Madras High Court
The Secretary To Government vs Dr.G.Sivagnanam on 30 August, 2023
W.A.No.2002 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.08.2023
CORAM :
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HON'BLE MR.JUSTICE K.RAJASEKAR
W.A.No.2002 of 2023
1.The Secretary to Government,
Health and Family Welfare Department,
Fort St. George,
Chennai.
2.The Director of Medical Education,
Chennai-10
3.The Dean,
Chengalpattu Medical College,
Chengalpattu. .. Appellants
Vs
1.Dr.G.Sivagnanam
2.The Secretary,
Tamil Nadu Public Service Commission,
Chennai-2. .. Respondents
Prayer: Appeal under Clause 15 of the Letters Patent against the order
dated 11.5.2022 passed by the learned Single Judge in W.P.No.13451
of 2010.
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For the Appellants : Mrs.V.Yamunadevi
Spl. Government Pleader
For the Respondents : Mr.N.Suresh
for respondent No.1
: Mr.R.Bharanidharan
Standing Counsel
for respondent No.2
JUDGMENT
(Delivered by S.Vaidyanathan, J.)
The present writ appeal has been preferred by the
Government challenging the order of the learned Single Judge dated
11.05.2022 modifying the government orders in G.O.(D) No.1497,
dated 10.12.2007 and G.O.(D) No.43, dated 13.01.2009.
2. The writ petitioner, who is the first respondent herein, had
initially joined the services as Assistant Surgeon on 28.8.1986 at
the Primary Health Centre, Olakkur. Thereafter, he was posted as
Tutor in Pharmacology in Chengalpattu Medical College,
Chengalpattu, where he joined the duty on 20.11.1987. Later on,
he was promoted as Reader in Pharmacology in K.A.P.Viswanathan
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Government Medical College, Trichy, where he joined the service on
24.09.1998. Thereafter, he was posted at Chengalpattu Medical
College, Chengalpattu, as Professor of Pharmacology on 4.7.2002.
3. While in service, the writ petitioner/first respondent herein
applied for earned leave for the period between 12.7.2004 and
31.7.2004 and the leave was sanctioned. Thereafter, he had
applied for extraordinary leave with effect from 1.8.2004 for six
months, which was not acceded to and vide communication dated
19.8.2004, the leave was refused with an instruction to the writ
petitioner to join duty. Accordingly, the writ petitioner/first
respondent joined the duty on 27.5.2005 and worked up to
3.7.2005. Again, he applied for extraordinary leave for a period of
three months on 4.7.2005. The said request was rejected and vide
communication dated 29.8.2005, the writ petitioner was instructed
to join duty.
4. On account of unauthorised absence of the writ petitioner
from duty for various periods, referred supra, a charge memo was
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issued and, on 7.9.2006, an Enquiry Officer was appointed. Since
the explanation offered by the writ petitioner was not satisfactory,
the enquiry was conducted and the Enquiry Officer has submitted
his report. The application for voluntary retirement made by the
writ petitioner on 25.4.2007 for retiring voluntarily with effect from
28.7.2007 was rejected on the ground that the departmental
proceedings under Rule 17(b) of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules was pending against the writ
petitioner. The writ petitioner had participated in the enquiry and
after getting comments from the writ petitioner on the report of the
Enquriy Officer, vide G.O.(D) No.1497, dated 10.12.2007,
punishment for removal from service was passed. The Review
Petition filed by the writ petitioner was also rejected by the
Government vide order dated 13.1.2009 in G.O.(D) No.43.
5. Questioning the aforesaid two Government Orders, the writ
petitioner has filed the writ petition and finally order has been
passed on 11.5.2022 by the learned Single Judge converting the
order of removal from service into one as compulsory retirement.
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6. Aggrieved by the order of the learned Single Judge, the
appellants have contended that the writ petitioner is not an ordinary
worker and being a Professor, he has social responsibility towards
the society and he has to teach the students and the unauthorised
absence had created a problem in running the administration, more
so, in imparting education to the Doctors. Though the leave was
initially sanctioned up to 31.07.2004, the writ petitioner made an
application for extraordinary leave with effect from 1.8.2004.
Despite rejection of the said application vide order dated 19.8.2004,
the writ petitioner continued to be on leave till the date he sought
the extraordinary leave, viz., for a period of six months, and joined
duty only on 27.05.2005. Thereafter, in a short span of two
months, again he sought for leave for a period of three months.
Since the writ petitioner cannot be treated on par with the regular
employee who has absented himself and has not discharged his
duty and absented from duty without adhering to the directions of
the authorities, the punishment of removal from service is perfectly
in order and the learned Single Judge ought not to have modified
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the punishment of removal from service as compulsory retirement.
