Madras High Court
F.Shahabuddin vs Government Of Tamil Nadu on 11 August, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.No.2023 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 04.08.2022
PRONOUNCED ON : 11.08.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.2023 of 2015
F.Shahabuddin ... Petitioner
Vs.
1.Government of Tamil Nadu,
represented by Secretary,
Highways Department,
Fort St. George,
Chennai – 600 009.
2.Chief Director,
Highways Department,
Chepauk, Chennai – 600 005. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, calling for the concerned
records relating to proceedings bearing No.3365/kamukkam 3(2)/2006-13
dated 01.10.2013 issued by the 2nd respondent, which was served only on
07.05.2014, removing the petitioner from service for alleged charge of
absence under Rule 17(b) of Tamil Nadu Civil Service (Disciplinary and
Appeal) Rules as illegal, contrary to the principles of natural justice and in
violation of Article 311 of the Constitution of India, to quash the same and
consequently direct the respondents to pay the petitioner PF (Provident
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W.P.No.2023 of 2015
Fund) and Pension together with interest at 12% p.a. From the date of
superannuation, award costs and thus render justice.
For Petitioner : Mr.N.G.R.Prasad
For M/s.Row and Reddy
For Respondents : Mr.S.Silambanan
Additional Advocate General
Assisted by
Mrs.S.Anitha
Special Government Pleader
[For R1 and R2]
ORDER
The writ on hand has been filed, questioning the validity of the order of removal from service issued in proceedings dated 01.10.2013 by the 2nd respondent / the Chief Director, Highways Department.
2. The writ petitioner states that he was appointed as Road Inspector Grade-II at Nellikuppam Panchayat Union by Divisional Engineer through District Employment Exchange. He was promoted as Draftsman Grade-III in the year 1970. On 21.07.1973, the petitioner completed his probation in the post of Draftsman Grade-II with effect from 21.07.1972. Thereafter, he was selected by the Tamil Nadu Public Service Commission (TNPSC) on 21.05.1975 and appointed as Supervisor in Tamil Nadu Highways Engineering Service. On 08.01.1983, he had completed his probation as https://www.mhc.tn.gov.in/judis Page 2 of 23 W.P.No.2023 of 2015 Junior Engineer. He was transferred to Thirunelveli Division, as a Junior Engineer on 26.11.1983 and a joining report was sent by the Superintending Engineer. On 07.12.1983, the petitioner was transferred to Manur. He was enrolled as a member in Special Provident Fund-cum- Gratuity Scheme.
3. On 10.05.1984, the petitioner applied for Medical Leave. On completion of Medical Leave, he applied leave on account of certain family circumstances. The petitioner states that he applied for leave on 09.06.1984, 15.06.1984 and 22.10.1984. On 02.05.1989, the petitioner expressed his willingness to rejoin duty. However, there was no reply from the Department. Thereafter, the petitioner reached the age of superannuation on 31.05.2006 on attaining age of 58 years.
4. After attaining the age of superannuation, the petitioner on 30.12.2010, submitted an application for pension. However, there was no reply from the Superintending Engineer, Thirunelveli. The petitioner submitted an application to the Accountant General of Tamil Nadu on 31.12.2010. On 31.01.2011, the Superintending Engineer sought for clarification for the purpose of taking action on the representation submitted by the writ petitioner. The petitioner sought for the particulars of his Service https://www.mhc.tn.gov.in/judis Page 3 of 23 W.P.No.2023 of 2015 Records. On 28.03.2011, the Superintending Engineer rejected the claim of the writ petitioner for grant of terminal benefits as Service Records were not available. He made a representation on 06.08.2011 to the Chief Minister's Cell. The respondents could not able to trace out the Service Records of the writ petitioner and therefore, no action was taken. Through letter dated 01.10.2013, the 2nd respondent informed the petitioner that a charge memo was issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and the petitioner was removed from service with effect from 29.05.2006. The petitioner states that no charge memo was served on him and no explanation was given by him nor he was put on notice about enquiry. The petitioner states that he was straight away removed from service.
