Madras High Court
T.S.Sridharan vs The Tamil Nadu Civil Supplies ... on 11 January, 2019
Author: C.Saravanan
Bench: C.Saravanan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 05.12.2018
PRONOUNCED ON : 11.01.2019
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.(MD)No.3568 of 2014
in
W.M.P.(MD).No.1 of 2014
T.S.Sridharan : Petitioner
Vs.
1.The Tamil Nadu Civil Supplies Corporation Limited,
Represented by its Chairman-cum-Managing Director,
Chennai-600 010.
2.The Senior Regional Manager,
Tamil Nadu Civil Supplies Corporation Limited,
Thanjavur. : Respondents
PRAYER: Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus to call for the
records relating to the orders in (1)Pro.Na.Ka.No.M1/7103/1998,
dated 31.12.2001 of the second respondent
(2)Pro.Na.Ka.No.AE15/76250/06, dated 04.04.2007 and
(3)Pro.No.AD4/76165/2010, dated 25.10.2010 of the first respondent
to quash the same to issue consequential directions to the
respondents to reinstate the petitioner in service with consequential
benefits of back pay, continuity of service etc.
http://www.judis.nic.in
2
For Petitioner : Mr.M.Ravi
For Respondents : Mr.P.Seeetharaman
ORDER
The petitioner was working as a Junior Helper with the first respondent Corporation. The petitioner was absent between 10.07.1997 to 06.04.1998.
2.By an order dated 30.7.1997, the then Sub Regional Manager of the Respondent held that the petitioner was deemed to have stayed away from work. This order was confirmed by the second respondent vide order dated 18.12.1997 bearing reference Pro.A6/1568/96.
3.Later by an order dated 6.4.1998 bearing reference Pro.A6/1568/96, second respondent allowed the petitioner to continue in service without prejudice to the disciplinary proceeding to be initiated against the petitioner for his absence. The petitioner thereafter rejoined the duty.
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4.Thereafter, a charge memo dated 27.07.1998 (first charge memo) was issued to the petitioner for his absence from duty without proper permission between 10.07.1997 and 06.04.1998.
5. However, after receipt of the above charge memo the petitioner again absented from duty between 30.11.1998 and 17.01.1999 on medical grounds. Thereafter, the petitioner applied for extension of leave between 18.01.1999 to 06.07.1999 due to accident.
6.Since the petitioner had absented himself repeatedly in three spells, the second charge memo dated 2.5.2000 was issued to the petitioner for being absent from 18.01.1999 to 06.07.1999, under Regulation 16(4) and 25(2) of the Tamilnadu Civil Supplies Corporation Standing Orders.
1. The said charge memo was received by the petitioner on 29.06.2000. An enquiry was appointed who is stated to have conducted enquiry on 13.10.2000. The Enquiry Officer held that the charges against the petitioner were proved. 2. http://www.judis.nic.in 4
8.Based on the enquiry report, the second respondent found the petitioner’s guilty vide the impugned order dated 31.12.2001 for absenting being from duty and terminated the service of the petitioner.
9.The case of the petitioner is that the second charge memo dated 2.5.2000, was issued by framing additional charges without conducting proper enquiry and that the so called enquiry conducted on 13.10.2000 was without proper notice.
10.In the said order, it was however mentioned that the petitioner had participated in the enquiry held on 10.09.2001. However, no statement was recorded from the petitioner during enquiry.
11.It is noticed that despite notice dated 5.2.1999, the petitioner remained absent during enquiry and was on extended leave again between 18.1.1999 to 6.7.1999. The petitioner absented himself and it is under the circumstances the 2nd respondent passed order dated 31.11.2001 holding the petitioner ceased to hold office with effect from 18.01.1999 and dismissed the petitioner from service. http://www.judis.nic.in 5
12.Aggrieved by the order of the second respondent, the petitioner preferred an appeal before the first respondent. The 1st respondent dismissed the appeal filed by the petitioner against the said order vide dated 04.04.2007.
13.The petitioner thereafter preferred a revision before the first respondent. The 1st respondent by order dated 25.10.2010 dismissed the revision petition filed by the petitioner and reaffirmed the finding of the second respondent’s order dated 31.12.2001.
14.Though several contentions were raised in the affidavit filed in support of the writ petition, the learned counsel for the petitioner confined and arguments and stated that the absence from duty was not willful and the imposition of punishment was disproportionate to the charges leveled against the petitioner.
15. Learned Counsel submitted that the Petitioner was victimised by his superiors as he did not co-operate with them in their corrupt practices and therefore was forced to take leave to his detriment.
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16. It was further submitted that the Enquiry Report and the show cause notice were not served to the petitioner and therefore there was a palpable violation of the principle of natural justice.
17. It was therefore submitted that absence from duty was not willful so as to warrant harsh punishment of dismissal from services.
18.The learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court of India in Krushnakant B.Parmar Vs. Union of India and Another, (2012)3 SCC 178 drew attention to paragraph Nos.16 to 19, which are extracted hereunder:
“16.In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behavior was unbecoming of a government servant. The question whether “unauthorised absence from duty'' amounts to failure to devotion to duty or behavior 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 cannot be held to be wilful. 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, hospitalization, etc., http://www.judis.nic.in 7 but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceedings, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.
19. 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 that the absence was wilful; the disciplinary authority as also the appellant authority, failed to appreciate the same and wrongly held the appellant guilty”.
19.The above case was rendered in the context of Rule 3(1)
(ii) and (iii) of Central Civil Service (Conduct) Rules, 1964 which reads as under:-
“3.General:-
(1) Every government servant shall at all times-
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a
government servant.”
