M.Basheer v. Fort St. George

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.06.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.30077 of 2006M.Basheer.. Petitioner Vs.1.The Secretary to Govt., Labour and Employment Dept., Fort St. George, Chennai-9.2.The Commissioner of Employment and Training, Chepauk, Chennai-5... RespondentsThis writ petition has been preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records in pursuant to theimpugned order passed by the second respondent in proceedingSa.Mu.Aa.No.AP2/118440/93, dated 22.1.96 and the impugned order ofconfirmation of punishment passed by the first respondent in G.O.(D)No.501, Labour and Employment Department, dated 23.6.97 and to quashthese orders and consequently, to direct the respondents to reinstatethe applicant retrospectively with effect from the date of terminationwith full salary and consequential service benefits. For Petitioner: Mr.SubburajFor Respondents: Mr.P.Gurunathan, GAORDERHeard both sides.2.The petitioner has filed O.A.No.8508 of 1997, seeking tochallenge the order of the second respondent, dated 22.1.1996 and alsothe order of the first respondent, dated 23.6.1997. 3.In view of the abolition of the Tribunal, the matter stoodtransferred to this court and was renumbered as W.P.No.30077 of 2006.On notice from the Tribunal, the respondents have filed a replyaffidavit, dated 28.09.1998, justifying the action against thepetitioner. 4.The petitioner was working as the Hostel Superintendent-cum-Physical Training Officer at the Government ITI, Guindy, Chennai. Heproceeded on leave for more than 5 years from 2.7.82 to 18.5.88.Initially, he applied for Earned Leave for 30 days from 2.7.82 to31.7.82. Therefore, the Principal of the ITI, Cuddalore instructed himto join duty within 7 days by his letter dated 30.10.82. When theletter was sent to the last known address of the petitioner, it came https://hcservices.ecourts.gov.in/hcservices/ back unserved. The petitioner never turned up for duty. However, hesent leave letter seeking for leave from 3.7.82 to 31.7.84. By aletter dated 24.2.84, he requested to posting him at Chennai, butsince there was no vacancy, he was posted to duty at ITI Nagercoil. Hedid not join duty in that place. Subsequently, he was given posting atITI, Mettur Dam. There also, he did not join duty. Once again, herequested for a posting in some other place. He was finally given aposting at ITI, Cuddalore and he joined duty on 19.5.88. 5.The petitioner was given a charge memo under Rule 17(b),dated 28.2.94 for remaining absent for 5 years in contravention of FR18(2). The petitioner submitted an explanation dated 23.3.94. He didnot request for any enquiry. But, however, an enquiry was conducted on24.3.1995 and the charge against the petitioner was found proved. Hewas given a copy of the enquiry report. The petitioner submitted afurther explanation, dated 19.6.95. The petitioner, except statingfamily reasons, did not furnish any other information. Therefore, hewas given the punishment of removal from service, by the order of thesecond respondent, dated 22.01.1996. 6.The petitioner sent an appeal to the first respondent Statevide his appeal memorandum dated 8..2.1996. The first respondentconsulted the TNPSC. The TNPSC gave its advise dated 15.11.96. It wasthereafter, the State Government vide G.O.(D) No.501, Labour andEmployment Dept., dated 23.6.97 rejected his appeal. The StateGovernment rejected the stand of the petitioner that he was givenalready a punishment of censure by the Principal of Government ITI andtherefore, he cannot be given another punishment for the same reason. 7.In the reply affidavit, in para 10 and 13, it was averred asfollows:"10. ... So he was informed of the fact ofconducting enquiry in Director proceedingsNo.OP2/18440/93, dt.15.7.94. The enquiry was conducted on24.3.95. During the enquiry he himself accepted thecharges framed against him. So the statement of applicantthat "sufficient opportunity was not given" is notcorrect. The copy of the Enquiry Report was alsocommunicated to the applicant in Director's ProceedingsNo.OP2/118440/93, dated 19.5.95 for submitting hisrepresentation if any, by giving a reasonable time. It isinformed no illegal action was taken against the applicantand necessary action was initiated based on the rules andregulations.....13. ... it is submitted that the punishment(Censure) awarded by the Principal was cancelled anddenova action was initiated by the Director of Employmentand Training, since the Director of Employment andTraining is the appointing authority for the post ofHostel Superintendent-cum-Physical Training Officer. Sothe final orders issued in Director's ProceedingsNo.OP2/118440/93, dt.22.1.96 is as per rules in force andnot liable for cancellation." https://hcservices.ecourts.gov.in/hcservices/

