R.Natarajan v. Commissioner and Director of Survey and Settlement, Chepauk, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.07.2012CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.No.23330 of 2008R.Natarajan... PetitionerVs1.Commissioner and Director of Survey and Settlement, Chepauk, Chennai -5.2.Assistant Director of Survey and Land Records, Kancheepuram, Kancheepuram District. ...RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for a Writ of certiorarified mandamus, calling forthe records pertaining to the order passed by the 2nd respondentin his proceedings in Na.Ka.A.4/3630/2007 dated 25.04.2007 andthe order in Na.Ka.Aa4/3633/2007 dated 01.09.2008 and quash thesame and direct the respondents to reinstate the petitioner inservice and confer all the consequential benefits.(Prayer amended as per order dated 26.08.2010 by KBKVJ inM.P.No.1 of 2010)For Petitioner : Mr.P.GanesanFor Respondents: Mr.M.Dig Vijaya Pandian, AGPO R D E RAs per the amended prayer, the petitioner seeks to challengean order dated 25.04.2007 passed by the Assistant Director ofSurvey and Land Records, Kanyakumari District as well as theorder dated 01.09.2008 of the same authority. By the impugnedorders, the sanction of medical leave as unearned leave wascancelled and he was also dismissed from service respectively.2. The writ petition was admitted on 24.09.2008. In theapplication for interim stay, only notice was ordered.Subsequently, the petitioner filed applications in M.P.Nos.1 and2 of 2010 seeking to amend the prayer and to raise additionalgrounds. Those applications were ordered on 26.08.2010. https://hcservices.ecourts.gov.in/hcservices/

3. On notice from this Court, on behalf of the respondents,a counter affidavit dated 01.04.2009 was filed.4. It is seen from the records that when Updating Registry(UDR) Scheme was taken up by the Survey and Land RecordsDepartment, the Government sanctioned additional staff on timescale of pay in higher categories and also staff on consolidatedpay on contract basis at the basic level categories for thespeedy completion of the work. Recruitments were made onconsolidated pay for the posts of Surveyor/Draftsman andcandidates were recruited through Employment Exchange apart fromappointment of Section Writers of Survey and Revenue Departments.The petitioner was appointed as Surveyor-Draftsman onconsolidated pay. Since promotions were given to fill up highercategories, several vacancies arose in the basic levelcategories. As the work had to be carried out by keeping all theposts filled up, Government permitted filling up of the temporaryvacancies by candidates who are appointed on consolidated pay.The Government also issued orders to avoid large scaleretrenchment after completion of the scheme work by whichconsolidated pay employees were appointed in other Departments intime scale of pay posts. The petitioner was given time scale ofappointment in the Commercial Tax Department. 5. Aggrieved by the same, the petitioner filed O.A.No.9829of 1997 before the Administrative Tribunal and the Tribunalgranted an interim stay on 09.12.1997 and directed to keep onepost of time scale of Surveyor vacant in the Survey Department.The petitioner also filed a miscellaneous application before theTribunal to appoint him in the vacancy earmarked for him. TheTribunal by an order dated 25.09.1998 directed the respondents toconsider the claim of the petitioner. The petitioner wasappointed as a Surveyor in Tiruvannamalai District by order dated07.09.1998. The petitioner did not join in the said post and gavea representation on 06.11.1998 to post him in KancheepuramDistrict. After examining the petition, his request was rejectedby an order dated 28.12.1998 and he was directed to join duty inTiruvannamalai District immediately. Even after the said order,he did not join duty. Thereafter, the petitioner’s request wasconsidered since there was a vacancy in Kancheepuram District andthe orders were revised by an order dated 09.02.1999 and he wasposted to Kancheepuram District. Based on the above order, theAssistant Director of Survey and Land Records gave a postingorder to the petitioner on 23.02.1999 with the condition that hisseniority in the cadre of Surveyor will be reckoned from the dateof joining in Kancheepuram District.6. Aggrieved by the same, the petitioner filed O.A.No.4327of 1999 before the Tribunal challenging the condition mentionedin the order. The Tribunal by an order dated 06.08.1999 granted https://hcservices.ecourts.gov.in/hcservices/ an interim stay. The OA was transferred to this Court and ispending as writ petition.7. While the petitioner was working as consolidated paySurveyor/Draftsman, he had submitted medical leave for acontinuous period of 809 days from 23.06.1997 to 09.09.1999. Thisleave was sanctioned by the Assistant Director of Survey and LandRecords, Kancheepuram. As the petitioner was working underconsolidated pay, he was not bound by any Service Rules and he iseligible to take medical leave for a maximum period of sixmonths. The Assistant Director of Survey and Land Records hadsanctioned 809 days of medical leave for which he was noteligible. Hence, the first respondent by an order dated22.03.2007 cancelled the leave sanctioned to the petitioner anddirected the second respondent to take action against thepetitioner under Rule 17(b) of the Tamil Nadu Civil Service(Discipline and Appeal) Rules. Based upon the same, charge memowas framed against the petitioner for submitting leave withoutproper justification. He submitted his explanation on12.07.2007. The Inspector of Survey, Kancheepuram District wasappointed as Enquiry officer. After receipt of the enquiryreport, he was dismissed by an order dated 01.09.2008. 