IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24 / 06 / 2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.22010 OF 2010 AND M.P.NO.1 OF 2010 S.Rajasekaran ... Petitioner Versus 1.The Joint Director Government Stationery & Printing Department Commissionerate of Stationery & Printing 110, Anna Salai, Chenani – 600 002. 2.The Assistant Director Government Stationery Stores 32, Rajaji Salai, Chennai – 600 001. 3.The Branch Manager Government Press Pudukottai – 1. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to the dismissal order dated 22.04.2010 in No. D4/13205/2007 on the file of the 1st respondent and quash the same and direct the respondents 1 and 2 to order for reinstatement with back wages and other attendant benefits. For Petitioner : Mr.T.C.Sajith Babu for M/s.Prince Associates For Respondents: Mr.R.Ravichandran Additional Government Pleader for Mr.M.C.Swamy Special Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner has filed the present writ petition seeking to challenge the order of dismissal dated 22.04.2010 passed by the first respondent Joint Director, Government Stationery and Printing Department, Chennai. 2.When the writ petition came up on 27.09.2010, this Court directed the learned Special Government Pleader to take notice for the respondents. On notice from this Court, the respondents have filed a counter affidavit dated 15.12.2010. The petitioner has filed a reply affidavit dated 05.04.2011. 3.It is seen from the records that the petitioner was appointed as Mazdoor on compassionate ground on 16.08.1993. Since there were complaints against the petitioner's behaviour, including using of filthy language against female employees and also due to administrative reason, he was transferred to Government Branch Press, Pudukkottai. He was relieved from duty on 30.04.2005. He joined duty at the Branch Press, Pudukkottai on 07.05.2005 and worked for three months only. Thereafter, he absented himself from duty from 01.08.2005 without any prior intimation. A charge memo was given to the petitioner for his unauthorised absence, by the third respondent, on 14.09.2005. The petitioner did not give any reply to the charge memo. Therefore, the Branch Manager passed an order dated 24.07.2006 stopping the increment of the petitioner for a period of six months without cumulative effect. Even thereafter, the petitioner did not join duty and a further charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was framed against him. The petitioner was asked to submit his explanation. But he did not file any reply to the charge memo. Since the petitioner requested the respondents to permit him to join duty, he was permitted to join duty vide proceedings dated 27.10.2007, but without prejudice to the pending disciplinary action. Even thereafter, the petitioner did not join duty and despite several reminders being sent, he did not join duty. Therefore, an Enquiry Officer was appointed on 19.03.2009. The petitioner attended the enquiry and gave oral explanation. The Enquiry Officer found that the petitioner was guilty of the charges levelled against him and he was directed to give his further explanation. Since there was no reply, the Joint Director of Stationery and Printing, Chennai had sent a memo dated 26.10.2009 to the petitioner asking him to appear for personal hearing. But the petitioner did not appear even for the personal hearing and therefore, another memo dated 01.12.2009 was issued to the petitioner asking him to appear before the appointing authority namely, the Joint Director. Thereafter, he was removed from https://hcservices.ecourts.gov.in/hcservices/ service from the date of his absence viz., 01.08.2005, vide order dated 22.04.2010. It was contended that since the petitioner was absented for more than five years and despite several opportunities, he did not report for duty, he is entitled to be removed from service. 4.The contention of the petitioner was that his transfer itself was illegal, as he is a low paid employee and his consent for transfer was not obtained and though he was transferred, he has been illegally terminated from service. It was further stated that no proper enquiry was conducted before passing the impugned order. The petitioner also placed reliance upon the following judgments to contend that his termination was illegal and therefore, the same is liable to be set aside. 1.Union of India Vs. Verma [1958 SCR 499] 2.A.K.Kraipak Vs. Union of India [1970 AIR SC 150] 3.S.N.Ghouse Vs. State of West Bengal {1985 (2) SLR 454 CAL] 4.M.Sathaiah Vs. The Joint Director of Agriculture [CDJ 2010 MHC 7661] 5.But however, considering the facts and circumstances of the case, it must be held that the petitioner never had any intention to join at the transferred place namely Pudukkottai. The statement that he was a low paid employee, cannot be a ground, since persons with very same salary were also working in Pudukkottai. In any event, the issue relating to transfer, cannot be urged at this point of time. When once the petitioner had absented himself unauthorisedly and did not give any satisfactory explanation, the respondents, on the basis of the available materials, had terminated him from service. The proposition of law projected by the petitioner by citing the judgments referred to above, cannot help his cause. The question of absence will have to be seen from its own contest and the petitioner had no explanation for his long absence. 6.In this context, it is necessary to refer to the judgment of the Supreme Court in L&T KOMATSU LTD., VS. N.UDAYAKUMAR reported in 2008 (1) SCC 224 wherein it has been held that the unauthorised absence is a serious misconduct and in such matters, no indulgence can be shown. In this regard, paras 6, 7 and 8 of the said judgment may be usefully extracted hereunder: "6. It is submitted that habitual absenteeism is gross violation of discipline. It is also submitted that the parameters for the exercise of (sic jurisdiction under) Section 11-A of the Act have not been kept in view by the Labour Court and the High Court. https://hcservices.ecourts.gov.in/hcservices/ 7. In response, learned counsel for the respondent submitted that because of personal problems there was unintentional absence and that should not have been seriously viewed. The reply to the second show-cause notice on which the emphasis is laid by the appellant to contend that the respondent had admitted his guilt was taken under coercion. It is also submitted that the discretion for exercise of jurisdiction under Section 11-A has been rightly exercised. 8. So far as the question whether habitual absenteeism means the gross violation of discipline, it is relevant to take note of what was stated by this Court in Burn & Co. Ltd. v. Workmen: (AIR p.530, para 5) “5. … There should have been an application for leave but Roy thought that he could claim, as a matter of right, leave of absence though that might be without permission and though there might not be any application for the same. This was gross violation of discipline. Accordingly, if the Company had placed him under suspension that was in order. On these findings, it seems to us that the Tribunal erred in holding that it could not endorse the Company’s decision to dispense with his services altogether. In our opinion, when the Tribunal upheld the order of suspension it erred in directing that Roy must be taken back in his previous post of employment on the pay last drawn by him before the order of suspension.”" 7.Similar view has already been expressed by the Supreme Court in its judgment in LIC OF INDIA VS. R.DHANDAPANI reported in 2006 (13) SCC 613 and in paragraph 8, it has been held as follows: "8.In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that https://hcservices.ecourts.gov.in/hcservices/ the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. (See Kerala Solvent Extractions Ltd. v. A. Unnikrishnan.)" 8.In the light of the same, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. TK Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Joint Director Government Stationery & Printing Department Commissionerate of Stationery & Printing 110, Anna Salai, Chenani – 600 002. 2.The Assistant Director Government Stationery Stores 32, Rajaji Salai, Chennai – 600 001. 3.The Branch Manager Government Press Pudukottai – 1. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Government Pleader, SR No.36939 + 1 cc to M/s. Prince Associates, Advocate SR No.36457 NG(CO) SR/30.6.2011 ORDER MADE IN W.P.NO.22010 OF 2010 https://hcservices.ecourts.gov.in/hcservices/