T.Ramaiah Pillai v. Regional Deputy Director of Survey and Land Records & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.38159 OF 2006(O.A.NO.8724 OF 1998)T.Ramaiah Pillai.. PetitionerVs.1.The Regional Deputy Director of Survey and Land Records, Tiruchirappalli, Trichy District.2.The Assistant Director of Survey and Land Records, Virudhunagar, Virudhunagar District... RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to theimpugned order of the first respondent in Na.Ka.A2/7810/97, dated29.06.98, confirming the order of the second respondent inNa.Ka.A8/15984/94, dated 22.2.1996, quash the same and to directthe respondents to reinstate the applicant in service with allattendant benefits. For Petitioner : Mr.P.MohanrajFor Respondents : Mr.R.Neelakandan, GA - - - - ORDERHeard both sides.2.The petitioner was formerly a Sub Inspector of Survey(Town Surveyor), working with the Aruppukkottai Municipality inVirudhunagar District. He filed O.A.No.8724 of 1998 before theTribunal, seeking to challenge the order of the first respondent,dated 29.6.98. By the said order, the petitioner's dismissal wasconfirmed by the appellate authority. Even though against the saidorder, an appeal lies to the Additional Director at Chennai, thepetitioner did not file any appeal and instead moved the Tribunal.3.On notice from the Tribunal, the respondents have filed areply affidavit, dated 9.9.2002, justifying the dismissal of thepetitioner. In view of the abolition of the Tribunal, the matter https://hcservices.ecourts.gov.in/hcservices/ stood transferred to this court and was renumbered as W.P.No.38159of 2006. 4.The petitioner was absent from the Municipality witheffect from 15.3.1994 and this was reported by the Tahsildar,Aruppukkottai. It was also reported that the petitioner had sent atelegram requesting leave from 15.3.1994 to 20.4.1994. The secondrespondent on receipt of the report gave a direction, dated8.2.1995, asking the petitioner to join duty immediately, failingwhich disciplinary action will be taken against him. 5.The petitioner sent a letter, dated Nil, stating that hemay be forgiven for his absence and may be allowed to join duty on22.2.1995. The petitioner did not join duty and once againrequested for further extension upto 26.2.1995. Further, herequested some more them to join duty. Considering that thepetitioner was an habitual absentee, a charge memo, dated 20.3.95was framed against the petitioner under Rule 17(b). The petitionerreceived the charge memo. In his explanation, the petitioner hadstated that when he went to his native place, he met with anaccident and sustained a leg injury. Because of that injury, heextended his leave. He contacted the Deputy Tahsildar throughtelephone and informed him. He promised to join later, but he couldnot join duty. The petitioner did not join duty till 22.2.1996.Instead of joining duty, the petitioner gave a letter, requestingfor one more opportunity. He stated due to family circumstances, hewas not able to submit proper leave applications. 6.It was found on verification of his service register thatduring the period from 1989 to 1994, he was on duty only for 682days in a period of six years. Therefore, having left with no otheroption, he was removed from service, by an order, dated 22.2.1996.The petitioner filed an appeal to the first respondent. The firstrespondent transferred the appeal to the Regional Deputy Directorof Survey and Land Records, Trichy on administrative reason. Theappeal was duly considered and found that the petitioner was achronic absentee and therefore, no sympathy should be shown to thepetitioner. It is under these circumstances, the petitioner wasremoved from service.7.The learned counsel for the petitioner stated that theorder of removal, dated 22.2.1996 as well as the appellateauthority's order, dated 29.6.1998 both refer to G.O.Ms.No.1046,P&AR Department, dated 13.11.1987, wherein it was stated that if aGovernment servant does not resume duty after remaining on leave orabsence for a continuous period of six months or one year, he maybe removed from service following the procedure prescribed underthe Tamil Nadu Civil Services (Discipline and Appeal) Rules.Therefore, it was contended that reliance placed upon the said G.O.was erroneous. It was stated that FR 18(3) was the basis of theGovernment' Order. The said G.O. was challenged before theTribunal. The Tribunal had set aside the said G.O. (FR 18(3)) bystating that the punishment has to be considered only by thedisciplinary authority and the discretion vested with the authoritycannot be curtailed. https://hcservices.ecourts.gov.in/hcservices/

