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2013 DIGILAW 2502 (MAD)

G. Godwin Roy v. Director of Libraries, Chennai

2013-07-17

R.BANUMATHI, T.S.SIVAGNANAM

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JUDGMENT :- R. Banumathi, J. & T.S. Sivagnanam, J. 1. The writ petitioner is the appellant herein and the appeal is directed against the order dated 13.04.2010 in W.P.No.13332 of 2006. 2. The appellant who was working as a Temporary Rural Librarian on consolidated pay was terminated from service by the second respondent by order dated 28.08.2002. The appellant challenged this order passed by filing an original application in O.A.No.712 of 2003, before the Tamil Nadu Administrative Tribunal. After the abolition of the Tribunal, the appellant filed a writ petition before this Court being W.P.No.4319 of 2006, to transfer the original application to this Court. On direction issued by this Court dated 16.02.2006, the original application in O.A.No.712 of 2003, was transferred to this Court and renumbered as W.P.No.13332 of 2006. 3. The writ Court after hearing the parties and perusing the materials placed on record, by order dated 13.04.2010, dismissed the writ petition. Aggrieved by the same, this appeal has been preferred. 4. Mr.C.P. Sivamohan, the learned counsel appearing for the appellant submitted that the appellant was appointed as a temporary Rural Librarian during 1997 and while he was working at Ariyappapuram Rural Library, he availed leave for medical treatment on 23.03.2002, on which date, the District Library Officer (incharge) inspected the library by breaking open the lock and on account of the appellant's absence without leave, he was relieved on the same date without any relieving order. It is further submitted that in the transferred place at Kasiyapuram, the appellant was prevented from discharging duties and thereafter, a charge memo was issued and without affording reasonable opportunity to the appellant and without furnishing the documents sought for by the appellant, his services were terminated. It is submitted that the appellant had given a representation on 23.05.2002, to the District Library Officer, the second respondent, requesting permission to peruse eight documents and those documents were vital to establish his case and without considering the appellant's request, the second respondent passed the order of termination. 5. The learned counsel submitted that the appellant was not unauthorisedly absent, but was on leave due to medical treatment and this was intimated by telegram issued by the appellant on 23.03.2002, followed by letter dated 26.03.2002. 5. The learned counsel submitted that the appellant was not unauthorisedly absent, but was on leave due to medical treatment and this was intimated by telegram issued by the appellant on 23.03.2002, followed by letter dated 26.03.2002. That the District Library Officer with malafide intentions broke open the lock in the library and entered the library and alleged as if, the appellant did not open the library. The learned counsel further submitted that the appellant had brought to the notice of the higher officials about certain misdeeds committed by the second respondent and this has resulted in initiating disciplinary action against the appellant and the entire proceedings are vitiated on account of malafide exercise of power by the second respondent. It is further submitted by the learned counsel that the appellant is aged about 45 as of now, and he will not be able to secure any other employment and therefore, this Court should interfere in the order of termination passed by the second respondent. 6. Mr.R.Lakshmi Narayanan, learned Additional Government Pleader by referring to the counter affidavit filed by the second respondent submitted that the appellant was only a temporary librarian and for misconduct, charge memo dated 13.05.2002, was issued, and two of the charges relate to misappropriation. Though the appellant received the charge memo, on 20.05.2002, he did not submit any explanation. Thereafter, enquiry was conducted into the charges and when communication was sent, the appellant refused to receive the communication and did not attend the enquiry and therefore, exparte enquiry was conducted and the charges of misconduct were proved and ultimately, he was terminated from service. The appellant refused to receive the order of termination and therefore, the order of termination was published in the local daily on 25.09.2002. Therefore, it is submitted that proper procedure was followed and all these factors were considered by the writ Court and the writ petition was dismissed and this appeal is devoid of merits. 7. We have heard Mr.C.P.Sivamohan, learned counsel appearing for the appellant and Mr.R.Lakshmi Narayanan, learned counsel appearing for the respondents. 8. The fact that the appellant was appointed as a temporary Rural Librarian on consolidated pay, is not in dispute. It appears that complaints were received from the Ariyappapuram village regarding the functioning of the local library, in which the appellant was the Rural Librarian. 8. The fact that the appellant was appointed as a temporary Rural Librarian on consolidated pay, is not in dispute. It appears that complaints were received from the Ariyappapuram village regarding the functioning of the local library, in which the appellant was the Rural Librarian. An inspection, which appears to be a surprise inspection was conducted by the District Library Officer, consequent upon which, a charge memo was issued to the appellant containing six articles of charge, which are as follows:-Charge No.1:-You, who have to open the Ariyappapuram Rural Library and work there, had not opened the library on the following dates and did your duty, and hence, had failed to perform your duty. You had not done your duty and had cheated the higher officers and the government. Charge No.2:-During his service in Ariyappapuram Rural Library during the following period, he had sold the old magazines, without the permission of the District Library Officer, and had misappropriated the sale proceeds. Charge No.3:-In the Ariyappapuram Rulr Library, wherein he worked, the members were provided with the books after March, 2002. The subscription