Novilla Yadavendran v. Secretary to Government, Government of Tamil Nadu, Chennai
2014-08-08
S.VAIDYANATHAN
body2014
DigiLaw.ai
Judgment : 1. This writ petition is filed challenging the order dated 19.07.2012 issued by the first respondent in G.O.(2D) 87-Finance (Treasury Accounts-2) Department and for a consequential direction to the respondents to pay all monetary benefits, including backwages, pensionary benefits and notional promotion to the petitioner. 2. The petitioner was working as Junior Assistant at Pay and Accounts Office and she was transferred to Mambalam-Gunidy Sub Treasury Office. She was relieved on 10.04.1995. The petitioner submitted that due to family circumstances, she had to take leave from 10.04.1995 and thereafter, she could not join duty. On 01.06.1997, petitioner's father-in-law passed away. Being the eldest daughter-in-law, she had to take care of her old mother-in-law. According to the petitioner, thereafter, her son was unwell and underwent an appendicitis surgery and her husband was suffering from diabetes. Due to the reasons stated supra, the petitioner was absent from 10.04.1995 to 10.08.1997. The petitioner made a representation for re-joining duty and she was allowed to re-join duty on 11.08.1997 at Sub Treasury Fort, Tondiarpet. The petitioner has stated that suddenly, she received the removal order issued by the second respondent, dated 31.05.1999. The petitioner has further stated that she was issued with a charge memo dated 21.06.1996, by the Pay and Accounts Office (South), explanation was sought for, enquiry officer was appointed and enquiry was conducted and all the charges were held to be proved. The petitioner would also state that she appeared before the enquiry officer and gave her statement. 3. In the enquiry, she has submitted the reasons stated supra for her inability to join the office. The case of the petitioner is that she was charge sheeted because, she was unauthorisedly absent and hence, she was removed from service on 31.05.1999. The petitioner has preferred an appeal on 03.08.1999 and the appeal was not disposed of, that made her to approach this Court by filing W.P.No.20254 of 2006 and this Court, vide order dated 03.07.2006, had directed the first respondent to pass orders on the appeal. The appeal was rejected on 14.08.2006 and this was questioned in W.P.No.35401 of 2006 and by order dated 07.07.2008, the matter was remitted to the Appellate Authority to consider the same afresh, in terms of Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
The appeal was rejected on 14.08.2006 and this was questioned in W.P.No.35401 of 2006 and by order dated 07.07.2008, the matter was remitted to the Appellate Authority to consider the same afresh, in terms of Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Thereafter, the Appellate authority has considered the appeal in detail and passed orders on 20.10.2009 rejecting the appeal. As against that order, the petitioner has preferred a review on 10.02.2011 before the first respondent and the same was also rejected by the first respondent by the order under challenge. 4. Learned counsel for the petitioner has raised two grounds, namely, that for absence from service, imposing an order of removal is harsh and the punishment is disproportionate to the gravity of misconduct and the second ground taken by the learned counsel for the petitioner is that the authority, who passed the order in review has not given any reason as contemplated under Rule 23 of the said Rules, as the Reviewing Authority should also give detailed reasons like the Appellate Authority while passing the order either confirming or modifying the order of the Appellate Authority. Learned counsel for the petitioner has relied upon the decision of the Apex Court reported in (1997) 7 SCC 463 (Union of India and Others V. G. Ganayutham) wherein, at paragraph No.15, it was held as hereunder: “15. The first decision of this Court in administrative law which referred to “proportionality” is the one in Ranjit Thakur v. Union of India2. In that case the appellant was found guilty in court-martial proceedings and a punishment of dismissal from service and sentence of imprisonment was imposed as permitted by the Army Act. While quashing the said punishment on the ground of its being “strikingly disproportionate”, this Court observed: (SCC p. 620, para 25) “25. … The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.
But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.” (emphasis supplied) It is clear that Ranjit Thakur treated “proportionality” as part of judicial review in administrative law. But it will also be noticed that while observing that “proportionality” was an aspect of judicial review, the Court still referred to the CCSU description of irrationality, namely, that it should be in outrageous defiance of logic if it was to be treated as irrational. Ranjit Thakur was followed in Ex-Naik Sardar Singh v. Union of India, again a case under the Army Act.” The learned counsel also relied on the judgment reported in (2009) 8 MLJ 460 (SC) (Chairman cum Managing Director, Coal India Limited and another V. Mukul Kumar Choudhuri and Others) with regard to proportionality of the punishment imposed. Further, the learned counsel for the petitioner has relied upon the decision of the Apex Court reported in AIR 2003 SC 1377 (Kailash Nath Gupta V. Enquiry Officer (R.K.Rai), Allahabad Bank and others) wherein, the Apex Court has interfered with the punishment in question. 5. Per contra, learned Government Advocate contended that the petitioner was absent for more than two years and not one year as contended by the learned counsel for the petitioner. He would also submit that opportunities have been given to the petitioner wherein, she was enquired the reason for her absence and the same was accepted by the enquiry officer and instead of imposing a dismissal order, removal order has been passed against the petitioner. According to the learned Government Advocate, even for the sake of argument, assuming, that the removal order has been passed for disobeying the order of transfer, a detailed enquiry has been conducted for her absence and based on evidence of the petitioner, the punishment of removal from service has been imposed. 6. Heard both sides. 7.
