Madras High Court
K.P.Pandi And Four Others vs The District Manager on 23 February, 2006
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT
DATED: 23/02/2006
CORAM:
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.Nos.689 of 2006
W.P.Nos.690 to 693 of 2006 and
and
W.P.No.9686 of 2005
and
W.P.M.P.Nos.762 to 766 of 2006 and
W.P.M.P.No.10400 of 2005
K.P.Pandi and four others ... Petitioners
in WP.Nos.689 to 693 of 2006
N.Saravanan ... Petitioner
in WP.No.9686 of 2005
Vs.
1.The District Manager,
Tamilnadu State Marketing
Corporation Ltd. (TASMAC)
TNWHC Complex, Kappaloor,
Madurai-8.
2.The Senior Regional Manager,
TASMAC,
No.100, Anna Nagar,
Madurai - 20.
... Respondents
in W.P.Nos.689 to 693 of 2006
3.The District Manager,
TASMAC,
Theni District ... Respondent
in W.P.No.9686 of 2005
PRAYER
Writ Petitions filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorarified Mandamus, to call for the
records relating to the impugned order passed by the respondent in his
proceedings in Na.Ka.No.1331/05/B, 27/2005 dated 19.10.2005, 19.09.2005 and
quash the same as illegal and consequently to direct the respondents to
reinstate the petitioner with back wages in his service as bar supervisor or to
repay the security deposit amount of Rs.50,000/- with interest remitted by the
petitioner at the time of appointment.
!For Petitioners ... Mr.G.Prabhu Rajadurai
(in W.P.Nos.689 to 693 of 2006)
Mr.M.Ajmal Khan
(in W.P.No.9686 of 2005)
^For Respondents ... Mr.M.Thickvijayapandiyan,
for TASMAC.
:ORDER
Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. By consent of all the counsels, the writ petitions are taken up for final hearing.
2. In all these cases, the common question that arises for consideration is about the validity or otherwise of the orders of District Manager of Tamil Nadu State Marketing Corporation Ltd(TASMAC) under which the respective petitioners were terminated from service by breach of conditions of 3, 5, 7 of the conditions of their appointment and also for having acted against the interest of the corporation resulting in disrepute to the Corporation, on the basis of finding in the enquiry that the petitioners in collusion with the contractors of the portion attached to the liquor shop selling miscellaneous items. Of course in one case namely in W.P.No.9686 of 2005, the ground of termination is stated to be that on inspection of flying squad it was found that in the liquor was added with water.
3. It is common ground, in all these cases, the petitioners were appointed in TASMAC as Bar Supervisors. It is also clear from the records that these persons appointed as TASMAC Bar Supervisors were invariably graduates alongwith Diplomas in various fields and most of them were unemployed and accepted the job of TASMAC Bar Supervisor only as a last resort. It is also common ground that every TASMAC shop has two portions namely, shop and Bar. The TASMAC shop is conducted by the staff of TASMAC. The Bar which is attached to each shop and adjacent to it is maintained by the contractors who are selected by auction by the TASMAC for earning revenue to the Government. It is this bar portion which is supervised by the above said Bar Supervisors appointed by the first respondent.
4. It is also brought to the notice of this Court that the duty hours of these Bar Supervisors who are attached to the Bar are from 08:00 a.m. to 12:00. The conditions of their appointment which is focussed by the learned counsel for the petitioners has also regularised in the following terms:
"Order:
The services of Thiru________are hired on contract basis for a consolidated sum of Rs.3000/-P.M. with the following contractual obligations.
1.You are hired on a purely Part time / Temporary and on contract basis.
2.Your service will be on a rotation basis to any other retail shops/bars.
3. During your service under the Corporation you shall diligently perform your duties to the satisfaction of your superiors.
4.You shall abide by the instructions issued by the Corporation and your superiors from time to time and perform all duties and works entrusted to you by your superiors from time to time.
5.In case of any breach of rules and regulations, the instructions of your superiors and the duties assigned to you, your temporary / contract basis appointment is liable to be summarily terminated along with forfeiture of security deposit.
6. In case, the Corporation finds any serious error or suppression in the details furnished by you as to your age, qualification, antecedents, father's name, address etc., you are liable to be terminated summarily along with forfeiture of Security Deposit.
7.Rules and Regulations governing the service of shop / bar / Supervisor / Salesman / Bar tenders must be carefully read by you and you must undertake to abide by the same.
8. In token of your having accepted the terms of employment set out herein above, you are required to sign the duplicate copy of his appointment order and hand over the same to the undersigned within two days.
