Madras High Court
K.Kanmani vs The Director on 9 August, 2023
W.P.(MD).No.13986 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.08.2023
CORAM
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD).No.13986 of 2023
and
W.M.P(MD)Nos.11807 & 11808 of 2023
K.Kanmani,
Field Investigator,
Population Research Centre (PRC),
Gandhigram Institute of Rural Health and
Family Welfare Trust,
Ambadurai Post,
Soundram Nagar,
Gandhigramam,
Dindigul District. ... Petitioner
Vs.
The Director,
Gandhigram Institute of Rural Health and
Family Welfare Trust,
Ambadurai R.S.,
Gandhigram Post,
Dindigul District. ... Respondent
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari, calling for the records relating
to the impugned order passed by the respondent vide his proceedings in
https://www.mhc.tn.gov.in/judis
1/12
W.P.(MD).No.13986 of 2023
Ref.GIRH/ESTT/2023-24/0117, dated 11.05.2023 and quash the same as
illegal.
For Petitioner : Mr.S.Mohamed Suhail
For Respondent : Mr.V.Karthikeyan
for Mr.V.Vijayashankar
ORDER
The present writ petition is for a Writ of Certiorari, calling for the records
relating to the impugned order passed by the respondent vide his proceedings in
Ref.GIRH/ESTT/2023-24/0117, dated 11.05.2023 and quash the same as
illegal.
2. Heard the learned Counsel for the petitioner and the learned Counsel
for the respondent and carefully perused the materials available on record.
3. The petitioner was appointed as Field Investigator in the respondent
Institution vide appointment order, dated 28.12.2022. In terms of her
appointment order, she has to under-go probation for a period of two years with
a continuation of three years. She was orally deputed for a departmental
training held at Goa for the period from 31.03.2023 to 19.04.2023. Accepting
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.13986 of 2023
the same, she reported for training on 31.03.2023. While undergoing training
on 04.04.2023, she received an emergency call from her husband informing the
ailing medical condition of her 1 year, 4 months old baby. On such emergency
situation, orally intimating her situation to the Chief Officer, who attended
training along with her, namely, one Dr.Kavitha, the petitioner immediately
came back from training to attend her child. She reported duty to the
respondent Institution on 06.04.2023. However, she was not permitted to attend
her work by treating the training period as un-authorised absence. Hence, she
consistently attempted to meet the respondent in person. Though she attended
the office hours daily in the morning, she was not permitted to place her
signature in the Attendance Register. While so, on 27.04.2023, the respondents
by means of an office notice instructed the petitioner to join duty within 7 days
of receipt of the said notice. Promptly responding to the same on 28.04.2023,
the petitioner joined duty. Following which, on 02.05.2023, the respondent
issued a show cause notice seeking her explanation for suddenly leaving the
training place without intimation. For which, on 03.05.2023, the petitioner
submitted a detailed explanation. On receipt of the explanation, the respondent
issued another show cause notice, dated 04.05.2023, seeking her explanation.
The petitioner submitted her further explanation on 08.05.2023. On 27.04.2023,
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.13986 of 2023
the respondent issued one month termination notice to the petitioner. For one
month notice, she gave an explanation on 06.05.2023. Without accepting the
said explanation and even without conducting a preliminary enquiry, the
impugned relieving order, dated 11.05.2023 relieving the petitioner from the
services of the Institute with effect from 10.06.2023 came to be passed.
Assailing the same, this writ petition came to be filed.
4. The learned Counsel for the petitioner vehemently submitted that the
respondent ought to have conducted at least a preliminary enquiry and after
considering the explanation of the petitioner, should not have relieved her from
service and her circumstances as a mother and the emergency condition under
which she was compelled to leave the training ought to have been considered
and on that grounds he relied upon the order passed by the Hon'ble Apex Court
in the case of Inspector Prem Chand Vs. Government of NCT of Delhi and
Others reported in (2007) 4 SCC 566, dated 05.04.2007. In the said case,
favorable order was passed in favour of the petitioner and the relevant portion
of which is extracted as follows:
“9. Before adverting to the question involved in the matter,
we may see what the term “misconduct” means.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.13986 of 2023
10. In State of Punjab Vs. Ram Singh, Ex-Constable it was
stated: (SCC pp.57-58, para 5)
“5. Misconduct has been defined in Black's Law Dictionary,
6th Edn. at p.999, thus:
'A transgression of some established and definite rule of
action, a forbidden act, a dereliction from duty, unlawful behavior,
willful in character, improper or wrong behavior; its synonyms
are misdemeanor, misdeed, misbehavior, delinquency,
impropriety, mismanagement, offense, but not negligence or
carelessness.'
Misconduct in office has been defined as:
'Any unlawful behavior by a public officer in relation to the
duties of his office, willful in character. Term embraces acts which
the office-holder had no right to perform, acts performed
improperly, and failure to act in the face of an affirmative duty to
act.'”
11. In P.Ramanatha Aiyar's Law Lexicon, 3rd Edn., at p.
3027, the term “misconduct” has been defined as under:
“The term 'misconduct' implies a wrongful intention, and
not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct
involving moral turpitude.
The word 'misconduct' is a relative term, and has to be
construed with reference to the subject-matter and the context
wherein the term occurs, having regard to the scope of the Act or
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.13986 of 2023
statute which is being construed. 'Misconduct' literally means
wrong conduct or improper conduct.”
(See also Bharat Petroleum Corporation Limited Vs.
T.K.Raju.