According to the learned Government Advocate, even for the sake of argument, assuming, that the removal order has been passed for disobeying the order of transfer, a detailed enquiry has been conducted for her absence and based on evidence of the petitioner, the punishment of removal from service has been imposed. 6. Heard both sides. 7. The undisputed fact is that the petitioner was issued with a charge memo as she did not report for work. The reasons given in the affidavit for her absence were unsatisfactory to the Enquiry Officer, Disciplinary Authority, Appellate Authority and the Reviewing Authority. The petitioner was imposed with the punishment of removal from service. It is also not in dispute that twice the petitioner has approached this Court to set aside the order of the Appellate Authority and this Court by order dated 13.07.2009 had directed the Appellate Authority the consider the matter afresh in terms of Rule 23 of the said Rules and pass a detailed order, as required in terms of the said Rule. 8. In the present case, the Appellate Authority has come to the conclusion that the charges are proved and that the absence for over two years is not justified. Even assuming that this Court is going to accept that the petitioner was removed from service on the ground that she did not obey the order of transfer, the Hon'ble Supreme Court in the decision rendered in Civil Appeal No. 392 of 1997 dated 12.12.2000 (The Management of Addison Paints V. Workmen) has held that the party aggrieved will have to obey the order of transfer and thereafter, question the order of transfer which, the present petitioner has not done. Even otherwise, the petitioner was transferred within Chennai and she did not obey the order of transfer. 10. Be that as it may, for removal from service, the Appellate Authority gave a detailed reasoning and came to the conclusion that the order of the Disciplinary Authority cannot be modified as the petitioner was admittedly absent for nearly 28 months as could be seen from the report of the enquiry officer which is filed in Page 2 of the typed set of papers. The petitioner has reiterated this fact in the affidavit filed in support of the writ petition.
The petitioner has reiterated this fact in the affidavit filed in support of the writ petition. The contention that the Reviewing Authority will have to give detailed reasons similar to that of the Appellate Authority to concur or differ with the findings of the Appellate Authority cannot be accepted by this Court as, when the Reviewing Authority is going to concur with the findings of the enquiry officer, there is no need for him to give detailed reasons. That apart, there is no specific Rule like Rule 23, enabling the Reviewing Authority to give detailed reasons. Since the three authorities namely, Disciplinary Authority, Appellate Authority, and Reviewing Authority have considered the facts in detail and came to the conclusion that the charge of unauthorised absence is proved, the punishment of removal from service has come to be imposed, and I feel, this Court should not interfere with the punishment, as it would be amounting to entering into the administrative decision of the authorities. 11. Besides, the petitioner has also not established that the punishment is disproportionate to the gravity of misconduct. The Honourable Apex Court, in a catena of cases, has held that, when the findings of the Enquiry Officer are not perverse, the High Court need not exercise its extraordinary jurisdiction to modify the punishment. Since the punishment imposed in this case is not shockingly disproportionate to the gravity of misconduct, this Court finds that the punishment imposed on the petitioner is correct. 12. As far as the judgment relied on by the learned counsel for the petitioner reported in AIR 2003 SC 1377 (Kailash Nath Gupta V. Enquiry Officer (R.K.Rai), Allahabad Bank and others), is concerned, in that case, the Honourable Supreme Court has held that there is no evidence to show that the petitioner therein has misappropriated any money or committed any fraud. Because of procedural irregularity, the Court interfered and remanded the matter for fresh consideration. In this case, the charges have been established in the domestic enquiry and the authorities have held that charges are proved. 13. Long absence like the present one, though the reasons may be correct for short spells, but not genuine for continuous absence of 28 months, will derail the administration.
In this case, the charges have been established in the domestic enquiry and the authorities have held that charges are proved. 13. Long absence like the present one, though the reasons may be correct for short spells, but not genuine for continuous absence of 28 months, will derail the administration. When there are persons, who are willing to work like an ox, employing persons like the petitioner who was continuously absent will send a wrong signal to those who are working. Hence, the writ petition is devoid of merits and the same is dismissed. No costs.