N.Vanitha v. Office of the Collectorate

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 18.10.2011CORAMTHE HONOURABLE MR. JUSTICE M.M.SUNDRESHW.P. NO.6075 OF 2010N.Vanitha .. PetitionerVersus1.The Personal Assistant to the Collector Office of the Collectorate Chennai – 600 001.2.The Collector Chennai District Office of the Collectorate Chennai – 600 001.3.The Special Commissioner for Revenue Administration Chepauk, Chennai – 600 005.4.The Secretary to the Government Revenue Department Secretariat, Chennai – 600 009...Respondents PRAYER : Writ Petition filed Under Article 226 of the Constitution ofIndia praying to issue a Writ of Certiorarified Mandamus, calling forthe records relating to the G.O.Ms.(2d)143 dated 15.03.2010, issued bythe fourth respondent, quash the same and direct the respondentsherein to pay the terminal benefits and pensions, all other benefitsto the petitioner.For Petitioner: Mr.S.AnbazhaganFor Respondents: Mr.I.Arokiasamy Government Advocate* * * * *O R D E RThe petitioner herein was originally appointed as a LowerDivisional Typist in the year 1970. In the year 1974, the petitionerservices were regularised. Thereafter, in the year 1980, she waspromoted as a Upper Divisional Typist. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner's husband died in the year 2002. Herhusband was suffering from mental illness and as a result, thepetitioner was forced to take care of her husband, apart from threeminor children. In view of the mental illness of her husband and thesubsequent death, the petitioner also became mental depression. Underthose circumstances, she gave medical application seeking leave, asshe was unable to perform her duty.3.Since the petitioner did not report for duty and the leavesought for has not sanctioned, the charges have been framed againstthe petitioner for unauthorised absence. After conducting enquiry, thedisciplinary authority based upon the enquiry report found that thecharges have been proved. The petitioner gave a representation to thesecond respondent requesting to reconsider the issue which wasrejected, the petitioner therefore filed mercy petition to the fourthrespondent which was also rejected. Hence, the petitioner has comeforward to file these writ petition.4.The learned counsel for the petitioner submitted that onthe earlier occasion, this Court has directed the fourth respondent toconsider the case of the petitioner by taking note of her disabilityby providing an alternative job. The case of the petitioner has notbeen considered properly by the fourth respondent. The learned counselfurther submitted that in any case by applying the doctrine ofproportionality and the petitioner having been put in 33 years ofblemish service, the punishment imposed is totally disproportionate tothe charges framed. The learned counsel submitted that even on theearlier occasion, the petitioner has specifically made a requeststating that the punishment imposed may be modified to that ofcompulsory retirement. Moreover, the petitioner has since reached theage of superannuation. The learned counsel submitted that appropriateorders will have to be passed. 5.Eventhough the respondents have found that the petitionerhas not given proper explanation the fact that her husband died due tomental illness and she suffered certain mental illness of her own hasnot been disproved by contra evidence. Admittedly, the petitioner hasput in 33 years of service. When her husband was in difficultsituation having mental problem, the petitioner being a dutiful wifenecessarily has to take care of him apart from taking care of herchildren. It is not as if the petitioner has not sought for permissionseeking leave. There is absolutely no material to hold that theservices of the petitioner was not satisfactory hitherto. 6.The power of this Court to interfere with the quantum ofpunishment is rather limited. However, when the punishment is totallydisproportionate to the charges levelled making to the conscious ofthe Court then certainly this Court will interfere and grantappropriate relief. It is not as if the petitioner was involved in any https://hcservices.ecourts.gov.in/hcservices/ corruption charges. There is no indication about the past conduct ofthe petitioner and averment made by the petitioner in her affidavitthat she has put in 33 years of blemish service has not been deniedand disputed in the counter affidavit. Added further the petitioner'shusband is no more and she has