S.Rajasekaran v. The Joint Director

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24 / 06 / 2011CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.22010 OF 2010AND M.P.NO.1 OF 2010S.Rajasekaran ...Petitioner Versus 1.The Joint Director Government Stationery & Printing Department Commissionerate of Stationery & Printing 110, Anna Salai, Chenani – 600 002.2.The Assistant Director Government Stationery Stores 32, Rajaji Salai, Chennai – 600 001.3.The Branch Manager Government Press Pudukottai – 1. ...Respondents PRAYER: Writ Petition filed under Article 226 of the Constitutionof India praying for the issuance of Writ of CertiorarifiedMandamus, to call for the records pertaining to the dismissal orderdated 22.04.2010 in No. D4/13205/2007 on the file of the 1strespondent and quash the same and direct the respondents 1 and 2 toorder for reinstatement with back wages and other attendantbenefits. For Petitioner:Mr.T.C.Sajith Babu for M/s.Prince Associates For Respondents:Mr.R.RavichandranAdditional Government Pleaderfor Mr.M.C.SwamySpecial Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner has filed the present writ petitionseeking to challenge the order of dismissal dated 22.04.2010 passedby the first respondent Joint Director, Government Stationery andPrinting Department, Chennai. 2.When the writ petition came up on 27.09.2010, thisCourt directed the learned Special Government Pleader to takenotice for the respondents. On notice from this Court, therespondents have filed a counter affidavit dated 15.12.2010. Thepetitioner has filed a reply affidavit dated 05.04.2011. 3.It is seen from the records that the petitioner wasappointed as Mazdoor on compassionate ground on 16.08.1993. Sincethere were complaints against the petitioner's behaviour, includingusing of filthy language against female employees and also due toadministrative reason, he was transferred to Government BranchPress, Pudukkottai. He was relieved from duty on 30.04.2005. Hejoined duty at the Branch Press, Pudukkottai on 07.05.2005 andworked for three months only. Thereafter, he absented himself fromduty from 01.08.2005 without any prior intimation. A charge memowas given to the petitioner for his unauthorised absence, by thethird respondent, on 14.09.2005. The petitioner did not give anyreply to the charge memo. Therefore, the Branch Manager passed anorder dated 24.07.2006 stopping the increment of the petitioner fora period of six months without cumulative effect. Even thereafter,the petitioner did not join duty and a further charge memo underRule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)Rules was framed against him. The petitioner was asked to submithis explanation. But he did not file any reply to the charge memo.Since the petitioner requested the respondents to permit him tojoin duty, he was permitted to join duty vide proceedings dated27.10.2007, but without prejudice to the pending disciplinaryaction. Even thereafter, the petitioner did not join duty anddespite several reminders being sent, he did not join duty.Therefore, an Enquiry Officer was appointed on 19.03.2009. Thepetitioner attended the enquiry and gave oral explanation. TheEnquiry Officer found that the petitioner was guilty of the chargeslevelled against him and he was directed to give his furtherexplanation. Since there was no reply, the Joint Director ofStationery and Printing, Chennai had sent a memo dated 26.10.2009to the petitioner asking him to appear for personal hearing. Butthe petitioner did not appear even for the personal hearing andtherefore, another memo dated 01.12.2009 was issued to thepetitioner asking him to appear before the appointing authoritynamely, the Joint Director. Thereafter, he was removed from https://hcservices.ecourts.gov.in/hcservices/ service from the date of his absence viz., 01.08.2005, vide orderdated 22.04.2010. It was contended that since the petitioner wasabsented for more than five years and despite severalopportunities, he did not report for duty, he is entitled to beremoved from service. 