G.K. Gnanasekaran v. The Principal Chief

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.02.2016

CORAM:

THE HONOURABLE MR. JUSTICE R.SUDHAKAR AND THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN Writ Appeal No.2286 of 2012 G.K.Gnanasekaran ... Appellant/Petitioner Vs.

1.

The Principal Chief Conservator of Forests, Panagal Building, 15, Jennis Road, Saidapet, Chennai 600 015.

2.

The Divisional Forest Officer, Afforestation Division, Thiruvannamalai District.

... Respondents Writ Appeal filed under Section 15 of the Letters Patent against the order dated 01.07.2011 passed by the learned Single Judge in W.P.No.13669 of 2007 filed under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.2154 of 2003 to call for the records of the 1st respondent passed in RC.No.63273/99 DE2 dated 02/04/2002 and quash the same as illegal and ultravires and consdquently direct the respondents to reinstate the petitioner into service with full backwages and all consequential monetary and other service benefits.

For Appellant :

Ms.T.Dharani For Respondents :

Mr.N.Inbanathan, Government Advocate(Forest)

J U D G M E N T

(Judgment of the Court delivered by S.VAIDYANATHAN,J.) Aggrieved by the order dated 01.07.2011 passed by this Court in W.P.No.13669 of 2007, the petitioner therein has come up with the present Writ Appeal.

2.

Heard the learned counsel for the appellant and the learned Government Advocate appearing for the respondents.

3.

It is the case of the appellant that he was appointed as a Social Forestry Worker, on daily wage basis in the year 1982 in Polur Range and continued in the same post from 1984 on consolidated monthly salary basis. He was issued with a course completion certificate, as he underwent three months training given by the Department in 1989 and until 1996, he had put in 14 years of unblemished service. It is his further case that he was allotted an area of 77.52 hectares in Polur Range to be guarded and supervised by him. The appellant reported to his higher officials about the activities of anti-social elements, unauthorised cutting of trees and theft of trees and that it could not be checked by a single individual.

4.

While so, the Forest Ranger, in his letter No.160/96 dated 09.08.1996 informed the appellant about his proposed visit on 13.08.1996 and 14.08.1996 and directed the appellant to be present on the spot during his field visit. According to the appellant, he received the letter only on 21.08.1996. Thereafter, he was shocked to receive the impugned order dated 27.08.1996 vide C.No.160/96 passed by the Forest Ranger, Arni, dismissing the appellant from service with effect from 26.08.1996 without assigning any reason, conducting enquiry and without framing any charges. Aggrieved by the same, the appellant submitted an appeal to the 1st respondent on 07.01.1997. Since the same was not considered for more than two years, having no other remedy, the appellant approached the Administrative Tribunal seeking to direct the 1st respondent to dispose of his representation within a time frame and the Tribunal, by an order dated 08.04.1999, directed the 1st respondent to consider the representation of the appellant and pass orders on merits within a period of four months. 5.

Pursuant thereto, the 1st respondent, after a lapse of nearly 30 months, issued an order dated 02.04.2002, rejecting the appeal, stating that there is no possibility for employment of workers on daily wages basis, as there was no proposal to establish a new division due to the poor performance of Social Forestry Scheme. The appellant again submitted a representation to the 1st respondent and there was no response to the same. Hence, having no other alternative, the appellant filed a Writ Petition in W.P.No.13669 of 2007 seeking transfer of O.A.No.2154 of 2003 to call for the records of the 1st respondent passed in Rc.No.63273/1999 DE2 dated 02.04.2002, quash the same and for a consequential direction to the respondents to reinstate him into service with full back wages and all consequential monetary and other service benefits.

6.

This Court, by an order dated 01.07.2011, dismissed the Writ Petition in W.P.No.13669 of 2007, in the following manner: "14. Reading of the impugned order shows that the Principal Chief Conservator of Forests, Chennai, has considered the explanation of the petitioner and having regard to the fact that persons who were within the area of social forestry divisions alone were appointed, as Social Forestry Workers, to protect the plantations and that the contention made by the petitioner in the representation also indicated illicit feelings, under his charge and of the fact that the petitioner did not appear before the superiors for enquiry, even after notice, the appellate authority has found that the petitioner has not only discharged his duties properly, but also disobeyed the orders of his superiors.

That apart, at the relevant point of time, when there was no proposal to include fresh divisions, under the social forestry scheme and there was also reduction of daily wage employees, the Principal Chief Conservator of Forests, Chennai, by observing that for the reasons stated supra, the petitioner cannot be taken back to duty as Social Forestry Worker (Daily Wages) has rejected the appeal. The question of retaining a daily wage employee is purely the discretion of the employer. Even assuming such an employee has committed any misconduct, as he is not a regular or temporary or permanent employee of the Forest Department, the procedure under the Discipline and Appeal Rules cannot be made applicable.

But at the same time, it has to be seen as to whether before inflicting a penalty, the charged official has been given a reasonable opportunity to defend the charges. Substantial compliance of natural justice is required to be followed in disciplinary proceedings. In that context, it is evident from the impugned order dated 02.04.2002 passed by the Principal Chief Conservator of Forests, Chennai, that despite opportunity, he has failed to appear before the Forest Ranger, though he has received the intimation, until final orders were passed.

15.

For the above said reasons, this Court is of the view that there is no manifest illegality in the impugned order, warranting interference. Hence, the writ petition is dismissed. No costs."

Being aggrieved by the said order of dismissal of the Writ Petition, the appellant is before this Court by way of the present appeal.

