
(vi) The reply given by the petitioner was without any supporting documents and the same having not been found acceptable, her services were terminated. The request of the petitioner seeking review of her punishment was also rejected. Finally, it is stated that the petitioner having been appointed on temporary/contract basis, she is not having any vested right to claim regularisation/continuation in service in the respondent Society and prayed for dismissal of the writ petition.
4. Mr.R.Sureshkumar, learned counsel appearing for the petitioner argued that the first respondent Society is doing public function and it is admitted in the counter affidavit that it is the only Society created with the object and aim to prevent HIV/AIDS in the State of Tamil Nadu and the Society is funded by WHO, UNICEF and the funds are disbursed through National Health Control Organisation, New Delhi. WHO and UNICEF are getting funds from the Government of India and the schemes of the first respondent are introduced through Health Department of the Government of Tamil Nadu, as promoting public health is a constitutional mandate of the State, not only under Article 21 but also under Article 47 of the Constitution of India. Learned counsel submitted that the petitioner was appointed by the District Collector after sponsored through Employment Exchange and the control of the Society is vested with Government Officials which shows deep and pervasive control of the Government. Petitioner, even though was appointed on temporary basis, in the appointment order issued by the District Collector dated 15.9.2008 it is stated that the relative state seniority will be reckoned from the date of joining the post. Petitioner is appointed as Counselor in the District Government Head Quarters Hospital, Perambalur, which is doing public function viz., promoting health by preventing HIV/AIDS. The learned counsel further submitted that the order of termination is stigmatic as the services of the petitioner was terminated based on allegations, in spite of denial of those allegations by the petitioner.
5. The allegations levelled against the petitioner are vague, without any material particulars, except the statement that the petitioner was found absent from 7.10.2010, without availing leave. The learned counsel heavily relied on the report/remarks made by the Medical Officer, Government Hospital, Perambalur, who is her immediate superior, about the performance of the petitioner, who in categorical terms reported that the allegations levelled against the petitioners are not true and the alleged report said to have been given by the District Programme Manager dated 25.10.2010 was not furnished to the petitioner and relying on the report for passing the order of termination is illegal. The learned counsel further submitted that in spite of denying each and every allegation and in the light of the report of the Medical Officer in favour of the petitioner, without conducting any enquiry, petitioner's service was terminated stating that the petitioner's performance was poor, her behaviour with the clients was indifferent, lethargic and casual. The learned counsel also submitted that the review filed by the petitioner was also rejected by the first respondent without any application of mind and the entire action initiated and the consequential orders passed are arbitrary and the same are not only violative of principles of natural justice, but also violative of Article 14 of the Constitution of India. The learned counsel relied on the order of this Court made in W.P.Nos.14124 o 14126 of 2011 dated 8.12.2011, wherein it is held that the first respondent is an authority under Article 12 of the Constitution of India and therefore the writ petition filed is maintainable. The learned counsel also relied on the larger Bench Judgment of this Court reported in 2000 (4) CTC 556 (M.THanikachalam v. Maduranthakam Agricultural Producers Co-Operative Marketing Society) and contended that even against the Co-Operative Society writ can be entertained, if there is monstrosity of situation. Learned counsel also relied on the Full Bench Judgment of Patna High Court reported in in the decision reported in AIR 2014 Patna 67 (The Organizer, Dehri C.D. and C.M. Union Ltd., Fazalganj v. State of Bihar and others).
6. Mrs.R.Rathna Thara, learned counsel appearing for the first respondent on the other hand relying on the judgments of the Suprme Court reported in AIR 1970 SC 1150: (1970) 1 SCC 177 (Dr.S.L.Agarwal v. General Manager, Hindustan Steel Limited) and (2007) 15 SCC 136 (Lieutenant Governor of Delhi v. V.K.Sodhi) argued that the writ petition is not maintainable against the first respondent Society. Learned counsel further submitted that the petitioner having been appointed on temporary basis on consolidated pay and her performance having been noticed as not satisfactory, she was terminated from service after issuing show cause notice, calling for explanation and there is no arbitrariness in the said action taken. Therefore the learned counsel prayed for dismissal of the writ petition, as there is no merit in the case.
