Ponmudi. v. The District Collector, Perambalur District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.11.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.645 of 2006Ponmudi. ... Petitioner vs.1.The District Collector, Perambalur District.2.The Special Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai-5. ... RespondentsWrit Petition is filed under Article 226 of the Constitutionof India to issue a Writ of Certiorari, calling for records of therespondents in connection with the impugned orders passed by therespondents 1 and 2 in Pa.Mu.A2/8485/2004 dated 5.2.2005 andNa.Ka.No.Pani.3(2)/32715/2005 dated 4.10.2005 respectively andquash the same.For Petitioner : Mr.K.Venkatramani, Senior Counsel forMr.M.MuthappanFor Respondents : Mr.V.Manoharan, Government Advocate. O R D E RThis Writ Petition is filed to issue a Writ of Certiorari,calling for records of the respondents in connection with theimpugned orders passed by the respondents 1 and 2 inPa.Mu.A2/8485/2004 dated 5.2.2005 and Na.Ka.No.Pani.3(2)/32715/2005dated 4.10.2005 respectively and quash the same.2. Petitioner Ponmudi joined the services as direct recruitJunior Assistant on 28.10.1985. After series of promotion, hereached the position of Deputy Tahsildar on 20.11.2003. While hewas working as a Deputy Tahsildar in the Taluk Office, Kunnamrelating to electoral correction duty, he applied for medical leavefrom 15.2.2004 to 31.3.2004. He submitted a medical certificatealong with his leave application. In his place another Deputy https://hcservices.ecourts.gov.in/hcservices/ Tahsildar by name Thirugnanasundaram, was posted. First respondentdirected the petitioner to appear before the Medical Board,Perambalur and the Medical Board in its meeting held on 17.3.2004certified that the petitioner was found fit to rejoin duty on17.3.2004. Petitioner after joining duty on 17.3.2004, appliedearned leave from 18.3.2004 to 16.5.2004 and it was rejected. Thepetitioner was called upon to undertake election work for theparliamentary election held in the year 2004. The petitioner,however, did not rejoin duty and failed to undertake election workand therefore, the first respondent District Collector placed thepetitioner under suspension by order dated 6.4.2004. Charges wereframed under Rule 17(e) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules. An explanation was submitted tothe charge memo. The Assistant Commissioner, Excise, PerambalurDistrict was appointed as Enquiry Officer. On completion ofenquiry, the enquiry officer held that the charges were proved andthe matter was placed before the first respondent, who rejected theexplanation of the petitioner. The first respondent DistrictCollector by his proceedings dated 5.2.2005 in Pa.Mu.(A2)/8485/04imposed a punishment of postponement of increment for a period oftwo years without cumulative effect and also treated the period ofsuspension from 6.4.2004 to 6.7.2004 as punishment. The appealpreferred by the petitioner to the second respondent was rejected.The second respondent, however, directed the first respondentDistrict Collector to treat the suspension period as valid leaveperiod. Aggrieved thereby, present writ petition is filed. 3. The learned counsel appearing for the petitionercontends that the petitioner was suffering from acute asthma andhe has produced medical certificates before the enquiry officerto show that he was suffering from asthma prior to taking medicalleave and also after the report of medical board. The fact thatseveral certificates were produced finds place in the enquiryofficer's report. The respondents without considering thegenuineness of the certificates and the nature of ailment sufferedby the petitioner have come to the conclusion that the petitionerhad disobeyed the direction issued by the higher authority and goneon leave and therefore, liable to be proceeded under the provisionsof Tamil Nadu Civil Services (Disciplinary and appeal) Rules. Hesubmitted that in the present case, the petitioner has shownmaterial that even after the medical Board's report the petitionerwas suffering from asthma problem. The enquiry officer, however,did not accept the stand of the petitioner and came to theconclusion that the charges stand proved and the petitioner hasdeclined to join the parliamentary election work in spite ofspecific direction issued on 22.3.2004 and held that thepetitioner is guilty of charges levelled. The DisciplinaryAuthority while concurring with the findings of the enquiry officerrejected the explanation of the petitioner and imposed the https://hcservices.ecourts.gov.in/hcservices/ punishment viz., the postponement of increment by two years withoutcumulative effect. The period of suspension was ordered to betreated as punishment. In appeal, the second respondent, whileconfirming the finding of guilt, held that the period ofsuspension will be treated as duty period. Challenging the same,present writ petition has been filed. 