Madras High Court
K.C.Bhaskaran vs The Assistant Director For Survey And on 28 April, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.04.2014 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.7047 of 2007 (OA.No.4927 of 2002) K.C.Bhaskaran .. Petitioner Vs. The Assistant Director for Survey and Land Records Department, Tiruchirapalli .. Respondent Prayer : Writ Petition, having been transferred from the file of the Tamil Nadu Administrative Tribunal in O.A.No.4927 of 2002, is filed to call for the records of the respondent herein in his proceedings Na.Ka.A7/6383/1997 dated 23.07.2002 and to quash the same and consequently direct the respondent herein to reinstate the applicant in service as Field Surveyor. For Petitioner : Mr.K.Raja For Respondent : M/s.RM.Muhtukumar, GA. O R D E R
This writ petition is filed against the impugned order of petitioner's removal from service passed by the respondent herein.
2.The petitioner was appointed as Field Assistant during 1965 and promoted as filed surveyor during 1985. The petitioner admittedly absented from duty from 09.12.2001 and was issued with charge memo under Section 17(b) of the Tamil Nadu Government Servant Conduct (Discipline and Appeal) Rules on 07.03.1994 for his unauthorised absence from 09.12.1991. He submitted his explanation to the charge memo stating that he was absent from service as he was suffering from cancer and was under treatment for the same and the same was followed by disciplinary enquiry, which was completed on 01.10.2001 and the Enquiry Officer submitted his report holding two charges to be proved against the petitioner on the basis of the admission made by the petitioner herein. The Enquiry Officer's report was served on the petitioner along with second show cause notice, but no explanation was submitted by the petitioner, as a result, the impugned order came to be passed stating that he was removed from service as the petitioner was unauthorisedly absent from service for 10years. Aggrieved against the same, the petitioner approached the Tamil Nadu Administrative Tribunal by way of OA.No.4927 of 2002 and the same was thereafter transferred to this Court and renumbered as the present writ petition.
3.The learned counsel for the petitioner would challenge the correctness of the impugned order on the following grounds (i)the delay in holding the enquiry caused serious prejudice to the petitioner (ii)the petitioner during the period of absence ailing from cancer and he had been repeatedly sending leave application alongwith Medical certificate and he also approached the authority concerned for permitting him to join duty and thereafter he approached the Tamil Nadu Administrative Tribunal by way of OA.No.7184 of 200 in this regard (iii)no due opportunity was given to the petitioner to have his say against the findings rendered by the Enquiry Officer in his report (iv)mere unauthorised absence will not amount to misconduct and willful unauthorised absence amounts to misconduct and failure to give any such findings whether the unauthorised absence is wilful or not, renders the impugned order legally unsustainable.
4.Regarding the first ground, the charge memo was issued on 07.03.1994 alleging unauthorised absence of the petitioner from 09.01.1991. The reading of the impugned order would reveal that the enquiry officer was appointed only during 2001 and he sent notice to the petitioner on two occasions for his appearance before the Enquiry Officer and the petitioner also appeared before the Enquiry Officer on 28.09.2001, on which date the petitioner's statement was recorded and on the basis of the statement given by the petitioner, the Enquiry Officer filed his report on 03.10.2001.
5.The learned counsel for the petitioner would contend that between 1994 and 2001 the petitioner made repeated representations before the authority concerned for allowing him to join duty and failure to do so compelled the petitioner approach the Tamil Nadu Administrative Tribunal by way of OA.No.7184 of 2000 for allowing him to rejoin duty. The Tribunal directed the petitioner to send one more copy of the said representation along with the copy of the order to the respondent within thirty days from the date of the order and on receipt of such representation, the respondent was directed to consider the same and pass orders on merits within a period of five months. However, no order was passed and without any order, the petitioner was unable to join duty, as such, the absence is not on his own but want of posting orders.
6.The petitioner has also enclosed the copy of the representations made on 10.01.1998, 25.04.1999 and 06.05.2000 and the copy of the order made in OA.No.7184 of 2000 dated 29.09.2000 in the typed set filed along this petition. In all the representations, the petitioner explained the reason for his absence due to his illness (i.e,) cancer. The petitioner approached the Tamil Nadu Administrative Tribunal for permitting him to rejoin duty as per his representation dated 25.04.1999, however, the Tribunal has not passed any positive direction to dispose of the representation dated 25.04.1999. Insofar as, the Enquiry Officer's report is concerned, the Enquiry Officer has arrived at conclusion that the petitioner was unauthorisedly absent only on the basis of his admission. Neither the Enquiry Officer nor the disciplinary authority has in the enquiry report and impugned order respectively mentioned as to whether the unauthorised absence was willful or not.
7.The learned counsel for the petitioner has also in this context cited the judgment of the Hon'ble Apex Court reported in 2012 (2) SLJ 19 Krushnakant B.Parmar V. Union of India and another wherein the Hon'ble Apex Court in Paras 16 to 20 of the judgment held as follows :
16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful.
18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty. the Hon'ble Apex Court by observing so, held that mere unauthorised absence is not misconduct and directed reinstatement of the petitioner therein into service by setting aside the impugned order.
8.The Hon'ble Supreme Court having found no other relevant materials to prove the guilt of the delinquent, set aside the impugned order. The view expressed by the Hon'ble Supreme Court is squarely applicable to the facts of the present case wherein also, the defence raised by the petitioner for his unauthorised absence was totally ignored and he was held to be guilty of the charges merely by reason of his unauthorised absence without going into the question, whether the same is willful or not. In that event, the findings of the Enquiry Officer is perverse and the impugned order is not only on the ground of delay in conducting the enquiry but also on facts, contrary to law baseless and unfounded and is legally unsustainable. As the petitioner now attained the age of superannuation, the petitioner is entitled for notional reinstatement with continuity of service with pensionary cum retirement benefits but without backwages.
9.In the result, the writ petition is allowed by setting aside the impugned order, with further direction issued to the respondent to notionally reinstate the petitioner with continuity of service and other attendant benefits, but without backwages. The whole exercise shall be completed within twelve weeks from the date of receipt of copy of this order. No costs.
28.04.2014 tsh Index :Yes/No Internet : Yes/No To The Assistant Director for Survey and Land Records Department, Tiruchirapalli K.B.K.VASUKI, J.
tsh WP.No.7047 of 2007 28.04.2014.