8.The State Government had implemented the said judgment inthe Government Order in G.O.Ms.No.153, P&AR(FR.III)Department,dated 8.8.2000. In paragraph 3(iv) of the said G.O., it was statedas follows:"(iv)In respect of Government employeeswho have filed cases before Tamil NaduAdministrative Tribunal challenging the chargesframed or orders passed by the authorities asper the existing Fundamental Rule 18(3), whichare still pending before Tamil NaduAdministrative Tribunal, since Tribunal willpass orders drawing attention to the rulinggiven earlier, revised action may be pursued asindicated in item (iii) above, after informingthe Tribunal, by filing suitable MiscellaneousApplication, if necessary."9.But at the same time, the misconduct of absence cannot belightly dealt with. The Supreme Court in LIC of India Vs.R.Dhandapani reported in 2006 (13) SCC 613 after dealing with acase of long absence, has held in paragraph 8 as follows:"8.In recent times, there is anincreasing evidence of this, perhaps well-meantbut wholly unsustainable, tendency towards adenudation of the legitimacy of judicialreasoning and process. The reliefs granted bythe courts must be seen to be logical andtenable within the framework of the law andshould not incur and justify the criticism thatthe jurisdiction of the courts tends todegenerate into misplaced sympathy, generosityand private benevolence. It is essential tomaintain the integrity of legal reasoning andthe legitimacy of the conclusions. They mustemanate logically from the legal findings andthe judicial results must be seen to beprincipled and supportable on those findings.Expansive judicial mood of mistaken andmisplaced compassion at the expense of thelegitimacy of the process will eventually leadto mutually irreconcilable situations anddenude the judicial process of its dignity,authority, predictability and respectability.(See Kerala Solvent Extractions Ltd. Vs.A.Unnikrishnan)."10.The earlier decision was referred by the Supreme Courtvide its decision in L&T Komatsu Ltd. v. N. Udayakumar reportedin (2008) 1 SCC 224. It was held in paragraphs 6 to 8 which is asfollows: https://hcservices.ecourts.gov.in/hcservices/ "6. It is submitted that habitual absenteeismis gross 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 personal problemsthere was unintentional absence and that should nothave been seriously viewed. The reply to the secondshow-cause notice on which the emphasis is laid by theappellant to contend that the respondent had admittedhis guilt was taken under coercion. It is alsosubmitted 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, itis relevant to take note of what was stated by thisCourt in Burn & Co. Ltd. v. Workmen: (AIR p.530, para5)“5. … There should have been an applicationfor leave but Roy thought that he couldclaim, as a matter of right, leave ofabsence though that might be withoutpermission and though there might not be anyapplication for the same. This was grossviolation of discipline. Accordingly, if theCompany had placed him under suspension thatwas in order. On these findings, it seems tous that the Tribunal erred in holding thatit could not endorse the Company’s decisionto dispense with his services altogether. Inour opinion, when the Tribunal upheld theorder of suspension it erred in directingthat Roy must be taken back in his previouspost of employment on the pay last drawn byhim before the order of suspension.”Therefore, this Court is not inclined to set aside the originalorder. It is suffice if the appellate authority is directed toconsider the question of penalty alone.11.In the light of the same, the order of the appellateauthority, dated 29.6.1998 is hereby set aside. The firstrespondent is directed to consider the case of the petitionerafresh in the light of the misconduct alleged against thepetitioner, in accordance with law and pass an appropriate order.This exercise shall be undertaken within a period of three monthsfrom the date of receipt of copy of this order and the result shallbe communicated to the petitioner. Till such time, the petitioneris not entitled for any other relief and he has to await the https://hcservices.ecourts.gov.in/hcservices/ outcome of his appeal. The writ petition is disposed ofaccordingly. No costs.VvkSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Regional Deputy Director of Survey and Land Records, Tiruchirappalli, Trichy District.2.The Assistant Director of Survey and Land Records, Virudhunagar, Virudhunagar District.+ 1 cc to Government Pleader, SR No.55714RSM(CO)SR/29.10.2009ORDER INW.P.NO.38159 OF 2006