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2014 DIGILAW 1838 (MAD)

Ponnuthai v. Director, Social Welfare Department

2014-07-02

R.MAHADEVAN

body2014
Judgment : 1. This writ petition has been filed seeking a writ of Certiorarified Mandamus to call for the records of the first respondent by his proceedings in Proc.No.42051/Ad.3.2/2003, dated 29.10.2003 and quash the same and direct the first respondent to consider that the petitioner had deemed to have retired from 31.10.2003 and pay all future benefits. 2. The case of the petitioner is that she joined as Children Welfare Organizer (Bala Sevika) from 03.12.1970 under the first respondent. She completed 10th standard in the year 1993 as a private candidate. Thereafter, she was promoted as Rural Welfare Officer. While so, on 10.10.2003, she was served with a charge memo under Section 17(a) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, stating that on verification of her certificate in S.S.L.C., the fourth respondent found that it was reported to be forged one. The said allegation is based on the communication of the fourth respondent dated 22.07.2003. According to the petitioner, no witnesses were examined nor their statements were recorded so as to substantiate the said allegation. She filed a detailed objection denying and refuting all the allegations levelled against her and produced the relevant materials. Despite the same, the petitioner was placed under suspension on 29.10.2003, i.e. two days prior to her superannuation, by way of the impugned order. Thereafter, no enquiry was conducted and no subsistence allowance was paid, which, according to the petitioner, is arbitrary and abuse of powers, besides, non-application of mind. 3. No counter affidavit is forthcoming from the respondents denying the allegations of the petitioner. 4. The learned Counsel for the petitioner submitted that the petitioner was suspended two days before her superannuation and thereafter, she was not paid subsistence allowance and that too, when no enquiry was conducted. He further contended that despite the materials placed before the authority concerned, they did not evoke any positive response as there is non-application of mind on the part of the first respondent. Hence, he prayed for setting aside the impugned order passed by the first respondent. 5. I have considered the rival submissions and perused the materials available on record. 6. It is seen that the petitioner was served with a charge memo, only based on the communication of the fourth respondent dated 22.07.2003, whereby, it is reported that the S.S.L.C., certificate produced by the petitioner, is a forged one. 5. I have considered the rival submissions and perused the materials available on record. 6. It is seen that the petitioner was served with a charge memo, only based on the communication of the fourth respondent dated 22.07.2003, whereby, it is reported that the S.S.L.C., certificate produced by the petitioner, is a forged one. After issuance of the charge memo, the enquiry was conducted, however, without examining any witnesses relating to the allegations levelled as against the petitioner. The specific plea of the petitioner is that just two days prior to her superannuation, she was placed under suspension and according to her, it is an arbitrary exercise on the part of the first respondent. 7. This Court, in the judgment in Neelavathy v. The Director, Social Welfare Department, Chepauk, Chennai, and others, [W.P(MD)No.15932 of 2012, decided on 09.06.2014], has passed the following order: "7. As rightly contended by the learned counsel appearing for the petitioner that in a departmental enquiry, it is for the department to prove the charges levelled against the delinquent. The charge against the petitioner is that she produced bogus SSLC certificate to claim promotion. It is the bounden duty of the respondents to verify the certificate produced by the petitioner at the time when she was given promotion. But, the respondents have failed to do so. The petitioner produced such certificate in the year 1995 and she was given promotion in the year 1998 and there is no reason for the respondents to wait for eight years and to issue charge memo, subsequent suspension order, order of dismissal and lastly the order of removal from service. 8. This Court, in J.Meerabai Vs. The Director of Social Welfare, [W.P.[MD].No.7106 of 2008], considered the similar issue and set aside the order of dismissal from service and held as follows :- "8. In the present case, the petitioner has the protection of Article 311(2) of the Constitution of India before any punishment of removal is imposed on her. Since the basic principles of natural justice are violated, the impugned order is hereby set aside and it is observed that the Government cannot wake up to the situation after 13 years after the promotion of the petitioner at the end of her service. Therefore, there is no further direction to conduct enquiry." 9. In Ponnuthai Vs. Since the basic principles of natural justice are violated, the impugned order is hereby set aside and it is observed that the Government cannot wake up to the situation after 13 years after the promotion of the petitioner at the end of her service. Therefore, there is no further direction to conduct enquiry." 9. In Ponnuthai Vs. The Director, Social Welfare Department, [W.P.[MD].No.3023 of 2011, dated 01.10.2012], this Court, taking into consideration of the Judgment in J.Meerabai Vs. The Director of Social Welfare, [W.P.[MD].No.7106 of 2008], held as follows :- "A specific averment has been made in the affidavit filed in support of the petition that the copy of the letter of the respondent No.4 has not been furnished to the petitioner. There is no material to substantiate that the said averment is false, moreso no counter has been filed to contradict the same. Both the enquiry officer and respondent No.1 proceeded as if it is for the petitioner to prove the certificate as true and genuine. In a departmental enquiry, it is for the department to prove the charges against the delinquent. A perusal of the order impugned would show that the entire onus has been fixed on the petitioner. Apart from that, the petitioner was not given sufficient opportunity as in the case of the judgment relied on by the petitioner. There is absolutely no other material except the letter from the respondent No.4, which by itself cannot be taken as a proof against the petitioner. It is also seen that except the petitioner, nobody was examined. The petitioner being an employee of the respondent No.1, is entitled to the protection under Article 311 of the Constitution of India. 7. In view of the above said submissions, this Court is of the view that the writ petition will have to be allowed. This Court is also of the view that no useful purpose would be served by remanding the matter at this length of time. The petitioner is a poor lady. She has attained the age of superannuation. The impugned order has been passed nearly after 12 years from the date of promotion. As discussed above, it is not as if the initial entry of the petitioner was wrong. She has been allowed to continue in the promotional post from the year 1995 onwards. It is also not as if she has not done her job properly. The impugned order has been passed nearly after 12 years from the date of promotion. As discussed above, it is not as if the initial entry of the petitioner was wrong. She has been allowed to continue in the promotional post from the year 1995 onwards. It is also not as if she has not done her job properly. Therefore, considering the above said facts, this Court is of the view that the relief sought for will have to be suitably modified while setting aside the order impugned. 8. Accordingly, the order impugned is hereby set aside and the respondent Nos.1 to 3 are directed to compute the retiral benefits due to the petitioner as if she has worked till 29.02.2008, the due date of retirement and pay the same to her within twelve weeks from the date of receipt of a copy of this order. However, this petitioner is not entitled to get salary from the date of dismissal till due date of retirement." 10. Following the said Judgments, the impugned order of removal from service passed by the first respondent, dated 23.12.2011, is set aside and the respondents are directed to settle the terminal benefits payable to the petitioner, within a period of twelve weeks from the date of receipt of a copy of this order. 11. The Writ Petition is allowed, as indicated above. No costs." 8. A close reading of the above judgment of this Court would show that the case of the petitioner herein is similar to that of the petitioner therein and this Court is of the considered view that such relief could be given to the petitioner herein also. 9. Moreover, on a mere reading of the impugned order, this Court finds that the impugned order, which lacks appreciation of proper material evidence available on record, will not stand in the eye of law and hence, without adverting to any other aspects, I am of the view that the impugned order is liable to be set aside and the same is set aside. 10. In the result, this writ petition is allowed and the first respondent is directed to revoke the suspension of the petitioner and permit the petitioner to retire from service. 10. In the result, this writ petition is allowed and the first respondent is directed to revoke the suspension of the petitioner and permit the petitioner to retire from service. It is also made clear that upon passing such order, the first respondent shall pay all the terminal benefits as well as arrears, to the petitioner within a period of four weeks thereafter. Consequently, the connected miscellaneous petition is closed. No costs.