Judgment 1. i) The petitioner was appointed as Assistant Engineer by direct recruitment and he joined duty on 12.06.2000. His probation was declared on 11.06.2002. While the petitioner was working as Assistant Engineer in Quality Control Section in the third respondent region, he received an order of appointment from a foreign company at United Arabic Emirates to work as Technical Advisor for three years. Therefore, the petitioner sought for no objection from the first respondent to join the foreign company as contemplated under G.O. (D) No. 373, Public Works (F1) Department dated 28.07.2005. The first respondent also granted leave on loss of pay for three years from the date of relief and further directed that in the event the petitioner intended to continue his foreign employment beyond three years, he should apply for extension of leave without pay and allowance, which should not exceed 5 years including the leave now granted. Subsequently, on 31.07.2005, the petitioner was relieved from the third respondent region and he joined the foreign company on 03.09.2005. When the petitioner's foreign employer wanted him to continue for another three years, he intimated the same to the respondents on 18.07.2008 and expressed his intention to stay beyond the period of three years. On receipt of the letter dated 18.07.2008, the second respondent, by letter dated 02.12.2008, through the third respondent, called upon the petitioner to send necessary letter from his foreign employer seeking for his extension of employment. Immediately, the petitioner sent a reply dated 25.12.2008, along with a request letter from his foreign employer which was also received by the respondents on 07.01.2009. Inspite of the same, the respondents, without considering the genuine request of the petitioner for sanction of leave without pay and allowance as contemplated under the Government Order, initiated proceedings under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules by his letter dated 23.01.2009, addressed to the third respondent, which was communicated to the petitioner on 04.02.2009. Immediately, the petitioner sent a letter dated 18.02.2009 stating that the letter from his foreign employer was already sent, as requested by the respondents and therefore initiation of departmental proceedings is unwarranted. However, when the second respondent was considering framing of charges against the petitioner, he returned to India and joined the services as Assistant Engineer (Public Works Department), Quality Control, Coimbatore on 16.09.2009. However, when the second respondent was considering framing of charges against the petitioner, he returned to India and joined the services as Assistant Engineer (Public Works Department), Quality Control, Coimbatore on 16.09.2009. (ii) Thereafter, on 25.09.2009, the petitioner sent a representation to the respondents to regularise his service for the period from 01.08.2008 to 15.09.2009. Instead of regularising the services of the petitioner, the second respondent proceeded with the proceedings under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules against the petitioner on 25.09.2009 as if the petitioner unauthorisedly absented himself from duty from 01.08.2008 to 15.09.2009. The petitioner submitted his explanation on 26.10.2009 denying the charges. Notwithstanding the explanation offered by the petitioner, the second respondent appointed an enquiry officer, who after conducting detailed enquiry found that the charges levelled against the petitioner were not proved. However, the second respondent did not accept the findings of the enquiry officer and decided to deviate from the findings of the enquiry officer. Accordingly, the second respondent sent a letter dated 20.07.2010 and sought further explanation from the petitioner. The petitioner also submitted his further explanation on 06.08.2010 which was rejected by the second respondent. Ultimately, by proceedings dated 23.09.2010, the second respondent imposed the punishment of stoppage of increment for six months without cumulative effect. According to the petitioner, he could not get the copies of the necessary documents required for filing an appeal in time and therefore after lapse of time for filing the appeal, he filed the present writ petition before this Court. 2.(i) The first respondent filed a counter affidavit contending that even when the leave was granted to the petitioner to take up his employment at a foreign country, a condition was imposed that in case the petitioner want to extend his period of stay beyond three years, he should inform it to the Government or the head of the department as soon as it comes to his knowledge and apply for extension of leave without pay and allowance. The three year period of leave sanctioned by the respondent expired on 31.07.2008 and he should have joined duty on 01.08.2008. No doubt, the petitioner applied for extension of leave for two more years from 01.08.2008 by his letter dated 18.07.2008 without obtaining the consent letter of his foreign employer. The three year period of leave sanctioned by the respondent expired on 31.07.2008 and he should