Madras High Court
K.Venkatesan vs The State Of Tamilnadu on 4 August, 2023
W.P.No.18438 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.08.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.18438 of 2013
K.Venkatesan ...Petitioner
-Vs-
1. The State of Tamilnadu,
Rep. by its Secretary,
Highways Department,
Secretariat,
Chennai – 600 009.
2. The Chief Engineer (General),
Highways Department,
Chepauk,
Chennai – 600 005.
3. The Chief Engineer,
Highways Quality Assurance
and Research Station,
Guindy,
Chennai – 600 025. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, to call for the
records connected with the impugned order passed by the third
respondent in his letter No.6375/B2/2012 dated 09.11.2012 and quash
the same and consequently direct the respondents to sanction his due
https://www.mhc.tn.gov.in/judis
Page 1 of 10
W.P.No.18438 of 2013
pension and other retirement benefits in terms of Tamilnadu Pension
Rules.
For Petitioner : Mr.R.Rengaramanujam
For Respondents : Mr.V.Veluchamy
Additional Government Pleader
ORDER
This Writ Petition has been filed challenging the order dated
09.11.2012, passed by the third respondent in his letter
No.6375/B2/2012, thereby denying the terminal benefits to the
petitioner.
2. The petitioner had joined in the post of Junior Engineer in
the Highways and Rural Works Department with effect from 04.11.1970.
He had worked in so many places during his employment. However, the
petitioner went on leave from 24.05.1980 to 14.08.1980 and the said
leave was sanctioned and salary was paid to him. Thereafter, he resumed
duty on 16.08.1980 and continued service till 08.06.1981. Thereafter, he
applied for leave, the details of which are as follows :-
https://www.mhc.tn.gov.in/judis
W.P.No.18438 of 2013
Sl.No Period Days Leave
1. 09.06.1981 to 08.07.1981 30 days Earn leave
2. 09.07.1981 to 07.08.1981 30 days Earn leave
3. 08.08.1981 to 06.10.1981 Earned leave of his
credit
4. 07.10.1981 to 05.12.1981 60 days Leave on private
affairs
5. 06.12.1981 to 04.06.1982 180 days Loss of pay
3. With regard to the availing the above said leave, the third
respondent had addressed the second respondent in his letter
No.16245/B1/81 dated 16.02.1982. From 14.05.1981 onwards, the
petitioner was absent. Further he also attained the age of superannuation
in the year 2002 itself. Only in the year 2008, the petitioner made
representation requesting to disburse his terminal benefits and pension.
4. Thereafter, the petitioner submitted so many representations
and the third respondent passed a detailed order on 25.01.2011, thereby
informing the petitioner that from 09.06.1981 till the date of attainment
of superannuation viz., 31.10.2022, the petitioner absented from service
and as such only on verification of action taken as against him, the
request of the petitioner will be considered. Even thereafter, the
petitioner made several representations seeking pensionary benefits.
https://www.mhc.tn.gov.in/judis
W.P.No.18438 of 2013
Thereafter, by the impugned order dated 09.11.2012, the third respondent
rejected the request made by the petitioner seeking pensionery benefits.
Hence, the petitioner filed this present writ petition with the above said
prayer.
5. The learned counsel appearing for the petitioner would
submit that the petitioner fell ill and as such he could not report to duty.
Though the petitioner had absented from duty, the third respondent did
not take any disciplinary proceedings as against the petitioner. So far, the
petitioner was not served with show cause notice or charge memo and no
enquiry was conducted as against the petitioner for his unauthorized
absence.
5.1. He further submitted that in similar circumstances, this
Court, in the judgment reported in 2011 SCC OnLine Mad 2187 in the
case of M.Veerabhadrappa Vs. the Commissioner of Panchayat Union,
Hosur, held that no disciplinary action was initiated against the
employee and no charge memo was issued and no enquiry was
conducted. Therefore, this Court directed the authority concerned to
https://www.mhc.tn.gov.in/judis
W.P.No.18438 of 2013
settle the terminal benefits to the employee taking into account the non-
employment period as duty period.
