Madras High Court
A.Balakrishnan (Deceased) vs Secretary To Government on 28 April, 2023
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2023
CORAM:
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD, J.
W.P.No.13162 of 2011
1. A.Balakrishnan (Deceased)
2. Malliga ...Petitioners
(P2 Substituted as LR of deceased sole petitioner)
Vs
1.Secretary to Government,
Department of Prisons,
Fort St.George,
Chennai - 600 009.
2. Director General (Prisons),
O/o. Additional Director General-cum-
Director General Prison,
Egmore, Chennai - 600 008.
3. Superintendent of Prisons,
Central Prison,
Coimbatore-18. ...Respondents
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Prayer: Writ Petition filed Under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus, calling for the
records of the third respondent in its 10461/PO2/03 dated 17.09.2003 and the
consequential order of the second respondent No.59130/EW1/2008 dated
12.04.2009 and quash both orders and consequently direct the respondents to
reinstate the petitioner into service with continuity of service, backwages and
all other attendant benefits.
(Prayer amended vide order dated 09.03.2022 made in
W.M.P.No.4054/2008 in W.P.No.13162/2011 by MSRJ)
For Petitioner : Mr.V.Vijay Shankar,
Senior Counsel,
Assisted by E.Vinoth kumar.
For Respondents : Mr.R.Neethi Perumal,
Government Advocate,
For R1 to R3.
ORDER
The above writ petition is filed challenging the impugned order in No.59130/EW1/2008, dated 12.04.2009, issued by the second respondent rejecting the request of the petitioner for reinstatement. 2/30 https://www.mhc.tn.gov.in/judis
2. The facts of the case in a nutshell:-
2.1. The petitioner joined the services of the respondents Department at Tiruchy in the year 1984 as Grade II Warder and his number was 80. He got B.A. degree and also completed Bomb Detection and Disposal Course and has been discharging his duties sincerely and diligently for 20 years under the respondents.
2.2. The petitioner worked in Trichy Central Prison upto the year 1994 and was transferred and posted to Coimbatore Central Prison and in the year 1996, he was transferred to Sub-Jail, Tirupur and again, in the same year 1996, he was retransferred to Central Prison, Coimbatore and was working as a Grade II Warder till he was removed from service on 22.07.2003 by the third respondent. The petitioner availed Medical Leave from 11.05.2003 to 30.06.2003 and after completion of Medical leave, he went to join duty on 01.07.2003. The Chief Head Warden/Superintendent did not allow the petitioner to join duty and further directed him to appear before the Medical Board and further stated that he had sent a letter dated 21.06.2003 to 3/30 https://www.mhc.tn.gov.in/judis the petitioner, but the same was not received by the petitioner till 01.07.2003.
As per the directions of the Superintendent, he went to Karur General Hospital to appear before the Medical Board and the Hospital Authorities told him that they are unable to examine since at that point of time since the doctors abstained from duty throughout the State of Tamil Nadu and further told him that intimation would be given to the petitioner as to when he should appear before them. Immediately, he had communicated the same to the then Superintendent of Police. While the facts being so, the third respondent passed an order saying that he was unauthorizedly absent from 01.07.2003 to 21.07.2003 without applying any leave or prior intimation and was removed from service with effect from 22.07.2003. The petitioner was advised to file an appeal before the second respondent, but the same was not filed by the petitioner. The petitioner has also made several representations to the second respondent on 20.06.2007 and 26.11.2008 to the respondents requesting them to reinstate him in service, but the representations were rejected by the second respondent without considering his explanation and penury situation. The representation dated 14.11.2008 sent by the petitioner to the second respondent 4/30 https://www.mhc.tn.gov.in/judis requesting him to reinstate him in service with all service benefits, was treated as revision petition and was rejected by the second respondent herein on 12.04.2009. Aggrieved by this order, the petitioner has come forward with the present writ petition.
3. The learned senior counsel appearing for the petitioner would submit that the petitioner also appeared before the Medical Board on the direction of the Superintendent of Prison, Coimbatore, who issued a letter dated 21.06.2003 to the petitioner. In his proceedings dated 06.08.2003, the Superintendent of Prison, Central Prison, Coimbatore, has stated that the petitioner has unauthorizedly absented himself from 01.07.2003 and within 60 days he could appear before the third respondent Superintendent of Prison, Central Prison, Coimbatore, and if the petitioner decides to appeal he can do the same within 60 days and the same was also duly served to the petitioner. The learned counsel would further submit that by another proceeding dated 17.09.2003, the Superintendent of Prisons, Central Prison, Coimbatore declared the petitioner as a deserter and according to Tamil Nadu Prison, Manual -II, Rule 128 (3), the 5/30 https://www.mhc.tn.gov.in/judis petitioner’s name was removed from the attendance register with effect from 22.07.2003 and was also given 60 days time to prepare a Statutory appeal before the second respondent, Director General of Police. But, however, the petitioner did not prefer the appeal as directed by the third respondent in the above proceedings dated 17.09.2003.
