Madras High Court
V. Balasubramanian vs The President, Kothakuppam Panchayat, ... on 28 August, 2002
ORDER E. Padmanabhan, J.
1. The petitioner, Overhead Tank Operator appointed by the respondent Panchayat has filed the present writ petition praying for the issue of a writ of certiorari calling for the records of the respondent dated 30th March, 2002, quash the same and issue such further or other consequential directions.
2. This court issued Rule Nisi on 22.4.2002. The respondents have been served. The respondent entered appearance initially through Mr. S.D.N. Vimalanathan and filed counter. Subsequently, Mr. V. Subbarayan, learned Special Government Pleader on a change of vakalat appeared for the respondent.
3. The writ petition was taken up with the consent of counsel for either side for final disposal. In fact this court pointed out the ex facie illegality in the impugned order and directed Mr. S.D.N. Vimalanathan to get instructions as to whether the respondent is inclined to withdraw the order impugned with liberty to proceed afresh by framing charges and proceed further according to law. Though Mr. S.D.N. Vimalanathan learned counsel appearing for the petitioner was convinced, he took time to get instructions. However on the next date of hearing, Mr. SDN. Vimalanathan had not chosen to appear, but in his place Mr. V. Subbarayan, learned counsel made his submissions. Mr. Subbrayan represented that the respondent seeks orders on merits and that it is not inclined to withdraw the impugned order and proceed afresh. In the circumstances, further arguments were advanced by either side and this court reserved orders.
4. Heard Mr. M. Jayaraman, learned counsel appearing for the petitioner and Mr. T. Subbarayan, learned counsel appearing for the respondent.
5. According to the petitioner he was appointed in the post of Operator of Overhead Tank in Kothakuppam Panchayat, the respondent herein on a consolidated pay of Rs.350/= per month. The duty assigned being to switch on the motor pump set and fill up the overhead Tank and open the gate-valves at 4.30 a.m., to distribute and control supply of water to the villages through public taps and close the water supply at the hours fixed. According to the petitioner he has been discharging his duties without any complaint and to the satisfaction of the respondent-president.
6. In the recent election held Smt. S. Alamelu has been elected as the new President. But her husband has been regularly coming to the office and discharging duties of the President. It is alleged that the Mr. Subramaniam, the husband of the President brought blank paper containing the signatures of his wife S. Alamelu, the President and passed orders in writing by filling up the blank paper.
7. It is alleged that the said Mr. Subramaniam is the de jure President, while his wife is the De facto President. It is alleged that the said Subramaniam, husband of the President wanted to appoint another person as Operator of his choice for the Overhead Tank in the place of the petitioner. In that view, the said Subramaniam created problems for the petitioner. The petitioner is an illiterate person and his signatures have been secured on blank papers. When the petitioner wanted to know the contents, he was abused by the said Subramaniam. The petitioner states that he has received a notice dated 26.1.2002 and he has submitted a reply. So also for the show cause notice he has submitted reply on 22.3.2002 and 2.1.2002. The petitioner is being accused of false charges by the said Subramaniam with ulterior motive to remove and appoint another person of his choce.
8. It is stated that no enquiry has been conducted with regard to the alleged charges leveled against the petitioner. Yet, the petitioner was accused of not discharging his duties properly and on certain vague and unfounded allegations, the respondent without affording any opportunity unilaterally, arbitrarily and in violation of the principles of natural justice has dismissed the petitioner from service by order dated 30th March, 2002. The order ex facie is illegal and it is liable to be quashed. It is contended that the order has not been passed by the President, but by her husband by using blank paper signed by the President. The order has been passed without even following the minimum principles of natural justice and it is an arbitrary and mala fide exercise, besides it has been passed on the blank paper containing signatures of the president. The order according to the petitioner is contrary to the rules governing and violative of Art. 14 as well as Art. 21 and hence it is liable to be quashed.
9. Per contra, the respondent contended that the petitioner has not been discharging his duties properly and he was dismissed on 29.3.2002 and one N. Subramaniam has been appointed from 30th March, 2002. The respondent contends that the petitioner has engaged himself in the Cable T.V., operated by him. The public has been complaining improper water supply on account of the improper performance of duty by the petitioner. The Show cause notice dated 24.12.2001 was served on the same day to the petitioner giving seven days time for submission of his explanation. The petitioner submitted an explanation on 2.1.2002 denying the imputations and stating that he is doing his duties properly.
10. The Panchayat passed a resolution on 25.12.2001. The petitioner has been appointed purely on temporary basis. The allegation that the president was acting on the dictation of her husband and he comes to office regularly and discharging the functions of the President is not true. The allegation that signatures of the President has been obtained on blank papers is not true. All the other allegations that the respondent wanted to appoint a person from his caste are all denied. The petitioner knows to read and write tamil. The petitioner was not abused at all. The respondent issued a show cause notice dated 24.12.2001 for which the petitioner did not give any reply for the same. The petitioner submitted replies to the show cause notices dated 24.12.2001 and 20.3.2002 respectively on 2.1.2002 and 22.3.2002. The allegation that no enquiry was conducted with regard to the charges is not true.
11. The writ petitioner is accused of not discharging his duties properly and that he has not informed about the leakage in the pipeline. The denial of charges is not true. It is not correct to contend that the petitioner has been dismissed without affording an opportunity of hearing and the impugned order has been passed unilaterally and arbitrarily. The petitioner is only a contract labourer on a fixed monthly salary. The post is not a sanctioned post. He is only purely a temporary contractual labour. The duty of the petitioner is to operate the Electric Motor Pump for issuing water supply which he had failed. The writ petitioner is guilty of dereliction of duty by leaving away the Motor room and he was attending his personal business of Cable T.V. Operation run by him. AS the writ petitioner leaves office and attending Cable T.V. Operation he has failed to discharge his duties as Operator and hence the show cause notice came to be issued.
