IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.07.2009 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.39251 of 2006 (T) O.A.No.3660 of 1999 Dr.J.Bhanumathi ... Petitioner v. 1. The Secretary to Government, Government of Tamil Nadu, Health and Family Welfare Dept., Fort St. George, Chennai-9. 2. The Director of Medical Education, Directorate of Medical Education, Chepauk, Chennai-5. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus, to set aside the impugned orders of the first respondent, bearing G.O.(D)No.219, Health and Family Welfare Department, dated 19.02.1996 and G.O.(D)No.384, Health and Family Welfare Department, dated 03.04.1998, as being illegal, without jurisdiction and contrary to law and to direct the respondents to reinstate the petitioner in service with all benefits. For petitioner : Mr.K.Venkataramani, SC for Mr.K.M.Ramesh For respondents : Mr.V.Manoharan, Additional Government Pleader O R D E R By impugned G.O.(D)No.219, Health and Family Welfare Department, dated 19.02.1996, the petitioner, a Doctor, alleged to have unauthorisedly absent from duty, without prior permission or proper sanction of leave from the competent authority, has been removed from service. Her application for review has been rejected by another order in G.O.(D)No.384, Health and Family Welfare Department, dated 03.04.1998. Both the orders are under challenge in this Writ Petition. 2. Facts leading to the Writ Petition are as follows: The petitioner joined the Tamil Nadu Medical Service on 9.11.1970 as Assistant Surgeon. In the year 1989, she was posted to work as Tutor in Obstetrics and Gynaecology, in Coimbatore Medical College. Initially, she applied for 30 days leave from 21.8.89 to 19.9.89. Due to ill-health and family circumstances, she could not report for duty from 20.09.89 onwards. Then she extended her leave by applying for extraordinary leave for 6 months from 20.9.89, by her leave application dated 20.10.89. By Memo dated 4.10.89, the Director of Medical Education, Chennai, second respondent herein, refused her request for extraordinary leave, stating that due to administrative reasons, the same could not be granted and directed the petitioner to rejoin duty within 4 days, failing which, she was threatened with disciplinary action. 3. The petitioner has further submitted that she got her name registered with the Overseas Manpower Corporation Limited., Madras (Government of Tamil Nadu Undertaking). The Corporation, by its letter dated 11.7.89, applied to the State Government for issuing "No objection Certificate" to the petitioner, as she was selected by the Ministry of Health, Saudi Arabia as a Specialist Doctor. The petitioner, by her letter dated 26.7.89 also, directly applied to the 1st Respondent for issuing "No objection Certificate" and the same was recommended by the then Minister for Revenue. After recovery from her illness, she proceeded to Saudi Arabia hoping that the 1st Respondent would issue the "No objection Certificate", as has been done in several other cases. 4. The petitioner has further submitted that only when her relative informed her through a letter, she came to know that her leave application has been refused. Therefore, by letter dated 20.10.1989, the petitioner intimated the authorities that since she was away from India, she could not rejoin duty, and once again prayed for sanction of extraordinary leave. Periodically, she had sent leave applications and the same were refused. 5. While that be so, on 13.04.1991, the Director of Medical Education, Chennai, issued a charge memo, alleging that, (i) That she unauthorisedly absented from duty from 20.09.1989, without permission or proper sanction of leave from the competent authority, and (ii) That she disobeyed the orders of the Director of Medical Education in not rejoining duty as directed in office ref.no.93529/E3/2/89, dated 04.10.1989 and subsequently in office memo, dated 05.09.1990. By letter, dated 12.07.1991, the petitioner denied the charges levelled against her and asked for personal hearing. Since she was away from India, the enquiry officer proceeded with the enquiry and concluded the same as ex parte. Without prejudice to the disciplinary action initiated against her, the Director of Medical Education, Madras, in his proceedings, dated 06.07.1995, issued posting orders to the petitioner, posting her as Tutor in O.P., at Chengleput Medical College Hospital and she joined duty. On the basis of the findings recorded by the enquiry officer, the first respondent imposed a penalty of removal from service, after obtaining the views from the Tamil Nadu Public Service Commission, dated 06.10.1995, which recommended a punishment of removal to be awarded to the petitioner. The review petition, dated 27.11.1997 submitted to the Government was rejected by G.O.(D)No.384, Health and Family Welfare Department, dated 03.04.1998, on the ground that the review was not preferred in time. 6. Assailing the impugned orders, Mr.K.Venkataramani, learned senior counsel for the petitioner submitted that as per the procedure contemplated in Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules (in short "the rules"), the allegation of unauthorised absence should be proved in a manner known to law and unless the enquiry officer comes to a conclusion on evidence let in the oral enquiry that he cannot hold the charges as proved merely on the ground that the delinquent did not appear in the enquiry. 