4. The learned senior counsel would further submit that the representation dated 14.11.2008 submitted by the petitioner, requesting for reinstatement into service was rejected by the third respondent Superintendent of Prison, Central Prison, Coimbatore, by passing a rejection order dated 12.04.2009. Even in the rejection order dated 12.04.2009, it was stated that the petitioner was in unauthorized absence with effect from 01.07.2003 and within 60 days, he did not appear before the second respondent, Superintendent of Prison in person and submit an application for reinstatement of service. The petitioner got superannuated in the year 2017.
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5. The learned senior counsel would further submit that as per Rule 128 of the Tamil Nadu Prison Manual (Volume II) an application for reinstatement from an Officer whose name has been struck off as a deserter shall not be entertained unless it reaches the Superintendent or an Officer of equal rank under whom the subordinate officer was serving within two months of the date of the commencement of the absence without leave. In the instant case, the petitioner did not give any application. In cases where the application was not given, a charge shall be framed and procedure prescribed for oral enquiries complied with, before confirming the dismissal or reinstating the deserter with or without punishment. The petitioner during the pendency of the writ petition died on 23.07.2022 and now, the wife being the legal heir is on record.
6. The learned senior counsel appearing for the petitioner relied on the judgment of this Court passed in W.P.No.26714 of 2006, dated 09.06.2009 and the relevant paragraphs are extracted hereunder:-
"8. Though the Prisons Act enables the authorities to frame rules and orders in terms of the Act, whether Rule 7/30 https://www.mhc.tn.gov.in/judis 128 can replace the statutory rules framed under Article 309 of the Constitution and whether it can dispense with the reasonable opportunity before removal as guaranteed under Article 311(2) of the Constitution is the question which has to be answered in the present case. The Supreme Court in more than one case held that even in case of long absence, it is incumbent upon the authorities to comply with the mandatory provisions of Article 311(2) before dispensing of the service of a Government servant.
10. From the above rulings of the Supreme Court, it will be clear that there is no escape for the respondents to dispense with an enquiry before ordering removal of service of a Government servant. In the present case, it is an admitted fact that the petitioner had died on 28.03.1996 and he was not served personally even the so called order of desertion. No charge memo was framed against him and no enquiry was also held against him in terms of Rule 17(b) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules, while the petitioner's husband was alive. It was after his death, the wife was making representation for getting pension and other terminal benefits."8/30
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7. The learned senior counsel further relied on the judgment of this Court passed in W.P.No.7927 of 2015, dated 21.12.2021 and the relevant paragraphs are extracted hereunder:-
"4. On the issue of disproportionality of a punishment is concerned, the same has been dealt in various decisions of this Court, as well as the Hon'ble Supreme Court to the effect that the ultimate punishment requires to be in confirmity with the gravity of the charges. In one such decision of a learned Single Judge of this Court of this Court in R.Jayakumar Vs. The Deputy Commissioner of Police and another in W.P.No.26072 of 2004, dated 08.08.2008, the High Court had placed reliance on three decisions of the Hon'ble Supreme Court and interfered with the punishment of dismissal for the period of unauthorised absence of 21 days and directed the delinquent therein to be reinstated into services without benefit of pay for the period of absence.
6. The aforesaid extract is self-explanatory. When the circular of the Director General of Police clearly indicates that neither the punishment of 'dismissal from 9/30 https://www.mhc.tn.gov.in/judis services' nor 'Compulsory Retirement' should be imposed on a delinquent for charges of desertion, the punishment imposed itself is deemed to be disproportionate to the charges, as held by the Hon'ble Supreme Court and which was relied on by this Court in the aforesaid decision.
8............. Consequently, there shall be a direction to the 2nd respondent herein to pass appropriate orders, reinstating the petitioner into services from 22.02.2011 onwards, together with continuity of service and other service benefits, within a period of 2 weeks, as if the petitioner was never dismissed from his services. However, the petitioner shall not be entitled for the backwages during his period of Non-employment. This Writ Petition is allowed, accordingly. The connected miscellaneous petitions are closed. No costs."
