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2003 DIGILAW 1583 (MAD)

M. Thomas v. Inspector General/NS & Others

2003-10-07

P.K.MISRA

body2003
Judgment :- Heard the learned counsels appearing for the parties. The petitioner has prayed for issuing writ of certiorarified Mandamus to quash the order of dismissal, as confirmed in appeal and revision, dismissing the petitioner from service. 2. The petitioner was working as constable under the Central Industrial Security Force. At the relevant time, he was posted in CISF Unit, ITI, Manakapur. A charge memo was issued against him on the allegation that he had overstayed leave with effect from 1.3.1988 without getting permission from the competent authority. The case of the petitioner is that he had come to his native place and since his old infirm mother was seriously ill, he was not in a position to go back. On receipt of the notice relating to the proceedings, he had sent a petition seeking postponement of the enquiry stating that due to illness of his mother, he would not be in a position to attend the enquiry. However, the disciplinary proceedings continued ex-parte and it was found that the petitioner had overstayed his leave without any justifiable cause. Thereafter, an order of dimsissal from service was passed. It is the case of the petitioner that no show cause notice was issued to him before the order of termination was passed and even the report of the enquiry officer was not furnished. The appeal filed by the petitioner was rejected and thereafter the petitioner had filed W.P.No.20342 of 1993, which was disposed of on 9.3.2001 permitting the petitioner to file revision. The revision filed by the petitioner was also rejected. Thereafter the present writ petition has been filed. 3. The contention of the petitioner is to the effect that the enquiry was conducted ex-parte and the petitioner’s request for postponement of enquiry on account of serious illness of his mother was not entertained. It is his further contention that subsequently the order of removal was passed without serving him the show cause notice and without furnishing the enquiry report. 4. A counter affidavit has been filed on behalf of the respondents wherein it is indicated that the petitioner had not intimated the reason for his overstaying and subsequently when enquiry report was served on him by registered post, he had filed a representation seeking mercy. 4. A counter affidavit has been filed on behalf of the respondents wherein it is indicated that the petitioner had not intimated the reason for his overstaying and subsequently when enquiry report was served on him by registered post, he had filed a representation seeking mercy. However, since enquiry had already been completed, it is not possible for the authorities to postpone the proceedings and the order of dismissal was passed in accordance with law. 5. The contention of the petitioner that sufficient opportunity had not been given to attend the enquiry cannot be upheld inasmuch as the materials on record show that notices had been sent by the authorities in the address of the petitioner. 6. The other contention of the petitioner is to the effect that since he had overstayed leave on account of serious illness of his mother, the matter should have been considered in a sympathetic manner and the extreme penalty should not have been imposed. Learned counsel appearing for the respondents on the other hand has submitted that since the petitioner was a member of a disciplined Force, there was no question of showing any leniency at the stage of imposing punishment, and therefore, the order is justified. 7. Learned counsel appearing for the petitioner has placed reliance upon the decision of the Supreme Court reported in 1994(1) LLJ 604 (UNION OF INDIA AND OTHERS v. GIRIRAJ SHARMA), wherein an employee under the Central Reserve Police Force had been terminated from service for overstaying leave and the disciplinary action was quashed by the Supreme Court. The Supreme Court opined that punishment of dismissal for overstaying in the facts and circumstances of the case was very severe and therefore, the order of the High Court in quashing the order of punishment was justified. 8. Even though the period of overstaying leave was much less in the aforesaid case, in the peculiar facts and circumstances of the present case, where the petitioner had overstayed because of serious ailment of his mother, I am of the opinion that there was scope for taking a more compassionate view and the order of removal from service appears to be very harsh. 9. 9. The Division Bench decision of this Court reported in 1997 WLR 626 (D. SAINSON v. THE CHIEF SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE AND OTHERS), where an employee under the Central Railway Protection Force had been dismissed for remaining on unauthorised absence for 45 days was found to be grossly disproportionate. The aforesaid decision also supports the contention of the petitioner to a great extent. 10. It is true that in the present case the period of overstaying was much longer, but keeping in view the peculiar facts and circumstances of the case, more particularly the fact that the mother of the petitioner was seriously ill, in the interest of justice, I deem it proper to quash the order of punishment and direct that the petitioner should be reinstated in service within a period of one month from the date of receipt of this order. However, it is made clear that the period of absence from the date of dismissal till the date of reinstatement shall be treated as “dies non”. 11. Accordingly, the writ petition is allowed to the extent indicated above. No costs.