to take care of her family without job.When the circumstances are so difficult where it is impossible for anemployee to perform his or her duty then the same will have to bemitigating factor in imposing the punishment.7.Considering the very same ratio the Honourable DivisionBench of this Court in V.SENTHURVELAN vs. THE HIGH COURT OF JUDICATUREAT MADRAS dated 11.09.2009 has held as follows:"10.Thus, we find that the punishment ofremoval from service imposed on the delinquent bythe disciplinary authority and confirmed by theappellate authority and the Division Bench of thisCourt, is shockingly disproportionate to theproved charge of unauthorized absence from duty bythe petitioner and therefore, it requiresmodification.11.In the recent judgment, it JAGDISH SINGHvs. PUNJAB ENGINEERING COLLEGE AND OTHERS [(2009)7 SCC 301], the Honourable Apex Court, consideringthe case of a sweeper, who was dismissed fromservice on account of his absence on four spellstotalling to fifteen days in all in two months tosort out his daughter's problem with her-in-lawsand considering the fact that it is not a case ofhabitual absenteeism and the major punishment ofdismissal from service is shocking theconsciousness of the Court, has observed and heldas follows: "8. The instant case is not acase of habitual absenteeism. The appellant seemsto have a good track record from the date hejoined service as a sweeper. In his long career ofservice, he remained absent for fifteen days onfour occasions in the months of February and March2004. This was primarily to sort out the problemof his daughter with her in-laws. The filialbondage and the emotional attachment might havecome in his way to apply and obtain leave from theemployer. The misconduct that is alleged, in ourview, would definitely amount to violation ofdiscipline that is expected of an employee tomaintain in the establishment, but may not fitinto the category of gross violation ofdiscipline. We hasten to add, if it were to behabitual absenteeism, we would not have ventured https://hcservices.ecourts.gov.in/hcservices/ to entertain this appeal.9.In the result, we allow the appeal and setaside the order passed by the disciplinaryauthority dated 30.09.2004 and affirmed by theHigh Court vide its order dated 28.08.2007.10.Taking the totality of the facts andcircumstances of the case and having due regard tothe unblemished record of the appellant, and thereasons of which he remained absent withoutobtaining permission, the ends of justice would bemet, if punishment imposed by the disciplinaryauthority is modified to that of stoppage of twoincrements with cumulative effect and furtherdeclare that he would not be entitled for anymonetary benefits during the period he was out ofservice and that period would be counted only forthe purpose of his service benefits. We direct thedisciplinary authority to issue appropriate ordersin this regard within one month from the date ofproduction of certified copy of this Court's orderby either of the parties."12.Following the above judgment of theHonourable Apex Court, since the facts are more orless similar, we have no hesitation to hold thatthe ends of justice would be met, if punishmentimposed by the disciplinary authority is modifiedto that of stoppage of two increments withcumulative effect and further declare that thepetitioner/delinquent would not be entitled forany monetary benefits during the period he was outof service, applying the principle of 'no work, nopay' and that period would be counted only for thepurpose of his service benefits. The respondentsare directed to reinstate the petitioner intoservice within eight weeks from the date ofreceipt of a copy of this order and thedisciplinary authority is directed to issueappropriate orders regarding the above mentionedpunishment on the petitioner/delinquentimmediately on his reinstatement. With suchobservations and directions, this ReviewApplication is allowed, modifying the order of theDivision Bench of this Court, only with regard toconfirmation of the penalty imposed on thedelinquent officer. No costs."8.In J.B.J.ALEXANDER vs. THE SECRETARY TO GOVERNMENT dated https://hcservices.ecourts.gov.in/hcservices/