8. A counter affidavit was also filed by the respondents. The learned Government Advocate appearing for the respondents submitted that the petitioner was treated as deserter earlier with effect from 23.01.1986 consequent on his unauthorized absence from duty for more than 21 days and on appeal, the petitioner was reinstated into service and disciplinary action was 10/30 https://www.mhc.tn.gov.in/judis taken against him under rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules as per proceedings No.3338/AB3/1986 dated 21.11.1986 of the second respondent. The petitioner joined duty on 21.01.1987. He was awarded with a punishment of postponement of increment for a period of 2 years without cumulative effect as per proceedings No.16013/G1/86, dated 27.04.1987 of the Superintendent of Central Prison, Trichy. The learned Government Advocate would further submit that subsequently he was transferred to Central Prison, Coimbatore on 11.09.1992 and while he was working at Central Prison, Coimbatore, the petitioner was placed under suspension with effect from 21.04.1994 in connection with the escape of one convict prisoner No.69158 namely Samidurai and disciplinary action was taken against him under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. Finally, he was awarded with a punishment of “Reduction of pay to the bottom of the time scale without cumulative effect for a period of 2 years” vide proceedings No.6194/G1/94, dated 31.08.1994 of the third respondent. The learned Government Advocate would further submit that again he absented 11/30 https://www.mhc.tn.gov.in/judis himself from duty without any information with effect from 05.02.1995. He was treated as a deserter as per Rule 128(3) of the Tamil Nadu Prison Manual Volume II. Disciplinary action was taken against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. Finally he was awarded with a punishment of “Reduction of pay to the bottom of time scale of pay without cumulative effect for a period of 2 years” as per proceedings No.7278/G1/98, dated 24.09.1998 of the third respondent. The learned Government Advocate would further submit that the petitioner was transferred to Sub Jail, Tiruppur on 16.04.1997 and again he was transferred to Central Prison, Coimbatore on 16.05.2002. While he was working at Central Prison, Coimbatore, he again absented himself from duty unauthorizedly with effect from 01.07.2003. So, the petitioner was treated as deserter as per proceedings No.10461/G2/2003, dated 06.08.2003 of the third respondent. The orders were issued as per the rules of the Tamil Nadu Prison Manual Volume II. He was informed that he may appear before the third respondent within 60 days from the date of receipt of the above proceedings and he may request to allow him to join duty again. The petitioner did not appear before the 12/30 https://www.mhc.tn.gov.in/judis third respondent within 60 days. Hence, the third respondent confirmed the order of desertion vide proceedings No.10461/G2/2003, dated 17.09.2003 and the petitioner’s name was removed from the attendance register. The petitioner appeared before the Medical Board on 20.08.2003. The petitioner has not submitted any petition with medical certificate for the period from 01.07.2003 to 21.07.2003. The petitioner was absented himself from duty for more than 21 days i.e., from 01.07.2003 to 21.07.2003. Hence, action was taken against him under Rule 128(1) & (2) of the Tamil Nadu Prison Manual Volume II and he was treated as deserter with effect from 22.07.2003 vide proceedings No.10461/G2/2003, dated 06.08.2003 of the third respondent. His name was struck off from the attendance register. The learned Government Advocate would further submit that the petitioner was instructed to prefer an appeal to Deputy Inspector General of Prisons, Coimbatore range within 60 days from the date of receipt of order dated 17.09.2003. But the petitioner has not preferred any appeal before the Deputy Inspector General of Prisons, Coimbatore range. In regard to the representation submitted to the second respondent requesting to quash the punishment awarded by the third 13/30 https://www.mhc.tn.gov.in/judis respondent, the second respondent examined his case in detail. Despite several opportunities were given to the petitioner, he has not shown any interest in joining duty and also has not reported before the Superintendent within 60 days. The learned Government Advocate would further submit that during his service, the petitioner has got six punishments. Hence his review petition was rejected vide proceedings No.59130/EW1/2008, dated 12.04.2009 as devoid of merits by the second respondent.
9. The learned Government Advocate submitted a copy of the letter dated 14.11.2008 written by the petitioner to the third respondent requesting for reinstatement of service and the same was submitted after delay of six years. Since the petitioner was terminated from his service with effect from 21.07.2003, the third respondent has passed an order 12.04.2009 rejecting the request of the petitioner which is under challenge in the present writ petition before this Court.
