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2012 DIGILAW 863 (MAD)

A. Muthu v. Chief Conservator Of Forest

2012-02-20

VINOD K.SHARMA

body2012
Judgment :- 1. The petitioner was appointed as Watchman on compassionate ground by the second respondent on 05.12.1988 on account of death of his father in harness. 2. The respondent No.2 without issuing any charge memo or holding any departmental enquiry, removed the petitioner from service on the basis of report of the District Educational Officer Sivaganga, that the record of Saikulathor Panchayat Union Middle School did not show any entry, that the petitioner had passed 8th Std. 3. The petitioner was also prosecuted vide C.C.No.335 of 1998 in the Judicial Magistrate Court No.1, Sivaganga. After recording the conviction, the petitioner was released on probation under Sec.4(1) of the Probation of offenders Act, 1958, and placed under supervision of Probation Officer, Sivaganga, for a period of one year. 4. Sec.12 of the Probation of Offenders Act reads as under: "Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Sec.3 and 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. 5. The petitioner on being released under Probation of offenders Act, filed representation for reinstatement, as the appeal filed by the petitioner against the order of removal was not disposed of. 6. The learned counsel for the petitioner challenged the impugned order of removal, on the ground, that the order having been passed in violation of statutory rules, cannot be sustained in law. 7. The writ petition is opposed by the learned counsel for the State, on the ground that the writ as framed is not maintainable, as the order of removal from service was challenged in appeal which was dismissed, but for the reason best known to the petitioner, the order of the appellate authority is not challenged. 8. This contention of the learned counsel for the State cannot be accepted, as admittedly the order of appeal was not conveyed to the petitioner till date. 9. It is settled law that the order come into operation on being served and not on passing the order, which kept in the files, without intimation to the party concerned. 10. It is not disputed that before ordering removal of the petitioner, no charge memo was issued nor any departmental enquiry was held. 11. 9. It is settled law that the order come into operation on being served and not on passing the order, which kept in the files, without intimation to the party concerned. 10. It is not disputed that before ordering removal of the petitioner, no charge memo was issued nor any departmental enquiry was held. 11. On consideration, I find that the impugned order cannot be sustained, as the order punitive in nature which causes stigma could not be passed, without following statutory rules, i.e. by holding departmental enquiry and giving opportunity to the petitioner to defend himself. 12. The respondent also cannot take advantage of the conviction of the petitioner in criminal case, as admittedly, the petitioner was released on probation under Sec.4 of the Probation of offenders Act, 1958 and therefore service of the petitioner could not have been terminated even on the ground of conviction, in view of Sec.12 of Probation of offenders Act, 1958. 13. Consequently, this writ petition is allowed. The impugned order is set aside and the petitioner is directed to be reinstated in service. 14. Learned counsel for the petitioner claims only 25% of the consequential benefits arising from this order, in view of the fact that petitioner has not performed any duties. In view of concession by the learned counsel, the petitioner is held entitled to only 25% of the consequential benefits. No costs.