S.N.Rahman v. The Principal Chief Conservator of Forest

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.12.2009CORAM:THE HON’BLE MR.JUSTICE K.CHANDRUW.P.Nos.12095 and 14778 of 2007 andM.P.No.1 of 2007S.N.Rahman ...Petitioner inboth WPs Vs1.The Principal Chief Conservator of Forest, Panagal Building, Saidapet,Chennai – 600 015.2.The Forest Utilisation Officer, 259, Anna Salai, Chennai – 600 006. .. Respondents inboth WPsPrayer in W.P.No.14778 of 2007Petition under Article 226 of the Constitution of India prayingfor a Writ of certiorarified mandamus, to call for the report ofthe Enquiry officer issued in Na.Ka.No.1265/2003 Pa dated18.01.2007 which was communicated to the petitioner on 09.03.2007by the Forest Utilisation Officer and quash the same and directthe respondents to accept the petitioner's request for voluntaryretirement and permit the petitioner to retire from service.Prayer in W.P.No.12095 of 2007Petition under Article 226 of the Constitution of India prayingfor a Writ of mandamus, directing the respondents to accept thepetitioner's representation dated 06.02.2006 for voluntaryretirement and to permit the petitioner to retire from service. For Petitioner : Ms.Selvi George For Respondents : Mr.Rajasekar, G.A.(F)C O M M O N O R D E RHeard both sides. 2. The petitioner in these two writ petitions is one and thesame. In the first writ petition (W.P.No.12095/2007), thepetitioner has sought for a direction to the respondents to accepthis representation dated 06.02.2006 to go on a voluntaryretirement, thereby permitting him to retire from service. https://hcservices.ecourts.gov.in/hcservices/

3. It is the case of the petitioner that he joined the ForestDepartment in the year 1976 as a Junior Assistant. Thereafter, bya transfer of service from the ministerial service, he waspromoted and appointed as a Forester in the year 1983. However,the petitioner became sick during 1986 and underwent medicaltreatment. He was admitted in Sankara Nethralaya at Chennai andunderwent vitrectomy, endolaser photocoagulation, SF6 andrevision, sclera buckling in the right eye on 15.11.1993. He wasdischarged on 17.11.1993. The subsequent post operation review wasdone by the hospital during the months of November and December1993. Subsequently, he also underwent further treatment at MalarHospital in Adyar. 4. Whileso, by a proceeding of the second respondent, acharge memo under Rule 17(b) of the Tamil Nadu Civil Services (D &A) Rules was issued to the petitioner on the ground ofunauthorised absence. In response to the charge memo, thepetitioner gave a detailed explanation. The charge against thepetitioner was he was absent from duty from 01.11.2004. Accordingto the petitioner, he had given a leave application on medicalgrounds for the period from 01.11.2004 to 31.01.2006. Thepetitioner also had 18 months Medical Leave to his credit. Withoutconsidering his explanation, the Enquiry Officer submitted hisreport. 5. The petitioner was directed to appear before the MedicalBoard on 01.11.2006. When the petitioner appeared before theMedical Board, the Medical Board sanctioned medical leave for theperiod from 01.11.2004 to 31.01.2006. While sanctioning themedical leave, the Medical Board also declared the petitioner asmedically unfit to continue in service on the basis of visioncertificate issued by the Kilpauk Medical College and Hospital,Chennai. It was opined by the Medical Board that his eye sight iscategorically converged and the feeding vision reduced to 30Degrees and he is partially colour blind. 6. Under the said circumstances, the petitioner requested theDepartment to permit him to retire from service and he had sent aletter dated 22.11.2006 to the respondent. 7. In the mean while, it transpires that the respondents haveconducted an ex parte enquiry and sent a notice to thepetitioner's address at No.49, Devaraj Mudali Street, Triplicane,Chennai -5 whereas his actual address is No.16/1, Ballanna Street,Royapettah, Chennai -14. It was in this address the petitioner wasliving for 14 years. On the basis of the enquiry report, thepetitioner was asked to submit his further explanation. Hence, thepetitioner came forward to file the first writ petition.8. Notice of motion was ordered on this writ petition on02.04.2007. On notice from this Court, the respondents have fileda counter affidavit dated Nil (July 2007). https://hcservices.ecourts.gov.in/hcservices/