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10. Heard both sides and perused the materials available on record.
11. In this case, the main allegation against the petitioner is that he was unauthorizedly absent for 21 days from 01.07.2003 to 21.07.2003 and he was declared as a deserter by the second respondent with effect from 22.07.2003, by proceedings No.10461/G2/2003 dated 06.08.2003 of the third respondent. There was an appeal remedy to the petitioner. He did not prefer a statutory appeal before the Deputy Inspector General of Police, Coimbatore range. It can be seen from the counter affidavit filed by the respondents that the petitioner has undergone six punishments during service from 1984 to 21.07.2003.
12. On perusal of the records, it can be seen that the petitioner right from 11.06.2003 to 09.06.2003 was on Medical leave and it was subsequently extended from 10.06.2003 to 30.06.2003. The petitioner also did not appear in person before the second respondent to request for reinstatement into service since he was an unauthorized absentee with effect from 01.07.2003. At this 15/30 https://www.mhc.tn.gov.in/judis juncture, it is pertinent to extract the Section 128 of the Tamil Nadu Prison Manual Volume II for better appreciation an understanding.
"128. Not to be absent without permission:-
(1) No subordinate officer shall be absent during the hours fixed for his attendant without the permission of the Superintendent or Additional Superintendent or Jailer. Any subordinate officer disabled from the performance of duty by illness shall give or send immediate notice to the Jailor, who shall make such arrangements as may be necessary for the performance of the duty of the disabled officer.
(2) Absence without leave for 21 days completes the offence of desertion, after which the officer's name shall invariably be struck off from the date of absence.
(3) An application for reinstatement from an officer whose name has been struck off as a deserter shall not be entertained unless it reaches the Superintendent or an officer of equal rank under whom the subordinate officer was serving within two months of the date of the commencement of the absence without leave. The Superintendent of the corresponding officer of equal rank, as the case may be, shall not reinstate a 16/30 https://www.mhc.tn.gov.in/judis deserter (a) until the deserter has attended in person which he should do, nor later than the date prescribed by the officer dealing with the case and has given his explanation for his absence without leave; and (b) unless the Superintendent or an officer of equal rank, as the case may be, is satisfied, after such enquiry as may be necessary, that the case deserves reconsideration. At the end of two months, if no application for reinstatement is received and if the whereabouts of the deserter are not known, the officer dealing with the case shall record in writing the fact that it is not reasonably practicable to give the deserter an opportunity of showing cause against his dismissal and then confirm the dismissal. In other cases a charge shall be framed and the procedure prescribed for oral enquiries complied with, before confirming the dismissal or reinstating the deserter with or without punishment."
13. In the instant case, according to the above section the petitioner did not submit application for reinstatement within 60 days from the date of commencement of the absence without leave i.e. from 01.07.2003. A charge 17/30 https://www.mhc.tn.gov.in/judis has to be framed and the procedure prescribed for an oral enquiry has to be complied before confirming the dismissal or reinstating the deserter with or without permission. In the case on hand, the above procedure was not followed by the respondents which is in clear violation of the Tamil Nadu Prison Manual Rule. According to the respondents, there are six punishments imposed on the petitioner in which three punishments were flawed. Out of which, the punishment imposed five times is for unauthorized absence. The petitioner was treated as a deserter by the second respondent and disciplinary action was taken against him under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules and awarded with the punishment of “Reduction of pay to the bottom of time scale of pay without cumulative effect for a period of 2 years, postponement of increment for a period of two years with cumulative effect, then again Reduction of pay to the bottom of time scale of pay without cumulative effect, these are the punishments imposed by the respondents on five occasions of desertion by the petitioner. It is pertinent to mention that one of the misconduct by the petitioner is very serious and grave in nature and the relevant paragraphs of the counter affidavit is extracted 18/30 https://www.mhc.tn.gov.in/judis hereunder:-
“While the petitioner was working at Central Prison, Coimbatore, the petitioner was placed under suspension with effect from 21.04.1994 in connection with the escape of one convict prisoner No.69158 Samidurai. Disciplinary action was taken against him under rule 17(b) of the Tamil Civil Services (Classification, Control and Appeal) Rules. Finally, he was awarded with a punishment of “Reduction of his pay to the bottom of the time scale without cumulative effect for a period of 2 years” vide proceedings No.6194/G1/94, dated 31.08.1994 of the third respondent."
