IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.10.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.38159 OF 2006 (O.A.NO.8724 OF 1998) T.Ramaiah Pillai .. Petitioner Vs. 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. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the impugned order of the first respondent in Na.Ka.A2/7810/97, dated 29.06.98, confirming the order of the second respondent in Na.Ka.A8/15984/94, dated 22.2.1996, quash the same and to direct the respondents to reinstate the applicant in service with all attendant benefits. For Petitioner : Mr.P.Mohanraj For Respondents : Mr.R.Neelakandan, GA - - - - ORDER Heard both sides. 2.The petitioner was formerly a Sub Inspector of Survey (Town Surveyor), working with the Aruppukkottai Municipality in Virudhunagar District. He filed O.A.No.8724 of 1998 before the Tribunal, seeking to challenge the order of the first respondent, dated 29.6.98. By the said order, the petitioner's dismissal was confirmed by the appellate authority. Even though against the said order, an appeal lies to the Additional Director at Chennai, the petitioner did not file any appeal and instead moved the Tribunal. 3.On notice from the Tribunal, the respondents have filed a reply affidavit, dated 9.9.2002, justifying the dismissal of the petitioner. 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.38159 of 2006. 4.The petitioner was absent from the Municipality with effect from 15.3.1994 and this was reported by the Tahsildar, Aruppukkottai. It was also reported that the petitioner had sent a telegram requesting leave from 15.3.1994 to 20.4.1994. The second respondent on receipt of the report gave a direction, dated 8.2.1995, asking the petitioner to join duty immediately, failing which disciplinary action will be taken against him. 5.The petitioner sent a letter, dated Nil, stating that he may be forgiven for his absence and may be allowed to join duty on 22.2.1995. The petitioner did not join duty and once again requested for further extension upto 26.2.1995. Further, he requested some more them to join duty. Considering that the petitioner was an habitual absentee, a charge memo, dated 20.3.95 was framed against the petitioner under Rule 17(b). The petitioner received the charge memo. In his explanation, the petitioner had stated that when he went to his native place, he met with an accident and sustained a leg injury. Because of that injury, he extended his leave. He contacted the Deputy Tahsildar through telephone and informed him. He promised to join later, but he could not join duty. The petitioner did not join duty till 22.2.1996. Instead of joining duty, the petitioner gave a letter, requesting for one more opportunity. He stated due to family circumstances, he was not able to submit proper leave applications. 6.It was found on verification of his service register that during the period from 1989 to 1994, he was on duty only for 682 days in a period of six years. Therefore, having left with no other option, he was removed from service, by an order, dated 22.2.1996. The petitioner filed an appeal to the first respondent. The first respondent transferred the appeal to the Regional Deputy Director of Survey and Land Records, Trichy on administrative reason. The appeal was duly considered and found that the petitioner was a chronic absentee and therefore, no sympathy should be shown to the petitioner. It is under these circumstances, the petitioner was removed from service. 7.The learned counsel for the petitioner stated that the order of removal, dated 22.2.1996 as well as the appellate authority'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 a Government servant does not resume duty after remaining on leave or absence for a continuous period of six months or one year, he may be removed from service following the procedure prescribed under the 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 the Government' Order. The said G.O. was challenged before the Tribunal. The Tribunal had set aside the said G.O. (FR 18(3)) by stating that the punishment has to be considered only by the disciplinary authority and the discretion vested with the authority cannot be curtailed. https://hcservices.ecourts.gov.in/hcservices/ 8.The State Government had implemented the said judgment in the 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 stated as follows: "(iv)In respect of Government employees who have filed cases before Tamil Nadu Administrative Tribunal challenging the charges framed or orders passed by the authorities as per the existing Fundamental Rule 18(3), which are still pending before Tamil Nadu Administrative Tribunal, since Tribunal will pass orders drawing attention to the ruling given earlier, revised action may be pursued as indicated in item (iii) above, after informing the Tribunal, by filing suitable Miscellaneous Application, if necessary." 9.But at the same time, the misconduct of absence cannot be lightly dealt with. The Supreme Court in LIC of India Vs. R.Dhandapani reported in 2006 (13) SCC 613 after dealing with a case of long absence, has held in paragraph 8 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. Vs. A.Unnikrishnan)." 10.The earlier decision was referred by the Supreme Court vide its decision in L&T Komatsu Ltd. v. N. Udayakumar reported in (2008) 1 SCC 224. It was held in paragraphs 6 to 8 which is as follows: https://hcservices.ecourts.gov.in/hcservices/ "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. 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.” Therefore, this Court is not inclined to set aside the original order. It is suffice if the appellate authority is directed to consider the question of penalty alone. 11.In the light of the same, the order of the appellate authority, dated 29.6.1998 is hereby set aside. The first respondent is directed to consider the case of the petitioner afresh in the light of the misconduct alleged against the petitioner, in accordance with law and pass an appropriate order. This exercise shall be undertaken within a period of three months from the date of receipt of copy of this order and the result shall be communicated to the petitioner. Till such time, the petitioner is 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 of accordingly. No costs. Vvk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 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. + 1 cc to Government Pleader, SR No.55714 RSM(CO) SR/29.10.2009 ORDER IN W.P.NO.38159 OF 2006 https://hcservices.ecourts.gov.in/hcservices/