4.The contention of the petitioner was that his transferitself was illegal, as he is a low paid employee and his consentfor transfer was not obtained and though he was transferred, he hasbeen illegally terminated from service. It was further stated thatno proper enquiry was conducted before passing the impugned order.The petitioner also placed reliance upon the following judgments tocontend that his termination was illegal and therefore, the same isliable to be set aside.1.Union of India Vs. Verma [1958 SCR 499] 2.A.K.Kraipak Vs. Union of India [1970 AIR SC 150]3.S.N.Ghouse Vs. State of West Bengal {1985 (2) SLR 454 CAL]4.M.Sathaiah Vs. The Joint Director of Agriculture [CDJ 2010 MHC 7661] 5.But however, considering the facts and circumstances of thecase, it must be held that the petitioner never had any intentionto join at the transferred place namely Pudukkottai. The statementthat he was a low paid employee, cannot be a ground, since personswith very same salary were also working in Pudukkottai. In anyevent, the issue relating to transfer, cannot be urged at thispoint of time. When once the petitioner had absented himselfunauthorisedly and did not give any satisfactory explanation, therespondents, on the basis of the available materials, hadterminated him from service. The proposition of law projected bythe petitioner by citing the judgments referred to above, cannothelp his cause. The question of absence will have to be seen fromits own contest and the petitioner had no explanation for his longabsence. 6.In this context, it is necessary to refer to thejudgment of the Supreme Court in L&T KOMATSU LTD., VS. N.UDAYAKUMARreported in 2008 (1) SCC 224 wherein it has been held that theunauthorised absence is a serious misconduct and in such matters,no indulgence can be shown. In this regard, paras 6, 7 and 8 of thesaid judgment may be usefully extracted hereunder:"6. It is submitted that habitual absenteeismis gross violation of discipline. It is alsosubmitted that the parameters for the exercise of(sic jurisdiction under) Section 11-A of the Acthave not been kept in view by the Labour Court andthe High Court. https://hcservices.ecourts.gov.in/hcservices/

7. In response, learned counsel for therespondent submitted that because of personalproblems there was unintentional absence and thatshould not have been seriously viewed. The reply tothe second show-cause notice on which the emphasisis laid by the appellant to contend that therespondent had admitted his guilt was taken undercoercion. It is also submitted that the discretionfor exercise of jurisdiction under Section 11-A hasbeen rightly exercised.8. So far as the question whether habitualabsenteeism means the gross violation ofdiscipline, it is relevant to take note of what wasstated by this Court in Burn & Co. Ltd. v. Workmen:(AIR p.530, para 5)“5. … There should have been anapplication for leave but Roy thoughtthat he could claim, as a matter ofright, leave of absence though thatmight be without permission and thoughthere might not be any application forthe same. This was gross violation ofdiscipline. Accordingly, if the Companyhad placed him under suspension that wasin order. On these findings, it seems tous that the Tribunal erred in holdingthat it could not endorse the Company’sdecision to dispense with his servicesaltogether. In our opinion, when theTribunal upheld the order of suspensionit erred in directing that Roy must betaken back in his previous post ofemployment on the pay last drawn by himbefore the order of suspension.”"7.Similar view has already been expressed by the SupremeCourt in its judgment in LIC OF INDIA VS. R.DHANDAPANI reported in2006 (13) SCC 613 and in paragraph 8, it has been held as follows:"8.In recent times, there is an increasingevidence of this, perhaps well-meant but whollyunsustainable, tendency towards a denudation of thelegitimacy of judicial reasoning and process. Thereliefs granted by the courts must be seen to belogical and tenable within the framework of the lawand should not incur and justify the criticism that https://hcservices.ecourts.gov.in/hcservices/ the jurisdiction of the courts tends to degenerateinto misplaced sympathy, generosity and privatebenevolence. It is essential to maintain theintegrity of legal reasoning and the legitimacy ofthe conclusions. They must emanate logically fromthe legal findings and the judicial results must beseen to be principled and supportable on thosefindings. Expansive judicial mood of mistaken andmisplaced compassion at the expense of thelegitimacy of the process will eventually lead tomutually irreconcilable situations and denude thejudicial process of its dignity, authority,predictability and respectability. (See KeralaSolvent Extractions Ltd. v. A. Unnikrishnan.)"8.In the light of the same, the writ petition standsdismissed. No costs. Consequently, connected miscellaneous petitionis closed. TKSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Joint Director Government Stationery & Printing Department Commissionerate of Stationery & Printing 110, Anna Salai, Chenani – 600 002.2.The Assistant Director Government Stationery Stores 32, Rajaji Salai, Chennai – 600 001.3.The Branch Manager Government Press Pudukottai – 1. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Government Pleader, SR No.36939+ 1 cc to M/s. Prince Associates, Advocate SR No.36457NG(CO)SR/30.6.2011 ORDER MADE INW.P.NO.22010 OF 2010