Judgment :- 1. The petitioner joined Police department in the year 1975 and was promoted as Junior Assistant in the year 1982. The petitioner fell sick and could not report for duty from 13.01.1992, as he was undergoing treatment for his mental illness. 2. After getting medical fitness certificate from the competent Medical officer, the petitioner approached the department to join duty on 14.07.1995, but he was not taken back to duty. 3. The petitioner instead was directed to report to Psychiatric Out-patient department in mental hospital at Chennai. The petitioner appeared before the Director of the hospital, where he was issued a letter stating that he was suffering from mental depression, and on examination was issued a fitness certificate. The petitioner was not taken back to duty, inspite of fitness certificate. 4. The petitioner was served with charge memo vide P.R.No.1/O.S./P/R.II(3)/94 dated 14.01.1992 under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charge against the petitioner reads as under: "Reprehensible conduct in absenting without leave or permission for a continuous period of more than one year from 14.01.1992" 5. The petitioner was issued notice by the enquiry officer in pursuance thereto, he participated in the enquiry. The enquiry officer on appreciation of evidence oral and documentary on record, held the petitioner guilty of charge framed against the petitioner. 6. The competent authority by agreeing with the enquiry officer, imposed a punishment of removal from service. 7. The order passed by the competent authority reads as under: C.No.1/PR/OS/P.R.2(3)/94 u/r 17(b) Delinquent: Tr.R.Sekar, Ex.Junior Assistant C.P.C., Chennai F Order: I have carefully perused the P.R. File and connected records. 2) The charge against the delinquent is that he absented for duty without any leave or permission for a continuous period of more than one year from 14.01.1992. 3) In this, P.R. During O.E. 3 P.Ws. were examined and through them 3 prosecution exhibits were filed. 4) The delinquent had never bothered to account for his absence either immediate to the occurrence or subsequently for years together. G.O.Ms.No.1046 P & AR (FR.III) Department dt.13.11.1987 clearly lays certain procedures in dealing with the cases of this nature on disciplinary proceedings. 5) The delinquents explanation that he was unwell and his family condition deferred him from reporting his sickness etc. are unbelievable; such fictitious grounds could not be taken as justifying reasons for his long absence without leave or permission. 5) The delinquents explanation that he was unwell and his family condition deferred him from reporting his sickness etc. are unbelievable; such fictitious grounds could not be taken as justifying reasons for his long absence without leave or permission. Even till date, he has not reported for duty. This shows beyond all reasonable doubts that he had no mind at all to join and continue in the Police Department. 6) I, therefore, fully agree with the findings of the enquiry officer and order removal of the delinquent from service from 14.01.1992, the day from which he absented for duty. 7) Certified that I am not a subordinate to the authority who appointed delinquent in service. 8) Certified that the delinquent was supplied with a copy of the minute to represent further. Although he acknowledged the memo calling F.R. On 14.2.1997, he has not bothered to submit the same, within the time specified. 9) Certified that a proper oral enquiry as per rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules 1955 is correctly followed in this P.R. Sd/- 31/7/1998 Deputy Commissioner of Police, (Headquarters)" 8. The only ground of challenge to impugned order is that the impugned order is based on G.O.Ms.No.1046 P & AR (FR.III) Dept., dated 13.11.1987 as amended vide G.O.Ms.No.177 dated 21.11.1990 laying down that the Government servant whether permanent or approved probationer if remains absent for more than a year, can be removed from service by following the procedure laid down under the rules. 9. The contention of the learned counsel for the petitioner is that the G.O.Ms.No.1046 was declared ultra vires the Constitution of India, by the learned Tamil Nadu Administrative Tribunal, therefore, the punishment based on the said G.O. cannot be sustained in law. 10. In support of this contention, the learned counsel for the petitioner, firstly referred to statement of allegation wherein it is stated as under: "2.) According to para 2(3) of G.O.Ms.No.1046 P & A.R.