7. A reading of the order of the learned Single Judge makes it
very clear that in the light of the law enunciated in the decisions of
the Apex Court in the cases of (i) B.C.Chaturvedi v. Union of India
and others, (1995) 6 SCC 749; and (ii) The Chairman and Managing
Director, Coal India Limited and another v. Mukul Kumar
Choudhuri, (2009) 15 SCC 620, and taking into consideration the
proportionality of the punishment, the learned Single Judge has
interfered with the punishment. The relevant paragraphs of the
decisions of the Apex Court in the cases of B.C.Chaturvedi and
Mukul Kumar Choudhuri cases, supra, as referred to by the learned
Single Judge in paragraphs (8) and (9), are extracted hereunder:
“8. In this regard, it may be useful to refer to the
decision of the Supreme Court in the case of
B.C.Chaturvedi where in it was held as under:
'18. ... 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
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appellate authority shocks the conscience of the
High Court/Tribunal, it would appropriately mould
the relief, either directing the disciplinary
authority/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.
...
25. Again, in the case of Coimbatore District
Central Cooperative Bank v. Coimbatore District
Central Cooperative Bank Employees Assn. and
Another this court considered the doctrine of
proportionality and it was held:
"17. So far as the doctrine of proportionality
is concerned, there is no gainsaying that the
said doctrine has not only arrived in our legal
system but has come to stay. With the rapid
growth of administrative law and the need
and necessity to control possible abuse of
discretionary powers by various
administrative authorities, certain principles
have been evolved by courts. If an action
taken by any authority is contrary to law,
improper, irrational or otherwise
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unreasonable, a court of law can interfere
with such action by exercising power of
judicial review. One of such modes of
exercising power, known to law is the
"doctrine of proportionality".
18. "Proportionality" is a principle where the
court is concerned with the process, method
or manner in which the decision-maker has
ordered his priorities, reached a conclusion
or arrived at a decision. The very essence of
decision-making consists in the attribution of
relative importance to the factors and
considerations in the case. The doctrine of
proportionality thus steps in focus true
nature of exercise--the elaboration of a rule
of permissible priorities.'
9. It may also be relevant to refer to the judgment
of the Supreme Court reported in 2009 8 MLJ 460
wherein while dealing with unauthorized absence for
which an employee in that case was removed from
service, it was held that the punishment was un duly
harsh and grossly excessive. The relevant portion is
extracted below:
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'26. The doctrine 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. 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. In a case like
the present one where the misconduct of the
delinquent was unauthorized absence from
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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. 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 the
Respondent No. 1 is denied back wages for
the entire period by way of punishment for
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the proved misconduct of unauthorized
absence for six months.'”
8. Though in normal circumstances, we would not have
granted any relief as the writ petitioner was a Professor, taking into
consideration the aforesaid two paragraphs of the decision referred
to by the learned Single Judge, we are of the view that for the
actual services rendered, the benefits need not be deprived of. To
that extent, we are of the view that the punishment is shockingly
disproportionate. The learned Single Judge has also in paragraph
11 of the order has made it very clear that the order passed by the
appellants vide the aforesaid two Government Orders are modified
as one of compulsory retirement instead removal from service and
that the writ petitioner would not be entitled to backwages, except
terminal benefits.
9. The grievance of the appellants appears to be that by
means of the order, the writ petitioner needs to be treated as in
service till the date of superannuation and granted all benefits.
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That is not the order passed by the learned Single Judge. By way
of abundant caution, we make it clear and clarify paragraph (11) of
the order of the learned Single Judge to the effect that the
punishment imposed by the impugned orders in the writ petition is
modified into one as compulsory retirement and the writ petitioner
would not be entitled to any backwages, but would be entitled to
the terminal benefits for the actual service rendered for the period
from 28.8.1986 till 31.07.2004. Since the charge against the writ
petitioner has been proved for his unauthorised absence from
1.8.2004, no benefits from that date are to be paid to the writ
petitioner.
With these observations, the writ appeal is disposed of.
There will be no order as to costs. Consequently, C.M.P.No.17012
of 2023 is closed.
(S.V.N., J.) (K.R.S., J.)
30.08.2023
Index : Yes/No
Neutral Citation : Yes/No
bbr
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To:
The Secretary,
Tamil Nadu Public Service Commission,
Chennai-2.
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W.A.No.2002 of 2023
S.VAIDYANATHAN, J.
and
K.RAJASEKAR, J.
bbr
W.A.No.2002 of 2023
30.08.2023
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