5. The details regarding enquiry also had not been furnished to the writ petitioner.
6. The learned counsel for the petitioner strenuously contended that based on the exparte enquiry, the petitioner was removed from service. The charge memo has not been served to him. Based on the exparte enquiry, the major penalty was imposed. That apart, the petitioner had already completed the qualifying services of about 16 years and therefore, he is https://www.mhc.tn.gov.in/judis Page 4 of 23 W.P.No.2023 of 2015 entitled for pension under the Tamil Nadu Pension Rules. It is contended that the exparte enquiry conducted by the respondents are vitiated by the principles of natural justice and therefore, the petitioner must be allowed to retire from service on attaining the age of superannuation on 31.05.2006 and all his pensionary and retirement benefits are to be settled.
7. The respondents objected the said contention by stating that the petitioner while working as Junior Engineer, entered on leave from 20.10.1983 without prior permission and with no proper intimation to the Department. He continued on leave till the date of his retirement and had not reported to duty even on the date of his retirement i.e. on 31.05.2006. The petitioner remained continuously absent from 20.10.1983 onwards for more than 22 years. Therefore, the charges were framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules by the Chief Engineer (General), Highways, Chennai in memo dated 29.05.2006 and the petitioner was placed under suspension with effect from 29.05.2006. No defence statement was received from the petitioner and the petitioner had not reported to duty for more than 22 years and thus, the charges are held proved and he was removed from service for his unauthorised absence for more than 22 years. He was imposed with the punishment of removal from service and thus, he is not entitled for the terminal and pensionary benefits. https://www.mhc.tn.gov.in/judis Page 5 of 23 W.P.No.2023 of 2015
8. The respondents have stated that the impugned order of removal from service dated 01.10.2013 was served to the petitioner only on 07.01.2014, since his whereabouts could not be traced. Later on, the receipt of an application under Right to Information Act, 2005 from the petitioner, the impugned order was served to Tmt.Shaliha Beevi, wife of the petitioner, since the petitioner was not available and it was learnt that he was employed at Bahrain. He had not reported for duty for more than 22 years and therefore, he was not entitled for any terminal benefits.
9. Regarding the exparte enquiry, the respondents have stated that a charge memo dated 29.05.2006 was not served to the petitioner since his whereabouts were not known. On receipt of an application under Right to Information Act, 2005, the final order of removal from service dated 01.10.2013 was served on 07.05.2014 and the same was received by the wife of the petitioner.
10. The petitioner was given sufficient time to submit his representation and it is explicitly known that the petitioner had not approached through proper means to rejoin duty and the same shows his gross negligence, failure to maintain integrity and devotion to duty. https://www.mhc.tn.gov.in/judis Page 6 of 23 W.P.No.2023 of 2015 Therefore, the petitioner was removed from service by following the procedures as contemplated and thus, the writ petition is liable to be rejected.
11. The learned Additional Advocate General appearing on behalf of the respondents reiterated that the petitioner remained absent continuously for more than 22 years and even on the last day of his retirement, he had not reported for duty. Thus, departmental disciplinary proceedings were initiated against the petitioner and through an exparte enquiry, the punishment of removal from service was imposed. Thus, there is no infirmity and consequently, the writ petition is to be rejected.
12. Considering the arguments as advanced by the learned Senior Advocate appearing on behalf of the writ petitioner and the learned Additional Advocate General appearing on behalf of the respondents, question arises, whether the order of removal from service passed by the respondents is justifiable or not?
13. The undisputed facts between the parties are that the petitioner was appointed as Road Inspector Grade-II and thereafter, regularly https://www.mhc.tn.gov.in/judis Page 7 of 23 W.P.No.2023 of 2015 appointed as Draftsman Grade-III and subsequently selected by the TNPSC and appointed as Supervisor on 21.05.1975 in Tamil Nadu Highways Engineering Service. The petitioner completed his probation as Junior Engineer in the Highways and Rural Works Department. On 26.11.1983, he was transferred to Thirunelveli as Junior Engineer and posted at Manur. The petitioner entered into leave from 20.10.1983. The petitioner had not joined duty in the transferred place at Thirunevelli District. He had extended his leave and even as per the petitioner, he was applied for leave on 09.06.1984, 15.06.1984 and 22.10.1984 and thereafter, he has not submitted any leave application nor the leave was sanctioned by the competent authorities.
14. The petitioner has not even cared to know, whether his leave was sanctioned or not nor he reported for duty. When the petitioner remained continuously absent and not reported for duty from the year 1983 onwards, he reached the age of superannuation on 31.05.2006.
