S.Kumar Vs the District Manager

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 04.08.2014

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CORAM:

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THE HONOURABLE Mr.JUSTICE T.S.SIVAGNANAM

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Writ Petition(MD)Nos.	12465, 12466, 12467, 12491,	12492, 12493, 12494,
12495, 1340,	1670, 1672, 1673, 1674 and	1675 of 2014
M.P(MD)N	and os.1 to 1, 2 to 2 and 3 to	3 of 2014
S.KUMAR	... Petitioner in	WP(MD). 12465/ 2014
RAMACHANDRAN	... Petitioner in	WP(MD). 12466/ 2014
K.CHANDRASHEKARAN	... Petitioner in	WP(MD). 12467/ 2014
ARAVINTHAN	... Petitioner in	WP(MD). 12491/ 2014
BALASUBRAMANIAN	... Petitioner in	WP(MD). 12492/ 2014
MANI	... Petitioner in	WP(MD). 12493/ 2014
SAMPATHKUMAR	... Petitioner in	WP(MD). 12494/ 2014
NALLUSAMY	... Petitioner in	WP(MD). 12495/ 2014
M.SENTHILKUMAR	... Petitioner in	WP(MD). 1340/ 2014
JEYAKUMAR	... Petitioner in	WP(MD). 1670/ 2014
THIRUVEL	... Petitioner in	WP(MD). 1672/ 2014
A.GANESAN	... Petitioner in	WP(MD). 1673/ 2014
P.RENGAN	... Petitioner in	WP(MD). 1674/ 2014
NATARAJAN	... Petitioner in Vs.	WP(MD). 1675/ 2014

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The District Manager, Tamil Nadu State Marketing Corporation, Tiruchirappalli Zone, (TASMAC), Karur District. ... Respondent in all WPs

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Prayer in WP(MD). 12465/ 2014

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Writ Petition is filed under Article 226 of the Constitution of https://hcservices.ecourts.gov.in/hcservices/ India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order passed by the respondent in Na.Ka.C.V.2/620/2014, dated 25.01.2014 and quash the same

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consequently direct the respondent to reinstate the petitioner as Supervisor with backwages.

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Prayer in WP(MD). 12466/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records relating to the Impugned order passed by the respondent in Na.Ka. C.V.2/620/2014 dated 25.01.2014 and quash the same and consequently direct the respondent to reinstate the petitioner as supervisor with back wages.

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Prayer in WP(MD). 12467/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records relating to the Impugned order passed by the respondent in Na.Ka. C.V.2/620/2014 dated 25.01.2014 and quash the same and consequently direct the respondent to reinstate the petitioner as supervisor with back wages.

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Prayer in WP(MD). 12491/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarfied Mandamus, calling for the records of the impugned order passed by the Respondent in Na.Ka.C.V.2/620/2014 dated 25.01.2014 and to quash the same and consequently directing the Respondent to reinstate the petitioner in service and to pass such other or further orders.

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Prayer in WP(MD). 12492/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarfied Mandamus, calling for the records of the impugned order passed by the Respondent in Na.Ka.C.V.2/620/2014 dated 25.01.2014 and to quash the same and consequently directing the Respondent to reinstate the petitioner in service and to pass such other or further orders.

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Prayer in WP(MD). 12493/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarfied Mandamus, calling for the records of the impugned order passed by the Respondent in Na.Ka.C.V.2/620/2014 dated 25.01.2014 and to quash the same and consequently directing the Respondent to reinstate the petitioner in service and to pass such other or further orders.

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Prayer in WP(MD). 12494/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarfied Mandamus, calling for the records of the impugned order passed by the Respondent in Na.Ka.C.V.2/620/2014 dated 25.01.2014 and to quash the same and consequently directing the Respondent to reinstate the petitioner in service and to pass such other or further orders.

