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2006 DIGILAW 3056 (MAD)

B. Nirmala v. The State of Tamil Nadu & Another

2006-11-10

M.JAICHANDREN

body2006
Judgment :- (The Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus as stated therein.) The Writ Petition has been filed praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the proceedings of the second respondent in No.A4/43105/2001/AAa4/2005, dated 11.01.2005, and quash the same and consequently direct the respondents to reinstate the petitioner in service. 2. Heard the learned counsel for the petitioner as well as for the respondents. 3. The brief facts of the case, as stated by the petitioner, are as follows:- The petitioner had married one N.Balasubramaniam, who was working as Sub-Inspector of Police, attached to B-1, North Beach Police Station. He had died on 01.05.1977 in a motor cycle accident. The petitioner was only 27 years of age at that time and she had a son aged five years and a daughter aged 7 years to be taken care of. Therefore, she had made a request to the respondents, for employment on compassionate grounds, by her applications, dated 01.10.1977 and 07.11.1977. Based on her applications, she was employed as a Junior Assistant in the Office of the Deputy Inspector General of Police, Criminal Investigation Department, Crime Branch, on a temporary basis, from 30.06.1977 till 05.10.1977. The petitioner and her children were receiving pension, as eligible under the Service Rules. 4. It is stated that according to the prevailing custom in her family, widows were permitted to remarry. Therefore, the petitioner had decided to marry her husband's brother Mr.Thanikasalam. After the date of her marriage was finalised as 17.02.1978, she had informed the respondents about her proposal to remarry. Based on her proposal, the pension she was receiving had been stopped with effect from 17.02.1978, and only the pension payable to her children was paid. Based on the petitioner's representations, dated 04.10.1977 and 07.11.1977, the first respondent had passed G.O.Ms.No.879, dated 24.04.1978, appointing the petitioner as Junior Assistant in the Tamil Nadu Ministerial Service in the Police Department, on a regular basis. Pursuant to the said Government Order, the petitioner was appointed as Junior Assistant in the Service of the Forensic Sciences Department and she had joined duty on 22.05.1978. 5. The petitioner had made a representation informing the authorities concerned about her marital status. Pursuant to the said Government Order, the petitioner was appointed as Junior Assistant in the Service of the Forensic Sciences Department and she had joined duty on 22.05.1978. 5. The petitioner had made a representation informing the authorities concerned about her marital status. Her representation was taken on file and had also been entered in the Service Register. Based on her representation, the Director General of Police had sent a favourable recommendation to the Government, on 30.06.1978. Since the date of joining duty, on 22.05.1978, till she was dismissed from service, in accordance with the impugned order, the petitioner had worked in the Office of the second respondent without any blemish or adverse remarks. The petitioner had been given the promotions due to her and she was the senior most staff in her department eligible for her next promotion, in accordance with the seniority list published by the second respondent on 05.07.2004. While so, the second respondent had served on the petitioner, an Order of dismissal in No.A4/43105/2001/AAa4/2005, dated 11.01.2005. The impugned Order of dismissal had referred to a Government Order, a copy of which the petitioner had requested for, by her representations addressed to the second respondent. However, she has not been furnished with the Government Order, based on which the second respondent had passed the Order of dismissal, dated 11.01.2005. The petitioner has challenged the impugned order, dated 11.01.2005, on various grounds stating that the impugned order was a non-speaking order and opposed to the principles of natural justice. The order passed against the petitioner on 11.01.2005, was with a malafide intention and it was passed without affording an opportunity to the petitioner. The impugned order had been passed even though the Director General of Police had recommended, her appointment as early as on 30.06.1978, and the petitioner had continued in service for nearly 27 years. 6. From the records placed before this Court, it is seen that an order has been passed by way of G.O.Ms.No.23, Home (Police.XVIII) Department, dated 07.01.2005, which reads as follows :- "Tmt.B.Nirmala was married to one Sub-Inspector of Police namely late N.Balasubramaniam who died in a motor cycle accident on 01.05.1977 leaving a wife and two children. She represented to Government for compassionate appointment. The Government after examination of the petition of Tmt.B.Nirmala on humanitarian grounds issued orders for appointment as Junior Assistant. She joined in the Forensic Science Department on 22.05.1978. She represented to Government for compassionate appointment. The Government after examination of the petition of Tmt.B.Nirmala on humanitarian grounds issued orders for appointment as Junior Assistant. She joined in the Forensic Science Department on 22.05.1978. However, she got married to the younger brother of her late husband on 17.02.1978. The above fact was intimated to Government by the then Inspector General of Police only on 23.06.1978. 2. The Director, Forensic Sciences Department, Chennai has however stated that Tmt.B.Nirmala has been continuing in service completing her tenures, as Junior Assistant and Assistant and she is presently serving as Superintendent. Taking her length of service, the Director, Forensic Sciences Department, has requested the Government to ratify the appointment of Tmt.B.Nirmala on compassionate grounds on 22.05.1978, even though she got remarried on 17.02.1978. 3. The Government after careful consideration have decided not to accept the proposal of the Forensic Science Department, Chennai. Accordingly, they reject the proposal. 4. The Director, Forensic Sciences Department, Chennai is requested to dismiss her from the service immediately and send an action taken report to Government, at the earliest." Based on the said Government Order, the impugned order, dated 11.01.2005, has been passed by the second respondent without giving an opportunity of hearing to the petitioner. 7. The learned counsel appearing on behalf of the petitioner had relied on an order of this Court in U.Arulmozhi, Vs. The Director of School Education & Others., reported in 2006-2-L.W.324, wherein this Court has held, while dealing with G.O.Ms.No.73, Employment Services, dated 26.10.1983, that there is no requirement in the said government order that at the time of actual employment an unmarried daughter, who gets an employment on compassionate grounds, should continue to be unmarried. Such appointments are made to enable the family members of the deceased employee to tide over the financial crisis on account of the death of the bread winner of the family. 8. The learned Government Advocate, appearing on behalf of the respondents, was not in a position to justify either the impugned order passed by the second respondent, on 11.01.2005 or the Government Order made in G.O.Ms.No.23, Home (Police. XVIII) Department, dated 07.01.2005. No records have been produced to show that the said government order is in accordance with law based on which the impugned order, dated 11.01.2005, has been passed terminating the petitioner from service. XVIII) Department, dated 07.01.2005. No records have been produced to show that the said government order is in accordance with law based on which the impugned order, dated 11.01.2005, has been passed terminating the petitioner from service. Further, it is clear from the records placed before this Court that the petitioner had not been given an opportunity of hearing before the second respondent has passed the order terminating the services of the petitioner. The said impugned order is in clear violation of the principles of natural justice. There is nothing on record to show that such an order was passed in accordance with the rules and the regulations applicable to the petitioner. Such a drastic step of terminating the services of the petitioner ought not to have been taken without giving an opportunity of hearing. Further, no reasons have been shown as to why such an order had to be passed by the second respondent. In such circumstances, the impugned order of the second respondent No.A4/43105/2001/AAa4/2005, dated 11.01.2005, cannot be sustained in the eye of law. Therefore, it is set aside and the respondents are directed to reinstate the petitioner in service, with all attendant benefits, within a period of four weeks from the date of receipt of a copy of this order. With the above direction, the writ petition is allowed. Consequently, the connected W.P.M.Ps are closed.