Madras High Court
The State Of Tamil Nadu vs T.Vijila on 10 March, 2021
W.A.(MD)No.32 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.03.2021
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.32 of 2021
and
C.M.P.(MD)No.140 of 2021
1.The State of Tamil Nadu,
Rep. by its Principal Secretary to the Government,
Home Department,
Secretariat, Chennai – 600 009.
2.The Commandant,
TSP IX Battalion,
Manimuthar, Tirunelveli District.
3.The Principal (Thalavai),
Tamil Nadu Special Police Force,
TSP IX Battalion,
Manimuthar, Tirunelveli District.
4.The Vice Principal (Asst. Thalavai),
Tamil Nadu Special Police Force,
TSP IX Battalion,
Manimuthar, Tirunelveli District.
5.The Director General of Police,
Santhome, Chennai – 5. ... Appellants
Vs.
T.Vijila ... Respondent
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W.A.(MD)No.32 of 2021
Prayer : Appeal filed under Clause 15 of the Letters Patent against the order
passed by this Court in W.P.(MD)No.4277 of 2014, dated 27.01.2020.
For Appellants : Mrs.J.Padmavathi Devi
Special Government Pleader
For Respondent : Mr.P.M.Vishnuvarthanan
*****
JUDGMENT
(Judgment of the Court was delivered by M.M.SUNDRESH, J.)
The respondent was appointed as Grade - II Police Constable in the
year 2003. She was married in the year 2005. Thereafter, on 10.09.2006 she
applied for medical leave, which was granted till 29.09.2006, as she was
suffering from illness of Osteo Chondrotitis. She asked for extension of leave.
She was asked to appear before the Medical Board. She did not appear.
Thereafter, charges have been framed and after conducting enquiry, she was
removed from service. After exhausting the statutory remedy, she filed the Writ
Petition. The learned Single Judge while holding that factually she was
suffering from illness and the absence of leave was not wilful and deliberate,
directed her reinstatement with continuity of service, but without back wages.
2.The learned Special Government Pleader appearing for the
appellants submitted that it is a case of continued absence. Even before the
enquiry officer and the Medical Board, she did not appear. The Writ Petition
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W.A.(MD)No.32 of 2021
itself has been filed belatedly in the year 2014, challenging the conclusion of
the proceedings, dated 03.06.2010.
3.Taking note of the fact that the respondent was working in a Police
Force, the learned Single Judge ought not to have interfered with the decision
arrived at.
4.The learned counsel appearing for the respondent submitted that
there is no finding to the contrary that she was not suffering from illness. Now,
she is hale and healthy and will be in a position to do the normal work. The
punishment imposed was disproportionate to the charges framed. Therefore, no
interference is required.
5.During the course of hearing, we directed the respondent to appear
before the Medical Board, offering herself for examination, so as to assess her
fitness. Accordingly, she appeared before the Medical Board constituted by the
Dean, Kanniyakumari Government Medical College Hospital, Asaripallam. The
Medical Report furnished by the learned Special Government Pleader before us
would indicate that the respondent would be in a position to undertake the
normal activities.
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W.A.(MD)No.32 of 2021
6.From the records, it appears that the respondent was suffering from
continued illness. Though she has not appeared for the enquiry, she did contest
the final decision made. Even the report furnished before us would suggest that
she is fit enough to carry out the work. In the case of illness, disentitling an
employee from doing the work, an employer will have to consider the
alternative one. As rightly stated by the learned Single Judge it is not as if the
respondent has wilfully failed to attend the duty.
7.However, there is an element of delay at every stage including at the
time of filing the Writ Petition. It is also a fact that she was absent
unauthorisedly. The learned Single Judge while applying the doctrine of
proportionality, has ordered reinstatement with continuity of service when
primarily, respondent was at fault. She did not pursue her request for leave
thereafter.
8.In such view of the matter, we are inclined to modify the order of
the learned Single Judge and while setting aside the order impugned in the writ
petition, by ordering reinstatement, but without back wages and without
continuity of service from the date on which she was unauthorisedly absent till
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W.A.(MD)No.32 of 2021
the date of rejoining. Appropriate orders will have to be passed for rejoining
within a period of eight weeks from today.
9.This Writ Appeal is partly allowed accordingly. No costs.
Consequently, connected Miscellaneous Petition is closed.
Index :Yes/No [M.M.S.J.,] [S.A.I.J.,]
Internet :Yes 10.03.2021
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Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be
the responsibility of the advocate/litigant concerned.
To
1.The Principal Secretary to the Government of Tamil Nadu,
Home Department,
Secretariat, Chennai – 600 009.
2.The Commandant,
TSP IX Battalion,
Manimuthar, Tirunelveli District.
3.The Principal (Thalavai),
Tamil Nadu Special Police Force,
TSP IX Battalion,
Manimuthar, Tirunelveli District.
4.The Vice Principal (Asst. Thalavai),
Tamil Nadu Special Police Force,
TSP IX Battalion,
Manimuthar, Tirunelveli District.
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W.A.(MD)No.32 of 2021
5.The Director General of Police,
Santhome,
Chennai – 5.
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W.A.(MD)No.32 of 2021
M.M.SUNDRESH, J.
AND
S.ANANTHI, J.
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W.A.(MD)No.32 of 2021
10.03.2021
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