7. I have considered the rival submissions made by the learned counsel for the petitioner as well as learned counsel for the respective respondents.
8. The issue arise for consideration in this writ petition is as to whether the writ petition filed challenging the order of termination of petitioner dated 14.12.2010 reaffirmed on 20.7.2011 is maintainable and whether the decision taken by the first respondent terminating the services of the petitioner based on allegations, without conducting enquiry, in spite of denial of the allegations is justified and what relief the petitioner is entitled?
9. The first respondent Society is performing public duty which can be ascertained from the objects of the Society, which is stated in the counter-affidavit thus:
"The first respondent is conducting various programmes in achieving its aim of prevention and control of HIV/AIDS in the State through various programmes, viz.,
(a) Integrated Counselling and Testing Centres (ICTCs) including Mobile Units and provide counselling to the general public visiting the Government Hospitals, Government Medical College and Hospitals, Government Primary Health Centres, etc., to undergo blood test with a view to identify HIV infection and HIV-TB co-infection and to send them to the concerned centres to provide the requisite medical facilities.
(b) ICTCs run by Hospitals under Public Private Partnership to provide counselling to the general public visiiting the Private Hospitals to undergo blood test with a view to identify HIV infection and HIV-TB Co-infection and to send them to the concerned centres to provide the requisite medical facilities.
(c) Anti Retroviral Treatment (ART) Centres including Link ART Centres to provide care, support, medical treatment, nutritious supplement and free bus pass facilities to people living with HIV/AIDS.
(d) Sexually Transmitted Infection Clinics under Government Hospitals with a view to provide medical treatment facilities to people infected with Sexually transmitted infection and Reproductive Tract Infection.
(e) Blood Bank (Both Government & Private) to receive and store safe blood and particles from the donors and to make available the same to people in need as per the demand.
(f) Targeted Intervention through Non-Governmental Organisation (TINGO) to create awareness on HIV infection among High Risk Group i.e., Commercial Sex Workers, Men having Sex with Men, Transgender, Intravenous Drug Users, Truck Drivers & Clearners, Migrant Workers, etc., and send them to the nearest ICTCs/ART Centres/STI Clinics to avail the requisite facilities provided at these centres.
(g)Legal Aid Clinics to provide legal advice and to process legal cases where PLHIV are involved."
10. Maintainability of writ petition against the first respondent Society, which is performing public duty was already considered elaborately by this Court in W.P.Nos.14124 to 14126 of 2011, order dated 8.12.2011. In the said order this Court noticed all the aspects viz., the formation of the Society; registration of the Society; object of the Society; the constitution of Society such as President of the Society is the Secretary to Government, Health and Family Welfare Department; Senior IAS Officer shall be the full time Project Manager and the Secretary of the Society; the Society is functioning under the Health and Family Welfare Department; all the members of the Governing Board are higher officials of the State Government; the service rules governing the employees of the first respondent Society were approved by the Government in G.O.Ms.No.321 Health and Family Welfare Department dated 29.9.2008; and the amended Rules were also approved by the Government in G.O.Ms.No.132 Health and Family Welfare Department dated 27.4.2009. The learned Judge considered the Division Bench Judgment made in W.A.No.1895 of 2009 dated 19.10.2010 and distinguished the same by holding that the legal issues raised therein were not decided. The learned single Judge relying upon several decisions of the Supreme Court particularly (2004) 5 SCC 649 (Zee Telefilms Ltd v. Union of India), considered the public duty performed by the Society on behalf of the State and held that it is an authority under Article 12 of the Constitution of India and writ petitions are maintainable. I am in entire agreement with the said findings rendered by this Court as the said judgment is in operation as on today.
