Madras High Court
The State Of Tamil Nadu vs K.V. Lakshmanan on 6 November, 2024
Author: Anita Sumanth
Bench: Anita Sumanth
W.A. No. 2309 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.11.2024
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR. JUSTICE G. ARUL MURUGAN
W.A. No. 2309 of 2021
&
C.M.P. No. 14670 of 2021
1. The State of Tamil Nadu
rep. by its Secretary to Govt.,
Home Department,
Fort St. George,
Chennai – 600 009.
2. The Director of Fire Services &
Rescue Department,
Egmore, Chennai – 600 008.
3. The Divisional Fire Officer,
Thanjavur. ..Appellants
Vs.
K.V. Lakshmanan ..Respondent
Prayer: Writ Appeal under Clause 15 of Letters Patent as against the
order dated 23.07.2020 passed in W.P. No. 34972 of 2013.
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W.A. No. 2309 of 2021
For Appellants :: Mr.P. Anandakumar,
Govt. Advocate
For Respondent :: Mr.R. Prem Narayan
JUDGMENT
(Delivered by G. ARUL MURUGAN,J.)
The intra-court appeal has been preferred as against the order dated
23.07.2020 passed in W.P. No. 34972 of 2013 whereby the punishment of
dismissal from service was modified into one of compulsory retirement.
2. The factual matrix, in a nut shell, that led to the filing of this
writ appeal is as hereunder:
(i) The respondent/writ petitioner was working as Fireman in the
Fire Services Department from 01.09.1980. While so, he proceeded on
casual leave from 18.05.1993 for a period of three days till 20.05.1993.
After the expiry of his leave period, he did not report for duty on and after
21.05.1993. Even thereafter, as the writ petitioner remained unauthorisedly
absent, a charge memo dated 09.09.1993 was issued. As the same could not
be served on the respondent/writ petitioner, it was affixed at his residence.
The respondent failed to offer any explanation consequent upon which an
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enquiry officer was appointed and since respondent/writ petitioner did not
participate in the enquiry, enquiry proceedings were conducted ex parte. On
conclusion of enquiry proceedings, the charges were held proved and based
on the enquiry report, the Disciplinary Authority/3rd appellant herein
imposed the punishment of dismissal from service by order dated
14.07.1994.
(ii) As against the said order, the respondent/writ petitioner claims
to have preferred an appeal to the 3rd appellant instead of the 2nd appellant,
who is the competent authority. However, no orders were passed in the
appeal. Thereafter, the respondent/writ petitioner filed a mercy petition
before the 2nd appellant, which came to be dismissed by order dated
24.09.1997. Again, the respondent/writ petitioner filed a mercy petition to
the Government, i.e., the 1st appellant and the same was also rejected by
order dated 27.09.2000. Challenging the said orders and also the order
dated 06.04.2011, by which the request of the respondent/writ petitioner to
permit him to join duty was turned down by the 2nd appellant, W.P. No.
34972 of 2013 came to be filed.
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(iii) The Writ Court, taking note of the fact that though the enquiry
proceedings had been conducted in a fair and proper manner, since the
respondent/writ petitioner had put in 13 years of unblemished service and
had been a recipient of good service honours award for more than a dozen
times from the Department and also that the order of the 1st appellant was
silent on the medical condition of the respondent/writ petitioner
notwithstanding the medical records annexed with the mercy petition,
interfered with the punishment of dismissal from service imposed and
modified the same, by the order under challenge, into one of compulsory
retirement. Assailing the said order, the present intra court appeal has been
preferred at the instance of the State.
3. Learned Government Advocate for the appellants contended
that the Writ Court having held that the enquiry was conducted in a fair and
proper manner, ought not to have modified the punishment as it is for the
Disciplinary Authority to impose the punishment proportionate to the
delinquency and interference by the Writ Court under Article 226 of the
Constitution of India is unsustainable. The Writ Court cannot sit as an
Appellate Authority, but can only consider the manner in which the decision
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was arrived at. It is his further submission that the respondent/writ petitioner
was unauthorisedly absent from duty resulting in issuance of charge memo.
Since the charge memo was not received by the respondent/writ petitioner,
it was affixed at his residence. The respondent/writ petitioner did not take
any steps to participate in the enquiry and ultimately, the enquiry
proceedings were conducted ex parte and based on the report submitted by
the enquiry officer, the Disciplinary Authority, while concurring with the
enquiry officer, imposed the punishment of dismissal from service by order
dated 14.07.1994. The learned Government Advocate further submitted that
the respondent/writ petitioner failed to prefer an appeal to the appropriate
authority and the mercy petitions filed by the respondent/writ petitioner to
the 2nd and 1st appellants were also dismissed. Therefore, the order of the
Writ Court modifying the punishment imposed is erroneous and sought for
interference of this Court.