which had been received from those members were misappropriated by him. Charge No.4:-He had given a false complaint with the Pavoorchathiram Police station stating that the District Library Officer, had opened the Ariyappapuram Rural Library and had stolen away the money and the books from there and hence had blemished a District Officer. Charge No.5:-Without conducting the Readers Round Table meeting he had stated flasely that the Readers Round Table meeting was held and sent the vouchers for Rs.300/- and received the money Charge No.6:-He had not disbursed the salary to the part time sweeper for three months, but obtained his signature and cheated him. 9. Charge No.1 relates to failure to perform his duties; charge Nos.2 & 3 for misappropriation; charge No.4, pertain to lodging of false Police complaint against the District Library Officer; charge No.5 relating to receipt of money against voucher in respect of a meeting, which was never conducted; and charge No.6 for having not disbursed the salary of the part time sweeper. 10. It is not in dispute that the appellant received the charge memo. 10. It is not in dispute that the appellant received the charge memo. By letter dated 23.05.2002, the appellant stated that he must be restored to duty first and he has made a request to the higher authorities in this regard and is awaiting orders and he requires permission to peruse certain records and if permission is not given before 31.05.2002, he will approach the Court for orders and in the mean time, prayed for restoration of his services. The fact remains the documents sought for were not furnished and the appellant was informed by communication dated 28.05.2002, that his request cannot be acceded to and he was informed to participate in the enquiry. Nevertheless the appellant did not challenge the said communication dated 28.05.2002, nor participated in the enquiry. 11. From the typed set of papers filed in the appeal, it is seen that the appellant has been addressing the higher authorities for restoring him back to duty making allegations against the District Library Officer. Eventually the domestic enquiry proceeded exparte and the appellant was informed by communication dated 16.07.2002, stating that he had not taken part in the domestic enquiry, did not submit his explanation and therefore, the appellant was called upon to show cause why it should not be treated that he had accepted the charges and action taken against him. No record has been placed before this Court to show that the appellant responded to the show cause notice, and submitted his reply. Ultimately, the disciplinary authority after considering the entire matter by order dated 28.08.2002, terminated the appellant from service. This order of termination returned “unserved” and therefore, the order of termination was published in the tamil daily 'Dinamalar' on 25.09.2002. In February 2003, the appellant moved the Tribunal challenging the order of termination. 12. The first respondent filed a counter stating that the appellant is not a government servant, but he has employed as Village Librarian on consolidated pay and his services will not come within the jurisdiction of the Tamil Nadu Administrative Tribunal. The second respondent filed a counter affidavit explaining the entire proceedings culminating in the order of termination. The order of termination was upheld by the writ Court. The second respondent filed a counter affidavit explaining the entire proceedings culminating in the order of termination. The order of termination was upheld by the writ Court. The appellant having been afforded an opportunity to submit his explanation to the charge memo, failed to avail such opportunity, he had yet another opportunity of attending the enquiry, which he failed to utilise. Even thereafter, a show cause notice was issued to the appellant on 16.07.2002, which opportunity also the appellant did not avail and it was held that the charges against the appellant stand proved. It is to be noted two of the charges against the appellant relate to misappropriation. The appellant appears to have given a police complaint against the Inspecting Officer. It has been explained in the counter affidavit that the lock in the library door was not broken open, but the door was kept closed without being locked and there was complaint by the public and in the presence of the public, the door was closed and a new lock was put. It has been further stated in the counter that during the enquiry, it was proved that the appellant failed to discharge his official duties properly, the public were dissatisfied, he sold the old newspapers without the permission of the second respondent and failed to remit the sale amount to the Government Treasury, which was proved and as a temporary employee, he gave room for several complaints from the public of the village, which was found to be correct at the time of inspection. 13. Owing to his conduct, the appellant being a temporary employee his services were not liable to be regularised. Though the learned counsel for the appellant had contended that the entire action was vitiated on account of malafide attitude of the second respondent, the second respondent was not impleaded in her personal capacity before the writ Court and in such circumstances as held by the writ Court, such person having not been made as a party in individual capacity, the malafide was not proved in the manner known to law. 14. Thus considering the entire facts and circumstances of the case, it is evidently clear that it is not the case of lack of opportunity, but wilful failure on the part of the appellant to utilise the opportunity granted by the authorities to defend himself. 14. Thus considering the entire facts and circumstances of the case, it is evidently clear that it is not the case of lack of opportunity, but wilful failure on the part of the appellant to utilise the opportunity granted by the authorities to defend himself. Hence, the appellant cannot complain about violation of principles of nature justice and lack of opportunity. 15. For all the above reasons, we find no grounds to interfere with the order passed in the writ petition. Accordingly, writ appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.