Madras High Court
V.Madhiyazhagan (Deceased) vs The Additional Director Of Prison on 28 November, 2019
Author: M. Duraiswamy
Bench: M.Duraiswamy
W.P.No.14358 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.11.2019
CORAM :
The HON'BLE MR.JUSTICE M.DURAISWAMY
W.P.No.14358 of 2007
V.Madhiyazhagan (Deceased)
2.Venkatesh
3.Hemalatha
4.Ambika
5.Radha
6.Lakshmi Ammal ... Petitioners
(Petitioners 2 to 6 are substituted as LRs of the deceased Petitioner vide
order dated 15.11.2016 made in M.P.No.1 of 2011)
Vs.
1.The Additional Director of Prison,
Jail Department, Egmore, Chennai – 8.
2.The Deputy Inspector General of Prison,
Kovai Range, Kovai.
3.The Superintendent of Prison,
Salem Central Prison, Salem – 7. ... Respondents
Petition filed under Article 226 of the Constitution of India to issue
writ of certiorarified mandamus to call for the records on the file of the
respondents 3, 2 & 1 in connection with the orders passed by them in
No.Po1/3342/2001 dated 23.02.2001; No.Po1/3342/2001 dated 28.02.2002;
No.5349/Mu.U1/02 dated 21.11.2002 and No.17576/E.S.2/02 dated
27.05.2003 and quash the same and direct the respondents to reinstate the
applicant with all monetary and service benefits.
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W.P.No.14358 of 2007
For Petitioners : Mr.R.Singaravelan, Senior Counsel
for Mr.Rajamani
For Respondents : Mr.S.N.Parthasarathi,
Government Advocate (R1 to R3)
ORDER
Challenging the orders passed by the 3rd respondent dated 23.02.2001 & 28.02.2002, the 2nd respondent dated 21.11.2002 and the 1st respondent dated 27.05.2003 and to consequently direct the respondents to reinstate with all monetary and service benefits, V.Madhiyazhagan filed O.A.No.3020 of 2003, which was subsequently transferred to the file of this Court and numbered as W.P.No.14358 of 2007.
2.The employee, V.Madhiyazhagan, had died during the pendency of the Writ Petition and his legal representatives were brought on record as petitioners 2 to 6 in the Writ Petition. V.Madhiyazhagan was initially selected for appointment to the post as Cook through Employment Exchange and he joined the service on 11.06.1985. Due to his serious health conditions, V.Madhiyazhagan could not be able to attend his duties from 02.02.2001, therefore, by order dated 23.02.2001 he was declared to have desserted from the service. Thereafter, a charge memo dated 02.04.2001 Page 2/15 http://www.judis.nic.in W.P.No.14358 of 2007 under Rule 17(b) of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules was issued against him for the following charge:
“that he had sent a leave letter with the Medical Certificate and with the Doctor's report for the leave taken by him for the period from 02.02.2001 to 31.03.2001 without any prior intimation. The applicant had submitted his explanation denying the charge. Moreover, for submitting the leave letter on medical grounds with the Doctor's Certificate and report, the claimant ought not to have been issued with a charge memo under Rule 17(b) of the above Rules.” Thereafter, an enquiry was conducted and the Enquiry Officer held that the charge was proved. Based on the report of the Enquiry Officer, V.Madhiyazhagan was dismissed from the service. As against the same, V.Madhiyazhagan preferred an appeal and the same was rejected and the revision petition filed by him was also dismissed by the 1st respondent.
Challenging the same, V.Madhiyazhagan has filed the above Writ Petition.
3.Mr.R.Singaravelan, learned senior counsel appearing for the petitioners submitted that the order passed by the 1st respondent is a non-speaking order and that the punishment of dismissal from service is disproportionate to the charge levelled against the petitioner. Further, the learned senior counsel submitted that the charge levelled against Page 3/15 http://www.judis.nic.in W.P.No.14358 of 2007 V.Madhiyazhagan was with regard to absence from attending duty from 02.02.2001 to 31.03.2001 and there is no charge framed against V.Madhiyazhagan with regard to habitual absence from attending duty.
