Madras High Court
D.Chandran vs Government Of Tamil Nadu on 7 June, 2022
WP No.1042 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07-06-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.1042 of 2014
D.Chandran .. Petitioner
vs.
1.Government of Tamil Nadu,
Represented by Secretary to Government,
Tamil Development, Religious Endowment
and Information Department,
Secretariat,
Chennai – 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments (Admn.),
Chennai – 600 034.
3.The Chief Audit Officer,
Hindu Religious and Charitable Endowments (Admn.),
Chennai – 600 034. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
1/12
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WP No.1042 of 2014
praying for the issuance of a Writ of Certiorarified Mandamus, calling for
the records relating to the orders in (1) Pro.Na.Ka.No.6725/05/J1(4) dated
16.08.2010 of the second respondent and (2) G.O.Ms.No.56, Tamil
Development, Religious Endowments and Information (RE2-1) Department,
of the first respondent dated 13.02.2013 to quash the said orders and to
issue consequential directions to the respondents to declare that the
petitioner shall be deemed to have retired from service on 30.06.2013 with
all consequential retirement and pensionary benefits and disburse those
benefits with interest for the delay.
For Petitioner : Mr.I.Kabilan for
Mr.M.Ravi.
For Respondents : Ms.Geetha Thamaraiselvan,
Special Government Pleader.
ORDER
The order of dismissal from service is under challenge in the
present writ petition. A consequential direction is sought for to declare that
the petitioner shall be deemed to have retired from service on 30.06.2013
with all retirement and pensionary benefits.
2. The writ petitioner joined as Junior Assistant on 22.02.1984
in the Hindu Religious and Charitable Endowments Department and
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WP No.1042 of 2014
promoted to the post of Assistant in the year 1994. The departmental
disciplinary proceedings were initiated against the writ petitioner under
Rule 17(b) of the Tamil Nadu Civil Services Discipline and Appeal Rules in
proceedings dated 30.04.2008 and the following charges are framed against
the writ petitioner:-
"(a) Absence from duty for 1041 days
between 14.06.2004 and 11.04.2008
intermittently, as per annexure attached.
(b) Disobedience of orders of Higher
Authority by not acknowledging receipt of memos
dated 26.09.2005, 20.10.2005, 22.05.2006 and
13.06.2006 in File No.739/2005 sent by Regional
Audit Officer, Kancheepuram, and by not
submitting explanations.
(c) During the intervening periods, when
he was on leave as stated above, he had failed to
submit Diaries of works done and to submit audit
reports.
(d) Caused inconvenience to the
functioning of the office by not attending to his
duties and being absent without getting
permission and without any reason."
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WP No.1042 of 2014
3. The learned counsel for the petitioner made a submission that
the petitioner was suffering from heart ailments and was undergoing
medical treatment during the relevant point of time. The petitioner states
that he was unable to peruse the relevant records and submit his
explanations in respect of the charges in time. The third respondent
appointed an Enquiry Officer and the said Enquiry Officer conducted the
enquiry. The petitioner states that he explained the fact before the Enquiry
Officer regarding his heart ailments as there was a block in the blood
vessels. The petitioner stated that he was frequently admitted in the Hospital
for taking treatment. With reference to other charges also, the petitioner
defended his case before the Enquiry Officer.
4. The petitioner himself has stated that the Enquiry Officer
provided an opportunity to peruse the relevant documents relating to the
charges. However, the petitioner replied by stating that he did not want to
peruse any of the documents and further he has not produced any documents
on his side. Based on the materials available on record and affording
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WP No.1042 of 2014
opportunity to the delinquent official, the Enquiry Officer submitted his
report and the Disciplinary Authority passed an order dismissing the
services of the writ petitioner. The petitioner preferred an appeal and the
said appeal was also rejected by the Appellate Authority.
5. The learned counsel for the petitioner mainly contended that
the petitioner was not intentionally absented from duty. He was suffering
from heart ailments during the relevant point of time and he had submitted
those facts before the Enquiry Officer. However, the Enquiry Officer had
not considered the fact regarding the ailments and thus the impugned order
of dismissal from service and the consequential appellate order, are liable to
be set aside.
6. The learned Special Government Pleader appearing on behalf
of the respondent objected the said contentions raised on behalf of the
petitioner by stating that the petitioner was a chronic absentee and was
continuously absent from duty for about 1041 days. He was a habitual
absentee and during several occasions lenient view was taken by the
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WP No.1042 of 2014
Department. The petitioner used to absent himself from duty without
submitting leave applications or medical records. Thus, the departmental
disciplinary proceedings were initiated and after conducting an enquiry and
affording opportunity to the writ petitioner, the final order of dismissal from
service was issued by the Competent Authority, which was confirmed by the
Appellate Authority. The petitioner himself admitted the fact that an
opportunity was given to him by the Enquiry Officer to peruse the records.