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarfied Mandamus,

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Prayer in WP(MD). 12495/ 2014 https://h cservices.ecourts.gov.in/hcservices/

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calling for the records of the impugned order passed by the Respondent in Na.Ka.C.V.2/620/2014 dated 25.01.2014 and to quash the same and consequently directing the Respondent to reinstate the petitioner in service and to pass such other or further orders.

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Prayer in WP(MD). 1340/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order in Na.Ka.Vi2/5003/2013 dated 27.10.2013 and consequent show cause notice dated 27.12.2013 issued by the Respondent and quash the same and consequently directing the Respondent to restore the petitioner s service with all back wages and other benefits.

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Prayer in WP(MD). 1670/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the respondent in Na.Ka.C.V.2/620/2014 dated 25.01.2014 and quash the same consequently direct the respondent to reinstate the petitioner as Supervisor with back wages.

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Prayer in WP(MD). 1672/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the respondent in Na.Ka.C.V.2/620/2014 dated 25.01.2014 and quash the same consequently direct the respondent to reinstate the petitioner as Supervisor with back wages.

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Prayer in WP(MD). 1673/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records relating to the Impugned Order passed by the respondent in Na.Ka. No. C.V. 2/620/2014 dated 25.01.2014 and quash the same and consequently direct the respondent to reinstate the petitioner as supervisor with back wages.

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Prayer in WP(MD). 1674/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the respondent in Na.Ka.C.V.2/620/2014 dated 25.01.2014 and quash the same in respect of the petitioner alone and consequently direct the respondent to reinstate the petitioner as supervisor with backwages and pass such further or other orders.

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Prayer in WP(MD). 1675/ 2014

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records relating to the Impugned Order passed by the respondent in Na.Ka. No. C.V. 2/620/2014 dated 25.01.2014 and quash the https://hcservices.ecourts.gov.in/hcservices/ same and consequently direct the respondent to reinstate the petitioner as supervisor with backwages.

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For Petitioner : Mr.S.Gokul Raj in WP(MD) Nos.12465 to 12467and in WP(MD)Nos. 1670,1672, 1673,1674, 1675 of 2014 For Petitioner in WP(MD). 12491 to 12495 2014 : Mr.S.DEENADHAYALAN For Petitioner in WP(MD).1340/ 2014 : Mr. R.NARAYANAN

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For Respondent : Mr.M.Muniyasamy in all WPs

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COMMON ORDER

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Heard the learned counsel appearing for the petitioner in all the Writ Petitions and the learned counsel appearing for the respondent.

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In all these Writ Petitions, the petitioners, who are employees of the respondent, TamilNadu State Marketing Corporation, Tiruchirappalli Zone, have challenged the order, dated 25.01.2014.

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By the impugned proceedings, the petitioners were relieved from their duty pending enquiry. The impugned proceedings came to be passed pursuant to a surprise check conducted by a Flying Squad in respect of all the shops where the petitioners are working.

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The petitioners have challenged the impugned orders on the ground that the impugned orders amounts to retrenchment from service and it is illegal and it has been passed with a malafide intention and without issuing any show-cause notice or even conducting an enquiry.

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The learned counsel appearing for the respondent made an elaborate reference to the factual aspects in the matter and brought to the notice of this Court that the allegations against each one of the writ petitioners and the learned counsel further submitted that there is loss of revenue to the Corporation which runs to several thousands of rupees and the impugned order is only an order of suspension and not an order of retrenchment, as contended by the learned counsel for the petitioners. The learned counsel further produced the written instruction given by the respondent to the learned Standing Counsel for the respondent, dated 02.08.2014.