This order will stand cancelled, if there is failure to comply with any of the above conditions."
5. It is also common ground that the Bar Supervisors have nothing to do with the sale of liquor bottles which is the exclusive domain of the shop staff of TASMAC. The petitioners who were appointed based on the said terms of appointment have also deposited with the respondents the security deposit amount of Rs.50,000/- and they are paid a salary on a consolidated salary of Rs.3000/- P.M.
6. It is found that when the flying squad has visited the shop and also the attached bar there was loose vending of liquor in collusion with contractors which resulted in disrepute to the organisation with the result, the petitioners were relieved giving the additional power of Bar supervisor to the Shop Supervisor. After relieving the petitioners an enquiry was stated to be conducted fixing the date as 22.09.2005 at 11:00 a.m. as per the memo of the first respondent dated 09.09.2005. The impugned order came to be passed on 19.10.2005 stating that when an enquiry was conducted on 22.09.2005, the petitioners have given statement in writing stating that they have nothing to do with the sale of loose vending in the Bar and the said explanation is not accepted. The impugned order came to be passed stating to terminate the petitioners for the breach of conditions 3,5,7 and also stating that the petitioners have admitted their guilt.
7. According to the learned counsel appearing for the petitioners Mr.Prabhu Rajadurai and also Mr.M.Ajmal Khan that the impugned order of termination is totally void and opposed to the basic principles of natural justice and common law. At the outset, it is submitted by the learned counsels that the enquiry itself is sought to be conducted after relieving the petitioners from the job as seen in the order of the first respondent dated 16.07.2005 which is also fortified by the so-called enquiry notice on 09.09.2005 in which the first respondent has specifically admitted that an enquiry in respect of the relieving of the petitioners is sought to be conducted on 22.09.2005.
8. It is the case of the learned counsels as stated in the affidavit also that on 22.09.2005 when the petitioners appeared before the respondents they were asked to write some explanation on the spot itself hurriedly and the petitioners being unemployed graduates who have accepted this job as a last resort at least to earn meagre livelihood, have also given something in writing, however, denying the charges. Based on that, without any enquiry, the impugned order came to be passed.
9. The learned counsels would submit that even assuming that the said conditions of appointment are applicable. There is absolutely nothing on record to show as to how the petitioners were not diligent in performing their functions. Especially, the circumstance that there is absolutely no complaint and admittedly the flying squad itself has visited and has not conducted any enquiry by giving opportunity to the petitioners. The entire proceedings have been done unilaterally, taking into advantage and exploiting the unemployment situation of the educated graduates like the petitioners.
10. According to the learned counsel appearing for the petitioners, the impugned order is not only arbitrary but also is opposed to all human norms. Adding to that the impugned order by which the petitioners were removed from service by relying upon the condition 5 of the appointment order also denying the return of the security deposit paid by the petitioners. Therefore, according to the learned counsels, there was absolutely no enquiry at the time when the flying squad stated to have visited. ii) There was absolutely no complaint from anyone since it is not even the case of the respondents in the impugned order that complaints have been received iii) no one of the shop staff who are actually involved in the vending of the liquor which consists of a shop supervisor and two salesmen including the Bar contractor were proceeded with and it is only the petitioners who are the unemployed bar supervisor have been made target of the impugned order.
11. It is also the further case, there is an Area Sales Supervisor who supervise all the shops against whom no action has been taken. Further, when a notice was given calling upon the petitioners to appear for enquiry on 22.09.2005 there was absolutely no documents supplied to the petitioners and the petitioners were not given opportunity to submit their explanation except that on 22.09.2005 on the spot they were hurriedly asked to write something and give the same. The so-called enquiry having been conducted behind the back of the petitioners is to be treated as non-est and the forfeiture clause itself is in violation of Article 14 and 16 (i) of the Constitution of India. Inasmuch as such forfeiture clause even assuming the same is in the contract of service, is without any guidelines inasmuch as it does not even state that a proportional loss should be compensated by way of forfeiture.
12. It is also the case of the learned counsels appearing for the petitioners that it is not even the case of the respondent that any loss has been caused to the respondents - organisation by the alleged conduct stated in the impugned order.
13. Per contra, Mr.M.Thickvijayapandiyan, learned counsel appearing for the respondents in all these cases, would submit that the amount of the security deposit has been forfeited in terms of contract of service and when the petitioners admittedly have become parties to the contract of the service they cannot now go back. The learned counsel would specifically rely upon the condition No.5 which states that in case of breach of rules and regulations, the instructions of supervisors and the duties assigned the appointment liable to be summarily terminated alongwith forfeiture of security deposit.