7. Learned senior counsel submitted that in the absence of examination of witnesses, or consideration of the documents referred in the charge memo, dated 13.04.1991, the findings recorded by the enquiry officer, as to the guilt of the petitioner, is without any basis and it is violation of the procedure contemplated under Rule 17(b) of the said rules. 8. Referring to the enquiry report, learned senior counsel submitted that there is absolutely no discussion in the enquiry report, regarding the charges, the evidence for and against the delinquent, and therefore, the said report ought not to have been acted upon by the disciplinary authority. In this context, he relied on a decision in Anil Kumar v. Presiding Officer reported in AIR 1985 SC 1121. 9. Inviting the attention of this Court to the opinion of the Tamil Nadu Public Service Commission, dated 06.10.1995, which began with the statement that, "there is no procedural flaw", learned senior counsel for the petitioner submitted that the Tamil Nadu Public Service Commission has failed to exercise his statutory duty to assess the evidence on record before giving its opinion on the punishment to be imposed by the first respondent. 10. Learned senior counsel for the petitioner further submitted that the disciplinary authority, while inflicting the penalty, had taken on record, the petitioner had gone abroad on employment. When that does not form part either the charges or recorded in the enquiry report, the Disciplinary Authority is precluded from taking into account the extraneous matters for imposing a grave penalty of removal from service. In support of his contention, he relied on a decision of the Supreme Court in M.V.Bijlani v. Union of India reported in 2006 (5) SCC 88. 11. Learned senior counsel for the petitioner submitted that the only reason, which influenced the mind of the enquiry officer, is the absence of the petitioner and even assuming that the delinquent did not appear in the oral enquiry as directed, it is the duty of the enquiry officer to arrive at a conclusion as to how, the charges are proved on the basis of the documents referred to in the charge memo or by considering the oral evidence let in, if any. In this context, he relied on an unreported judgment in W.A.No.614 of 1986, dated 05.08.1996. 12. Learned senior counsel for the petitioner submitted that if the Court comes to the conclusion that there is no procedural flaw in finalising the disciplinary proceedings, the course open to the Court could be to remand the matter to the disciplinary authority to start afresh from the stage where the defect had crept in. But having regard to the fact that the petitioner had already attained the age of superannuation and put in 18 years of unblemished service in Medical Department and taking into consideration the time consumed in the litigation, prayed for interference in the quantum of penalty and sought for conversion of the penalty of removal into that of compulsory retirement, so that, the petitioner would be able to get her retiral benefits under Rule 39 of the Tamil Nadu Pension Rules. As regards the power of the Court to interfere in appropriate cases, he relied on a decision in Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and others reported in 2004 (4) SCC 560. 13. Per contra, Mr.V.Manoharan, learned Government Advocate submitted that the fact that the petitioner had gone abroad and absented from duty from 20.09.1989, cannot be disputed. When the said fact is apparent on the face of the record, merely because, the enquiry officer had failed to record the evidence, that would not curtain the power of the fact finding authority, viz., the disciplinary authority to arrive at a reasonable conclusion on the basis of available records, as to whether the charges are proved or not. He therefore, submitted that the disciplinary authority has not considered any extraneous or irrelevant matters for holding the charges as proved and therefore, there is no procedural infirmity. 14. Learned Government Advocate further submitted that the petitioner was not granted prior permission to proceed on leave and without the sanction of the authorities, she had gone to Saudi Arabia to take up some other assignment and thus, failed to discharge her duties, ignoring the public interest, she had abruptly left the government service for her own personal gain and such misconduct is proved on records and therefore, penalty of removal from service, is appropriate. 15. Learned Government Advocate further submitted that the decisions relied on by the learned senior counsel for the petitioner are not applicable to the facts of this case, as the petitioner herself had admitted that she had gone abroad, hoping that the respondent would issue "No objection Certificate". When absence is admitted, there is no need to let in oral or documentary evidence, even though the some proceedings were referred to in the charge memo. For the above said reasons, he prayed for dismissal of the Writ Petition. 16. Heard the learned counsel for the parties and perused the materials available on record. 