@JUDGMENTTAG-ORDER
T. Raja, J.@mdashThis writ petition was filed in the year 2005originally by late G. Muniasamy, S/o. Gurusamy, challenging the order of dismissal from service passed against him bythe first Respondent-Assistant Director, Survey and Land Records ,Madurai, vide order dated 30.09.2003, as confirmed by the appellate authorities viz., Regional Deputy Director of Survey, Madurai, Special and Additional Director of Survey ,Chennai, and the Commissioner and Director of Survey and Settlement, Chennai, by their respective orders dated 01.04.2004, 04.08.2004 and 09.02.2005, and seeking for a consequential direction to the Respondents to reinstate him in service with back-wages together with all attendant benefits.
During the pendency of the writ petition, the original Petitioner died on 27.09.2009, leaving behind his wife and daughter, the present Petitioners (referred henceforth as Petitioner No. 1 and 2 respectively), who have been brought on record as his legal representatives and they seek service benefits alone as the question of reinstatement cannot be gone into in respect of their case.
2. The original Petitioner -late Muniasamy ie., husband of Petitioner No. 1, came to be appointed as Draftsman in the Department of Survey, Madurai District, on compassionate ground after the death of his father-Gurusamy, by the Assistant Director of Survey, Madurai, in his proceedings Na. Ka.S5/7871/94, dated 20.10.1994. Later on, during 1996, it was found that the original Petitioner''s elder brother had joined Government Service subsequent to the demise of their father and, on that ground ,the appointment given to the original Petitioner on compassionate ground was cancelled as it runs against the Government Order in G.O. Ms. No. 998, Labour and Employment, dated 02.05.1981, which provides that if any member of the family of the deceased Government servant is in employment in Government service or elsewhere other dependant members of the family will not be eligible for appointment on compassionate grounds. In the case of the original Petitioner, his brother by name G. Ganesan was given appointment in the Department of Survey and Land Records, in the year 1973 after the death of the father in the year1972. Even though G.O. Ms. No. 155, Labour and Employment Department ,dated 16.07.1993, provided that if a legal heir of the family of the deceased Government servant is employed, even before the death of the Government servant and living separately, without extending any help, then in such cases, the eligible dependants may be considered for appointment, the Department could not apply the provisions of the said G.O. on the ground that the elder brother of the original Petitioner got the appointment in the Department only after the death of the Government servant and not before his death. As the original Petitioner was appointed in the District Survey Unit, Madurai, without properly taking into account the aforesaid aspects, his services came to be terminated, whereupon, he filed an application before the Tamil Nadu Administrative Tribunal, in O.A. No. 5786 of 1996. By order, dated 10.10.1996, the Tribunal granted an order of interim stay and on the strength of such order, the Petitioner was reinstated inservice. Subsequent to abolition of the Tribunal, the Original Application was transferred to the High Court as Writ Petition No. 21695 of 2006. While the Petitioner was continuing in service after reinstatement by virtue of the interim order of stay and O.A. No. 5786 of 1996 converted as Writ Petition No. 21695 of 2006 was pending before the High Court, disciplinary proceedings were initiated against him on the allegation that, for personal gains, he played fraud by forging the signature of the Deputy Tahsildar for preparing bogus chitta and Adangal under Natham Land Tax Scheme in respect of a land measuring to an extent of 0.40.00 hectare in S. No. 134/2 in patta No. 1425 situate at Tallakulam Village, Madurai North Taluk, in the names of S. Venkatapathy, S/o. Srinivasan and Krishnaswamy, S/o. Perumalsamy, and in that regard, he attempted to get the seal of the Government in the Office of the Madurai North Taluk for affixing it on the fake records. After an enquiry conducted under Rules 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, ultimately, the Petitioner was found guilty and his services were terminated by the impugned order and such order came to be confirmed by the appellate authorities as mentioned above; hence, the present writ petition. During the pendency of these two writ petitions, the original writ Petitioner G. Muniasamy died. Hence, his wife and daughter came on record as legal heirs of Late Muniasamy.
3. Learned Counsel for the Petitioners would submit that the impugned order of termination passed against the original Petitioner and the subsequent orders of the appellate authorities confirming the same will have no legal sanctity since there is a gross violation of the principles of natural justice, in that, the procedure prescribed under Rule-17 (b) of the Rules is given a complete go-bye. According to him, a bare perusal of the impugned orders would reveal that there is no material whatsoever to hold the original Petitioner guilty of the charges alleged since the Enquiry Officer himself had observed that it cannot be stated as to who prepared the documents in question and who put the signature therein. Therefore, even the Enquiry Officer was of the view that the original Petitioner was not the Author of the forged signature and the person who prepared the bogus records. Curiously, no witness was examined in the presence of the original Petitioner and he was not even given any opportunity to cross examine the witnesses, which course is totally unacceptable in law. Since the entire process of the enquiry suffers from serious lacunae and there was gross violation of the principles of natural justice prejudicial to the defence of the original Petitioner, this Court may set aside the impugned orders and consequently, prayed for issuing suitable direction to the Respondents/authorities for grant of service benefits payable to the Petitioners/legal heirs of the original Petitioner.
