Madras High Court
G.Veerabadran vs The Secretary To Government on 30 August, 2022
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
W.P.No.11846 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.08.2022
CORAM :
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Writ Petition No.11846 of 2012
G.Veerabadran ... Petitioner
Vs.
1.The Secretary to Government,
Labour & Employment Department,
Fort St.George,
Chennai – 9.
2.The Commissioner of Employment & Training,
Guindy,
Chennai – 32. … Respondents
Writ Petition filed under Article 226 of Constitution of India, praying
for issuance of Writ of Certiorarified Mandamus, calling for the records in
pursuant to the Impugned G.O.Ms.No.71 Labour & Employment (P2)
Department dated 16.04.10 passed by the first respondent and quash the same
to the extent of regularization of absence period from 25.05.2002 to
23.08.2006 and consequently direct the respondents to regularize the said
period from 25.05.2002 to 23.08.2006 as duty with salary and grant all
consequential service benefits.
For Petitioner : M/s.Swadhi Subramaniam
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W.P.No.11846 of 2012
For Respondents : Mr.G.Nanmaran,
Special Government Pleader
ORDER
The learned counsel for the petitioner submitted that the petitioner was initially appointed as storekeeper in Government Industrial Training Institute, Ambathur on 12.09.1986 on compassionate grounds and thereafter, he was transferred to Guindy on 02.08.198. Subsequently, the Principal, Government ITI, Guindy has issued a proceeding dated 14.08.1989, confirmed the petitioner’s completion of probation in the post of Junior Assistant with effect from 11.09.1988. Further, an order dated 21.01.1997 was issued and petitioner was given a selection grade with effect from 12.09.1996 and promoted as store keeper.
2. The learned counsel for the petitioner further submitted that the petitioner has submitted an application dated 04.12.2000 for resignation in anticipation and the said resignation was accepted and he was stayed away from duty. Thereafter, the petitioner submitted a letter dated 24.05.2002, withdrawing the letter of resignation and requested for reinstatement. This being so, the department served a letter dated 02.02.2004 retrospectively, accepting the resignation of the petitioner with effect from 05.12.2000. Page No.2 of 9 https://www.mhc.tn.gov.in/judis W.P.No.11846 of 2012 Subsequently, the petitioner made a representation and for the same, no response was given by the respondent. Challenging the letter dated 02.02.2002, the petitioner had filed O.A.No.1881 of 2004 before the Tamil Nadu Administrative Tribunal and the same was transferred to this Court and renumbered as W.P.No.36679 of 2005 and this Court vide its order dated 02.03.2006, allowed the said writ petition. The relevant paragraph of the said order is reads as follows:
“That apart, if the order has been passed before the representation of the Petitioner dated 24.05.2002, negativing the claim of the Petitioner to withdraw the resignation letter submitted by him, the matter will stand in a different footing, but passing the order after a lapse of 4 years, after getting the withdrawal of the resignation is in my opinion contrary to the provisions and prima facie illegal. Hence the same is set aside and the Respondents are directed to permit the Petitioner to join duty, but the Petitioner is not entitled for any benefit for the period from 04.12.2000 to 24.05.2002. With the above said observation, the Writ Petition is allowed. No costs.”
3. The learned counsel for the petitioner contended that pursuant to the order of this Court dated 02.03.2006, the respondents has reinstated the petitioner into service and the question of regularization of intervening period of pending lis was taken up by the first respondent and the G.O.Ms.No.71 dated 16.04.2010 was issued stating that the period from Page No.3 of 9 https://www.mhc.tn.gov.in/judis W.P.No.11846 of 2012 04.02.2000 to 24.05.2002 was treated as non-duty period. But the period from 25.05.2002 to 23.08.2006 was treated as medical leave without certificate and without pay. This portion of the order is erroneous and contrary to the spirit of the order passed by this Court in W.P.No.36679 of 2005. Aggrieved over the order in G.O.Ms.No.71 dated 16.04.2010, the petitioner has come forward with the present writ petition.
4. The learned Special Government Pleader appearing for the respondents has filed a counter affidavit and submitted that no mandatory direction to confer service benefits to the petitioner beyond 24.05.2002 is awarded in the judgment. In such instances, the first respondent is bound to abide the rules and regularize the period of absence as per rules in force and the petitioner’s case had been acted upon accordingly. Since, absence is regularized as extraordinary leave on loss of pay without medical certificate, no notional benefits can be construed upon the petitioner during the above said period.
