IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.01.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.45940 OF 2006 (O.A.NO.7531 OF 2000) D.Samson ... Petitioner Versus 1.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 of the Constitution of India by way of transfer of Original Application in O.A.No.7531 of 2000 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records pertaining to the impugned order of the 1st respondent passed in G.O.Ms.(d) No.155, dated 22.02.2000 and order of the 2nd respondent passed in Na.Ka.No.26487/NI/87, dated 19.01.1990 and set aside the same and consequently direct the respondents to regularise the period of leave as duty with all monetary and attendant benefits with cost. For Petitioner : Ms.K.T.P.Kuilmozhi For Respondents : Mr.R.Murali Government Advocate O R D E R The 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 of 2000 before the Tamil Nadu Administrative Tribunal seeking to set aside the order of removal made in G.O.(D) No.155, Health and Family Welfare 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 ordered on 16.10.2000. On notice from the Tribunal, the respondents have filed a reply affidavit dated Nil (March 2006). 3.In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.45940 of 2006. 4.The facts leading to the removal of the petitioner from service are as follows:- (a) The petitioner while working in the Leprosy Centre went on leave with effect from 04.12.1984, without getting prior permission. He also did not submit any leave application for his absence for the period from 04.09.1985 to 03.07.1987. Therefore, the second respondent framed a charge memo under rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules for his unauthorised absence. The petitioner gave his explanation stating that due to his family circumstances, he was on leave and after settlement of his family disputes, he would join duty. He had not explained as to what is the nature of the family dispute. (b) Therefore, the Medical Officer attached to the Government Headquarters Hospital, Kancheepuram was appointed as Enquiry Officer to conduct an enquiry. During the enquiry held on 07.12.1989, the petitioner accepted the charges about being went on leave without prior permission. The Enquiry Officer on the basis of the 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 was imposed with the penalty of removal from service. (c) Thereafter, the petitioner did not file any appeal within the reasonable time and he submitted his appeal on 18.03.1998, after a period of eight years. The first respondent - Government after consideration of his appeal, rejected the same vide order in G.O.(D) No.155, Health and Family Welfare Department, dated 22.02.2000. Challenging the same, the petitioner filed Original Application in O.A.No.7531 of 2000 (W.P.No.45940 of 2006). 5.In the Original Application, the petitioner relied upon Rule 18(3) of the Fundamental Rules and also stated that he is entitled to get a minimum punishment. The petitioner was not allowed to put forth his views before the enquiry officer and therefore, the impugned order was illegal. Though the petitioner expressed his willingness 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 not make that an issue, in his appeal memorandum dated 18.03.1998. Without the benefit of such a right, he filed an appeal before the appellate authority and the appellate authority rejected the same. Therefore, it cannot be said that the petitioner was prejudiced by the non-furnishing of the enquiry report before his acceptance. 6.The learned counsel for the petitioner submitted that even assuming that the charges levelled against the petitioner was proved, the petitioner could be given a lenient punishment and he could be at least allowed to retire from service with all pensionary benefits. However, such a course of action is not open to this Court in 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 Supreme Court observed 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 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.)" 7.Subsequently, the Supreme Court, even in respect of an industrial employee remaining absent, considered the scope of the Labour Courts' power under Section 11-A of the Industrial Disputes Act to interfere with the proposed penalty, vide its judgment in L&T Komatsu Ltd., Vs. N.Udayakumar reported in 2008 (1) SCC 224. In paras 6, 7 and 8, it was observed as follows: "6. It is submitted that habitual absenteeism is gross violation of discipline. It is also submitted that the parameters for the exercise of (sic https://hcservices.ecourts.gov.in/hcservices/ jurisdiction under) Section 11-A of the Act have not been kept in view by the Labour Court and the High Court. 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.”" 8.In the light of the same, this Court is unable to interfere with the punishment imposed on the petitioner. Hence, the writ petition stands dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar TK https://hcservices.ecourts.gov.in/hcservices/ To 1.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.4560 W.P.NO.45940 OF 2006 (O.A.NO.7531 OF 2000) MP(CO) Eu 4.2.11 https://hcservices.ecourts.gov.in/hcservices/