14. According to the learned counsel, the conduct of the petitioners in loose vending which is not permissible in the bar and mixing with water in the bottle of liquor or of breach of regulations and instructions by superiors which is implied to the nature of job assigned to the petitioners as bar supervisors and therefore they should be treated as a violation of condition of 5 of the terms of the appointment order.
15. According to the learned counsel appearing for the respondents, the forfeiture is not amounting to punishment since it is only forming part of the agreement. It is also submitted by the learned counsel that the post of Supervisors is non-existing post and which is temporary in nature and therefore the appointment can be terminated at any time without assigning any reason. It is also his submission that infact, the petitioners on 22.09.2005 have given in writing that they have admitted the guilt and undertook that they will not repeat in future. The learned counsel also relies upon the instructions issued relating to the functions of bar supervisors issued by the respondents dated 03.05.2005. He specifically relies upon the instructions 14 and 16. Instruction No.14 would say that from 1.02.2005, the bar supervisors have to open the bar after getting the key from the owner at 08:00 a.m. in the morning and close the same at 12:00 in the midnight. The bar supervisor shall also see that the bar contractor are not permitted to sell the eatable items without paying the amount every month before the 30 and 31st. He also relies upon the guideline 16, which says that the contractor has been given the bar on 33 conditions and as against the violation of the conditions, the Bar supervisor shall report the same to the respondents.
16. Therefore, according to the learned counsel for the respondents these conditions would show that they are expected to be present from morning 08:00 to till 12:00 midnight and enormous responsibility is entrusted on them. In the event of their failure to perform the function it causes disrepute to the organisation. It is also admitted by the learned counsel for the respondents, the petitioners have deposited the security deposit of Rs.50,000/-.
17. The learned counsel for the respondents also took me to a specific report in respect of sale of liquor items to show that the sale in various shops have come down and that is attributable to the bar supervisors.
18. I have carefully considered the rival submissions of the learned counsels for the petitioners as also the respondents, apart from going through the entire materials on record in the form of typed set of papers.
19. At the outset, the entire facts and circumstances would reveal the shocking reality of exploitation of unemployment graduates who are made to work for a paltry appointment of Rs.3,000/- per month from 08:00 a.m. to 12:00 mid night especially when admittedly these people are educated and made to supervise the liquor taking by consumers in the bar rooms. Eventhough, it will be stated that knowing fully well about the terms and conditions only they have taken up the job, in my view, it is a clear instance of not only human exploitation but also the terms and conditions especially relating to the period of work everyday is a clear instance of violation of human rights. The contention of the learned counsel appearing for the respondents that because of the conduct of the petitioners liquor vending has come down based on the reports is not only alarming but it is unfortunate. Admittedly, vending of the liquor is not forming part of even the so called conditions of service of the bar supervisors. There are separate set of staff attached to bar who are regular staff members with different scale of pay.
20. On the other hand, the bar supervisors are appointed basically for the purpose of the supervising functioning of and the bar which is conducted by the contractors who take by public auction by spending huge amount of money. Therefore the allegations of the respondents as if by the conduct of the petitioners the liquor vending has come down remarkably has absolutely no substance. Interestingly, the so called explanation stated to have been made by the petitioners on 22.09.2005 have been placed before me by the learned counsel for the respondents. A perusal of all those letters would again shockingly reveal that the petitioners while denying the various allegations have sought for an excuse for having come to the bar a little late. Infact, in one case, especially in respect of D.Selvakumar who is the petitioner in W.P.No.690 of 2006 he has written that he was additionally acting as a Driver to the District Manager of the respondent Corporation and therefore there was some delay on 10.07.2005 in coming to the shop in the morning. In another case in W.P.No.691 of 2006 P.Chinnachamy who is the petitioner who appears to have completed his Post Graduate has stated that he has gone for writing examination, National Eligibility Test (NET) for the post of a lecturer post in a College and there was some delay in coming to the bar in the morning. In one another case, one R.Mahendran in W.P.No.692 of 2006 while denying that there was no loose vending in the shop says that he has involved in cleaning the toilet attached to the Bar and after cleaning the toilet he went for taking bath and in that regard there was some delay. These predominant reasons given by the petitioners show the pathetic condition of unemployed graduates who have been abused and misused in the most possible manner against all human norms and inspite of that levelled charges against them passing stigma in their life, by terminating them taking away even the very small amount of livelihood.
