D. Samson v. The Secretary to Government Health and Family Welfare Department

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.01.2011CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.45940 OF 2006(O.A.NO.7531 OF 2000)D.Samson ... PetitionerVersus1.The Secretary to Government Health and Family Welfare Department Fort St. George, Chennai – 600 009.2.The District Medical Officer Kancheepuram District, Kancheepuram. (Erstwhile Chennai Anna District)... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India by way of transfer of Original Applicationin O.A.No.7531 of 2000 from the file of the Tamil NaduAdministrative Tribunal with a prayer to call for the recordspertaining to the impugned order of the 1st respondent passed inG.O.Ms.(d) No.155, dated 22.02.2000 and order of the 2nd respondentpassed in Na.Ka.No.26487/NI/87, dated 19.01.1990 and set aside thesame and consequently direct the respondents to regularise the periodof leave as duty with all monetary and attendant benefits with cost. For Petitioner:Ms.K.T.P.Kuilmozhi For Respondents :Mr.R.MuraliGovernment Advocate O R D E RThe petitioner who was working as a Laboratory Technician(Grade-I) in the Government Hemerijokx Leprosy Centre at Polambakkam,Kancheepuram District filed Original Application in O.A.No.7531 of2000 before the Tamil Nadu Administrative Tribunal seeking to setaside the order of removal made in G.O.(D) No.155, Health and FamilyWelfare Department, dated 22.02.2000 by the first respondent https://hcservices.ecourts.gov.in/hcservices/ confirming the order dated 19.01.1990 of the second respondent -District Medical Officer removing the petitioner from service. 2.In the Original Application, notice of motion was orderedon 16.10.2000. On notice from the Tribunal, the respondents havefiled a reply affidavit dated Nil (March 2006). 3.In view of the abolition of the Tribunal, the matterstood transferred to this Court and was renumbered as W.P.No.45940 of2006. 4.The facts leading to the removal of the petitioner fromservice are as follows:-(a) The petitioner while working in the Leprosy Centre wenton leave with effect from 04.12.1984, without getting priorpermission. He also did not submit any leave application for hisabsence for the period from 04.09.1985 to 03.07.1987. Therefore, thesecond respondent framed a charge memo under rule 17(b) of the TamilNadu Civil Services (Discipline and Appeal) Rules for hisunauthorised absence. The petitioner gave his explanation statingthat due to his family circumstances, he was on leave and aftersettlement of his family disputes, he would join duty. He had notexplained as to what is the nature of the family dispute. (b) Therefore, the Medical Officer attached to theGovernment Headquarters Hospital, Kancheepuram was appointed asEnquiry Officer to conduct an enquiry. During the enquiry held on07.12.1989, the petitioner accepted the charges about being went onleave without prior permission. The Enquiry Officer on the basis ofthe records and on the basis of the admission made by the petitioner,gave a report that the charges for unauthorised absence was proved.Since the petitioner was absent for more than five years, he wasimposed with the penalty of removal from service. (c) Thereafter, the petitioner did not file any appealwithin the reasonable time and he submitted his appeal on 18.03.1998,after a period of eight years. The first respondent - Governmentafter consideration of his appeal, rejected the same vide order inG.O.(D) No.155, Health and Family Welfare Department, dated22.02.2000. Challenging the same, the petitioner filed OriginalApplication in O.A.No.7531 of 2000 (W.P.No.45940 of 2006).5.In the Original Application, the petitioner relied uponRule 18(3) of the Fundamental Rules and also stated that he isentitled to get a minimum punishment. The petitioner was not allowedto put forth his views before the enquiry officer and therefore, theimpugned order was illegal. Though the petitioner expressed hiswillingness to join duty vide his representation dated 04.08.1988, https://hcservices.ecourts.gov.in/hcservices/ the same was not considered by the respondents. In the present case,before accepting the enquiry report submitted by the Medical Officer,the petitioner was not given any notice. But the petitioner did notmake that an issue, in his appeal memorandum dated 18.03.1998.Without the benefit of such a right, he filed an appeal before theappellate authority and the appellate authority rejected the same.Therefore, it cannot be said that the petitioner was prejudiced bythe non-furnishing of the enquiry report before his acceptance. 6.The learned counsel for the petitioner submitted thateven assuming that the charges levelled against the petitioner wasproved, the petitioner could be given a lenient punishment and hecould be at least allowed to retire from service with all pensionarybenefits. However, such a course of action is not open to this Courtin the light of the judgment of the Supreme Court in LIC of India Vs.R.Dhandapani reported in 2006 (13) SCC 613. In para 8, the SupremeCourt observed 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 thatthe 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 from thelegal findings and the judicial results must be seento be principled and supportable on those findings.Expansive judicial mood of mistaken and misplacedcompassion at the expense of the legitimacy of theprocess will eventually lead to mutuallyirreconcilable situations and denude the judicialprocess of its dignity, authority, predictability andrespectability. (See Kerala Solvent Extractions Ltd.v. A. Unnikrishnan.)"7.Subsequently, the Supreme Court, even in respect of anindustrial employee remaining absent, considered the scope of theLabour Courts' power under Section 11-A of the Industrial DisputesAct to interfere with the proposed penalty, vide its judgment in L&TKomatsu Ltd., Vs. N.Udayakumar reported in 2008 (1) SCC 224. In paras6, 7 and 8, it was observed as follows:"6. It is submitted that habitual absenteeism isgross violation of discipline. It is also submittedthat the parameters for the exercise of (sic https://hcservices.ecourts.gov.in/hcservices/ jurisdiction 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 ofjurisdiction 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 anapplication for leave but Roy thought thathe could claim, as a matter of right, leaveof absence though that might be withoutpermission and though there might not beany application for the same. This wasgross violation of discipline. Accordingly,if the Company had placed him undersuspension that was in order. On thesefindings, it seems to us that the Tribunalerred in holding that it could not endorsethe Company’s decision to dispense with hisservices altogether. In our opinion, whenthe Tribunal 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.”"8.In the light of the same, this Court is unable tointerfere with the punishment imposed on the petitioner. Hence, thewrit petition stands dismissed. No costs. Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarTK https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government Health and Family Welfare Department Fort St. George, Chennai – 600 009.2.The District Medical Officer Kancheepuram District, Kancheepuram. + 1 cc to M/s. Veera Kathiravan, ADvocate SR.4566+ 1 to the Government Pleader SR.4560W.P.NO.45940 OF 2006(O.A.NO.7531 OF 2000)MP(CO)Eu 4.2.11