15. Interestingly, the petitioner neither had a communication with the Department nor approached the competent authority from the year 1983 onwards. The authorities also had not initiated any action and the whereabouts of the petitioner were also not known to the Department. The https://www.mhc.tn.gov.in/judis Page 8 of 23 W.P.No.2023 of 2015 Department also has not cared about the petitioner, as the petitioner had not reported for duty nor submitted a leave application, but remained unauthorisedly absent for more than 22 years. Thus, the lapses are traceable on both the parties. However, the Court has to consider, whether the mistake of the parties can be a ground to settle the terminal and pensionary benefits, which is the tax payer's money and the public interest in performance of public duties is also of a paramount consideration.
16. Let us now first consider the lapses on the part of the petitioner.
17. The petitioner on completion of his probation as Junior Engineer in Highways and Rural Works Department was transferred to Thirunevelli Division on 26.11.1983. However, the petitioner had not joined and continued his service in Thirunelvelli Division and proceeded on Medical Leave at the first instance and thereafter, applied leave only in the year 1984. From the year 1984 onwards, the petitioner has not even submitted any leave application to the competent authorities nor informed his whereabouts to the Department, enabling the Department to issue communications. In the last known address, the petitioner was not residing and the petitioner also has not established that he has properly communicated the last known address to the Department. From the year https://www.mhc.tn.gov.in/judis Page 9 of 23 W.P.No.2023 of 2015 1983 onwards, he remained unauthorisedly absent and only after a lapse of four years from the date of retirement, the petitioner submitted an application on 30.12.2010, asking the authorities to settle his terminal benefits. Even on the day of superannuation, the petitioner was not present in the office nor communicated his address or whereabouts. Thus, the petitioner not only behaved unbecoming of a public servant, but also remained unauthorisedly absent for more than 22 years. He had not even intimated his whereabouts and the last known address to the Department and after a lapse of 4 years from the date of retirement, suddenly he filed an application to settle his terminal benefits. Thereafter, the authorities searched the files and even the order of removal was unable to be served as the Department was not aware of the whereabouts of the petitioner and his address. Only after the petitioner sent an application under the Right to Information Act, 2005, the authorities immediately sent the order of removal to the address stated in the application under Right to Information Act and the said letter containing the order of removal from service was received by the wife of the writ petitioner.
18. The petitioner has committed a gross misconduct and not attended duty for more than 22 years. He had not even submitted letter or https://www.mhc.tn.gov.in/judis Page 10 of 23 W.P.No.2023 of 2015 leave application or informed about his whereabouts to the Department for more than 22 years. First time, after a lapse of about 27 years, he submitted an application on 30.12.2010, asking the authorities to settle his terminal benefits. Thus, the authorities could not able to trace out his Service Records as the petitioner's name was not even available in the roll of employees and it was closed long back as his whereabouts were not known to the Department.
19. Thus, it is made clear that the petitioner was not interested in continuing his service as Junior Engineer in the Department and initially he submitted an application in the year 1984 and thereafter, left the Department abruptly and had not even submitted any leave application. The petitioner had not approached the authorities for about 27 years and first time after a lapse of four years from his date of retirement, he submitted an application only on 30.12.2010 for the purpose of settling the terminal benefits. Therefore, the petitioner undoubtedly, committed a lapse and a misconduct and it is prima facie established even as per the affidavit filed by the writ petitioner along with the writ petition. The writ petitioner could not able to establish or filed any documents to prove that he was in contact with the Department or requested for further posting or to report for duty or applied for leave or informed about his address and whereabouts. https://www.mhc.tn.gov.in/judis Page 11 of 23 W.P.No.2023 of 2015
20. A Public servant abruptly left public duties and remained absent for more than 22 years and submitted an application after a lapse of about 27 years for terminal benefits, whether it is to be considered by the Court is the issue to be considered.
21. The respondents have not initiated an action soon after the petitioner committed a misconduct of unauthorised absent. The petitioner submitted a leave application in the year 1984. Thereafter, he has not submitted any leave application. Thus, the respondents have initiated action during the eve of retirement of the petitioner. Rule 17(b) charges were framed and the charge memorandum was not served on the writ petitioner, since his whereabouts were not known and based on the exparte enquiry, the punishment of removal from service was imposed on the writ petitioner. It is not in dispute that the punishment of removal from service was imposed based on the exparte enquiry conducted by the respondents and the petitioner had not received neither the charge memorandum nor the other proceedings. He received the order of removal only after he submitted an application under Right to Information Act in the year 2013. The respondents made a submission that since the whereabouts of the petitioner https://www.mhc.tn.gov.in/judis Page 12 of 23 W.P.No.2023 of 2015 was not known for more than 22 years, they secured the address of the writ petitioner only through the application submitted under the RTI Act and thereafter served the order of removal to the writ petitioner. Thus, the respondents closed the files long back on the ground that whereabouts of the petitioner was not known and some records are not available. However, the disciplinary proceeding were initiated during the eve of retirement and the petitioner was removed from service.