21. The reliance placed on by the learned counsel for the respondents on the judgment of this Court in M/s. Raptakos Brett & Co., Limited Vs Union of India and another reported in AIR 1988 Madras 246 for the proposition that points not raised in the affidavit in support of the writ petition cannot be allowed to be raised during the argument, has no basis as far as the facts of the cases on hand are concerned. In fact, apart from explaining the entire facts in the affidavit by the petitioners even the respondents contentions are substantiated on the basis of records produced before this Court. It is predominantly based on the records produced, the arguments have been advanced. The reliance placed by the learned counsel for the respondents, on the judgment of the Division Bench of this Court in Union of India, Union Territory of Pondicherry, rep. by the Chief Secretary to Government, Government of Pandicherry, Pondicherry and 2 others Vs. Ilango reported in 2004 Writ L.R.141 S.N. has again no relevance to the facts and circumstances of the case. That was a case, wherein, the casual employees appointed in a non existing post were terminated. Therefore, the Division Bench of this Court has held that question of termination without notice does not arise since in the case of non-existing and non-sanctioned post it is purely temporary which could be terminated at any time without any notice or assigning any reason. In the present case it is not even the case of the respondents that the petitioners are appointed in non- existing post. A perusal of the appointment order would show that eventhough the appointment is on contract basis, the same is subject to some conditions. Therefore, I am of the considered view that the petitioners can never be said to be appointed in a non existing vacancy and therefore it cannot be said that they can be ousted without assigning any reason.
22. In any event, as rightly pointed by the learned counsel appearing for the petitioners that on the present case the facts and circumstances of the case would show that the petitioners being the employees have lost the confidence of the employers, there was no reason for the petitioners continuation of employment again and the petitioners would be satisfied atleast if the security deposit Rs.50,000/- is directed to be returned apart from the period for which the salary was not paid during the time when actually petitioners were serving under the respondents. Infact, the writ petition is itself filed challenging the impugned order and directing respondents to reinstate and alternatively to refund the security deposit with interest. Reliance is also placed on a judgment of the Supreme Court rendered in K.C.Sharma Vs. Delhi Stock Exchange and others reported in 2005 4 SCC (4) wherein, the Apex Court has laid down the law that even in cases where the loss confidence of the employers has not been pleaded and proved the order of the High Court in directing payment of compensation payable in lieu of reinstatement and back wages was held to be not unjust and infact, the Supreme Court has increased the quantum of compensation. The relevant paragraph of the judgment of the Supreme Court is an eye opener in this regard which is as follows:
"From a reading of the judgment it appears to us that the Division Bench of the High Court decided that compensation in lieu of reinstatement was the better option and moulded the relief according to what the parties had agreed. It is not possible for us, therefore, to accept that the judgment of the High Court is wholly erroneous, as urged by the learned counsel for the appellant. Taking into consideration all circumstances, we are of the view that, although the termination of the appellant's service was illegal and unjustified,the totality of the circumstances of the case renders it improper and unjust to direct the relief of reinstatement with full back wages. The High Court, even while moulding the relief on agreement of the parties, directed a sum of Rs.12 lakhs to be paid to the appellant as compensation from which the amounts already paid from time to time under orders of the High Court were to be adjusted.
In our view, the impugned judgment needs to be upheld with a slight modification on the issue of compensation. The compensation payable in lieu of reinstatement and back wages shall be increased to rupees fifteen lakhs (Rs.15,00,000/-)."
23. Now, it is relevant to consider the legality or otherwise of the impugned order of termination passed in these cases. On the face of it, as correctly pointed by the learned counsel appearing for the petitioners placing reliance on the Division Bench judgment of this Court in RM.Palaniappan Vs. The Transport Commissioner, Chepauk, Chennai and others reported in 2006 (1) MLJ 48, even assuming that the charges are genuine and proved, on the entire facts and circumstances of the case, the termination is totally disproportionate to the charges alleged. As pointed by the Division Bench in a clinching manner, "the award of punishment to an offender is only to mend him and not to strangulate". In the present case, the extreme punishment of termination of even the meagre job amounts to strangulating the petitioners in my considered view. In yet another case, in State of Kerala and others Vs. Monarch Investments and others, reported in AIR 1992 SC 493, while dealing with the provision of Section 16A of the Kerala Money Lenders Act which contemplates forfeiture of security, the hon'ble Supreme Court while holding the said provision as arbitrary and unreasonable has held as follows:
"For the purpose of regulation of the money-lending business,and to ensure compliance with the conditions of the the licence, the licence fee is collected; the penalty is imposed, the prosecution is ordered and the licence is cancelled etc. Even security is demanded and additional security is called for. All these measures seem to be regulatory in nature. the demand of security and additional security may also be justified in the social interest and to ensure financial stability of the money-lender who is accountable to the public in money-lending transactions. But there seems to be little legitimacy of the power conferred by Section 16A to forfeit the security deposit made under Section 4(2A). It has no relation with the need for protection of the public interest or for effectuating the objects sought to be achieved by the Act. Nor it is necessary for the due observance of the conditions of the licence. There are adequate provisions in the Act to ensure compliance with the conditions of the licence. The grounds for forfeiting the security deposit are not different from the grounds available for cancellation of the licence. Section 16A, in our opinion, is wholly unreasonable and arbitrary."