have joined duty on 01.08.2008. No doubt, the petitioner applied for extension of leave for two more years from 01.08.2008 by his letter dated 18.07.2008 without obtaining the consent letter of his foreign employer. Therefore, he was requested to send the consent letter of his employer, which he had sent through his letter dated 23.12.2008. As there is no period of contract mentioned in the letter of the petitioner's employer, the Chief Engineer directed him to send the full fledged proposal for obtaining extension of leave between 01.08.2008 to 31.07.2010, but the petitioner failed to submit such full fledged proposals, as called for. Therefore, the petitioner was instructed to join the department forthwith. However, only on 31.08.2009, the petitioner submitted a representation and conveyed his willingness to rejoin duty. On 08.09.2009, the second respondent issued posting orders to the petitioner and thereafter, the petitioner joined duty on 16.09.2009. Inasmuch as the petitioner over-stayed with his foreign employer beyond the period of three years, disciplinary proceedings were initiated against him by issuing a charge memo dated 25.09.2009 and it ultimately resulted in imposition of punishment of stoppage of increment for a period of six months without cumulative effect on 23.09.2010. Such punishment was imposed on the petitioner after complying with all the due formalities and it cannot be said to be perverse or illegal. (ii) The petitioner ought to have filed an appeal to the first respondent within three months from the date of imposition of punishment, but he has straightaway filed the present writ petition and it is not maintainable. In any event, the petitioner has not enclosed his employer's consent letter along with his request for extension of leave without pay and allowances and therefore the disciplinary proceedings were rightly initiated against him. The contention of the petitioner that disciplinary proceedings under Rule 17 (a) ought to have been initiated against him instead of Rule 17 (b) cannot be accepted and it is the discretionary power vested with the disciplinary authority to frame charges under rule 17 (a) or 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.. The contention of the petitioner that disciplinary proceedings under Rule 17 (a) ought to have been initiated against him instead of Rule 17 (b) cannot be accepted and it is the discretionary power vested with the disciplinary authority to frame charges under rule 17 (a) or 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.. The respondents would further contend that due to dearth of hands, the Government in letter (Ms) No.181 Public Works (F1) Department dated 11.10.2006 imposed ban order for deputing the Engineers of Public Works Department to foreign countries. Therefore, also his request for extending the leave was not sanctioned by the respondents. (iii) As far as promotion for the post of Assistant Executive Engineer is concerned, the inter se seniority among the persons found suitable for such promotion shall be with reference to the inter se seniority of such persons in the lower post as per Rule 13 (6) (b) of the Tamil Nadu State and Subordinate Service Rules. A member of the service, who had been on leave for a period of three years continuously for any reason except higher studies or for a period of four years continuously for higher studies, shall not be considered for appointment to a higher category either by promotion or by recruitment by transfer unless he has completed service for a period of one year from the date on which he joins duty on return from leave. 3. I heard the counsel for both sides and perused the materials placed on record. Admittedly, when the petitioner was working as Assistant Engineer in the third respondent region, he sought permission from the department to work in a foreign country. Such request made by the petitioner was also considered and granted by the respondents by proceedings dated 31.07.2005 in the light of G.O. (D) No. 373, Public Works (F1) Department dated 28.07.2005. In the proceedings dated 31.07.2005, it was categorically stipulated that in the event the petitioner intended to continue his foreign employment beyond three years, he should apply for extension of leave without pay and allowance, which should not exceed 5 years including the leave now granted. In the proceedings dated 31.07.2005, it was categorically stipulated that in the event the petitioner intended to continue his foreign employment beyond three years, he should apply for extension of leave without pay and allowance, which should not exceed 5 years including the leave now granted. It was also made clear that in the event of his employer requesting him to continue his employment for a further period, he should immediately seek permission from the government as soon as he is informed by his employer and based on such request further extension will be granted. Therefore, even according to the respondents, the total period for which the petitioner can take up his employment with his overseas employer without pay and allowance can be upto five years commencing from 