11. Apart from the above said order of this Court, the Full Bench of Patna High Court has considered similar issue regarding maintainability of the writ petition against Co-operative Society, which is being administered by a Special officer, who is a Government Servant in the decision reported in AIR 2014 Patna 67 (The Organizer, Dehri C.D. and C.M. Union Ltd., Fazalganj v. State of Bihar and others). In the said judgment also the judgments relied on by the learned single Judge viz., (2005) 4 SCC 649 (cited supra), etc., were relied on and a decision was rendered with elaborate discussion and held that the writ petition is maintainable against the orders passed by the Government Officer, while discharging his duty as the Special Officer of the Co-Operative Society. The Larger Bench judgment of this Court reported in 2000 (4) CTC 556 (cited supra) also it is held that on some occasions, this Court can entertain writ petitions, if the monstrosity of situation is shown. Thus, the issue regarding maintainability of the writ petition against the first respondent Society, raised by the learned counsel for the first respondent, is liable to be rejected as the matter in issue is settled in the above referred judgments.
12. Insofar as the termination order dated 14.12.2010 issued against the petitioner is concerned, the following undisputed facts are relevant, petitioner was issued with appointment order dated 15.9.2008 by the District Collector, Perambalur and the said order of appointment reads as follows:
"Proceedings of the District Collector, Perambalur Present : Thiru.Anil Meshram, I.A.S. Rc.No.3239/2007/PA5 Dated: 15.9.2008 Sub: Appointment of STD Clinic Counselor Post under TANSACS - Regarding.
Ref: 1. Joint Director Medical & Rural Health Services, Ref.Lr.No.3368/2008, dated 29.4.2008
2. D.O.Lr.No.1958/ICTC/A15/2007 dated 28.12.2007 of Project Director, TANSACS, Chennai.
3. D.O.Lr.No.005149/AIDS/STD/A8/2008, dated 8.7.2008 of Project Director, TANSACS, Chennai.
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Selvi.M.Fathima Begam residing at Eachampatti Village a candidate is appointed as a STD Clinic Counsellor in District Government Head Quarters Hospital, Perambalur on 15.09.2008. She should report to the Jointe Director of HEalth Services of Perambalur District with immediate effect.
Selvi.M.Fathima Begam is informed that the relative State Seniority will be recorded from the date of joining the post. The consolidated pay for the post is Rs.6,500/- per month. This appointment is purely on temporary basis.
The individual is informed that she should submit a monthly report and attendance duly signed by the Medical Officer incharge of the STD Clinic for the release of salary by the JDHS concerned.
Sd/- xxxxxxxxx District Collector, Perambalur."
The District Collector cannot be treated as a private person. Petitioner's continuance in service from 15.9.2008 in terms of the appointment order issued by the District Collector, Perambalur, and she served for more than 2 years without any other complaint is not disputed by the first respondent in the counter affidavit.
13. The performance of the petitioner was assessed by her immediate superior officer, namely, Medical Officer of Government Hospital, Perambalur, who certified that the petitioner performed her duties very well from the date of joining and no complaint was ever received by his office against the petitioner, the petitioner is courteous towards her higher officials and considerate towards the patients, and the allegations levelled against the petitioner viz., she was not behaving with the officials and patients properly, not maintaining records properly, etc., are not correct. A show cause notice was issued to the petitioner on 26.10.2010 making the following allegations:-
(a) It is ascertained that you are not attending the clients properly. You are talking unnecessarily to the clients and your attitude towards the STI clients is reported to be poor.
(b) Documents at the STI clinic are not maintained as per NACO/TANSACS instructions by you.
(c) You have been found absent on 7.10.2010 and it is intimated later that you are on leave for one week. There is no prior approval for your leave from your Medical Officer.
(d) A mobile phone number given by you to contact in your absence at the hospital is found to be a fake number, on calling the number it was replied that there is no Fathima Begam known to them.
(e) The STD colour coded drug stock register should be maintained on daily basis but you did not do so and refused to the District Supervisor to maintain on daily basis.
(f) You are trying to influence the seniors and superiors at the District HQ Hospital, Perambalur with external pressures.
