B. Jyothi v. State of Tamil Nadu Rep by the Secretary, Health & Family Welfare Dept, Chennai
2012-07-06
VINOD K.SHARMA
body2012
DigiLaw.ai
Judgment :- 1. In pursuance to the selection by the Tamil Nadu Public Service Commission, the petitioner joined as Assistant Surgeon in the health department of the State of Tamil Nadu and posted at the Institute of Obstetrics and Gynecology Government Hospital for Women and Children, Egmore, Chennai. 2. The petitioner was permitted to go abroad on deputation, for three years till 01.04.1991, but she did not report back to duty on expiry of leave, on account of her failure to join duty, she was proceeded under 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules on the following charges: (a) That she failed to apply for permission for extension of deputation for her over staying abroad beyond 01.04.1991; (b) That she absented unauthorisedly from 02.04.1991 and (c) That she disobeyed the orders of her superiors by not rejoining duty. 3. The petitioner did not appear before the enquiry officer inspite of service by affixation on the last known address. This forced the respondents to hold ex-parte enquiry against the petitioner. The enquiry officer on the basis of ex-parte evidence led before him, held the petitioner guilty of the charges levelled. The competent authority agreed with the finding of the enquiry officer and ordered removal of the petitioner from service. 4. It is admitted case of the petitioner, that she came to know about the order of removal through her husband, and she filed review petition under Rule 20 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. 5.
The competent authority agreed with the finding of the enquiry officer and ordered removal of the petitioner from service. 4. It is admitted case of the petitioner, that she came to know about the order of removal through her husband, and she filed review petition under Rule 20 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. 5. Rule 20 of the Tamil Nadu Civil Services (Disciplinary & Appeal) Rules reads as under: 20.(1) A member of a State Service or a member of a Subordinate Service including a person who has ceased to be a member of such service in whose case the Government have passed original orders, shall be entitled to submit, within a period of two months from the date on which the order was communicated to him, a petition to the Government for review of the orders passed by them on any of the grounds specified below:- (a) that the order was not passed by the competent authority; (b) that a reasonable opportunity of defending himself was not given; (c ) that the punishment is excessive or unjust; (d) discovery of new matter or evidence which the appellant alleges and proves to the satisfaction of the Government was not within his knowledge or could not be adduced by him before the order imposing the penalty was passed; (e) evident error or omission such as failure to apply the Law of Limitation or an error of procedure apparent on the face of record; Provided that the Government may, in its discretion, condone any delay in submitting the petition for review within the said period of two months. (2) The petition for review which does not satisfy any of the above grounds shall be summarily rejected. (3) Where an authority other than the State Government, by virtue of subrule (2) of rule 12, has passed orders imposing a penalty on a member of the State Service, such member shall be entitled to appeal to the Head of Department, if the orders were passed by an authority subordinate to the Head of Department or to the Government, if the orders were passed by the Head of Department. 6. The review petition filed by the petitioner was dismissed as time barred, as it was admittedly filed after 60 days of knowledge of the order.
6. The review petition filed by the petitioner was dismissed as time barred, as it was admittedly filed after 60 days of knowledge of the order. Along with the review, neither an application for condonation of delay was filed nor any grounds for condoning the delay in the review petition were pleaded in the review petition. 7. The learned counsel for the petitioner challenged the finding of the enquiry officer, as also order passed on review petition, by contending that the impugned order of punishment and order passed on review petition, cannot be sustained in law being violative of principles of natural justice. 8. It is contended by the learned counsel for the petitioner that the finding of the enquiry officer and reading of the impugned order shows that the petitioner was served by affixation at the last known address, without first serving her by ordinary process/ registered post. 9. The order of removal is also challenged on the ground that it was passed by taking Fundamental Rule 18(3) to be mandatory. The contention of the learned counsel for the petitioner is that under F.R.18(3) though order of removal or termination could be passed, but the competent authority was required to apply independent mind to the gravity of the misconduct and take an independent decision with regard to the punishment to be awarded. The competent authority could not mechanically remove the petitioner without applying its mind to the seriousness of misconduct. It was thus contended that order of punishment was disproportionate to proved charge, thus arbitrary. 10. The learned counsel for the petitioner challenged the order passed on review petition, by contending that the review petition could not have been dismissed on the ground of limitation, without giving an opportunity to the petitioner to defend herself, and that the order having been passed in violation of principles of natural justice was void, to attract the ground of limitation. 11. On consideration, I find no force in this writ petition. It is well settled law that a statutory appeal/review which is filed, beyond the period of limitation without pleading any ground for condonation of delay is either in the petition or by separate application, is to be dismissed, with reference to the petitioner.
11. On consideration, I find no force in this writ petition. It is well settled law that a statutory appeal/review which is filed, beyond the period of limitation without pleading any ground for condonation of delay is either in the petition or by separate application, is to be dismissed, with reference to the petitioner. It is only in case grounds are pleaded for condoning the delay that the quasi-judicial authority has to apply mind to see if sufficient cause is shown for condoning the delay. In absence of any explanation, the quasi judicial authority has no other option, but to dismiss the petition being barred by limitation. 12. This is what has been done by the competent authority, therefore, order in review being in consonance with law does not call for any interference in exercise of writ jurisdiction. 13. The original order of punishment having merged with the order of review cannot be challenged on merit. 14. Even on merit, it is not disputed that the petitioner went abroad on deputation, and she did not return to India on expiry of leave period. The competent authority followed due process and served the petitioner by affixation at the last known address. Merely because in the order it is received that service was effected by affixation, no presumption can be drawn, that ordinary process of service was not followed as contended. There is no equity in favour of the petitioner, as she absented herself for better prospects in foreign country and has unsuccessfully attempted to take advantage of technicalities. 15. For the reasons stated hereinabove, there being no merit in the writ petition which is ordered to be dismissed. No cost.