01.08.2005. It is also admitted that the petitioner was relieved from the third respondent region on 30.07.2005 and he joined the foreign company on 03.09.2005. It is also further admitted that the respondents granted permission to the petitioner to take up his overseas employment initially for a period of three years only. 4. According to the petitioner, his foreign employer wanted him to continue for another three years and therefore he intimated the same to the respondents by a letter dated 18.07.2008 and expressed his intention to stay beyond the period of three years. The said letter dated 18.07.2008 was received by the respondents on 22.07.2008, before the expiry of three year period originally stipulated. Therefore, the intention of the petitioner to get his stay extended was intimated to the respondents well in advance i.e., prior to expiry of the three years time granted by the respondents, which expired on 31.08.2008 thereby the petitioner had complied with the conditions imposed by the respondents. 5. On receipt of the letter dated 18.07.2008, the second respondent, by letter dated 02.12.2008, through the third respondent, called upon the petitioner to send necessary letter from his foreign employer seeking for his extension of employment. Immediately, the petitioner sent a reply dated 25.12.2008, along with a request letter from his foreign employer which was also received by the respondents on 07.01.2009. Therefore, it is clear that before the expiry of the period of three years granted by the respondents, the petitioner expressed his intention to continue his job with his foreign employer and for such purpose, he had sent the letter on 18.07.2008. Therefore, it is clear that before the expiry of the period of three years granted by the respondents, the petitioner expressed his intention to continue his job with his foreign employer and for such purpose, he had sent the letter on 18.07.2008. The petitioner also furnished the consent letter of his employer by a letter dated 25.12.2008 so as to enable the respondents to consider his request to continue his overseas employment for a further period. Therefore, it cannot be now gainsaid that the petitioner has absented himself unauthorisedly. Even in the letter dated 02.12.2008 of the second respondent, the second respondent only stated that the petitioner did not enclose the consent letter of his employer. The second respondent never stated that the request of the petitioner for extension will not be given or there is a ban order imposed by the Government by which such permission cannot be granted for taking up overseas employment. 6. It is seen from the records that the Superintending Engineer, by his letter dated 24.10.2008 called upon the petitioner to produce a letter from his employer. It was also stated that letters have been received from the Chief Engineer seeking consent letter from the petitioner and once the consent letter is received, they could get the concurrence from the Government for extension of petitioner's overseas stay. Thereafter, the petitioner had forwarded the consent letter of his employer also. Subsequently, by a letter dated 29.01.2009, the Superintending Engineer recommended the case of the petitioner to the Chief Engineer for extension of leave for a further period of three years from 05.08.2009. Thereafter, there was no request made by the department asking the petitioner to come back and join duty. However, only by proceedings dated 23.01.2009 of the second respondent, it was stated that the letter sent to the petitioner seeking the consent letter of his employer was returned and the third respondent was directed to state as to whether any letter was addressed to his residential address overseas or the company where he is working. It was further stated therein that the petitioner is continuing his employment overseas without obtaining permission from the department and therefore disciplinary proceedings have to be initiated against the petitioner. 7. As mentioned above, even on 25.12.2008, the petitioner had sent letter to the respondents by enclosing the consent letter of his employer. It was further stated therein that the petitioner is continuing his employment overseas without obtaining permission from the department and therefore disciplinary proceedings have to be initiated against the petitioner. 7. As mentioned above, even on 25.12.2008, the petitioner had sent letter to the respondents by enclosing the consent letter of his employer. Subsequently, by another letter dated 18.02.2009, the petitioner had informed the third respondent that the consent letter of his foreign employer was already sent to the second respondent by his letter dated 25.12.2008. Even thereafter, there was no order passed by the department calling upon the petitioner to come back and join duty. Only by proceedings dated 23.01.2009, addressed to the third respondent, the second respondent initiated proceedings under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules against the petitioner, which was communicated to the petitioner on 04.02.2009. Immediately, the petitioner sent a letter dated 18.02.2009 