4. Per contra, learned Government Advocate would submit that the appointment given to the Petitioner on compassionate grounds was found to be irregular by reason of G.O. Ms. No. 998, Labour and Employment, dated02.05.1981, as his brother by name G. Ganesan was appointed in Government Service subsequent to the death of the father and therefore, the original Petitioner was terminated from service, however, subsequent to the interim orders passed by the Tribunal in O.A. No. 5786 of 1996, he was reinstated into service. Subsequently, disciplinary proceedings came to be initiated against the original Petitioner on certain grave charges of preparing bogus records, forging the signature of higher officials, tampering with Government Seal etc., which ultimately resulted in passing of the present impugned orders. It is stated that all reasonable opportunities were in fact given to the original Petitioner at all levels of the enquiry and only after arriving at a definite conclusion, based on substantive materials, that the Petitioner was involved in the alleged activities, the major penalty came to be imposed and further, all the authorities uniformly held against the Petitioner in view of the substantive evidence available against him. By strongly contending that since the Original Application, which later converted as W.P. No. 21695 of 2006, came to be dismissed, such dismissal order took away the effect of the interim order passed by the Tribunal by reason of which the Petitioner continued in service, thereby, no case is now available to the present Petitioners to straight away challenge the 2nd termination order passed by way of the impugned proceedings and to seek for grant of service benefits, it is pleaded that the writ petition may be dismissed, rejecting the claim of the present Petitioners.
5. Having regard to the submissions made on either side, the short question that arises for consideration is, as to whether the limited claim of the Petitioners, who are legal heirs of the original Petitioner, in seeking the service benefits is acceptable having regard to the dismissal of W.P. No. 21695 of 2006 filed by the original Petitioner challenging the first termination order. It is relevant to quote below the order, dated 29.11.2006, passed in W.P. No. 21695 of 2006:
1. The Petitioner was appointed on compassionate grounds, with effect from 24.10.1994, after the death of his father in harness on 10.9.1972. Subsequently his appointment was sought to be cancelled on the ground that his elder brother got employment in the regular way on 26.4.1973 and that therefore the family could not be considered to be under indigent circumstances. Challenging the said order of cancellation of appointment, the Petitioner filed O.A. No. 5786 of 1996 on the file of the Tamil Nadu Administrative Tribunal. The said Original Application has been transferred to this Court in W.P. No. 21695 of 2006, on the abolition of the Tribunal.
2. I have heard Mr. S.M. Subramaniam, learned Counsel appearing for the Petitioner and Mr. V. Arun, learned Government Advocate appearing for the Respondents.
3. It is unnecessary to go into the dispute on hand, since the learned Government Advocate appearing for the Respondents brought to my notice an order dated 30.09.2003 passed by the Assistant Director of Survey and Land Records, Madurai, by which the very same Petitioner was imposed with a penalty of dismissal from service, in pursuance of the Disciplinary proceedings initiated against him. Therefore, the issue raised in the present writ petition does no survive any longer for adjudication. Consequently, the Writ petition is closed. No costs.
The challenge made in O.A. No. 5786 of 1996, later transferred to the file of this Court as W.P. No. 21695 of2006, was to the termination order passed against the original Petitioner holding that the appointment given to him on compassionate ground was irregular and undoubtedly, any decision in that writ petition would be crucial deciding the status of the Petitioner either holding his appointment valid in the given circumstances or invalid in terms the Government Order referred supra.
6. In this regard, it must be noted that in view of death of original writ Petitioner Muniasamy, it was reported by the Muniasamy''s then counsel that the issue raised in that writ petition did not survive any longer for adjudication and on that basis, the writ petition was closed. When this Court, by order dated 29.11.2006, closed the writ petition No. 21695 of 2006, unfortunately, the interim order of stay of the termination order granted infavour of the Late Muniasamy in the above said writ petition also automatically stood closed. Therefore, the order of termination passed against Late Muniasamy came to be final and as a result, the subsequent writ petition, namely, the present one filed against the second dismissal order cannot be legally sustainable, since the present writ petition challenging the subsequent dismissal order came to be passed while the Petitioner was continuing in service in pursuant to the earlier order of stay granted by this Courtin W.P. No. 21695 of 2006. In other words, it is made absolutely clear that when the original writ Petitioner Muniasamy''s first writ petition challenging the termination order was dismissed or closed, naturally, the interim order giving further life to get the reinstatement also would fall to ground. Therefore, unless the earlier order is challenged, the present writ petition cannot be legally maintainable in the eye of law.
7. The logical implication of the aforesaid order, which is not at all challenged either by the original Petitioner himself who was alive till September, 2009, or his legal heirs-the present Petitioners, is that the question raised before this Court on the legality of the disciplinary proceedings ie., the subject matter of the present petition, cannot be gone into since such proceedings came to be initiated while he was in service in terms of the interim order passed by the Tribunal in the aforesaid Original Application and once the said order is deemed to be vacated by virtue of dismissal of the writ petition ,the original Petitioner would lose the status of the employee with the Department. Under such circumstances, unless and until his case regarding the first termination order is decided on merits so as to sustain his appointment on compassion ground, the validity or otherwise of the 2ndtermination order passed on the basis of the outcome of the disciplinary proceedings cannot be considered at all. In other words, the original Petitioner himself cannot challenge the disciplinary proceedings viz., the subject matter of the present writ petition, claiming to be the employee of the Respondents-Department as he had lost such status by virtue of the dismissal order passed in W.P. No. 21695 of 2005 whereby the effect of the interim order of stay operating in favour of the original Petitioner was taken away once for all. Under such circumstances, since the order passed on 29.11.2006 in the earlier writ petition having become final pertaining to the status of the original Petitioner as the present Petitioners too accepted the same by not challenging it by way of Appeal etc., I am of the considered opinion that they have no locus stand whatsoever to seek the present prayer regarding service benefits as against the Respondents-Department.
8. Consequently, the Writ Petition fails and it is dismissed as devoid of merits. No costs.