14. Insofar as the allegations except absence on 7.10.2010 is concerned, petitioner has denied the same and the same was also certified by the Medical Officer as stated supra. As far as the absence during the time of surprise inspection on 7.10.2010 is concerned, in the explanation submitted by the petitioner dated 30.10.2010 it is stated that the petitioner was affected by viral fever from 4.10.2010 to 12.10.2010 and she applied for medical leave for the said period and leave was applied through telephone on 4.10.2010 as she was unable to move due to fever. Immediately after informing about her illness through telephone, she had also sent medical leave application to the Superintendent of Hospitals through her brother and she never received any telephone call from anybody on 07.10.2010, and if any telephone call is received, she used to attend then and there.
15. Thus, it is evident that the petitioner has specifically denied all the allegations including that of her absence on the date of surprise inspection on 7.10.2010. The said explanation along with remarks of the Medical Officer was forwarded to the first respondent by the third respondent on 15.11.2010. In spite of receipt of the same, without even considering or referring the show cause notice issued, explanation submitted, and the remarks of the superior officer, petitioner was terminated from service by the order of the first respondent dated 14.12.2010 stating that the petitioner's performance was poor, behaviour with the clients was indifferent, lethargic, casual and she declined to obey the instructions given by the District Supervisor, who is the representative of the project Director to monitor and supervise all the District level Programme activities. The said order of termination is definitely stigmatic in nature, which can be passed only after conducting enquiry since the petitioner has denied each and every allegation by way of explanation, which was also forwarded along with the report of the Medical Officer as stated supra. The first respondent also framed Service Rules for its employees and approved by the Government. The relevant Chapters of Tamil Nadu State AIDS Control Society Service Rules states as follows:
Clause-4 of Chapter-IV deals with Misconduct which states that habitual absence without leave or absence for more than 10 consecutive days without leave is a misconduct.
Clause-6 of Chapter-IV deals with Other acts of misconduct and Disciplinary proceedings and appeal are dealt in Chapter-V for imposing major penalties.
Enquiry shall be ordered as per Clause-7 of Chapter-V. As per the said Clause-7 of Chapter-V, if the employee of the Society is to be imposed major penalties, the following procedures shall be followed:-
(a) The ground on which, it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegation.
(b) Reasonable time to put in a written statement of his defence and to state whether he desires an oral inquiry or to be heard in person or both.
(c) An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority concerned and even if a person charged has waived an oral inquiry, such inquiry shall be held by the authority concerned in respect of charges which are not admitted by the person charged and which can be proved only through the evidence of witnesses.
(d) The person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called, as he may wish and he may also produced witnesses in support of his defence.
(e) The person concerned shall be heard in person at any stage if he so desires before passing of final orders.
(f) Enquiry report shall be prepared by the authority holding enquiry or personal hearing and such a report shall contain sufficient record of evidence, if any, and a statement of the findings etc.
(g) After enquiry or personal hearing, the authority competent to impose the penalty must follow the procedures and a proposal to impose punishment shall be communicated.
(h) After giving opportunity of making representation on the penalty proposed, the disciplinary authority can impose punishment.
Thus, it is beyond doubt that even in the Service Rules framed by the first respondent, which is in force from 11.7.2008, conducting of enquiry is a mandatory requirement, if the employee concerned denied the charges and the termination order is passed on the basis of the allegations of misconduct. The said mandatory procedure had not been followed in this case by the first respondent and the same is also not disputed by the first respondent in the counter-affidavit filed or by the learned counsel appearing for the first respondent.
16. The first respondent is not justified in stating that the petitioner being a temporary employee/Counselor, she can be terminated without following the procedures. It is a well settled proposition of law that even against the probationer or temporary employee, if the services are to be terminated based on allegations, or if the termination is stigmatic, principles of natural justice is bound to be followed. Principles of natural justice cannot be an empty formality. Mere issue of show cause notice without conducting enquiry, particularly, when the allegations are denied is definitely not in conformity with the principles of natural justice.
17. The Honourable Supreme Court in the decision reported in (2010) 7 MLJ 684 (SC) (Union of India and others v. Mahveer C.Singhvi) has considered the said issue, namely, discharging a probationer on punitive measure without giving him an opportunity of defending himself and held that such discharge would be bad and liable to be set aside.