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On a perusal of the written instruction, it is seen that against each of the writ petitioners, there is an allegation and this is said to have come to a light, pursuant to a surprise inspection conducted by the Flying Squad. Further, it is stated that on 03.02.2014 all the petitioners have submitted their explanation to the show-cause notice and the matter is still pending on the file of the respondent. It is to be noted that if the impugned order is to be treated as an order of suspension, then the petitioners are entitled to receive subsistence allowance. In fact, on earlier two occasions in W.P(MD) https://hcservices.ecourts.gov.in/hcservices/ No.19881 of 2013, dated 10.12.2013 and in W.P(MD)No.4394 of 2014, dated 17.03.2014, directed payment of subsistence allowance and also stated

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that if no final orders are passed after conclusion of the disciplinary proceedings, then they have to be reinstated and the orders passed have become final and it is stated that subsistence allowance which was ordered is yet to be paid, but the petitioners therein have been reinstated in service.

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The learned counsel for the petitioners brought to the notice of this Court that a circular, dated 02.09.2013 issued by the respondent Corporation formulating certain regulations while reinstating the shop personnel, who indulged in misappropriation of TASMAC money.

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Under the said circular, certain guidelines or regulations have been framed to deal with cases of shortage/misappropriation depending upon the quantum. In respect of shortage/misappropriation from Rs.10,001/- to Rs.25,000/-, it has been stated that such employee may be reposted after one month, after conducting proper enquiry. Similarly, for Rs.25,001/- to Rs.50,000/-, after two months, after conducting proper enquiry Rs.50,001/- to Rs.1,00,000/-, after three months, after conducting proper enquiry and Rs.1,00,001/- and above, shall be expelled from service.

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After hearing the learned counsel for the parties and perusing the materials placed on record, it is to be noted that the respondent themselves have accepted the fact that the impugned order is not an order of retrenchment, but an order of suspension. Therefore, the apprehension of the petitioners that they were thrown out of the employment is no longer available, since the respondent has conceded that the impugned order is an order of suspension. If the impugned order is an order of suspension, then the natural consequence that would follow is that the petitioners are entitled to be paid subsistence allowance during the period of suspension.

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The learned counsel for the respondent would submit that the petitioners are all temporary employees and there is no service Rules governing their service and there is no provision under the terms and conditions of employment for payment of subsistence allowance.

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The contention raised on behalf of the respondent deserves to be rejected for the reason that when an employer enjoys the power to place an employee under suspension, then it automatically follows that the employee is entitled to subsistence allowance. If there is no specific provision under the terms of the service and conditions of TASMAC employees, then the provisions of Tamil Nadu Payment of Subsistence Allowance Act can be read into the terms and conditions of employment and if the same is done, then the writ petitioners are entitled for subsistence allowance.

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Considering the fact that all the petitioners are under suspension, since January 2014 without subsistence allowance, the respondent is directed to consider the petitioners explanation to the show-cause notice, conduct an enquiry, in which, opportunity shall be https://hcservices.ecourts.gov.in/hcservices/ granted to the petitioners to appear in person and make submissions and thereafter, pass final orders within a period of four weeks from the

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date of receipt of a copy of this order. If the final orders are not passed within the said time, then the petitioners shall be reinstated and the respondent is further directed to pay subsistence allowance to the petitioners within a period of three weeks.

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With the above directions, these Writ Petitions are disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.

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Sd/-

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Assistant Registrar (CO)

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/True Copy/

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Sub – Assistant Registrar

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To

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The District Manager, Tamil Nadu State Marketing Corporation, Tiruchirappalli Zone,(TASMAC), Karur District.

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8 Ccs to Mr.S.Gokulraj, Advocate in Sr.Nos.43502 to 43504 and

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43497 to 43501

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- 5 Ccs to Mr.S.Deenadhayalan, Advocate in Sr.Nos.43166 to 43170

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- 1 CC to Mr.M.Muniyasamy, Advocate in Sr.No.43391

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W.P(MD)Nos.12465, 12466, 12467, 12491, 12492, 12493, 12494, 12495, 1340, 1670, 1672,1673, 1674 and 1675 of 2014 04.08.2014

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gdr 08.08.2014 6p/16C

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https://hcservices.ecourts.gov.in/hcservices/

S.Kumar v. the District Manager

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S.Kumar v. the District Manager

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