14. In the case on hand, even though the petitioner has given the leave letter up to 30.06.2003, but for the period from 01.07.2003 to 21.07.2003 he has not submitted his leave letter and this leave period of 21 days was treated as an unauthorized absence by the respondents considered as a grave misconduct and went to the extent of declaring the petitioner as a deserter and removed his name from the attendance 19/30 https://www.mhc.tn.gov.in/judis register with effect from 21.07.2003. But a charge against the petitioner as mentioned in the counter affidavit and stated supra, the charge levelled against the petitioner is in connection with the escape of one convict prisoner from the Central Prison, Coimbatore in which he was placed under suspension and finally, he was awarded with the punishment “Reduction of pay to the bottom of time scale of pay without cumulative effect for a period of 2 years” by the third respondent.
15. This Court is of the considered view that the above conduct is a grave misconduct committed by the petitioner involving the escape of one convict than the unauthorized absence for 21 days. In this case, the respondent should have taken serious action against the petitioner and imposed punishment under 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, by awarding the maximum punishment of dismissal from service. But having failed to do so, they have taken lenient view and awarded the punishment of "Reduction of his pay to the bottom of the time scale without cumulative effect for a period of 2 years".20/30
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16. In this case, the petitioner was an unauthorized absence for the period of 21 days from 01.07.2003 to 21.07.2003 and the third respondent has imposed the major penalty of removal from service which is unwarranted and the same is disproportionate to the delinquency committed by the petitioner.
17. According to Section 128(3) of the Tamilnadu Prison Manual Volume-II, charges have to be framed and the procedures prescribed for oral enquiries complied with before confirming the dismissal or reinstating the dismissed employee with or without permission.
18. The order passed by the third respondent and the consequential order passed by the second respondent has to be quashed on the following grounds:-
(i) Rule 128(3) of the Tamilnadu Prison Manual Volume-II not followed.
(ii) For the grave misconduct of allowing the convict to escape from the jail, the third respondent took a lenient view and awarded a punishment of reduction of his pay to the bottom of the time scale with cumulative effect.21/30
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(iii) The punishment of removal of service imposed on the petitioner for the unauthorized absence of 21 days is unwarranted and the same is disproportionate the delinquency committed by the petitioner.
19. The learned senior counsel for the petitioner in support of his contention relied on the various judgment of this Court in W.P.No.26714 of 2006, dated 09.06.2009 (in the case of K.Devaki vs The Superintendent, Central Prison, Salem-7), this Court has held as follows:-
"8. Though the Prisons Act enables the authorities to frame rules and orders in terms of the Act, whether Rule 128 can replace the statutory rules framed under Article 309 of the Constitution and whether it can dispense with the reasonable opportunity before removal as guaranteed under Article 311(2) of the Constitution is the question which has to be answered in the present case. The Supreme Court in more than one case held that even in case of long absence, it is incumbent upon the authorities to comply with the mandatory provisions of Article 311(2) before dispensing of the service of a Government servant.22/30
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10. From the above rulings of the Supreme Court, it will be clear that there is no escape for the respondents to dispense with an enquiry before ordering removal of service of a Government servant. In the present case, it is an admitted fact that the petitioner had died on 28.03.1996 and he was not served personally even the so called order of desertion. No charge memo was framed against him and no enquiry was also held against him in terms of Rule 17(b) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules, while the petitioner's husband was alive. It was after his death, the wife was making representation for getting pension and other terminal benefits."
20. In W.P.No.7927 of 2015, dated 21.12.2021 (in the case of R.Sudhakar Vs The Principal Secretary to Government, Home (Pol-V) Department, Fort St.George, Chennai-600 009), this Court has held as follows:-
"4. On the issue of disproportionality of a punishment is concerned, the same has been dealt in various decisions of this Court, as well as the Hon'ble Supreme Court to the effect that 23/30 https://www.mhc.tn.gov.in/judis the ultimate punishment requires to be in confirmity with the gravity of the charges. In one such decision of a learned Single Judge of this Court of this Court in R.Jayakumar Vs. The Deputy Commissioner of Police and another in W.P.No.26072 of 2004, dated 08.08.2008, the High Court had placed reliance on three decisions of the Hon'ble Supreme Court and interfered with the punishment of dismissal for the period of unauthorised absence of 21 days and directed the delinquent therein to be reinstated into services without benefit of pay for the period of absence.
6. The aforesaid extract is self-explanatory. When the circular of the Director General of Police clearly indicates that neither the punishment of 'dismissal from services' nor 'Compulsory Retirement' should be imposed on a delinquent for charges of desertion, the punishment imposed itself is deemed to be disproportionate to the charges, as held by the Hon'ble Supreme Court and which was relied on by this Court in the aforesaid decision.