20.The learned counsel submitted that the ratio in the above judgment is squarely applicable to the facts of the present case and http://www.judis.nic.in 8 therefore submitted that the impugned orders were liable to be quashed.
21.Alternatively, the learned counsel submitted that even if the petitioner was guilty of wilful unauthorized absence as per regulation 16(4) of Tamilnadu Civil Supplies Corporation Standing Order, the punishment meted out on the respondent was disproportionate to the gravity of the alleged offence.
22.The learned counsel cited the decision of Hon’ble Supreme Court in Chairman-cum-Managing Director, Coal India Limited Vs. Mukul Kumar Choudhuri and Others reported in (2009) 15 SCC 620 and specifically refereed to Paras 19-21 which read as under:-
“...19.Thedoctrine of proportionality is, thus, well- recognized 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 scope of judicial review.
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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 excepted 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 unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted 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 fact, 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...”
23.Per contra, the learned counsel for the respondent reiterated the contents in the counter and submitted that the writ petition is liable to be dismissed. According to the respondent, the petitioner had earlier filed W.P. No.9775 of 2010 and by an order dated 19.07.2010, the court had directed the respondent to consider the representation of the petitioner and in compliance of the same, the respondent had passed the impugned orders. http://www.judis.nic.in 10
24.The decision of the Hon'ble Supreme Court in Krushnakant B.Parmar Vs. Union of India and Another reported in (2012) 3 SCC 178 supra was rendered in the context of Rule 3(1)(ii) and Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, it cannot be applied straight away.
25. The present case is under Rule 16(4) of the Standing Orders of the Tamil Nadu Civil Supplies Corporation Limited. Sub-Rule 4 reads as under:-
“...4.If a workman is absent without leave being sanctioned to him or is absent beyond the period of leave sanctioned to him, he shall be liable to be dismissed from service.
4.(2) If the workman remains absent beyond the period of leave originally granted or subsequently extended, he shall be deemed to have left employment unless he (1)returns within eight days of the expiry of the leave and (2) has given a satisfactory explanation for his inability to return on expiry of leave...”
26.As per Rule 16(4) of the Standing Orders of the Tamil Nadu Civil Supplies Corporation Limited For Modern Rice Mills, a worker shall be dismissed from service who absents from work without leave or takes leave beyond the period of sanctioned leave http://www.judis.nic.in 11
27. The disciplinary authority under Rule 16(4) of the Standing Orders of the Tamilnadu Civil Supplies Corporation Ltd. has no choice but to comply with the Rules, if an employees conduct attracts the consequences therein. Thus, if a person was absents from duty, without leave being sanctioned, service is liable to be terminated.
28.In this case, the petitioner was absent from duty in three different spells without obtaining the leave from the sanctioning authority. The first spell of leave between 10.7.1997 to 6.4.1998. Therefore, the first charge memo dated 27.7.1998 was issued to the petitioner for being absent without leave. Thereafter the petitioner was allowed to join duty without prejudice to initiate disciplinary proceedings for being absent without leave during the aforesaid period.
29. Thereafter the petitioner was on medical leave on 30.11.1998 to 17.11.1999. However, the petitioner was again on leave from 18.1.1999 to 6.7.1991 despite charge memo dated 27.07.1998.
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30. The petitioner has defended his absence on the ground that he was not allowed to join duty by the superiors and was therefore on extended leave and was not to be blamed.
31. Though the petitioner has stated aforesaid reasons for being absent, the veracity of the same cannot be decided under Article 226 of the Constitution of the India as they are disputed questions of fact and account of the fact that the petitioner has not given proper reply and participated in the disciplinary proceeding.
32. At the same time, it evident that the petitioner did not get to fully participate in the disciplinary proceedings pursuant to charge memo dated 2.5.2000 as the petitioner was absent from duty during that time as well.
33. Inference can be drawn that there were sufficient reasons and underlying pressure which led to the petitioner from absenting himself from duty to his detriment despite charge memo being issued on 2.5.2000.
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34. The petitioner has been out of service for over two decade. Therefore, no useful purpose would be served by remanding the case back to the respondent to consider the case afresh.
35. Considering the fact that the petitioner was under
pressure and was unable to attend duty despite charge memo being issued, the punishment awarded appears to be disproportionate under the peculiar facts and circumstances of the case.
36. Therefore, the punishment awarded to the petitioner by way of dismissal from service is liable to be modified. To meet the ends of justice, it would suffice if the petitioner is treated as having voluntarily retired from service instead being dismissed from serviced on 18.1.1999. Therefore, the impugned orders are modified.
37. The period during which the disciplinary proceedings was pending shall be treated as period in service for determination of retirement and terminal benefit if any to the petitioner alone without salary.
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38. The respondents shall therefore calculate and release retirement and terminal benefits if any to the petitioner by treating the petitioner as if the petitioner was in service all through the period till the passing of the review order dated 25.10.2010 by the first respondent. The respondent shall carry out this exercise within a period of six weeks from the date of communication of this order.
39.The writ petition is disposed of with the above terms. No costs. Consequently, connected miscellaneous petition is closed.
11 .01.2019
Index : Yes/No
Internet : Yes/No
Arul
To
1.The Chairman-cum-Managing Director,
Tamil Nadu Civil Supplies Corporation Limited, Chennai-600 010.
2.The Senior Regional Manager, Tamil Nadu Civil Supplies Corporation Limited, Thanjavur.
http://www.judis.nic.in 15 C.SARAVANAN, J Arul Order made in W.P.(MD)No.3568 of 2014 in W.M.P.(MD).No.1 of 2014 11.01.2019 http://www.judis.nic.in