4. Learned counsel contends that the first respondent, thedisciplinary authority and the second respondent, the appellateauthority, have proceeded on the basis that the petitioner hassubmitted only medical slips to show that the petitioner wassuffering from ailment even after clearance by the Medical Board.They held that there is no material to differ with the finding ofthe enquiry officer. This according to the learned counsel for thepetitioner is serious error as the authority has failed to considerthe nature of the illness of the petitioner supported bycertificates issued even after the medical board's report.Considering the nature of the disease which attacks veryfrequently, the authorities ought not to have brushed aside themedical certificate issued subsequent to the medical board'sevaluation. It is a relevant document for the purpose ofconsidering the petitioner's case for lesser punishment even if thecharge of disobedience is upheld. If they had considered themedical certificate in the proper perspective, the bona fides ofthe petitioner's claim would be revealed and the disciplinaryauthority would have not imposed such a harsh punishment that hasbeen imposed in this case. He pleaded for leniency in the matterof punishment. 5. Heard the learned Government Advocate, who reiterated thefindings of the enquiry officer, order of the first respondent, thedisciplinary authority and the order of the second respondent, theappellate authority and referred to the counter and stated that inthe matter of imposing of punishment, it is desirable to leave theissue to the disciplinary authority who has to consider the meritsof the charge and the explanation submitted. He submitted thatthere is no scope of further reduction of punishment. 6. In the present case, the facts remains that the petitionerhad proceeded on medical leave 31 days from 1.3.2004. The MedicalBoard, however, found the petitioner fit to rejoin duty on17.3.2004. The petitioner after joining duty on 17.3.2004, onceagain applied earned leave from 18.3.2004 to 16.5.2004. Accordingto the petitioner, he availed earned leave on medical grounds. Themedical records have been produced before the enquiry officer inthe form of certificate along with other bills which finds placein the findings of the enquiry officer. If the same is perused, itwill establish to some extent the bona fide in the case of thepetitioner with regard to his absence from duty. The petitioner https://hcservices.ecourts.gov.in/hcservices/ could have submitted the medical records or certificates to theDistrict Collector when proceedings were issued on 22.3.2004setting out the reasons for non joining duty which he failed to doresulting in the department taking the proceedings. 7. On going though through the finding of the enquiryofficer, the order of the disciplinary authority as well as theappellate authority, it is clear that the petitioner has alreadycompleted some election work and proceeded on medical leave. Sincehis request was initially rejected as he was found fit by themedical board on 17.3.2004, the petitioner applied for earned leavefrom 18.3.2004 to 16.5.2004 for medical reasons. This has not beenproperly considered by the authorities while considering the caseof punishment since no plea on merits is canvassed on thedelinquency. The quantum of punishment imposed does notcommensurate with the delinquency said to have been committed bythe petitioner and that plea appears to be justified to some extentin view of the medical records produced and recorded by the enquiryofficer. The respondents have not considered the medicalcertificates produced prior to the medical board's evaluation andalso after the medical board's report while considering thequestion of punishment. It can be taken as one mitigatingcircumstance to consider the petitioner's plea for leniency inthe matter of punishment. 8. In such view of the matter, while upholding the finding ofthe Disciplinary Authority with regard to the delinquency charged,the punishment imposed by the disciplinary authority as modified bythe Appellate Authority is set aside and the matter is remittedback to the Disciplinary Authority, the first respondent DistrictCollector to reconsider the plea of the petitioner for leniency inthe matter of punishment. The Writ Petition stands ordered to theextent indicated above. The first respondent shall decide thequantum of punishment after affording the petitioner sufficientopportunity to put forth with the plea on merits. No order as tocosts. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.ts https://hcservices.ecourts.gov.in/hcservices/ To 1.The District Collector, Perambalur District.2.The Special Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai-5. 1 cc to Government Pleader, SR. 616781 cc to Mr.T. Ayngaraprahu, Advocate, SR. 62014 W.P.No.645 of 2006KJI (CO)kk 27/11