24. Similarly, in this case also in a contract of service for the post of bar Supervisors, the security deposit is called for in public interest and in the present case after terminating the service of the petitioners and especially in the absence of any monitory loss caused to the respondents by the conduct of the petitioners, the clause of forfeiture can only be termed as arbitrary and unreasonable. It can never be said that the forfeiture is not a punishment.
25. In the present circumstance, it is worse than even the termination. That apart, the forfeiture clause can also be termed as opposed to public policy, even as per the terms of Indian Contract Act, 1972 especially Section
23. In this regard, it is relevant to point out the terms of condition 5 of the service of contract. The said condition contemplates on a breach of rules and regulations and instructions of superiors, the appointment is liable to be summarily terminated along with forfeiture of security deposit.
26. Apart from the fact that when admittedly the duty of the bar supervisors is not relating to the sale of liquor, it is not explained as to which rule or which regulation or which instruction of superiors have been disobeyed. In the absence of such rules and regulations, the clause which contemplates termination may be even accepted since the appointment is temporary in nature or on contract basis. But in addition to that forfeiture of security deposit will be not only wholly unreasonable and are opposed to public policy. In any event, on the facts of the case as revealed by me earlier, it is not even the case of the respondents that these petitioners have caused any loss or damages mandatorily to the respondents so as to enable them to take such loss by way of indemnity from the security deposit. In the absence of such situation, the blank power of forfeiture can only be termed as unruly horsh and totally opposed to public policy.
27. Infact as repeatedly, laid down by the Apex Court, the government must be a model employer, as pointed out by the Supreme Court in Secretary-Cum- Chief Engineer, Chandigarh Vs.Hari Om Sharma and others reported in 1998 (5) SCC
87. That apart, the impugned termination itself has been passed without giving adequate opportunity to the petitioners and on the basis of a flying squad report admittedly not inspected in the presence of the petitioners and not even giving the copy of such report to the petitioners and therefore looking into any angle, the termination is arbitrary in nature causing a stigma on the life of the petitioners. This, I am embolden to term for the reason that eventhough the post to which the petitioners were appointed is purely temporary and may be even insignificant but still when the persons like petitioners go for other jobs, it certainly creates stigma in their life in future employment.
28. Therefore, the impugned termination should be held as invalid. In any event, since the relationship of the petitioners with respondents has become strained due to the reason stated above, I am of the view that instead of reinstatement of the petitioners into job, the petitioners must be adequately compensated by directing the respondents to return the amount of Security Deposit. In this regard it is relevant to point out that the judgment of the Supreme Court in O.P.Bhandari, Vs. Indian Tourism Development Corporation Ltd., and others reported in AIR 1987 S.C.111 wherein the Apex Court has held that in the circumstances of the case instead of reinstatement compensation could be awarded. In view of the same, the impugned order of termination in all these writ petitions are set aside. However, instead of reinstating the petitioners into service of the respondents, the respondents are directed to refund the security deposit with interest at the rate of 12% per annum from the date of deposit till date, apart from payment of arrears of salary in respect of the period for which the salary was not paid to the petitioners along with Provident Fund particulars. In the above terms, the writ petitions are allowed with the cost of Rs.10,000/- to be paid by the respondents to the Chief Justice Relief Fund.
29. With the above observations, the writ petitions are allowed. There is no order as to costs. Consequently, connected W.P.M.Ps are also closed.
sms To
1.The District Manager, Tamilnadu State Marketing Corporation Ltd. (TASMAC) TNWHC Complex, Kappaloor, Madurai-8.
2.The Senior Regional Manager, TASMAC, No.100, Anna Nagar, Madurai - 20.
3.The District Manager, TASMAC, Theni District