5. The learned Special Government Pleader further submitted that as Page No.4 of 9 https://www.mhc.tn.gov.in/judis W.P.No.11846 of 2012 erroneously contended by the petitioner, the extraordinary leave on loss of pay without medical certificate will not have a bearing on the petitioner’s medical leave account and the operative part of the judgment has only setting aside the order and accepting the petitioner’s resignation and permitting the petitioner to join duty and accordingly the period between the date of tendering resignation and withdrawing the same has been regularized as Non- Duty period, which is tenable in the eyes of law. Contrary to the petitioner’s contention, even though the period of leave on loss of pay confers him the benefit of continuity in service, it devoids him the benefit of salary since Tamil Nadu Leave Rules does not entitle the petitioner for leave salary during leave on loss of pay. Hence, the petition is liable to be dismissed.
6. Heard the learned counsel on either side and perused the material documents available on record.
7. It can be seen from the records that the petitioner has submitted an application for resignation on 04.12.2000 and subsequently, he withdraws the same through letter dated 24.05.2002. The first respondent by letter dated Page No.5 of 9 https://www.mhc.tn.gov.in/judis W.P.No.11846 of 2012 02.02.2004, retrospectively accepted the resignation of the petitioner with effect from 05.12.2000. Challenging the order dated 02.02.2004, the petitioner filed a writ petition in W.P.No.36679 of 2005 and this Court passed an order stating that accepting the withdrawal of resignation, after a lapse of four years is contrary to the provisions and prima facie as illegal and the order of the Government was set aside and the respondents were directed to permit the petitioner to join duty and petitioner is not entitled for the benefit from 04.12.2000 to 24.05.2002. The order passed by the first respondent vide G.O.Ms.No.71 dated 16.04.2010 stating that the period from 04.02.2000 to 24.05.2002 was treated as non-duty period. But the period from 25.05.2002 to 23.08.2006 was treated as medical leave without certificate and without pay is not sustainable since, the period of lis pendence is not at the instance of the petitioner and the same cannot be regularized as without salary or without medical certificate.
8. It is pertinent to note that the resignation application of the petitioner dated 04.12.2000 was accepted by the respondents only on 02.02.2004 with retrospective effect is not sustainable. Moreover, the petitioner has given two Page No.6 of 9 https://www.mhc.tn.gov.in/judis W.P.No.11846 of 2012 representations dated 13.10.2010 and 17.08.2011. However, the said representations were not considered and no orders were passed by the respondents. Further, treating the period from 14.02.2000 (Application for resignation) to 24.05.2002 (withdrawal of resignation application) as non- duty period is correct. Whereas, treating the period from 25.05.2002 to 23.08.2006 cannot be treated as medical leave without certificate. Because, it is a delay on the part of the respondents in considering the application for resignation submitted by the petitioner i.e., after a lapse of four years is not sustainable and the same was also observed by this Court in W.P.No.36679 of 2009 dated 02.03.2006.
9. Hence, this Court is of the considered view that the petitioner is entitled for regularization from the period between 25.05.2002 to 23.08.2006 as duty with salary and all consequential service benefits.
10. Considering the above facts and circumstances, the order passed by the first respondent in G.O.Ms.No.71 Labour and Employment (P2) Department dated 16.04.2010 is hereby set aside and this Court directs the Page No.7 of 9 https://www.mhc.tn.gov.in/judis W.P.No.11846 of 2012 first respondent to regularize the absence period from 25.05.2002 to 23.08.2006 as duty period with salary and all consequential service benefits to the petitioner, within a period of six weeks from the date of receipt of a copy of this order.
11. With the above direction, this writ petition is allowed. No costs.
30.08.2022
vm
Index : Yes/No
Speaking Order : Yes/No
J.SATHYA NARAYANA PRASAD,J.
vm
To:
1.The Secretary to Government,
Labour & Employment Department,
Fort St.George,
Chennai – 9.
2.The Commissioner of Employment & Training,
Guindy,
Chennai – 32.
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W.P.No.11846 of 2012
W.P.No.11846 of 2012
30.08.2022
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