(F.R.II), dated 13.11.1987 when a Government servant permanent or approved probationer does not resume duty after remaining on leave or absence for a continuous period of either six months or one year as the case may be, he/she may be removed from service following the procedure laid down in the Tamil Nadu Civil Service (Classification Control and Appeal) Rules. Thus, your conduct in absenting without leave or permission for a continuous periods of more than a year is reprehensible and attract the provisions in para 2(3) of G.O.Ms.No.1046, P & A.R. (F.R.III) dated 13.11.1987. Hence the charge." 11. The learned counsel for the petitioner also referred to the part of order which reads as under: "4.) The delinquent had never bothered to account for his absence either immediate to the occurrence or subsequently for years together. G.O.Ms.No.1046 P & AR (FR.III) Department dt.3.11.1987 clearly lays certain procedures in dealing with the cases of this nature on disciplinary proceedings." 12. The contention of the learned counsel for the petitioner therefore is, that the reading of statement of allegation as well as the impugned order shows that the order of punishment was passed based on the G.O.Ms.No.1046, wherein it was stipulated that the Government employee who is absent from duty for more than one year, shall be removed from service. The competent authority therefore, has not applied independent mind to impose punishment, furthermore, the same error was committed by the appellate authority, in imposing punishment of removal. 13. It is also the contention of the learned counsel for the petitioner, that the impugned order cannot be sustained, as it is retrospective in nature, as the order of removal has been passed with effect from the date of his absence. The impugned order though passed on 31.07.1998 but the removal has been ordered with effect from 14.01.1992 which cannot be sustained in law. 14. The learned Addl. Govt. Pleader however submits that though in the charge as well as in the impugned order, the reference is made to G.O.Ms.No.1046, but in fact, the order was passed as per the service rules and in accordance with law, after holding departmental enquiry. 15. The contention of the learned Addl. Govt. Pleader for the State, was that charge against the petitioner as reproduced above, was proved in the departmental enquiry, and the competent authority also followed due process of law before passing the impugned order. 16. It is also the contention of the learned Addl. Govt. Pleader that the order cannot be said to be disproportionate to proved misconduct, as admittedly, the petitioner was absent from duty for one year and 11 months. The absence from duty is a serious misconduct for which punishment for removal cannot be said to be harsh. 17. 16. It is also the contention of the learned Addl. Govt. Pleader that the order cannot be said to be disproportionate to proved misconduct, as admittedly, the petitioner was absent from duty for one year and 11 months. The absence from duty is a serious misconduct for which punishment for removal cannot be said to be harsh. 17. On consideration, I find that the contentions of the learned Addl. Govt. Pleader deserves to be accepted. 18. The reading of the charge shows, that charge against the petitioner was not based on G.O., but specific charge of absent from duty was framed against the petitioner, for which regular departmental enquiry was held. The impugned order also does not show that the order has been passed in view of the G.O. or holding that the competent authority was under compulsion to pass such order. 19. Even after declaring the G.O.Ms.No.1046 dated 13.11.1987 ultra vires the Constitution of India, the jurisdiction of the competent authority to remove the employee on the ground of proved misconduct of absent from duty for one year and 11 months, was not taken away. The employer was the authority to remove an employee for serious misconduct even in absence of G.O.Ms.No.1046 dated 13.11.1987. 20. Once it is not disputed that the departmental enquiry was held in accordance with law, and that the charge against the petitioner was proved, no interference is called for in exercise of writ jurisdiction specially when it is not even disputed that due process of law was followed by the competent authority. 21. However, the learned counsel for the petitioner is correct in contending, that it was not open to the competent authority to pass an order of removal with retrospective effect. The competent authority while ordering removal, could passed the order prospectively. Therefore, the order of removal shall be effective from the date of passing of the order. 22. The writ petition is disposed of by directing that the order of removal from service shall be prospective and not retrospective. The petitioner shall be entitled to consequential benefits if any, flowing from this order in treating the date of removal to be the date of passing of order. No costs.