22. It is apparent that the petitioner has committed serious lapses and abandoned the public services. It is to be borne in mind that the department cannot search for its employees. When the employee abandoned his public duty, the employer cannot run behind the employees for the purpose of knowing the whereabouts of the employee. It is for the employee to report for duty as per the Service Rules. In the present case, even on the date of retirement, the petitioner had not reported for duty and after a lapse of four years from the date of retirement, he submitted an application to settle the terminal benefits. Thus, the petitioner had intentionally abandoned the services for more than 22 years before the date of retirement and after retirement also, he has not approached the department immediately and sent a letter only in the year 2010 after a lapse of about 27 years from the year of abandoning the duty. Thus, the lapses, negligence and misconduct https://www.mhc.tn.gov.in/judis Page 13 of 23 W.P.No.2023 of 2015 committed by the petitioner are more serious. However, the department had initiated action during the eve of his retirement and the order of removal was issued, by conducting an exparte enquiry.
23. The petitioner has no locus to question the exparte enquiry conducted by the respondents. The petitioner has no locus because he abruptly abandoned the public duty from the year 1984 onwards and submitted a letter to settle his terminal benefits after a lapse of 27 years and in between, the petitioner had failed even to communicate his residential address. The whereabouts of the petitioner was not known to the respondent for more than 27 years. The petitioner has not reported for duty nor contacted the officials to issue posting orders. In the absence of any one of these documents, this Court has no hesitation in forming an opinion that the petitioner has no locus to question the exparte enquiry conducted by the respondents as he left the department 22 years back and during the eve of retirement, the departmental disciplinary proceedings were initiated and he was removed from service.
24. The question arises, whether the ground raised by the writ petitioner that the principles of natural justice has been violated is to be considered for setting aside the order of removal.
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25. The principles of natural justice is not a straitjacket formula. The Hon'ble Supreme Court of India comprehensively considered various judgments regarding the principles of natural justice, in the case of State of U.P. Vs. Sudhir Kumar Singh and Others in Civil Appeal No.3498 of 2020 dated 16.10.2020, wherein all the earlier important judgments of Hon’ble Supreme Court on the principles of natural justice have been considered by Hon’ble Mr. Justice R.F.Nariman and the principles are summarised as under:
“39. An analysis of the aforesaid judgments thus reveals:
(1) Natural justice is a flexible tool in the hands of the judi-
ciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
(2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is con-
ceived not only in individual interest, but also in public in- terest.
(3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dis- pute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-chal- lenge or non-denial or admission of facts, in cases in which https://www.mhc.tn.gov.in/judis Page 15 of 23 W.P.No.2023 of 2015 the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
(4) In cases where facts can be stated to be admitted or in- disputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
(5) The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a defin- ite inference of likelihood of prejudice flowing from the non-observance of natural justice.”
26. In the above judgment, the Hon'ble Supreme Court of India in unequivocal terms held that “Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed”. Therefore, the case is to be considered with reference to the procedures followed by the authorities and the principles of natural justice adhered to while taking a decision.
27. In the present case, the petitioner abandoned the duty in the year https://www.mhc.tn.gov.in/judis Page 16 of 23 W.P.No.2023 of 2015 1984. He has not even communicated his whereabouts nor made a request to the authorities for issuing posting orders for more than 22 years. Thus, on the eve of retirement, the authorities have initiated departmental disciplinary proceedings for his unauthorised absence and based on the exparte enquiry, the order of removal from service was issued. The respondents have absolutely no option, but to arrive the said conclusion by passing the order of removal from service as they cannot search for the whereabouts of an employee, who has abandoned the duty 22 years back. Absolutely, there was no contact between the respondent department and the petitioner for more than 27 years. First time, when the petitioner submitted an application in the year 2010, seeking terminal benefits, the respondents came to know the whereabouts of the petitioner.
28. This being the factum, the petitioner has no locus to question the exparte enquiry conducted by the respondents. In such circumstances, if the Courts interfered with such exparte enquiry or set aside the order of removal from service, the same would result in miscarriage of justice.