However, he did not avail the opportunity nor produce any documents to
establish his case. Thus, there is no infirmity as such in respect of the
departmental disciplinary proceedings concluded by the Authority and the
writ petition is liable to be rejected.
7. The learned counsel for the writ petitioner relied on certain
judgments passed by this Court. Perusal of those judgments reveal that the
facts are distinguishable in view of the fact that the length of absentism and
other relevant factors plays a pivotal role in respect of the present writ
petition on hand. In certain cases, the absentism was for a short spell and in
such circumstances, the Courts have taken a lenient view. However, in the
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WP No.1042 of 2014
present case, the petitioner remained unauthorisedly absent for about 1041
days i.e., more than 3-1/2 years and in such cases, the Courts cannot take a
lenient view.
8. The points to be considered are (1) whether the Disciplinary
Authority had followed the procedures as contemplated under the Discipline
and Appeal Rules or not and (2) whether an opportunity as contemplated
was provided to the petitioner.
9. In the present case, admittedly there is no procedural
violation in respect of the conduct of departmental enquiry by the
Competent Authorities. Even the Enquiry Officer afforded opportunity to
the writ petitioner to peruse the records. However, the petitioner had not
availed the opportunity and not produced any documents on his side. Thus,
there is no violation of procedures to be followed in consonance with the
Discipline and Appeal Rules.
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WP No.1042 of 2014
10. The power of Judicial Review under Article 226 of the
Constitution of India is to scrutinise the processes through which a decision
is taken by the Competent Authority in consonance with the Statute and
Rules in force, but not the decision itself. Therefore, the quantum of
punishment ordinarily cannot be interfered with by the Courts. Only if the
punishment is grossly disproportionate or shocking to the conscience of the
Court, then alone the power of Judicial Review is required to be exercised
for the purpose of interfering with the order of punishment imposed by the
Competent Authority.
11. Even recently, the Hon'ble Supreme Court of India in the
case of Union of India and others vs. Managobinda Samantaray [2022
LiveLaw (SC) 244], made an observation that "Quantum of punishment is
within the discretionary domain and the sole power of the decision making
authority once the charge of misconduct stands proved ... .. ... Writ
jurisdiction is circumscribed by limits of correcting errors of law,
procedural error leading to manifest injustice or violation of principles of
natural justice. The decisions are also disturbed when it is found to be ailing
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WP No.1042 of 2014
with perversity. On the question of quantum of punishment, the Court
exercising the power of Judicial Review can examine whether the authority
has been a reasonable employer and has taken into consideration measure,
magnitude and decree of misconduct and all other relevant circumstances
and excluded irrelevant matters. In the context of quantum of punishment,
these aspects are examined to consider whether there is any error in decision
making process. On merits of the quantum of punishment imposed, the
Courts would not interfere unless the exercise of discretion in awarding the
punishment is perverse in the sense the punishment imposed is grossly
disproportionate".
12. In view of the above judgment of the Hon'ble Supreme
Court of India, the judgments passed by the learned Single Judges of this
Court produced by the writ petitioner with reference to the distinguishable
facts need not be considered. Thus, this Court is of the considered opinion
that the nature of proved charges, the exercise of power by the Authorities
with reference to the allegations are of paramount importance.
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WP No.1042 of 2014
13. In the present case, the petitioner was an absentee and
remained unauthorisedly absent for about 1041 days. Further, it is
contended that the petitioner was having the habit of absenting himself from
duty without submitting proper application or medical certificates. All those
factors were considered by the Authorities and accordingly, a decision was
taken and the petitioner was dismissed from service. The first respondent-
Government also considered the nature of allegations, proved the charges
and accordingly confirmed the order passed by the Original Authority.
There is absolutely no procedural violations and opportunities as
contemplated under the Rules were provided to the writ petitioner.
14. This being the factum established, this Court has no
hesitation in forming an opinion that the petitioner could not establish any
acceptable ground for the purpose of interfering with the quantum of
punishment imposed by the Original Authority which was confirmed by the
Appellate Authority.
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WP No.1042 of 2014
15. Accordingly, the writ petition is devoid of merits and stands
dismissed. However, there shall be no order as to costs. Consequently,
connected miscellaneous petition is also dismissed.
07-06-2022
Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn
To
1.The Secretary to Government,
Government of Tamil Nadu,
Tamil Development, Religious Endowment
and Information Department,
Secretariat,
Chennai – 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments (Admn.),
Chennai – 600 034.
3.The Chief Audit Officer,
Hindu Religious and Charitable Endowments (Admn.),
Chennai – 600 034.
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WP No.1042 of 2014
S.M.SUBRAMANIAM, J.
Svn
WP 1042 of 2014
07-06-2022
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