However, the respondents had passed the orders dismissing V.Madhiyazhagan from service, holding that he is a habitual absentee.
Further, the learned senior counsel submitted that V.Madhiyazhagan is no more and his legal representatives, who were brought on record, are struggling even for basic necessities without getting any family pension.
3.1.In support of his contentions, the learned senior counsel relied upon the following judgments:
(i)(2004) 4 Supreme Court Cases 560 [Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and others] wherein the Hon'ble Supreme Court held as follows:
“...
9.Rule 8 (a) and 10 of the Delhi Police (Punishment & Appeal, Rules 1980) read as under:
"8.Principles for inflicting penalties - (a) Dismissal/Removal - The punishment of dismissal or removal from service shall be awarded for the act of grave misconduct rendering him unfit for police service.
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10.Maintenance of discipline - The previous record of an officer, against whom charges have been proved, if shows continued misconduct indicating incorrigibility and complete unfitness for police service, the punishment awarded shall ordinarily be dismissal from service. When complete unfitness for police service is not established, but unfitness for a particular rank is proved, the punishment shall normally be reduction in rank."
10.In the instant case, the appellant had absented himself for 2 months, 7 days and 17 hours on medical grounds.
The above two rules provide that penalty of removal can be imposed only in cases if grave misconduct and continued misconduct indicating incorrigibility and complete unfitness for police service. The absence of the appellant on medical grounds with application for leave as well as sanction of leave can under no circumstances, in our opinion, be termed as grave misconduct or continued misconduct rendering him unfit for police service.
11.The order dated 16-1-1995 passed by the respondents was produced by the respondents themselves in their reply to CWP before the High Court of Delhi that they had sanctioned leave without pay for the period from 7-10-1994 to 15-12-1994, the period of alleged unauthorised absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing sanction for leave for the period in question, the employee's legitimate expectation Page 5/15 http://www.judis.nic.in W.P.No.14358 of 2007 would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered an act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal/removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility or complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become the basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires of Rule 8 (a) and 10 of the Delhi Police (Punishment & Appeal) Rules, 1980 and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of which, not only he but his entire family totally dependent on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside.
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12.The disciplinary authority without caring to examine the medical aspect of the absence awarded to him the punishment of removal from service since their earlier order of termination of appellant's service under Temporary Service Rules did not materialise. No reasonable disciplinary authority would term absence on medical grounds with proper medical certificates from government Doctors as grave misconduct in terms of Delhi Police (Punishment & Appeal) Rules, 1980. Non-application of mind by quasi-judicial authorities can be seen in this case. The very fact that respondents have asked the appellant for re-medical clearly establishes that they had received applicant's application with medical certificate. This can never be termed as wilful absence without any information to competent authority and can never be termed as grave misconduct.
13.In B.C.Chaturvedi vs. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44 : AIR 1996 SC 484] (three-Judge Bench) the question posed for consideration was as to whether the High Court/Tribunal can direct the authorities to reconsider punishment with cogent reasons in support thereof or reconsider themselves to shorten the litigation. In this case, at para 18, this Court has observed as under:-
"18.A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to Page 7/15 http://www.judis.nic.in W.P.No.14358 of 2007 maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
14.Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the Page 8/15 http://www.judis.nic.in W.P.No.14358 of 2007 period during which the appellant remained absent from duty and the period calculated up to the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spend on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment.”
(ii)(2009) 15 Supreme Court Cases 620 [Chairman-cum-Managing Director, Coal India Limited and another Vs. Mukul Kumar Choudhuri and others] wherein the Hon'ble Supreme Court held as follows:
“...
19.The doctrine of proportionality is, thus, well-
recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited Page 9/15 http://www.judis.nic.in W.P.No.14358 of 2007 scope of judicial review.