9. In the counter affidavit, it was stated that the leavefor the unauthorised absence from 01.11.2004 to 31.01.2006 was notgranted. Even after 31.01.2006, he did not report for work. TheEnquiry Officer's report was sent only to the last known addressand it has been acknowledged by his wife on three occasionsearlier and only on one occasion, it came back 'unserved'. Ifthere was a change of residential address, it should have beencommunicated to his superiors. But it was not done by thepetitioner. The petitioner was directed to appear before theMedical Board at the Government General Hospital, but he failed todo so. It was thereafter, the charge memo was framed against him.In the ex-parte enquiry, a report was also prepared calling forhis final opinion. With reference to the representation made bythe petitioner, the counter affidavit is totally silent. 10. In the mean while, the petitioner filed the second writpetition (W.P.No.14778 of 2007) challenging the notice asking himto give his explanation on the enquiry report dated 18.01.2007.When that writ petition came on 15.06.2007, the matter wasdirected to be posted along with the previous writ petition andpending the writ petition, the respondents were directed not topass any final order. 11. On that writ petition, the respondents have filed acounter affidavit dated 07.07.2007. Though it repeated thecontents of the previous counter affidavit, there was no avermentregarding the action taken on the voluntary retirement requestmade by the petitioner.12. Ms.Selvi George, the learned counsel for the petitionersubmitted that once the petitioner was chronically ill and wasundergoing treatment, and a vision certificate was produced toshow that he was partially colour blind and his left eye wasconverged and reduced to 30 degrees, he cannot expected tocontinue in service. The Medical Board by its report dated01.11.2006 opined that he has been suffering from Retinaldetachment (re) and optic atrophy, he is unfit for the presentpost as per the ophthmic and reunion.13. When the petitioner has been undergoing treatment andalso informed the department about his medical condition, there isno question of conducting an ex-parte enquiry against of thepetitioner and hold him guilty of unathorised absence. In thepresent case, the petitioner himself was willing to go onvoluntary retirement, which request was made by his representationdated 06.02.2006 (a copy of which is found in page 2 of the typedset). It is rather unfortunate that the respondents did not evenpass orders on the said representation, may be under the speciousplea that he was facing a charge memo which charge itself wasironically related to his absence. https://hcservices.ecourts.gov.in/hcservices/

14. Ms.Selvi George had also produced a latest medicalcertificate from the Senior Civil Surgeon dated 27.11.2009,wherein the Doctor had certified as follows:"This is to certify that Mr.S.N.Rahman previouslyemployed as Forester, office of the Forestutilisation was operated for Retinal Detachment in(RE) Optic atrophy. I find him that he is a legally BLIND PERSON andthere is no possibility of any visual improvement infuture considering the seriousness of the opthalmicproblem he has. He is visually handicapped person."15. Considering the fact that the petitioner had put in longservice and there being no other charges pending against thepetitioner, this Court is of the opinion that the petitionershould be allowed to go on voluntary retirement with all theconcomitant benefits. 16. In the result, both the writ petitions will standallowed. No costs. The Enquiry Report and the Show cause noticecalling for explanation from the petitioner including the chargememo will stand set aside. The respondents are directed toconsider the petitioner's representation dated 06.02.2006 andtreat it as a request for voluntary retirement and then permit himto go on voluntary retirement from the date on which three monthsexpired from the date of notice with all consequential benefits.The respondents are directed to pass appropriate orders withineight weeks from the date of receipt of a copy of this order.Consequently, connected miscellaneous petition is closed.svkiSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Principal Chief Conservator of Forest, Panagal Building, Saidapet,Chennai – 600 015.2.The Forest Utilisation Officer, 259, Anna Salai, Chennai – 600 006.+ 1 ccs to Spl Government Pleader, SR No.69817MRD(CO)SR/31.12.2009 Order inW.P.Nos.12095 and 14778 of 2007