A. Narayanaswamy v. The Director of Technical EducationGovernment of Tamil Nadu Guindy Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 09..6..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 7792 of 1998A. Narayanaswamy.. Petitionervs.1.The Director of Technical EducationGovernment of Tamil Nadu Guindy Chennai 2.The Chairman The Governing CouncilPSG College of Technology and PolytechnicPeelameduCoimbatore-641 004.. RespondentsPetition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus callingfor the records relating to the order of the second respondentdated 11.3.1998 dismissing him from service and quash the sameand direct the respondents to reinstated in him service oralternatively to permit him to retire from service on 09.3.1998.For Petitioner: Mr. N. ChandrarajFor Respondent 1: Mrs. Geetha Thamaraiselvan, GAFor Respondent 2: Mr. A. JenasenanO R D E RHeard the arguments of the learned counsel for the partiesand perused the records.2.The petitioner challenges the order of dismissal dated11.3.1998. He was working as a Demonstrator in Chemistry. Hewas given a charge-memo dated 29.12.1995 stating that he hadabsented himself from duty from 22.7.1994. He was also chargedfor not responding to the communications sent by the Principal.Therefore, the Governing Body of the College considered thematter on 25.3.1996 and directed an enquiry to be held against https://hcservices.ecourts.gov.in/hcservices/ him. The enquiry against the petitioner started on 06.5.1996and he had admitted the charges. On the basis of the findingsof the Enquiry Officer holding the petitioner guilty of thecharges, the Governing Council agreed with the same and proposedthe punishment of dismissal. 3.The Chairman of the Governing Council, who wasauthorised by the Council, issued a show cause notice for whichthe petitioner submitted an explanation and informed them aboutthe family circumstances which disabled him from attending towork. Not satisfied with the explanation, he was dismissedfrom service by an order dated 11.3.1998. In fact, thepetitioner was due for retirement on 09.3.1998 but the order ofdismissal was passed two days after the date of his age ofsuperannuation. 4.The stand of the petitioner was that he was working asa Demonstrator from the year 1965 and had put in 33 years ofservice in the institution and dismissing him after he hadreached the age of superannuation was really cruel anddisproportionate to the gravity of the charges held against him.5.The learned counsel for the petitioner only contendedthat no punishment can be given after a person reaches the age ofsuperannuation and even assuming that it was valid, thepunishment of dismissal was disproportionate to the gravity ofthe offence alleged against the petitioner. This Courtdirected the learned counsel for the second respondent toconsider as to whether the second respondent was willing toreconsider the punishment of dismissal in the light of theaverments made before this Court. 6.However, A. Jenasenan, learned counsel for the secondrespondent submitted that the second respondent was not in aposition to take any decision in this regard. 7.The only question arises for consideration in thepresent case is as to whether the punishment of dismissal givento the petitioner after he had put in 33 years of service, isdisproportionate to the gravity of the offence alleged againsthim and as to whether this Court in exercise of power underArticle 226 of the Constitution, can modify the punishment in toone of compulsory retirement. 8.In the present case, though there is no defence for thepetitioner with regard to his unauthorised absence, but, however,he submitted that his absence was due to family circumstances andfairly submitted that he did not contest the charge-memo.Further, the order of dismissal was passed on 11.3.1998 whereasthe petitioner had reached the age of superannuation on 09.3.1998itself. This Court is also of the opinion that imposing a https://hcservices.ecourts.gov.in/hcservices/ punishment of dismissal that too, at the tail end of service, isvery cruel especially, when the petitioner was not guilty of anycharge of misappropriation or embezzlement.9.The Supreme Court, in more than one judgment, has heldthat if the punishment of dismissal is disproportionate, thenthis Court, in exceptional circumstances, can interfere with thequantum of punishment while exercising power under Article 226 ofthe Constitution. The Supreme Court in V.R. Katarki v. State ofKarnataka [1991 Supp (1) SCC 267] dealt with the case of ajudicial officer and in paragraph 6 observed as follows:Para 6:"The question for consideration now, therefore, iswhile the finding that the appellant was guilty interms of the charges found should the appellanthave been dismissed from service. Ordinarily,justification of the quantum of punishment imposedin a disciplinary action is not for the court todecide and there have been occasions when thisCourt has taken interference by the High Courts onquantum of punishment as an act in excess ofjurisdiction. While we are cognizant of that fact,keeping the residue of the charges in view, we areinclined to hold that dismissal of the appellantfrom service was out of proportion and compulsoryretirement would meet the ends of justice. Weaccordingly direct that in place of dismissal, theappellant shall be taken to have been compulsorilyretired from service from the date when dismissalbecame operative."10.The Supreme Court in Chandra Vilash Rai v. State ofBihar, [(2003) 11 SCC 741] in paragraph 3 observed as follows:Para 3:"Having examined the nature of charges alleged andproved against the two delinquents, we cannot butobserve that the charges are serious, moreparticularly, since they relate to affairs of acooperative bank. But at the same time, it cannotbe disputed that these delinquents have renderedservices in the Society for more than 20 years. Italso transpires that the so-called delinquency hadnot been committed on their own but at the behestof the Board of Directors, though in law suchaction would not exonerate the delinquents fromthe liabilities which they would incur for suchillegalities and irregularities. In the aforesaidpremises, we think it appropriate that ends ofjustice will be met if we alter the punishment ofdismissal to one of premature retirement, as https://hcservices.ecourts.gov.in/hcservices/ provided in the Staff Regulations of the Bank,which appear to have been framed by the Board inits resolution dated 12-3-1985, which punishmentalso is a major punishment and we accordingly sodirect. If the delinquents are entitled to anyretirement benefits on the basis of such prematureretirement, those may be given to them."11.A Division Bench of this Court, while dealing with acase of a Judicial Officer, who was dismissed only a few daysbefore his retirement, followed the above two judgments of theSupreme Court and converted the dismissal in to one compulsoryretirement vide its judgment relating to V.C. Rajamanickam v.State of Tamil Nadu and another [2007 (5) M.L.J. 1185]. 12.Therefore, in the light of the above precedents, thesecond respondent is hereby directed to impose the punishment ofcompulsory retirement on the petitioner and communicate the sameto the first respondent within a period of four weeks from thedate of receipt of a copy of this order. Further, on suchcommunication, they are also directed to forward the pensionpapers of the petitioner to the Government with necessaryendorsemet and claim his pension and terminal benefits asexpeditiously as possible. The writ petition is disposed ofaccordingly. However, there will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrargriTo1.The Director of Technical EducationGovernment of Tamil Nadu,Guindy,Chennai.2.The Chairman The Governing CouncilPSG College of Technology and PolytechnicPeelamedu,Coimbatore.+1cc to Mr.A.Jenasenan, Advocate Sr 27623+1cc to Mr.N.Chandra Raj, Advocate Sr 27699+1cc to Govt. Pleader Sr 27663RSY (CO)km/16.6.W.P. No. 7792 of 1998