20.One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.
21.In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admittedly his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's rules and regulations but the reason was purely personal and beyond his control and, as a matter of act, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.
22.Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if Respondent 1 is denied Page 10/15 http://www.judis.nic.in W.P.No.14358 of 2007 back wages for the entire period by way of punishment for the proved misconduct of unauthorised absence for six months.
23.Consequently, both these appeals are allowed in part. The appellants shall reinstate Respondent 1 forthwith but he will not be entitled to any back wages from the date of his removal until reinstatement. Parties will bear their own costs.”
4.Countering the submissions made by the learned senior counsel for the petitioners, Mr.S.N.Parthasarathi, learned Government Advocate appearing for the respondents submitted that since V.Madhiyazhagan was a habitual absentee, the orders passed by the respondents dismissing him from service is proper.
5.On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that V.Madhiyazhagan was issued with a charge memo on 02.04.2001 for his unauthorized absence from attending duty from 02.02.2001 to 31.03.2001. On a reading of the charge memo issued to V.Madhiyazhagan, it is clear that the respondents have not levelled a charge to the effect that V.Madhiyazhagan was a habitual absentee. It is also brought to the notice of Page 11/15 http://www.judis.nic.in W.P.No.14358 of 2007 this Court that V.Madhiyazhagan submitted a medical certificate for his absence during the period from 02.02.2001 to 31.03.2001. The Enquiry Officer, in his report, observed that V.Madhiyazhagan was a habitual absentee and that his absence for the period between 02.02.2001 and 31.03.2001 was unauthorized. Based on the Enquiry Officer's report, the respondents dismissed V.Madhiyazhagan from service. When V.Madhiyazhagan has given the medical certificate to establish that he was unwell during the period from 02.02.2001 to 31.03.2001, the respondents should have considered the same and thereafter, should have taken a decision. That apart, when the charge levelled against V.Madhiyazhagan is with regard to unauthorized absence during the period 02.02.2001 to 31.03.2001, the Enquiry Officer should have given his finding only with regard to the charge levelled against V.Madhiyazhagan and not with regard to other issues. When there is no charge levelled against V.Madhiyazhagan that he was a habitual absentee, the Enquiry Officer should not have given a finding with regard to the same. The respondents also accepted the findings of the Enquiry Officer to the effect that V.Madhiyazhagan was a habitual absentee and ultimately dismissed him from service.
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6.The ratio laid down by the Hon'ble Supreme Court in the judgments relied upon by the learned senior counsel for the petitioners squarely applies to the present case.
7.Since V.Madhiyazhagan was dismissed from the service based on the charge which was not levelled against him, the orders passed by the respondents are liable to be set aside. However, the unauthorized absence for the period from 02.02.2001 to 31.03.2001 cannot be condoned very lightly. That apart, when V.Madhiyazhagan is also not alive and his legal representatives were also brought on record and that they are struggling even for basic necessities, I am of the view that the orders of the respondents can be set aside. However, reinstatement can be ordered without back wages. The punishment imposed on V.Madhiyazhagan is grossly excessive, disproportionately high and unduly harsh.
8.For the reasons stated above, the impugned order of punishment on V.Madhiyazhagan terminating him from the service is set aside.
V.Madhiyazhagan shall be reinstated in service, however, without back wages. Since V.Madhiyazhagan is no more, his legal representatives who are the petitioners 2 to 6 are only entitled to receive the family pension.
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9.With these observations, the Writ Petition is partly allowed. No costs.
Index : Yes/No 28.11.2019
va
To
1.The Additional Director of Prison,
Jail Department, Egmore, Chennai – 8.
2.The Deputy Inspector General of Prison,
Kovai Range, Kovai.
3.The Superintendent of Prison,
Salem Central Prison, Salem – 7.
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M. DURAISWAMY, J.
va
W.P.No.14358 of 2007
28.11.2019
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