4. Learned counsel for the respondent/writ petitioner contended
that even though the respondent/writ petitioner did not participate in the
enquiry proceedings, the Writ Court considered the service put in by the
writ petitioner for a period of 13 years and also considered the awards and
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honours received by him. The learned counsel would also submit that the
Writ Court took note of the fact that the medical certificates annexed by the
writ petitioner along with the appeal had not been considered by the
Department and that the delinquency and other relevant factors had not been
viewed in proper perspective and thereby interfered with the punishment
imposed by the Department as it was found to be disproportionate and
modified the same into one of compulsory retirement. According to the
learned counsel, the order under challenge is perfectly valid and sought for
dismissal of the writ appeal.
5. Heard the rival submissions and perused the materials on
record.
6. The respondent/writ petitioner, who was working as a Fireman
in the appellant Department, admittedly, availed casual leave for three days
from 18.05.1993 to 20.05.1993. On expiry of his leave period, he did not
report for duty on 21.05.2024 and remained unauthorisedly absent thereafter
resulting in initiation of disciplinary proceedings under Section 17(b) of
Tamil Nadu Civil Services (Discipline & Appeal) Rules by issuance of
charge memo dated 09.09.1993. As it could not be served on the
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respondent/writ petitioner, it was affixed at his residence. However, the
respondent/writ petitioner did not come forward with any reply.
7. Subsequently, an enquiry officer was appointed and as the
respondent/writ petitioner did not participate in the enquiry, it was
conducted ex parte. On completion of enquiry proceedings, report was
submitted stating that the charges framed were proved and by order dated
14.07.1994, the Disciplinary Authority imposed the punishment of dismissal
from service. If at all, the respondent/writ petitioner was aggrieved by the
punishment imposed, he had the right of appeal to challenge the same
before the appropriate authority, i.e., the 2nd appellant herein. However,
from the records, it could be seen that the writ petitioner did not file the
appeal before the appropriate authority, i.e., 2nd appellant and filed it before
the 3rd appellant, who is not the competent authority. Even the mercy
petitions filed by the respondent/writ petitioner before the 2 nd and 1st
appellants came to be rejected by orders dated 24.09.1997 and 27.09.2000
respectively.
8. A perusal of the impugned order shows that the Writ Court
found that the enquiry was conducted in a fair and proper manner. Having
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concluded so, the Writ Court proceeded to interfere with the punishment
imposed on the ground of proportionality and also considering the past
unblemished service rendered by the respondent/writ petitioner for a period
of about 13 years coupled with the awards and honours received by the
respondent/writ petitioner as claimed by him. The Writ Court had also
observed that the medical certificates claimed to have been enclosed along
with the appeal filed by the writ petitioner had not been taken into account
by the authorities.
9. Be that as it may, once the Writ Court had come to the
conclusion that the enquiry proceedings against the writ petitioner had been
conducted in a fair and proper manner, then it is for the Disciplinary
Authority to decide on the quantum of punishment to be imposed on the
delinquent. The Writ Court, by exercising the power of judicial review
under Article 226 of the Constitution of India, cannot sit in appeal over the
decision arrived at, unless the enquiry conducted is found to be perverse or
without any evidence. In this regard, it would be useful to refer to the
decision of the Supreme Court in B.C. Chaturvedi V. Union of India and
Others reported in 1995 SCC (6) 489 wherein the Apex Court held that the
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Appellate Court, while exercising the power of judicial review cannot re-
appreciate the evidence and arrive at its own independent findings on the
evidence.
10. Besides, in the instant case, it could be found that though the
writ petitioner claims to have submitted medical certificates in respect of the
injuries sustained by him in 1993, a perusal of the order dated 27.09.2000
passed by the 1st appellant rejecting the mercy petition filed by the writ
petitioner shows that the medical certificates produced by him pertain to the
treatment taken by him from 03.08.1996 to 13.11.1996 while the writ
petitioner claims that he sustained injuries in 1993 when he was on leave.
Therefore, the case of the writ petitioner that only because of the injury
sustained and treatment undergone, he was unathorisedly absent from duty
deserves to be rejected. Further, when the respondent/writ petitioner is a
Fireman in an Essential Service, the unauthorised absence for a long period
is a serious charge and the punishment imposed is commensurate with the
proved charges. The order of the Writ Court in interfering with the
punishment is only on misplaced sympathy.
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11. For the aforestated reasons, we are of the considered view that
the Writ Court, having held that the enquiry was conducted in a fair and
proper manner, ought not to have interfered with the punishment imposed
and modified the same, as it is beyond the scope of judicial review under
Article 226 of the Constitution of India. In such circumstances, we do not
have any hesitation to interfere with the order under challenge.
12. Resultantly, the impugned order passed by the learned Single
Judge is set aside and the writ appeal stands allowed. No costs. Connected
C.M.P. is closed.
(A.S.M.J.) (G.A.M.J.)
nv 06.11.2024
Index : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation: Yes/No
To
1. The Secretary to Govt.,
Home Department,
Fort St. George,
Chennai – 600 009.
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2. The Director of Fire Services &
Rescue Department,
Egmore, Chennai – 600 008.
3. The Divisional Fire Officer,
Thanjavur.
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DR. ANITA SUMANTH,J.
AND
G. ARUL MURUGAN,J.
nv
06.11.2024
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