29. Again, Justice means justice between both the parties. The interest of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice https://www.mhc.tn.gov.in/judis Page 17 of 23 W.P.No.2023 of 2015 are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise.
30. In the case of Madura Coats Ltd. vs. Presiding Officer, Labour Court and Ors, reported in (2001) 3 LLJ (Supp) 1194, the Madras High Court with reference to the service of notice to the charge officials, held as follows:
“42. The service of notice, in the present case, has to be taken as a valid service as the petitioners were expected to reside in their place of residence and whenever they change their place of residence, even temporarily they are expected to intimate their present address so that the management could communicate the proceedings. Having failed to intimate the address and having failed to respond to the charge - memo as well as hearing notice, it is not open to the workmen to contend that their absence is not liable to be proceeded or that the management should await till the workmen report on their own, which event may occur or may not occur even for a period of a few months.”
48. .........The management had followed the procedure prescribed as well as followed the principles of natural justice and only thereafter it imposed the punishment of dismissal. It may be that the proceedings may be ex-parte, but on that score, it cannot be said that the procedure adopted is in https://www.mhc.tn.gov.in/judis Page 18 of 23 W.P.No.2023 of 2015 violation of principles of natural justice. Ex-parte procedure is also provided for and it is a valid procedure and such an ex-
parte proceeding the management had been compelled to resort by the very conduct of the workmen.”
31. In the case of State Bank of Patiala Vs. S.K.Sharma, reported in (1996) 3 SCC 364, the Hon'ble Supreme Court of India held as follows:
“28. The decisions cited above make one thing clear, viz., principles of natural justice cannot be reduced to any hard and fast formulae. As said in Russell v. Duke of Norfolk [(1949) 1 All ER 109 : 65 TLR 225] way back in 1949, these principles cannot be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405 : (1978) 2 SCR 272]). The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. (See A.K. Roy v. Union of India [(1982) 1 SCC 271 : 1982 SCC (Cri.) 152] and Swadeshi Cotton Mills v. Union of India [(1981) 1 SCC 664].) As pointed out by this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262], the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable--a fact also emphasised by House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 All ER 935 : (1984) 3 WLR 1174 : 1985 AC 374, HL] where the https://www.mhc.tn.gov.in/judis Page 19 of 23 W.P.No.2023 of 2015 principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing--applying the test of prejudice, as it may be called--that any and every complaint of violation of the Rule of audi alteram partem should be examined. In our opinion, the approach and test adopted in B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural Rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid.”
32. In view of the above principles, the exparte enquiry in the present case occurred at the instance of the writ petitioner as his whereabouts were not known and the petitioner had miserably failed to inform his whereabouts or address or otherwise. The respondents on enquiry, found that the petitioner was working in abroad. Even the said address was not furnished to the department. The petitioner had not taken any initiative to report for duty nor furnished the address. This being the factum established, the exparte enquiry conducted by the respondents did not cause any prejudice to the interest of the writ petitioner and the petitioner is responsible for such an exparte enquiry, which resulted in the punishment of removal from https://www.mhc.tn.gov.in/judis Page 20 of 23 W.P.No.2023 of 2015 service and therefore, there is no reason to interfere with the order of removal from service.
33. There is no difficulty in forming an opinion in the present case that the petitioner has no locus standi to question the exparte enquiry conducted by the respondents, nor on the basis of the exparte enquiry, the relief to set aside the order of removal from service is to be granted. In the event of settling the terminal and pensionary benefits in favour of the writ petitioner, it will result in unjust enrichment to him and against the tax payers public interest as he has not even shown any interest to perform his public duties. Contrarily, he had abandoned public duties. As per the rules, he is not entitled for any benefit as he remained absent for more than 22 years and removed from service.
34. In view of the facts and circumstances, the relief as such sought for in the present writ petition cannot be granted and accordingly, the writ petition stands dismissed. No costs.
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W.P.No.2023 of 2015
Jeni/Kak
Index : Yes / No
Speaking order : Yes / No
To
1.The Secretary,
Government of Tamil Nadu,
Highways Department,
Fort St. George,
Chennai – 600 009.
2.The Chief Director,
Highways Department,
Chepauk, Chennai – 600 005.
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W.P.No.2023 of 2015
S.M.SUBRAMANIAM, J.
Jeni/Kak
W.P.No.2023 of 2015
11.08.2022
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