Madras High Court
Tmt. Prasanna Kumari vs The Chairman, Tamil Nadu Electricity ... on 6 October, 2003
Author: A.K. Rajan
Bench: A.K. Rajan
ORDER A.K. Rajan, J.
1. This writ petition is filed for the issuance of a writ of mandamus directing the 1st respondent to settle all the terminal benefits due to her husband forthwith with interest at 18% per annum and family pension to the petitioner.
2. The brief facts that are required for the disposal of the case is as follows: The petitioner's husband by name Krishnados was employed as a Casual Labourer in the first respondent Electricity Board in the year 1965. Thereafter he was promoted to the post of a Helper and during the year 1977, he was switched over to the post of cleaner. During 1978, Krishnadoss was charged for an offence under Section 436 IPC. He was convicted and sentenced to Rigorous Imprisonment for a period of one year by the criminal court. Against that a revision was filed in Crl.R.C. No. 112 of 1998 before this Court and this Court while confirming the conviction, reduced the period of imprisonment to the period already undergone. Thereafter on 23.12.1982 a show cause notice was issued to the petitioner's husband calling for explanation as to why he should not be dismissed from service. Against the said show cause notice, a suit was filed in O.S.No.209 of 1983 on the file of District Munsif, Ambasamudharam. The suit was ultimately dismissed on 30.1.1986 but a finding was given to the effect that the order of termination dated 23.12.1982 is illegal. Though the suit was dismissed, the respondent board filed an appeal in A.S.No.169/88 on the file of the Sub Court, Tenkasi against the said finding. The lower appellate Court allowed the first appeal by order dated 23.2.1988. Aggrieved by the same, the petitioner filed second appeal in S.A.No.461/88. Ultimately the second appeal was allowed and the order passed in the appeal was set aside. Therefore, the original order passed by the District Munsif, Ambasamudram has been revived. The show cause notice for dismissal has been set aside. Hence, there is no order of dismissal and the petitioner is entitled to all the benefits. Since no enquiry was conducted as per the standing order No.36, the petitioner was deemed to be in service. Therefore the present writ petition has been filed seeking for the relief as stated above.
3. The case of the defendant board is that the petitioner's husband was placed under suspension on 16.2.1978 immediately after conviction. Thereafter on 23.12.1982 the show cause notice was issued to the petitioner's husband as to why he should not be dismissed from service. Thereafter, on 23.3.1983, the order of termination was also passed . But only subsequent to that, on 30.3.2003, the suit was filed before the District Munsif Court, Ambasamudharam. In view of the injunction passed in I.A.No.1102 of 1983, the petitioner was permitted to attend the work. The petitioner had challenged only the show cause notice and not the order of termination. Though the order of termination was passed on 23.3.1983; there was no executable decree passed by the Civil Court and therefore, no appeal could be filed, was the finding given in the second appeal by this Court. Thereafter he was relieved from duty with effect from 24.2.1988 on termination of his service. This order was not challenged. Therefore, inasmuch as the order passed on 23.3.1983 has not been challenged, the dismissal order stands and therefore, the petitioner is not entitled to any relief as prayed for.
4. Learned counsel appearing for the writ petitioner submitted that a memo dated 18.2.1982 was referred in the the judgment of the District Munsif Court in which instructions were issued for avoiding delay in finalising disciplinary proceeding cases. Thereafter the Department was informed that conviction in a criminal court of law is a misconduct as per the provisions of standing orders and Discipline and Appeal Regulations. In such cases of conviction, all formalities like framing charges conducting enquiry should be observed before awarding the punishment. Relying upon this memo, the learned counsel for the petitioner submitted that since no enquiry was conducted, the order of termination become illegal and therefore the petitioner's husband was deemed to be in service and therefore he is entitled to all the terminal benefits as per the rules.
5. In support of his contention, counsel for the petitioner relying on a decision in Supreme Court in BASUDEO TIWARY VS. SIDO KANHU UNIVERSITY reported in 1998(4) L.L.N. 617 thereby it is stated that if the order of termination found to be illegal, when the person died during the pendency of proceedings, the arrears of salary due to him from the date of his termination till the date of his death on the basis of last pay drawn by him directed to be paid to his legal representatives. He also referred to another Judgment in ASHOK KUMAR SINGH VS. BIHAR INDUSTRIAL AND TECHNICAL CONSULTANCY ORGANISATION LTD reported in 2001 (1) LLW 397 wherein the order of punishment of dismissal from service is quashed on technical grounds, as the order of punishment against the deceased employee does not exist. Therefore, the consequential benefit to his heirs cannot be denied.
6. Mr. V. Radhakrishnan, learned counsel for the respondent submitted that the order of termination though passed on 23.3.1983, it has not been challenged at all. Further, the order passed on 24.2.1988 whereby he was relieved from service has also not been challenged. Inasmuch as these two orders have not been challenged, the person was deemed to have been terminated from service on 23.3.1983. Subsequently, based upon that order, he was relieved from service on 24.2.1988. During the period in between he was given employment only on the strength of the interim order passed in I.A.No.1102 of 1983. Therefore, the employee did not challenge the order of termination at all. Inasmuch the order of termination has not been challenged at all, the prayer in the writ petition cannot be granted.
7. Considering the arguments advanced by the learned counsel for the petitioner as well as the respondent, it is seen that in the suit filed by the petitioner's husband before the District Munsif, Ambasamudram, though the prayer in the suit was only for a declaration that the show cause notice was null and void, the District Munsif had given a finding that the order of termination of service was not valid. It is to be noted that no amendment was made to the prayer of the suit. Inasmuch no amendment to the suit filed by the petitioner, the finding given by the District Munsif has no validity at all. The Court can decide only the issue raised before that Court. Any finding given by the Court, which was not a point in issue before that Court is non-est in law. Therefore, the finding of the District Munsif Court, that the order of termination is illegal, is non-est in law . Therefore the petitioner cannot take advantage of the finding given by the District Munsif Court that the order of termination is illegal. Further it is seen that the order of termination was passed on 23.3.1983 and the suit was filed on 30.1.1986. In that suit, the order of termination has not been challenged at all. Even, after the filing of the suit, the prayer was not amended. Therefore, the finding given by the District Munsif that the termination was not valid has no force at all as the finding is non est in law.
8. Admittedly, the order of termination dated 23.3.1983 was not challenged in any other judicial proceedings. Further on 24.2.1988, the petitioner was relieved from duty; that was also not challenged. Therefore the order of termination was not at all challenged. Hence, in the circumstances of the case, the present writ petition which has been filed for a mandamus to give all the terminal benefits to the petitioner after death of her husband is not legally sustainable. Therefore, no relief can be granted in this writ petition in favour of the petitioner.
9. This writ petition is dismissed. No costs. It is made clear that the petitioner would be entitled such of those benefits alleged as per the rules in a case of a person terminated from service.