8.The learned counsel for the petitioner contended that thepetitioner was imposed with the punishment of warning of Censure andhe was also permitted to rejoin duty and therefore, no secondpunishment can be given to him in terms of the service rules. It isnot clear under what authority, the Principal of the ITI imposed thepunishment of Censure, especially when the petitioner had committed amajor misconduct. As rightly contended by the respondents, the secondrespondent is the appointing authority for the post held by thepetitioner. Therefore, he alone could have initiated action againstthe petitioner. Even otherwise, when the State Government has powerunder Rule 36 to review any order of punishment and it does not haveany limitation prescribed therein. 9.With reference to thecontention that no proper opportunity was given, it is necessary torefer to the judgment of the Supreme Court in V.C., Banaras HinduUniversity and others v. Shrikant reported in [2006 (11) SCC 42]. Inthat case, the Supreme Court dealt with the case of a UniversityLecturer going abroad and applying for extension of leave. Inparagraphs 41, 57 and 60 of the judgment, it was observed as follows:-Para 41:"Although, laying down a provision providingfor deemed abandonment from service may be permissiblein law, it is not disputed that an action takenthereunder must be fair and reasonable so as to satisfythe requirements of Article 14 of the Constitution ofIndia. If the action taken by the authority is found tobe illogical in nature and, therefore, violative ofArticle 14 of the Constitution, the same cannot besustained. Statutory authority may pass an order whichmay otherwise be bona fide, but the same cannot beexercised in an unfair or unreasonable manner. Therespondent has shown before us that his leave had beensanctioned by the Director being the Head of theDepartment in terms of the Leave Rules. It was theDirector/Head of the Department who could sanction theleave. Even the matter relating to grant of permissionfor his going abroad had been recommended by theDirector. The respondent states, and it had not beencontroverted, that some other doctor was given thecharge of his duties. We have indicated sufficientlythat the Vice-Chancellor posed unto himself a wrongquestion. A wrong question leads to a wrong answer.When the statutory authority exercises its statutorypowers either in ignorance of the procedure prescribedin law or while deciding the matter takes intoconsideration irrelevant or extraneous matters notgermane therefor, he misdirects himself in law. In suchan event, an order of the statutory authority must heheld to be vitiated in law. It suffers from an error oflaw."Para 57:"The matter may, however, be different in acase where despite having been given an opportunity ofhearing, explanation regarding his unauthorised absenceis not forthcoming or despite giving him an opportunityto join his duty, he fails to do so, as was the case inPunjab & Sind Bank v. Sakattar Singh." https://hcservices.ecourts.gov.in/hcservices/ Para 60:"A provision relating to abandonment of servicecame up for consideration yet again in Viveka NandSethi v. Chairman, J&K Bank Ltd. before a DivisionBench of this Court. This Court opined that although ina case of that nature, principles of natural justicewere required to be complied with, a full-fledgeddepartmental enquiry may not be necessary, holding:(SCC p.345, para 20)“A limited enquiry as to whether the employeeconcerned had sufficient explanation for notreporting to duties after the period of leave hadexpired or failure on his part on being asked soto do, in our considered view, amounts tosufficient compliance with the requirements of theprinciples of natural justice.”10.In the light of the above, there is no case made out toentertain the writ petition. Accordingly, the writ petition standsdismissed. No costs. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar vvkTo1.The Secretary to Govt., Labour and Employment Dept., Fort St. George, Chennai-9.2.The Commissioner of Employment and Training, Chepauk, Chennai-5.W.P.NO.30077 OF 2006MBS(CO)EM/11.6