7.

Learned counsel appearing for the appellant would contend that the learned Single Judge erred in upholding the plea put forth by the respondents that the provisions of Tamil Nadu Civil Services (D & A) Rules cannot be made applicable to the case of the appellant. Even assuming so, the respondents are bound to follow the principles of natural justice, when the appellant had put in nearly 14 years of service. It is also his contention that the learned Judge failed to consider that while specific allegations have been made against the appellant in the letter dated 09.08.1996 of the Forest Ranger, no explanation was called for from the appellant and no enquiry was conducted. 8.

In reply, learned Government Advocate appearing for the respondents would submit that when the appellant had specifically been appointed as a Social Forestry Worker to protect the forestry plantations under his control and has no other work for execution, failure on his part to report the illicit felling of trees to his superior officer, which has been proved on record would certainly attract disciplinary proceedings. Moreover, he has not appeared before the superior officers for enquiry, despite being served with notice. Therefore, it is his strenuous contention that the removal of the appellant from service is not in violation of the principles of natural justice.

9.

Initially, the appellant had been appointed as a Social Forestry Worker in the respondent Forest Department on daily wage basis and later continued in the same post on consolidated monthly salary basis. The work assigned to the appellant is to guard the forest area allotted to him and see that there is no unauthorised cutting and theft of trees in his area and report the same to his superior officers. It is seen that the appellant was allotted an area of 77.52 hectares to be guarded and supervised by him and that the distance between one Social Forest and another was approximately 3 to 7 kms. Finding that the appellant had not guarded the forest area allotted to him properly and had not reported the illicit cutting of trees to his superior officers and also that he did not appear for

enquiry despite notice being served on him, he was dismissed from service by an order dated 27.08.1996 issued by the Forest Ranger.

10.

It is seen that the appellant had submitted an appeal to the 1st respondent on 07.01.1997. Pending consideration of the same, he moved the Tribunal and by an order dated 08.04.1999, the Tribunal directed the 1st respondent to consider the petitioner's appeal and pass orders on merits within a period of four months. But, the 1st respondent, after a lapse of 30 months, passed an order dated 02.04.2002, rejecting the appellant's appeal on the ground that there is no possibility to employ a daily wage employee, as there is no proposal to establish any new division due to the poor performance of the Social Forestry Scheme. Finally, he approached this Court in W.P.No.13669 of 2007 seeking transfer of the Original Application before the Tribunal to the file of this Court and for a direction to the respondents to reinstate him in service with full backwages and all consequential monetary and other service benefits. Since, the said Writ Petition got to be dismissed, the appellant has once again approached this Court, this time, by way of a Writ Appeal.

11.

The procedures contemplated under Rule 17(b) of the Tamil Nadu Civil Services Rules is not applicable to casual labourers and the appellant was appointed for a particular scheme, viz. Social Forestry Scheme. Since the said scheme is not in existence, the request of the appellant has been rejected on merits and the appellate authority further held that it was not possible to provide the appellant employment on daily wages. There is also an adverse report against the appellant by the Forest Ranger in 1996 that the appellant was not attending his work properly.

12.

Learned Single Judge, after scrutinising the records has come to the conclusion that the Principal Chief Conservator of Forests has considered the explanation given by the appellant, having regard to the facts that persons who were within the area of social forestry division alone were appointed as Social Forestry Workers to protect the plantations; that the contention made by the appellant in his representation also indicated ill feelings and also of the fact that since the appellant did not appear before the superiors for enquiry even after notice, the appellate authority has found that the appellant has not only discharged his duties properly, but also disobeyed the orders of his superiors. It is also seen that at no point of time, there was a proposal to include fresh divisions under the Social Forestry Scheme and there was also reduction of daily wage employees. Hence, the Chief Conservator

of Forests, Chennai rejected the appellant's appeal stating that he cannot be taken back to duty as Social Forestry Worker on daily wage basis.

13.

Even assuming for the sake of argument that the appellant has committed a misconduct, the aforesaid Rules will not be applicable to the appellant, as he was not a regular employee of the Forest Department. Substantial compliance of natural justice has been made and the appellant did not avail any opportunity given to him and having failed to appear and explain to the Forest Ranger, even after receipt of notice, till final orders are passed, the appellant cannot blame the officials for his own deeds.

14.

A perusal of the impugned order dated 27.08.1996 as also the order of the learned Single Judge makes it very clear that the appellant was only a daily wage employee appointed under the Social Forestry Scheme and that Scheme is no longer in existence, which fact is not disputed by the appellant. Being a daily wage employee, when the appellant has failed to discharge his duties properly, the respondents are fully justified in rejecting the request of the appellant, which has been rightly confirmed by the learned Single Judge. Despite notice being served on the appellant asking him to appear for an enquiry, admittedly, he failed to appear before his superiors. Thus, when there is substantial compliance of natural justice, we find no merits to grant the relief sought by the appellant. Hence, the Writ Appeal fails and stands dismissed. No costs.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar aeb To 1.

The Principal Chief Conservator of Forests, Panagal Building, 15, Jennis Road, Saidapet, Chennai 600 015.

2.

The Divisional Forest Officer, Afforestation Division, Thiruvannamalai District.

+1cc to Mr.M.Ravi, Advocate, S.R.No.7865 +1cc to the Special Government Pleader(Forest), S.R.No.7478 W.A.No.2286 of 2012 MSM(CO) CA(29/02/2016)