8............. Consequently, there shall be a direction to the 2nd respondent herein to pass appropriate orders, reinstating the petitioner into services from 22.02.2011 onwards, together with continuity of service and other service benefits, within a 24/30 https://www.mhc.tn.gov.in/judis period of 2 weeks, as if the petitioner was never dismissed from his services. However, the petitioner shall not be entitled for the backwages during his period of Non-employment. This Writ Petition is allowed, accordingly. The connected miscellaneous petitions are closed. No costs."
21. In W.P.No.7968 of 2018, dated 02.03.2020 (in the case of Srinivasan Vs the Superintendent of Police, Thiruvannamalai District & others), this Court has held as follows:-
"14. Considered the submissions of learned Senior counsel appearing on behalf of the Petitioner and also the learned counsel appearing on behalf of the respondents. No doubt, the petitioner appears to be habitual absentee, but as far as the order of compulsory retirement is concerned, which is impugned in this writ petition, it was in relation to the petitioner's unauthorized absence from 11.07.2019 for over 21 days. Although there is a dispute as to whether unauthorized absence is from 17.07.2019 or from 23.07.2019, but the factum of unauthorized is not disputed and it is borne out by records. However, what has to be seen in this case is the proportionality of the punishment imposed on the petitioner.25/30
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17. Uniform consideration is the hall-mark of judicial discipline and justice dispensation and on such consideration this petitioner's claim can also be brought within the ambit of the decisions referred to above. In teh above circumstances, this Court is of the considered view that in order to secure that ends of justice, the impugned orders passed by the first respondent in P.R.No.64 of 2014 dated 20.02.2015 and confirmed by the second respondent in C.No.B1/AP16/002982/2015 dated 18.03.2015 and further confirmed by the 3rd respondent in RC.No.90985/AP2(2)/2015 dated 29.08.2016 are hereby set aside and the Disciplinary Authority i.e., the first respondent is directed to impose any other penalty on the petitioner other than 'compulsory retirement', 'removal from service' and 'dismissal', and on such imposition of penalty, the petitioner's period of non- employment may be regulated accordingly."
22. Section 128(3) of the Tamil Nadu Prison Manual Volume II, which was not followed in the instant case, reads as follows:-
(3) An application for reinstatement from an officer whose name has been struck off as a deserter shall not be entertained unless it reaches the Superintendent or an officer 26/30 https://www.mhc.tn.gov.in/judis of equal rank under whom the subordinate officer was serving within two months of the date of the commencement of the absence without leave. The Superintendent of the corresponding officer of equal rank, as the case may be, shall not reinstate a deserter (a) until the deserter has attended in person which he should do, nor later than the date prescribed by the officer dealing with the case and has given his explanation for his absence without leave; and (b) unless the Superintendent or an officer of equal rank, as the case may be, is satisfied, after such enquiry as may be necessary, that the case deserves reconsideration. At the end of two months, if no application for reinstatement is received and if the whereabouts of the deserter are not known, the officer dealing with the case shall record in writing the fact that it is not reasonably practicable to give the deserter an opportunity of showing cause against his dismissal and then confirm the dismissal. In other cases a charge shall be framed and the procedure prescribed for oral enquiries complied with, before confirming the dismissal or reinstating the deserter with or without punishment."27/30
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23. In view of the above grounds and findings of this Court, the order passed by the second and third respondents are liable to be quashed.
24. Accordingly, the impugned order dated 12.04.2009 is quashed. In the result, the present writ petition is allowed and the respondents are directed to settle all the benefits including the terminal benefits, retirement benefits of the deceased petitioner to the legal heirs of the petitioner within a period of six weeks from the date of receipt of a copy of this order. No costs.
.04.2023 Index: Yes/No Speaking/Non-speaking Order kmm 28/30 https://www.mhc.tn.gov.in/judis To
1.The Secretary to Government, Department of Prisons, Fort St.George, Chennai - 600 009.
2. The Director General (Prisons), O/o. Additional Director General-cum-
Director General Prison, Egmore, Chennai - 600 008.
3. The Superintendent of Prisons, Central Prison, Coimbatore-18.
29/30 https://www.mhc.tn.gov.in/judis J.SATHYA NARAYANA PRASAD, J.
kmm W.P.No.13162 of 2011 .04.2023 30/30 https://www.mhc.tn.gov.in/judis