18. The contention of the learned counsel appearing for the first respondent is that first respondent being not a State and therefore, the Constitutional provisions contained in Article 311(2) of the Constitution of India will not apply, cannot be countenanced, as the Service Rules of the first respondent, which was approved by the State Government, mandates conducting of enquiry, finding of guilt, proposing the penalty and after receiving explanation from person concerned, major penalty like termination can be passed.
19. In the decision reported in AIR 1974 SC 2192 : (1974) 2 SCC 831 : 1974-II LLJ 465 (Shamsher Singh v. State of Punjab and another), the Constitution Bench of the Honourable Supreme Court held that decisive factor in the context of the discharge of a probationer from service is the substance of the order and not the form in determining whether the order of discharge is stigmatic or not or whether the same formed the motive for or foundation of the order.
20. In the decision reported in (2008) 2 SCC 479 (Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar)and in various other decisions, it was held that if a discharge is based on misconduct or if there is a live connection between the allegations of misconduct and discharge, then the same, even if couched in language which is not stigmatic, would amount to a punishment for which a departmental enquiry was imperative. Thus, it is beyond doubt that a temporary employee or probationer, if terminated or discharged from service based on the allegations/misconduct, the same should proceeded by conducting enquiry and only after proving the misconduct, termination/discharge order can be passed.
21. In this case, allegations were made against the petitioner and admittedly no enquiry was conducted in spite of denial of allegations levelled against her. Therefore the decision of the first respondent is arbitrary and in violation of Service Rules, referred supra, which is binding on the first respondent. Apart from the said legal flaw, as rightly contended by the learned counsel for the petitioner, the charges levelled against the petitioner are also vague, except the allegation of absence. As stated supra, the allegation of absence is concerned, the petitioner has specifically pleaded that due to viral fever she was on leave based on medical certificate and she applied for leave through telephone followed with medical leave application. Therefore the absence alleged against the petitioner is not wilful. It is well settled principle of law that if an employee is proceeded on the ground of unauthorised absence, unless wilful absence is proved, termination order cannot be passed. The said position is made clear by the Honourable Supreme Court in the decision reported in 2014 (3) LLN 11 (SC) (Chhel Singh v. M.G.B.Gramin Bank, Pali and others).
22. I am aware that if there is procedural violation, the Department/Management should be given a chance to prove the allegation and the matter shall be remitted for the said purpose. In this case, as already stated except the charge of unauthorised absence all other allegations are vague and the immediate superior officer viz., Medical Officer, Government Hospital has already given a clean chit with regard to the performance of the petitioner, which was also enclosed along with the explanation. Hence, no purpose would be served in granting liberty to the first respondent to conduct enquiry to prove the allegations, as the petitioner is in out of employment for over four years.
23. Considering all the above facts and circumstances of the case, I am of the view that interest of justice would be met by setting aside the order of termination.
24. In fine, the writ petition is allowed with direction to the first respondent to reinstate the petitioner as STD Clinic Counselor in District Government Head Quarters Hospital, Perambalur with continuity of service with all other benefits, except backwages. The backwages is denied bearing in mind the fact that the petitioner has not worked from the date of termination onwards and she was appointed only on consolidated salary and she served in that capacity till the order of termination. The respondents are directed to implement this order, as stated above, within a period of two weeks from the date of receipt of copy of this order. No costs. Connected miscellaneous petition is closed.
Index : Yes/No 07-11-2014
Internet : Yes/No
Note: Issue copy on 10-11-2014
vr
To
1. The Project Director,
The Tamilnadu State Aids Control Society,
No.417 Pantheon Road, Egmore,
Chennai - 600 008.
2. The Director,
Department of Public Health & Medicine,
DMS Campus, Teynampet,
Chennai - 600 018.
3. The Deputy Director,
Department of Family and Health Welfare,
Perambalur District.
4. The District Collector,
Perambalur and District.
N. PAUL VASANTHAKUMAR, J.
vr
Pre-Delivery Order
in
W.P.No.34097 of 2013
07-11-2014