(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus directing the respondents to allow the petitioner to join duty as Panchayat Assistant in Keelakurichi Panchayat Board, Madukoor Union, Thanjavur District with continuity of service with all consequential benefits.)

1. The petitioner was appointed as a Panchayat Assistant in Keelakurichi Bavajikottai Panchayat Board coming under the Melanatham Panchayat Union, vide order, dated 28.02.1990. He was initially given consolidated salary of Rs.400/- per month. Subsequently, it transpires that the petitioner did not report for duty on account of his road accident on 20.01.2004. He was treated in the Government Medical College Hospital at Thanjavur for one month. During the treatment as inpatient, his wife informed the President of Keelakurichi Panchayat about the accident and submitted a leave letter. It is also stated that the President of Keelakurichi Panchayat informed her that after his getting cured, he can report for duty. In the meanwhile, another person was appointed in the place of the petitioner. When the petitioner had reported for duty, he was not allowed to join. Thereafter, he sent representations curiously after 2 years. The first representation being made on 09.10.2006 and the second representation on 12.11.2006 expressing his predicament to the District Collector. Subsequently, he sent letters to other authorities. Finally when he did not get any response from the respondents, he has filed the present Writ Petition seeking for a direction to allow him to join duty as Panchayat Assistant in Keelakurichi Panchayat Board, Madukoor Union, Thanjavur District with continuity of service with all consequential benefits.

2. When the matter came up for hearing on 07.03.2007, notice of motion was ordered. On notice from this Court, the fourth respondent filed a counter affidavit, dated 30.06.2007. The District Collector, Thanjavur, (ie., the second respondent,) has also filed a counter affidavit, dated 13.11.2010.

3. It is the contention of the petitioner that when he is a regular appointee, while terminating his service, the fourth respondent should have taken steps consistent with the principles of natural justice. When the fourth respondent did not adhere to the rules of natural justice, the second and third respondents should have taken action. The petitioner has kept the issue alive for more than four years by sending representations and thereafter, move this Court as a last resort.

4. In the counter affidavit filed by the fourth respondent, it was stated that the petitioner having absented himself from duty without submitting any leave letter, had also failed to hand over the records of the Panchayat, thereby preventing the Panchayat from functioning properly. A valid resolution, dated 3.11.2005 was passed. By the virtue of resolution, one Rajasekar was appointed as Clerk. Even the said Rajasekar had resigned his post on 07.07.2006 and the post was again filled up by a regular an appointee by name, Vijayakumar vide resolution, dated 07.07.2006. The said Vijayakumar has been working continuously from the year 2006. The petitioner made a complaint to the higher authorities and on being questioned. The remarks were submitted by the Panchayat on 29.11.2006 expressing their inability to reinstate the petitioner in service and explaining his unauthorised absence. The fact that the post has been filled up by the regular appointee was intimated to the second respondent. It is stated that the petitioner, having failed to attend duty for more than 3 years since October 2003, cannot file a Writ Petition after four years and stake his claim for restoration for duty.

5. In the counter affidavit filed by the second respondent, these contentions were endorsed. It was also stated that even the third respondent had rejected the petitioners claim by an order, dated 14.02.2007. It is also stated that the report sent by the Panchayat President addressed to the third respondent clearly shows that at any point of time, the petitioner has not submitted any leave letter to the then President of Panchayat and that was not entitled to get any medical leave in the absence of leave letters. Without challenging the resolution of the Panchayat in appointing some other person and declaring the post as vacant, the present Petition seeking for a direction cannot be countenanced by a Court.

6. In the light of the stand taken by the respondent, the petitioner has not made out any case for entertaining the Writ Petition. It must be noted that the post held by the petitioner is not a constituted service in terms of Article 309 of the Constitution and is not governed by the leave rules framed by the Government. As of now there is no procedure established by the respondent to remove a Panchayat Assistant from the post held by him. In the absence of such rules, this Court has held that even in such circumstances minimum rules of natural justice should be followed.

7. But such a situation will arise only if a person complains about the violation of natural justice within a reasonable time and with appropriate records to show that any injustice was committed in respect of his service grievance. The petitioner except making some vague allegations before this Court and that a leave letter was given by his wife, but did not even produce a copy of the so called letter. Even otherwise as per the Government Order under which the post has been created had fixed the maximum leave period of 180 days that too with proper medical records. The petitioner has come forward with this petition, three years after his so-called non-employment, the contentions raised by the petitioner at this stage relating to the violation of principles of natural justice cannot be gone into.

8. Even in case of temporary municipal employee, if termination was preceded with suspension, it has been held by the Supreme Court that the authority can have a recourse to termination under Rule 5 of the CCS Rules and in such case, no challenge can be made by the temporary municipal employee vide its judgment in Dhananjay v. Chief Executive Officer, Zilla Parishad, Jalna, reported in (2003) 2 SCC 386 [LQ/SC/2003/146] . It is necessary to refer to the following passages found in paragraphs 5 and 6 of the said judgment which reads as follows:

"5. Para 2 of the impugned order of termination of services makes a mention of the fact that the appellant was suspended. The learned counsel for the appellant, pointing out this paragraph, submitted that it would cast stigma on the appellant and it would adversely affect his prospects. The High Court, in dismissing the writ petition, relied on the decision of this Court in the case of Bihari Lal1 aforementioned. Para 5 of the said judgment reads thus: (SCC pp. 387-88, para 5)

"5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control and Appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money."

6. If we look to the paragraph extracted above, it becomes clear that the facts of that case are almost similar to the facts of the present case. Although a distinction was sought to be made to contend that that judgment has no application to the facts of the present case, we are unable to agree with the submission. Merely because the appellant was kept under suspension, that, by itself, is not indicative that the respondent had intended from the beginning to get rid of the services of the appellant by holding an enquiry. It is not the case of the appellant that in spite of the fact that his services were needed, the order of termination of services was passed. Even though the appellant was acquitted in the criminal case launched against him on the basis of the complaint made by the respondent, is also not a factor to indicate that the respondent wanted to take action against the appellant on his misconduct to remove him from service."

In the present case, the petitioner is appointed only based upon the Government Order and not even holding the service under the Government.

9. In the light of the above, the Writ Petition is dismissed. No costs.