17. The charges levelled against the petitioner in memo, dated 13.04.1991, by the Director of Medical Education, Chennai, are as follows: "(i) That she unauthorisedly absented from duty from 20.09.1989 without permission or proper sanction of leave from the competent authority, and (ii) That she disobeyed the orders of the Director of Medical Education in not rejoining duty as directed in this office ref.no.93529/E3/2/89, dated 04.10.1989 and subsequently in this office memo, dated 05.09.1990." 18. It is an admitted case of the petitioner that she got her name registered for overseas assignment with Manpower Corporation Limited., (Government of Tamil Nadu Undertaking) and the said Corporation, by its letter, dated 11.7.89, has applied to the State Government for issuing "No objection Certificate" to be granted to the petitioner, as she was selected by the Ministry of Health, Saudi Arabia as a Specialist Doctor. The petitioner, by her letter dated 26.7.89, has directly applied to the 1st Respondent for issuing "No objection Certificate" and the same was stated to have been recommended by the then Minister for Revenue. It is the case of the petitioner that after recovery from illness, she proceeded to Saudi Arabia hoping that the 1st Respondent would issue the "No objection Certificate" as has been done in several other cases. 19. It is the further case of the petitioner that due to ill-health and family circumstances, she could not report for duty from 20.09.89 onwards and that she had requested for leave. Leave application had been rejected and that the Director of Medical Education, Chennai, second respondent herein, by Memo dated 4.10.89, directed the petitioner to rejoin duty within 4 days and also cautioned her that departmental action would be initiated if she had failed to do so. It is evident from her letter, dated 20.10.1989 and pleadings that she was away from India and therefore, she could not rejoin duty. 20. As per the procedure contemplated in Rule 17(b) of the rules, a delinquent shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires an oral inquiry or to be heard in person or both. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority concerned. Even if a person charged has waived an oral inquiry, such inquiry shall be held by the authority concerned in respect of charges which are not admitted by the person charged and which can be proved only through the evidence of witnesses. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. 21. In the case on hand, the petitioner was directed to appear before the enquiry officer on 03.12.1991. The summons fixing the enquiry date on 03.12.91 was sent to the petitioner by Registered Post with Acknowledgement due on 27.11.91 and the same was received by one Brinda Newman for the petitioner. Subsequently, the petitioner was directed to appear on 10.01.92. The enquiry summons was sent by a Special Messenger and received by an adult member, ie., brother of delinquent officer on 07.01.93. But She did not appear on the said date. Again the enquiry was fixed on 06.07.92 and the summons sent by Registered Post with Acknowledgment Due on 26.06.92, was returned by the postal authorities with remarks "Left". The same thing had happened for the next hearing date, i.e., on 04.01.1993. 22. Again, another enquiry date was fixed on 15.02.1993. Though the enquiry summons was received by one adult member of the delinquent officer, Selvameena Murugesan on 12.02.93, the petitioner did not appear on the said date. Finally, the petitioner was directed to appear before the enquiry on 20.09.94. In this regard, the enquiry summons was sent by a Special Messenger and the Special Messenger has stated that he was informed that the delinquent officer has vacated the house and the present address was not known. Hence, the Special Messenger had pasted the summons in the said address of the delinquent officer on 14.09.94, after obtaining signature from a Witness. However, the petitioner did not attend for enquiry on 20.09.94. 23. Thus, it could be seen from the proceedings of the enquiry officer that though the oral enquiry had commenced on 03.12.1991 and in spite of several summons, there was no reply from the petitioner and that she had not shown any interest in responding to any one of the summons. Therefore, the enquiry officer has held that when sufficient opportunity was given to the petitioner to defend her case, she had not chosen to participate in the oral enquiry and accordingly found that the charges as proved. 24. In Anil Kumar v. Presiding Officer reported in AIR 1985 SC 1121, the charges levelled against the appellant therein were that, (i) he neglected his duty and failed to execute the repair work for several days, and (ii) he refused the lawful orders of the Assistant Engineer and left the place, which was considered as a serious case of misconduct, negligence of duty and indiscipline. After the domestic enquiry, he was terminated from service. The Labour Court rejected the claim of the appellant under Section 11-A of the Industrial Disputes Act. The verdict of the labour Court was confirmed by the High Court. While testing the correctness of the order, the Supreme Court, at Paragraphs 5 and 6 of the judgment, held as follows: "5. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse aixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India [AIR1966 SC 671 : (1966) 1 SCR 466], this Court observed that a speaking order will at best be a reasonable and at its worst be atleast a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad v. State of Uttar Pradesh [AIR 1970 SC 1302 : (1971) l SCR 201], this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a gross case of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court. 