stating that the letter from his foreign employer was already sent, as requested by the respondents and therefore initiation of proceedings is unwarranted. There was also no order sanctioning leave or extending the permission granted to the petitioner to take up employment with his overseas employer. However, when the second respondent was considering framing of charges against the petitioner, the petitioner returned to India and sought for posting order. A posting order was sent to the petitioner on 08.09.2009, which was received by the petitioner on 15.09.2009. Immediately, the next day i.e., 16.09.2009, the petitioner joined the services as Assistant Engineer (Public Works Department), Quality Control, Coimbatore. Till such time, there was never a direction issued by the department directing the petitioner to join service. 8. Admittedly the application for extension of leave made by the petitioner was under consideration by the respondents during the relevant period. The respondents called upon the petitioner to furnish the consent letter of his employer overseas, which was also sent by him immediately. Thereafter, the superintending Engineer by his letter dated 29.01.2009 recommended for extension of leave to the petitioner for a further period of three years. While so, it cannot be construed that the petitioner absented himself unauthorisedly. Even the posting order dated 08.09.2009 issued to the petitioner was served on 15.09.2009 and the next day, he joined duty by obeying the posting order issued to him. While so, it cannot be construed that the petitioner absented himself unauthorisedly. Even the posting order dated 08.09.2009 issued to the petitioner was served on 15.09.2009 and the next day, he joined duty by obeying the posting order issued to him. Thereafter, the charge sheet was issued to the petitioner on 25.09.2009 on the ground that he absented unauthorisedly. The enquiry officer, who conducted enquiry found that the charges against the petitioner are not proved in view of the fact that the petitioner sent a letter before the expiry of three years seeking extension of further period without pay and allowance and it was also received by the respondents. The enquiry officer also found that the respondents called upon the petitioner to furnish the consent letter of his overseas employer, which was also furnished by him. Therefore, the enquiry officer concluded that the charges against the petitioner are not proved. However, the second respondent did not accept the findings of the enquiry officer. The reason assigned by the second respondent for not accepting the report of the enquiry officer was the letter for extension of leave did not accompany the consent letter of the petitioner's foreign employer and therefore the petitioner was treated as having absented unauthorisedly. This cannot be construed as an unauthorised absent especially when the petitioner sent a letter seeking extension within the three years period and also furnished the employer's consent letter immediately when it was sought for. Moreover, the Superintending Engineer, by letter dated 29.01.2009 also recommended for extension of the leave period in favour of the petitioner. While so, at no stretch of imagination, it can be concluded that the petitioner unauthorisedly absented himself from duty. The second respondent has not assigned any valid reason to differ from the findings of the enquiry officer. In any event, a posting order dated 08.09.2009 was sent to the petitioner and the same was received by the petitioner on 15.09.2009. Immediately, on the next day, in obedience to the order of posting, the petitioner joined duty on 16.09.2009 and therefore also, the entire charge against the petitioner is vitiated. 9. Further, when we analyse the impugned order passed by the second respondent, it is evident that the second respondent narrated the entire facts of the case and only in the last paragraph, it was simply stated that the charge against the petitioner is proved. 9. Further, when we analyse the impugned order passed by the second respondent, it is evident that the second respondent narrated the entire facts of the case and only in the last paragraph, it was simply stated that the charge against the petitioner is proved. The second respondent has not given any finding in the impugned order to award the punishment nor for disagreeing with the findings of the enquiry officer. It is also not made clear in the impugned order whether the further representation of the petitioner has been fully considered in the impugned order excepting to say that no new facts have been made out. Hence, the impugned order is only a non-speaking order and the second respondent has not applied his mind before passing the same. Even though no appeal has been filed by the petitioner, as the impugned order is vitiated and not sustainable under law, the writ petition is maintainable and therefore it is entertained. For the reasons stated above, the proceedings dated 23.09.2010 of the second respondent imposing punishment on the petitioner is set aside. The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed.