Full Judgment
01. 03.2013 CORAM THE HONOURABLE MR.JUSTICE T.RAJA Writ Petition No.6807 of 2005 K.Meenalochani .. Petitioner -Vs- The District Programme Officer Integrated Child Development Schemes Namakkal, Namakkal District .. Respondent Petition under Article 226 of The Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of the respondent in Proceedings not Se.Mu.Ka.not A1/1863/2003 dated 11.9.2003 and the subsequent order of the respondent in Na.Ka.No.2360/A3/04 dated 13.7.2004 and quash the same and direct the respondent to reinstate petitioner in service with all attendant benefits. For Petitioner :: Mr.P.Rajendran For Respondent :: Mr.N.Srinivasan Additional Government Pleader ORDER This writ petition was filed by K.Meenalochani challenging the impugned order passed by the District Programme Officer, Integrated Child Development Scheme, Namakkal District in Proceedings not Se.Mu.Ka.not A1/1863/2003 dated 11.9.2003 and the subsequent order of the respondent in Na.Ka.No.2360/A3/04 dated 13.07.2004, to quash the same with a direction to the respondent to reinstate the petitioner into service with all attendant benefits.
2. The learned counsel for the petitioner submitted that the petitioner was appointed as Child Welfare Organiser on 1.7.82. While working in Child Welfare Centre, Palapalayam, Rasipuram Block, Namakkal District, she was allowed to continue till the year 2003, when her daughter underwent a surgery for appendicitis. Unfortunately, the petitioner's daughter, after undergoing the said surgery, became mentally depressed and attempted to commit suicide. In view of such frequent domestic problem, the petitioner also became ill and was not able to attend to the duties from 1.3.2003 for almost six months continuously. Therefore, she applied for medical leave from 1.3.2003 and thereafter she extended the medical leave periodically by submitting the required medical certificates. But the District Programme Officer, Namakkal District, the respondent herein wrongly issued the removal order on 11.9.2003 vide the Proceedings not Se.Mu.Ka.not A1/1863/2003 on the ground that the petitioner was absent from 1.3.2003. Though the petitioner submitted a representation to the District Collector, Namakkal on the public grievance day requesting for reinstatement in the same post, the same was also not considered. However, the District Programme Officer, Namakkal also passed a rejection order on 13.7.2004 stating that as per the orders passed by the Government in G.O.Ms.No.4, Social Welfare and Nutritious Meal Project Department dated 9.1.95, the staff members who were absent for more than six months can be removed from service.
3. It was further pleaded that the approach adopted by the respondent for removing the petitioner from service, for the reason that she was continuously absent unauthorisedly for six months and therefore the respondent was entitled to remove the petitioner by applying the G.O.Ms.No.4, Social Welfare and Nutritious Meal Project Department dated 9.1.95 without even holding enquiry or without even issuing any charge memo and putting the petitioner before the enquiry table, is absolutely improper. He also relied upon two judgments of this Court in G.Periannan v. The Government of Tamil Nadu rep. by the Secretary to Government, Social Welfare and Nutritious Meal Department and others, 2007 (3) CTC 80.for the proposition that if the appointment of the petitioner as Noon Meal Organiser is made by the State authorities, even though the said post of Noon Meal Organiser is not a regular post, but created by the Government Order, the petitioner, before being removed, should have been given a proper opportunity of enquiry by issuance of charge memo and calling for explanation followed by the domestic enquiry. But in the present case, only on the basis of G.O.Ms.No.4, Social Welfare and Nutritious Meal Project Department dated 9.1.95 mandating that a staff found absent for more than six months can be removed from service, the petitioner was removed wrongly. In the light of the aforesaid judgment, the impugned order is liable to be set aside.
4. One another judgment in Chairman-cum-Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and others, (2009) 15 SCC 62.was also relied upon for the proposition that where the delinquent upon being charged of the misconduct fairly admitted his guilt and explained the reasons for his absence, punishment of removal was not only unduly harsh but grossly in excess to allegations. Therefore, the learned counsel prayed for interference by this Court.
5. A detailed counter affidavit has been filed by the respondent. The learned Additional Government Pleader for the respondent, by drawing the attention of this Court to the averments made in paragraphs 4 & 5 of the counter affidavit, submitted that the petitioner was appointed only in the temporary time scale of pay of Rs.600-10-700-20-1100 and during her service as Child Welfare Organiser, she applied for leave without even producing the medical certificate. From 1.3.2003 to 20.3.2003, she said she was not keeping well and therefore, on illness ground, she applied for medical leave along with medical certificate. But from subsequent dates, though she cited illness as the reason for not joining duty, she did not produce any medical certificate. Again from 21.3.2003 to 31.3.2003, though again she cited illness for not joining duty, again no medical certificate whatsoever was produced. Once again from 1.4.2003 to 15.4.2003, when she asked for continuous leave on medical ground, no medical certificate was produced. Therefore, when the respondent was not able to run the child welfare centre for about six months, in the light of the existing G.O.Ms.No.4, Social Welfare and Nutritious Meal Project Department dated 9.1.95, which clearly and plainly states that if any staff who is found absent for more than six months can be removed from service, the respondent, finding that the petitioner was frequently applying for leave without enclosing any medical certificate, being bound by the G.O.Ms.No.4 dated 9.1.95, passed the removal order. It was further pleaded before this Court that the petitioner is not entitled to take the ground that she is legally permitted to the grant of job security as guaranteed under Article 311 of the Constitution of India, as she was only temporarily appointed as Child Welfare Organiser. Even during the temporary period, the petitioner went on leave unauthorisedly for about six months continuously without producing any certificate of proof for such absence. In view of that, the respondent, on the basis of G.O.Ms.No.4 dated 9.1.95, passed the order of removal and the said order cannot be found fault with. Finally, it was also pleaded before this Court that in view of the continuous unauthorised absence shown by the petitioner while holding the post temporarily, the respondent had also appointed another person who is also sincerely and seriously attending the office. Therefore, the case of reinstating the petitioner in the said post cannot be legally considered in view of the subsequent event of appointing another person in the same post. On that basis, he prayed for dismissal of the writ petition.
6. Heard the submissions. No doubt, the petitioner was originally appointed as Child Welfare Organiser on 1.7.82. When she was working in the Child Welfare Centre, Palapalayam, Rasipuram Block, Namakkal District, the petitioner's daughter is said to have undergone a surgery for appendicitis in the year 2003. It is not even averred in the affidavit on what date and in which hospital the petitioner's daughter underwent the surgery for appendicitis. Secondly, the petitioner has not even filed the order of appointment to show before this Court that she was appointed permanently or to show before this Court that though she was appointed temporarily, subsequently any order of regularising her services were passed in her favour in order to get the protection under Article 311. No doubt, a Child Welfare Organiser appointed by way of Government Order is entitled to have the protection of Article 311 on the ground that such person is holding a civil post. But in the present case, nowhere in the typedset filed in support of the writ petition, the petitioner has filed any order to show that the petitioner was at any point of time regularised in the said post. Therefore, this Court is not in a position to agree with the prayer for setting aside the impugned order when she was not afforded any opportunity before she was removed from service. When the Government had passed G.O.Ms.No.4, Social Welfare and Nutritious Meal Project Department dated 9.1.95 mandating that any staff who is absent for more than six months can be removed from service, the respondent has rightly acted upon the said Government Order. It is not the case of the petitioner that the petitioner had challenged the correctness or validity of the G.O.Ms.No.4 dated 9.1.95. Therefore, the judgments relied upon by the learned counsel for the petitioner cannot be made applicable to the facts of this case. Moreover, in the place of the petitioner, another person has also been appointed. Therefore, it is very difficult to dislodge the new incumbent, who has also not been impleaded as necessary party to the writ petition. The reason being that the writ petition seeking an order setting aside the order of appointment of the new incumbent without impleading that person and without issuing any notice whatsoever, cannot be allowed by this Court. On this ground also, the writ petition is liable to be dismissed for, when a counter affidavit was filed five years ago stating that a new person was appointed in the place of the petitioner, no step was taken to implead the new appointee.
7. For all the above reasons, this Court is not inclined to grant the relief prayed for in the writ petition. Accordingly, the writ petition fails and the same is dismissed. No costs. ss To 1. The District Programme Officer Integrated Child Development Schemes Namakkal Namakkal District