29.04.2010, the learned single Judge by making reliance upon theHonourable Apex Court in B.C.CHATURVEDI vs. UNION OF INDIA [AIR 1996SC 484] has held as follows:"14....... In the said judgment the SupremeCourt instead of remanding the matter to thedepartment, following the earlier decisionreported in (1995) 6 SCC 749 : AIR 1996 SC 484(B.C.Chaturvedi v. Union of India) imposedpunishment by itself. In AIR 1996 SC 484, in para18 it is held thus, "18. A review of theabove legal position would establish that thedisciplinary authority, and on appeal theappellate authority, being fact-findingauthorities have exclusive power to consider theevidence with a view to maintain discipline. Theyare invested with the discretion to imposeappropriate punishment keeping in view themagnitude or gravity of the misconduct. The HighCourt/Tribunal, while exercising the power ofjudicial review, cannot normally substitute itsown conclusion on penalty and impose some otherpenalty. If the punishment imposed by thedisciplinary authority or the appellate authorityshocks the conscience of the High Court/Tribunal,it would appropriately mould the relief, eitherdirecting the disciplinary/appellate authority toreconsider the penalty imposed, or to shorten thelitigation, it may itself, in exceptional and rarecases, impose appropriate punishment with cogentreasons in support thereof." (Emphasissupplied)The same is the view taken by the SupremeCourt in the decision reported in (2005) 7 SCC 338(V.Ramana v. A.P.SRTC). Similar issue wasconsidered by the Supreme Court in the decisionreported in AIR 2009 SC 2458 (Jagdish Singh v.Punjab Engineering College). Following the saidjudgment, I allowed W.P.No.12619 of 2001 dated13.11.2009 and W.P.No.40097 of 2002 dated23.12.2009 and set aside the orders ofdismissal/removal from service and deniedbackwages. The above said judgment of the SupremeCourt is followed by the Division Bench of thisCourt in the decision reported in (2009) 7 MLJ1231 (V.Sethurvelan v. High Court of Judicature atMadras). https://hcservices.ecourts.gov.in/hcservices/

15.In the case on hand, the petitioner hasfairly filed an additional affidavit stating thatthe punishment may be modified as compulsoryretirement, that too from 31.01.2010 and pay theretirement benefits with arrears of pension from01.02.2010. The petitioner having served in thedepartment for 33 years and the charges beingunauthorised absence, to shorten the litigation, Iam of the view that interest of justice would bemet by ordering modification of the punishment ofremoval from service to that of compulsoryretirement with effect from 31.01.2010.16.In the result, the punishment imposedagainst the petitioner is modified to that ofcompulsory retirement with effect from 31.01.2010.Petitioner is eligible to get retirement benefitsbased on his service till 11.09.2006 and arrearsof pension from 01.02.2010. The respondents aredirected to work out the terminal benefits andpension payable from 01.02.2010 and pay the sameto the petitioner within a period of eight weeksfrom the date of receipt of copy of this order.The writ petition is disposed of with the abovedirections. No costs."9.Applying the ratio laid down by the Honourable DivisionBench, this Court is of the view that the order impugned will have tobe modified.10.Therefore, taking into consideration of the above saidfacts, this Court is of the view that inasmuch as the petitioner hassince retired and she having been put in 33 years of service, theorder of dismissal would require interference as disproportionate tothe charges framed. Accordingly, the order impugned is hereby setaside and the punishment imposed on the petitioner is hereby modifiedfrom that of dismissal to that of voluntary retirement. It is madeclear that this order will enable the petitioner to get all herretiral and pensionary benefits and she is not entitled for any otherbackwages. The said appointment will come into effect from the date ofthe original order of dismissal passed by the first respondent.Consequently, the first respondent is directed to compute the terminalbenefits to the petitioner, within a period of eight weeks thereafter. https://hcservices.ecourts.gov.in/hcservices/

11.The writ petition is disposed of accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.RegistrarsriTo1.The Personal Assistant to the Collector Office of the Collectorate Chennai – 600 001.2.The Collector Chennai District Office of the Collectorate Chennai – 600 001.3.The Special Commissioner for Revenue Administration Chepauk, Chennai – 600 005.4.The Secretary to the Government Revenue Department Secretariat, Chennai – 600 009.+1cc to Govt. Pleader Sr 63804+1cc to M/s. D.Geetha, Advocate SR 63701PA(CO)km/4.11.W.P. NO.6075 OF 2010