12. The writ petition has been instigated by the ex-President who is related to the petitioner. The entire villages have sent representations and complaints. The allegation that no enquiry was conducted is not true. The writ petitioner has taken the law unto his hands and committed acts of trespass and he was arrested by police for assault and trespass. One Subramaniam was appointed as Operator from 1.4.2002 and hence the interim stay has become infructous.
13. The only point that arises for consideration is:
"Whether the dismissal of the petitioner for alleged misconduct is liable to be quashed for violative of Art. 14, principles of natural justice as punitive and on the ground that a blank paper signed by the President has been utilised for the purpose of issuing the impugned order?"
14. It is clear from the impugned order ex facie no formal charge has been framed, nor explanation has been called for, nor an enquiry has been conducted. Yet the order of dismissal has been passed. The order impugned proceeds as if for the resolution dated 28.2.2002 and 25.1.2002 the petitioner had failed to submit his explanations, public have complained failure of water supply and therefore the petitioner has been dismissed from service with effect from 29.3.2002 and relieved on that day. Such an order has been passed on 30.3.2002.
15. The original order impugned is on a quarter sheet of paper hand written and signed by the President of the respondent Panchayat. A perusal of the order shows that the order runs to thirteen lines written in tamil in longhand. The 10th, 11th, 12th, and 13th lines are written below the signature to the left side of signature, while in the right hand side of the order the President has affixed her signature and a seal of the Panchayat below the signature.
16. Apparently the order has been written on a blank paper signed by the President. As seen from the impugned order, two lines run parallel to the signature and one line runs below the signature of the President. The order impugned has not been passed by the President, but a blank paper containing the signature of the President has been pressed into service to pass the order impugned.
17. The petitioner is a Overhead Tank motor pump operator. On 24.12.2001 a notice was issued by the respondent giving seven days time to send a reply. In the said notice it was informed that the petitioner was not discharging his services properly ( ). What is the meaning of the expression that the petitioner is not doing his service properly as complained of is not known. As to when the petitioner has failed to attend his work, what is the nature of omission or commission has not been set out in the said notice dated 24.12.2001.
18. The petitioner sent a reply on 2.1.2002 denying the said averment and ascertain that he has been attending to the work of overhead tank motor pump operator regularly without any complaint. On 26.1.2002 an explanation was called for from the petitioner for the second time for the following three alleged misconducts which are very vague:-
(i) In the Kothakuppam Panchayat, water was not distributed properly;
(ii) Breach of overhead tank pipe line has not been intimated and this has resulted in shortage of water;
(iii) He is engaged as a Cable T.V. Operator and therefore he failed to supply water.
19. To the said letter, the petitioner has sent a reply denying the imputations. Thereafter the present impugned order has been passed. It is seen that the petitioner has sent a representation dated 2.1.2002, after receipt of notice dated 29.12.2001 denying the vague allegations.
20. This court called upon the counsel for the respondent to produce the file and in particular the enquiry proceedings if any. Admittedly no enquiry has been conducted and therefore no file could be placed before the court. The complaint against the petitioner is plainly vague and the imputations being vague it has disabled the Petitioner to et out his defence. Further, two of the imputations will not constitute a misconduct.
21. It is fundamental that while taking departmental action minimum particulars should be set out in the charge memo such as the details of omission or commission, the date and time of omission or commission and the violation as well as the misconduct complained of. In the present case neither the two notices, nor the impugned order of dismissal would satisfy this requirement. Not even the charges were formulated and when the petitioner had denied the imputations by sending the reply. The minimum requirement to hold an enquiry to prove the charges has not been conducted. But no enquiry has been admittedly conducted.
22. In the very order impugned also the respondent has not set out the details of imputations or misconduct or violation except very vague allegation which has been denied specifically. The minimum requirement of principles of natural justice has not been followed. The Rules relating to conditions of service of overhead tank pump operator has not been followed and the order impugned is not a termination simplicitor, but it is a dismissal or removal from service for alleged dereliction of duty for omission and commissions on the part of the petitioner. It is stigmatic. Therefore it is clear that the respondent has not followed the minimum requirement of disclosing the alleged misconduct or imputation of charges and disclosing the materials placed upon which the petitioner is being proceeded and when he has denied the charges the respondent should have at least held an enquiry. There is total non compliance of the principles of natural justice. The order impugned is nothing but an arbitrary exercise of power by the respondent and it is violative of principles of natural justice.
23. To show that the order might have been incorporated on a blank paper signed by the petitioner, a xerox copy of the impugned order is annexed here.
24. Both the contentions advanced by the petitioner deserve to be sustained and the impugned proceedings is quashed. The writ petition is allowed and consequently, the respondent-Panchayat is directed to reinstate the petitioner forthwith with all backwages and continuity of service. Normally this court would have permitted the respondent to proceed de novo, but in this case in the absence of specific averments or allegations of misconduct, such as date, time or other particulars, any permission that may be granted will result in harassment and nothing but embellishment. Hence the respondent is not permitted to proceed once over in respect of alleged misconduct.
25. In the circumstances, the Writ Petition is allowed with a cost of Rs.2,500/= to be paid by the President of the respondent-Panchayat from her pocket. Consequently connected WMP is closed.