6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable." 25. In Anil Kumar's case (cited supra), the enquiry officer did not apply his mind to the evidence, excepting to state the names of the witnesses and that without any discussion of their evidence, he had recorded the charges as proved. He did not assign a single reason as to why the evidence produced by the appellant therein, did not appeal to him or was considered not credit-worthy. He did not even applied his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. Therefore, in that context, the Supreme Court held that an enquiry report in a quasi-judicial enquiry must show the reasons for its conclusion. In the said case, termination was ordered on the basis of the enquiry report, which did not consider the defence of the appellant. But in the case on hand, the conclusion of the disciplinary authority as to the guilt of the petitioner, has been arrived at by cogent reasons, taking into consideration the records, which proved her absence and the defence put up by the petitioner, was also found to be false. Therefore, this Court is of the view that the decision in Anil Kumar's case (cited supra) is inapposite to the facts of this case. 26. In W.A.No.614 of 1986, dated 05.08.1996, the appellant therein was charged for (i) refusal to carry out the Government jobs and insubordination towards superior officials, (ii) inciting co-workers not to carry out the jobs. The charges were based on several complaints received with regard to the manner of working of the appellant. Per contra, the appellant claimed that action was taken against him, because he was a Trade Union Worker. In that case, the appellant was given a notice to appear for the oral enquiry, where two witnesses were sought to be examined. Instead of participating in the enquiry, he challenged the power of the enquiry officer, using intemperate language. Without recording the oral evidence of the two witnesses, the enquiry officer proceeded to record his findings on the basis of the written complaints. Finding that the procedure adopted by the enquiry officer as a grave error, the Division Bench quashed the order of removal and remitted the matter to the enquiry officer to proceed further, after giving notice to the appellant. 27. In the case on hand, no doubt, the enquiry officer has not recorded the findings on the basis of the documents, which form part of the charge memo or by examination of any witness, but the disciplinary authority on the consideration of the evidence, statement of defence and further representation, has found that family problem was not the reason for her absence, but she had gone abroad on employment during her long absence. Even the petitioner has admitted that she had gone to Saudi Arabia, hoping that "No Objection Certificate" would be issued by the Government and that by her letter, dated 20.10.1989, she had clearly stated that she was away from India. 28. Leave applications submitted by the petitioner right from 20.09.89 have been refused and by Memo dated 4.10.89 of the Director of Medical Education, Chennai, second respondent herein, the petitioner was directed to rejoin duty immediately. Therefore, it is clear that there is no prior permission or proper sanction of leave from the competent authority from 20.09.1989 onwards. 29. It is well settled that the report of the Inquiry Officer is intended to assist the Disciplinary Authority in coming to a conclusion about the guilt of delinquent. The findings of the Inquiry Officer or recommendations are only advisory in character and not binding on disciplinary Authority, who can disagree with them and come to his own assessment of evidence on the basis of records. On receipt of report and record of inquiry, the disciplinary Authority will have to examine them carefully, dispassionately and after satisfying itself as to whether the delinquent was given a reasonable opportunity to defend himself, has to record its findings in respect of each Article of Charge, saying whether in his opinion, it stands proved or not. However, if the disciplinary Authority disagrees with the findings of the Inquiry Officer on any Article of Charge, he can, while recording his own findings, also record reasons for disagreement. 30. In Union of India v. H.C.Goel reported in AIR 1964 SC 364, the Constitutional Bench of the Supreme Court, at Paragraph 19, held as follows: "Findings of facts recorded by an enquiry officer entrusted with the work of holding a departmental enquiry into misconduct of a Government servant under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules are not binding on the Government. The Government is competent to take a different view on evidence adduced against the Government servant and proceed on the basis that the conclusions of fact recorded by the enquiry officer were unsound and erroneous. Consequently where the enquiry officer has made a report in favour of the Government servant but the Government taking a contrary view issues a second notice which subsequently results in the dismissal of the Government servant, the action of the Government cannot be said to