5.2. He also relied upon the judgment reported in 2019 SCC
Online Mad 28165 in the case of R.M.Chitra Vs. Tamil Nadu State
Transport Corporation Ltd., & ors, in the case of unauthorized absent,
this Court held that the deceased employee had been in service from the
year 1981 and therefore, the order of dismissal was modified as
compulsory retirement with consequential benefit. He relied upon yet
another judgment of the Hon'ble Division Bench of this Court reported in
2014 SCC Online Mad 11732 in the case of Indian Overseas Bank Vs.
General Secretary All India Overseas Bank Employees Union,
Chennai & anr, which held as follows :-
“9. We are not in a position to accept the above
contention of the learned counsel for the appellant, in
view of the fact that no enquiry was conducted before
passing the order of retirement particularly when the the
absence of the workman was not wilfull. Hence, we are
inclined to clarify the order of the learned Single Judge
to the effect that the entire period of absence and the
period of non-employment in the post of Record Keeper
https://www.mhc.tn.gov.in/judis
W.P.No.18438 of 2013
should be treated as duty for the purpose of calculating
gratuity, pension and other retirement benefits except
back wages. The appellant Management is directed to do
the said exercise of calculating the gratuity, pension and
other retirement 6 benefits and pay the same to the first
respondent, including the arrears of pension payable
from the date of retirement, within a period of four weeks
from the date of receipt of a copy of this judgment, after
adjusting a sum of Rs.92,691.24, which was already paid
to the first respondent, treating the concerned workman is
deemed to have opted for pension scheme, which
according to the first respondent he has already done.
Therefore, he prayed to allow this writ petition.
6. Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
7. Except the first case cited by the learned counsel appearing
for the petitioner, in other two cases, the employees were dismissed from
service for unauthorized long absence. The employees raised an
industrial dispute and thereafter approached this Court. Therefore, this
Court held that for the long period of unauthorized absence, the
punishment of removal from service is disproportionate and as such
https://www.mhc.tn.gov.in/judis
W.P.No.18438 of 2013
modified the same. In the first case cited by the petitioner's counsel, there
was a delay of six years and the employee failed to extend his leave.
8. Whereas in the case on hand, the facts are completely
different. The petitioner was absent from service for the past 27 years. He
had not reported to duty from 09.06.1981 and even after attainment of
superannuation viz., on 31.10.2002, he did not choose to seek for any
benefits. He made his first representation only in the year 2008. Though
there was no record to show that the respondents had taken departmental
action as against the petitioner for his unauthorized absence from
09.06.1981, the petitioner did not even respond or give any reason for his
long absent of 27 years.
9. Admittedly, the petitioner did not apply for any leave and he
failed to submit any medical records so far to prove that he was ill for
continuous years. The petitioner unauthorizedly absented from his duty
for 27 years, without even taking responsibility of his post. In fact, his
whereabouts were not known to the respondents, since he did not report
to the respondents after 09.06.1981. When that being so, the petitioner is
https://www.mhc.tn.gov.in/judis
W.P.No.18438 of 2013
not entitled for any relief as prayed for by him. Therefore, the third
respondent rightly rejected the request made by the petitioner and this
Court finds no infirmity or illegality in the impugned order. Hence, the
writ petition is devoid of merits and is liable to be dismissed.
10. Accordingly, the Writ Petition stands dismissed. There shall
be no order as to cost.
04.08.2023
Internet: Yes
Index : Yes/No
Speaking/Non Speaking order
rts
https://www.mhc.tn.gov.in/judis
W.P.No.18438 of 2013
To
1. The Secretary,
State of Tamilnadu,
Highways Department,
Secretariat,
Chennai – 600 009.
2. The Chief Engineer (General),
Highways Department,
Chepauk,
Chennai – 600 005.
3. The Chief Engineer,
Highways Quality Assurance
and Research Station,
Guindy, Chennai – 600 025.
https://www.mhc.tn.gov.in/judis
W.P.No.18438 of 2013
G.K.ILANTHIRAIYAN. J,
rts
W.P.No.18438 of 2013
04.08.2023
https://www.mhc.tn.gov.in/judis