12. It is not in dispute that a disciplinary proceeding was
initiated against the appellant in terms of the provisions of the
Delhi Police (Punishment and Appeal) Rules, 1980. It was,
therefore, necessary for the disciplinary authority to arrive at a
finding of fact that the appellant was guilty of an unlawful
behavior in relation to discharge of his duties in service, which
was wilful in character. No such finding was arrived at. An error
of judgment, as noticed hereinbefore, per se is not a misconduct. A
negligence simpliciter also would not be a misconduct.”
5. Further the learned Counsel for the petitioner submitted that the
petitioner's absence ought not to have considered as un-authorised absence in
view of the fact that she immediately turned up to report before the respondent.
However, she was not permitted to join duty only by the respondent. Even
though she was not permitted to join, she attended duty on morning hours
without signing the Attendance Register. He further relied upon the order
passed by the Hon'ble Division Bench of this Court in the case of W.A.No.19
of 2020 (The Principal Secretary to Government, Home Department,
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.13986 of 2023
Secretariat, Fort St. George, Chennai-600 009 and Others Vs.
A.Krishnamoorthy), dated 28.10.2022 a case of similar nature, where the
Hon'ble Division Bench of this Court has held as follows:
“6. Learned Senior Counsel would also rely upon the
judgment of the Hon'ble Supreme Court of India in the case of
Krushnakant B.Parmar Vs. Union of India and another reported in
(2012) 3 SCC 178, more fully relying upon paragraphs 18 and 19
of the said judgment, in support of the proposition that unless
disciplinary authority finds unauthorised absence as wilful,
imposition of punishment, that too, removal from service is unduly
harsh.”
6. He also relied upon another case of this Court in W.P(MD)No.6197 of
2023 (Dhana Anthony Vs. The State represented by The Commissioner –
cum- Director or Differently Abled Welfare and Others), dated 12.06.2023.
The relevant portion of which is extracted as follows:
“6. The impugned order refers to the allegations and
complaints received against the petitioner. It is true that the
petitioner was appointed on consolidated basis in a temporary
capacity. It is not necessary for the employer to hold an elaborate
enquiry as done in the case of a regular employee but atleast
summary enquiry ought to have been held. This is primarily
because the impugned order is prima facie stigmatic. If a non
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.13986 of 2023
stigmatic order had been passed and the petitioner had been
disengaged on administrative grounds, may be this Court would
not have interfered. But where the order of termination casts a
stigma on the employee even if he was only temporary employee,
still compliance of principles of natural justice atleast at a
minimal level is mandatory. On this ground I interfere.
7. The order impugned in this writ petition is set aside. The
petitioner shall be reinstated as Mobile Van Assistant. The
question of paying backwages for the intervening period does not
arise. If the petitioner behaves in a proper manner after
reinstatement, the respondents need not pursue the action
originally initiated. If the petitioner does not conduct himself
properly, it is always open to the authorities to hold a summary
enquiry and show the door to the petitioner. With this liberty to the
authorities, this writ petition is allowed.”
7. Relying upon the aforesaid judgments, the learned Counsel for the
petitioner submitted that until and unless, the disciplinary authority finds un-
authorised absence as a wilful, imposition of punishment that too removal from
service is unduly harsh. In this case, the petitioner's absence was only because
of the emergency medical condition to which her 1 year and 4 months old child
was ailing at that point of time and hence, that kind of circumstance suffered by
a young mother ought to have been dealt with in a considerate manner by the
respondent authorities and moreover, the impugned relieving order is prima
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.13986 of 2023
facie stigmatic and considering the fact that she was relieved without
conducting any preliminary enquiry, he pressed that the impugned order need to
be quashed.
8. Per contra, the learned Counsel for the respondent has filed a counter
and also vehemently submitted that all the submissions made by the petitioner
with respect to the facts that she had informed about her absence to her higher
officials are not true. Since there was no communication from the petitioner
after 04.04.2023 and as she remained un-authorisedly absent, an email was sent
from the respondent Institute to the petitioner on 17.04.2023. Another letter on
27.04.2023 calling upon the petitioner, to explain the reasons for her un-
authorised absence explaining her sudden exit from the training programme
was also sent. The petitioner reported for duty on 28.04.2023. She was in her
probation period and her kind of behavior was fully without responsibility
because she remained un-authorisedly absent even without considering the fact
that she had been in probation period and hence, the relieving order passed by
the respondent is in order and in terms of her appointment order, her service is
purely temporary and terminable on a months notice on either side. Hence, the
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.13986 of 2023
impugned order need not be interfered and he pressed for dismissal of the writ
petition.
9. However this Court is of the considered view that the petitioner is a
young mother and her exit from the training was not wilful and the respondent
ought to have considered that she left training only because of the emergency
medical condition of her 1 year and 4 months old child. The respondent
Institute ought to have been considerate about the circumstances under which
she left training and the punishment of relieving from service is certainly
shockingly disproportionate. On that ground alone, this Court hereby quashes
the impugned order, dated 11.05.2023 as per se illegal and consequently direct
the respondent to reinstate her in service within a period of one (1) week from
the date of receipt of a copy of this order.
10. This writ petition stands allowed, accordingly. There shall be no
order as to costs. Consequently, connected Miscellaneous Petitions stand
closed.
09.08.2023
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.13986 of 2023
NCC : Yes / No
Index : Yes / No
Internet : Yes
BTR
To
The Director,
Gandhigram Institute of Rural Health and
Family Welfare Trust,
Ambadurai R.S.,
Gandhigram Post,
Dindigul District.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.13986 of 2023
L.VICTORIA GOWRI, J.
BTR
W.P.(MD).No.13986 of 2023
09.08.2023
https://www.mhc.tn.gov.in/judis