8. The nature of leave sought for by the petitioner forvarious spells are set out in paragraph 6 of the counteraffidavit which is as follows:-Sl.NoLeavefromLeave toNature ofDiseaseIndividualApplicationDateDate ofReceipt123.06.9731.08.97DuodenalUlcer22.08.9727.08.97201.09.9703.09.97Acutediorrhea06.08.9810.08.98304.09.9731.12.97Chronicgastritis16.03.9816.03.98401.01.9831.03.98Chronicgastritis16.03.9816.03.98501.04.9815.06.98Peptic ulcer06.08.9810.08.98616.06.9812.08.98DuodenalUlcer06.08.9810.08.98713.08.9815.09.98DuodenalUlcer07.10.9807.10.98816.09.9815.10.98Peptic Ulcer07.10.9807.10.98916.10.9810.12.98Peptic ulcer07.12.9807.12.981011.12.9806.02.99Peptic ulcer03.02.9904.02.99 https://hcservices.ecourts.gov.in/hcservices/ Sl.NoLeavefromLeave toNature ofDiseaseIndividualApplicationDateDate ofReceipt1107.02.9907.03.99Chronicgastritis28.04.9929.04.991208.03.9931.03.99Chronicgastritis28.04.9929.04.991301.04.9927.04.99Peptic ulcer28.04.9929.04.991428.04.9917.08.99Duodenalulcer01.08.200002.08.20001518.08.9909.09.99Duodenalulcer01.08.200002.08.20009. It was further stated that since the petitioner was inconsolidated pay at the time of his recruitment, his services canbe terminated by giving one month notice. He was not eligible forany leave including leave of 2 ½ years on medical grounds. Hisappointment was covered by Rule 10(a)(1) of the Tamil Nadu Stateand Subordinate Service Rules and hence, removal can be madewithout assigning any reason. 10. In the additional grounds raised by the petitioner, itwas contended that no opportunity was given to the petitioner andit was opposed to principles of natural justice. There was nojustification for cancelling the sanctioned leave. If he is noteligible for any leave, then it should be treated as break.After leave period, he was also put on two year probation whichhe had satisfactorily completed. He has become a regulargovernment servant from 09.09.1999 and during his regularservice, he has not committed any misconduct. 11. It is not clear as to how these grounds will have anyassistance to the petitioner. Misconduct was committed by thepetitioner when he was holding the post of consolidated Surveyorand he has been given appropriate notice and enquiry was alsoconducted. The fact that erroneously leave was sanctioned earlierwill not enure to the benefit of the petitioner unless thepetitioner is justified in getting the leave sanctioned as amatter of right. Unauthorised absence that too at the entry ofservice for more than 2 ½ years cannot be condoned by this Court.12. It must be noted that unauthorised absence is a seriousmisconduct and a punishment of dismissal can also be imposed.However, before imposing penalty, the procedure prescribed underthe Rules has to be followed. In the present case, such aprocedure has been followed. Hence, the petitioner has to blamehimself for not joining duty at the present post. https://hcservices.ecourts.gov.in/hcservices/

13. In this context, it is necessary to refer to thejudgment of the Supreme Court in LIC of India Vs. R.Dhandapanireported in 2006 (13) SCC 613. The Supreme Court after dealingwith a case of long absence, has held in paragraph 8 as follows: "8.In recent times, there is anincreasing evidence of this, perhaps well-meant but wholly unsustainable, tendencytowards a denudation of the legitimacy ofjudicial reasoning and process. The reliefsgranted by the courts must be seen to belogical and tenable within the framework ofthe law and should not incur and justify thecriticism that the jurisdiction of the courtstends to degenerate into misplaced sympathy,generosity and private benevolence. It isessential to maintain the integrity of legalreasoning and the legitimacy of theconclusions. They must emanate logically fromthe legal findings and the judicial resultsmust be seen to be principled and supportableon those findings. Expansive judicial mood ofmistaken and misplaced compassion at theexpense of the legitimacy of the process willeventually lead to mutually irreconcilablesituations and denude the judicial process ofits dignity, authority, predictability andrespectability. (See Kerala SolventExtractions Ltd. Vs. A.Unnikrishnan)."14. The Supreme Court in L&T Komatsu Ltd. v.N.Udayakumar reported in (2008) 1 SCC 224 in paragraphs 6 to 8held as follows:-"6. It is submitted that habitual absenteeism isgross violation of discipline. It is also submittedthat the parameters for the exercise of (sicjurisdiction under) Section 11-A of the Act have notbeen kept in view by the Labour Court and the HighCourt.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 emphasis islaid by the appellant to contend that the respondenthad admitted his guilt was taken under coercion. Itis also submitted that the discretion for exercise of https://hcservices.ecourts.gov.in/hcservices/ jurisdiction under Section 11-A has been rightlyexercised.8. So far as the question whether habitualabsenteeism means the gross violation of discipline,it is relevant to take note of what was stated bythis Court in Burn & Co. Ltd. v. Workmen: (AIR p.530,para 5)“5. … There should have been an application forleave but Roy thought that he could claim, as amatter of right, leave of absence though thatmight be without permission and though theremight not be any application for the same. Thiswas gross violation of discipline. Accordingly,if the Company had placed him under suspensionthat was in order. On these findings, it seemsto us that the Tribunal erred in holding thatit could not endorse the Company’s decision todispense with his services altogether. In ouropinion, when the Tribunal upheld the order ofsuspension it erred in directing that Roy mustbe taken back in his previous post ofemployment on the pay last drawn by him beforethe order of suspension.”15. In the light of the above, the writ petition standsdismissed. No costs. Sd/ Deputy Registrar(J) /true copy/ Sub Asst.RegistrarsvkiTo1.The Commissioner and Director of Survey and Settlement, Chepauk, Chennai -5.2.The Assistant Director of Survey and Land Records, Kancheepuram, Kancheepuram District.+1cc to M/s.C.S.Associates, Sr 42649EV(CO)km/3.8.W.P.No.23330 of 2008