P.MARIMUTHU Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The writ petition has been filed challenging the dismissal order passed by the Divisional Engineer, the third respondent herein in Se.Mu.Ka.No.2336/2001 M4 dated 08.04.2002 and seeking a direction to respondents 1 and 2 to re-instate the deceased petitioner in the post of Salai Paniyalar as per G.O. Ms. No.22 Highways (HM-2) Department dated 10.02.2006 and as per order passed in W.P. Nos.34950 of 2007 and 4380 of 2008 within a time frame.

(2.) Learned counsel appearing for the petitioners would submit that the petitioner P.Marimuthu died during the pendency of the writ petition and his legal heirs were brought on record. According to the learned counsel appearing for the petitioners, the deceased petitioner was appointed as Salaipaniyalar on 31.10.1997 as per the Proceedings dated 31.10.1997 issued by the Divisional Engineer, Highways Department, Tuticorin, the third respondent herein and his service has been regularised on and from 04.03.1999. According to the learned counsel appearing for the petitioners, the third respondent has passed an order dismissing the deceased petitioner from service on the ground that the Elementary School Education Officer has proved that the certificate issued by him was forged one. But before passing such an order, no enquiry has been conducted, no opportunity has been given and no explanation has been called for from him. When the deceased petitioner was discharging his duties faithfully, the respondents, in the event of entertaining doubt on the qualifications obtained by him whether he had completed 5th standard or not, ought not to have passed such an order. When the third respondent, after satisfying with the certificate produced by him showing that he passed 5th standard, has issued an order of appointment on 31.10.1997 and thereafter, his service was also regularised by order dated 04.03.1999, cannot pass the impugned order. However, in the counter affidavit filed by the third respondent, they have wrongly justified that the deceased petitioner's service can be terminated as per procedure laid down in G.O. Ms. No.190 P and AR dated 09.06.1995 and as per Rules 26(a)(ii) and 27(c) of Tamil Nadu State and Subordinate Services.

(3.) Learned counsel appearing for the petitioners, referring to the above Rules, would submit that the appointing authority may discharge or terminate him/her probation from service after giving him/her a reasonable opportunity of showing cause against the proposed termination of probation, as per Rule 26(a)(ii) and Rule 27(c) also mandates the same condition that if the appointing authority decides that him/her is not suitable for such membership, it shall, unless the period of probation is extended under Rule 28, by order, discharge him/her from the service after giving him/her a reasonable opportunity of showing cause against the action proposed to be taken in regard to him/her. Therefore, when Rules 26(a)(ii) and 27(c) of Tamil Nadu State and Subordinate Services mandate that opportunity of being heard must be given to show cause against the action proposed to be taken in regard to him, the respondents ought not to have passed the impugned order as the deceased petitioner has been regularised by order dated 04.03.1999.