IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 18.10.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.6075 OF 2010 N.Vanitha .. Petitioner Versus 1.The Personal Assistant to the Collector Office of the Collectorate Chennai – 600 001. 2.The Collector Chennai District Office of the Collectorate Chennai – 600 001. 3.The Special Commissioner for Revenue Administration Chepauk, Chennai – 600 005. 4.The Secretary to the Government Revenue Department Secretariat, Chennai – 600 009. .. Respondents PRAYER : Writ Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to the G.O.Ms.(2d)143 dated 15.03.2010, issued by the fourth respondent, quash the same and direct the respondents herein to pay the terminal benefits and pensions, all other benefits to the petitioner. For Petitioner : Mr.S.Anbazhagan For Respondents : Mr.I.Arokiasamy Government Advocate * * * * * O R D E R The petitioner herein was originally appointed as a Lower Divisional Typist in the year 1970. In the year 1974, the petitioner services were regularised. Thereafter, in the year 1980, she was promoted as a Upper Divisional Typist. https://hcservices.ecourts.gov.in/hcservices/ 2.The petitioner's husband died in the year 2002. Her husband was suffering from mental illness and as a result, the petitioner was forced to take care of her husband, apart from three minor children. In view of the mental illness of her husband and the subsequent death, the petitioner also became mental depression. Under those circumstances, she gave medical application seeking leave, as she was unable to perform her duty. 3.Since the petitioner did not report for duty and the leave sought for has not sanctioned, the charges have been framed against the petitioner for unauthorised absence. After conducting enquiry, the disciplinary authority based upon the enquiry report found that the charges have been proved. The petitioner gave a representation to the second respondent requesting to reconsider the issue which was rejected, the petitioner therefore filed mercy petition to the fourth respondent which was also rejected. Hence, the petitioner has come forward to file these writ petition. 4.The learned counsel for the petitioner submitted that on the earlier occasion, this Court has directed the fourth respondent to consider the case of the petitioner by taking note of her disability by providing an alternative job. The case of the petitioner has not been considered properly by the fourth respondent. The learned counsel further submitted that in any case by applying the doctrine of proportionality and the petitioner having been put in 33 years of blemish service, the punishment imposed is totally disproportionate to the charges framed. The learned counsel submitted that even on the earlier occasion, the petitioner has specifically made a request stating that the punishment imposed may be modified to that of compulsory retirement. Moreover, the petitioner has since reached the age of superannuation. The learned counsel submitted that appropriate orders will have to be passed. 5.Eventhough the respondents have found that the petitioner has not given proper explanation the fact that her husband died due to mental illness and she suffered certain mental illness of her own has not been disproved by contra evidence. Admittedly, the petitioner has put in 33 years of service. When her husband was in difficult situation having mental problem, the petitioner being a dutiful wife necessarily has to take care of him apart from taking care of her children. It is not as if the petitioner has not sought for permission seeking leave. There is absolutely no material to hold that the services of the petitioner was not satisfactory hitherto. 6.The power of this Court to interfere with the quantum of punishment is rather limited. However, when the punishment is totally disproportionate to the charges levelled making to the conscious of the Court then certainly this Court will interfere and grant appropriate relief. It is not as if the petitioner was involved in any https://hcservices.ecourts.gov.in/hcservices/ corruption charges. There is no indication about the past conduct of the petitioner and averment made by the petitioner in her affidavit that she has put in 33 years of blemish service has not been denied and disputed in the counter affidavit. Added further the petitioner's husband is no more and she has to take care of her family without job. When the circumstances are so difficult where it is impossible for an employee to perform his or her duty then the same will have to be mitigating factor in imposing the punishment. 7.Considering the very same ratio the Honourable Division Bench of this Court in V.SENTHURVELAN vs. THE HIGH COURT OF JUDICATURE AT MADRAS dated 11.09.2009 has held as follows: "10.Thus, we find that the punishment of removal from service imposed on the delinquent by the disciplinary authority and confirmed by the appellate authority and the Division Bench of this Court, is shockingly disproportionate to the proved charge of unauthorized absence from duty by the petitioner and therefore, it requires modification. 11.In the recent judgment, it JAGDISH SINGH vs. PUNJAB ENGINEERING COLLEGE AND OTHERS [(2009) 7 SCC 301], the Honourable Apex Court, considering the case of a sweeper, who was dismissed from service on account of his absence on four spells totalling to fifteen days in all in two months to sort out his daughter's problem with her-in-laws and considering the fact that it is not a case of habitual absenteeism and the major punishment of dismissal from service is shocking the consciousness of the Court, has observed and held as follows: &quot;8. The instant case is not a case of habitual absenteeism. The appellant seems to have a good track record from the date he joined service as a sweeper. In his long career of service, he remained absent for fifteen days on four occasions in the months of February and March 2004. This was primarily to sort out the problem of his daughter with her in-laws. The filial bondage and the emotional attachment might have come in his way to apply and obtain leave from the employer. The misconduct that is alleged, in our view, would definitely amount to violation of discipline that is expected of an employee to maintain in the establishment, but may not fit into the category of gross violation of discipline. We hasten to add, if it were to be habitual absenteeism, we would not have ventured https://hcservices.ecourts.gov.in/hcservices/ to entertain this appeal. 9.In the result, we allow the appeal and set aside the order passed by the disciplinary authority dated 30.09.2004 and affirmed by the High Court vide its order dated 28.08.2007. 10.Taking the totality of the facts and circumstances of the case and having due regard to the unblemished record of the appellant, and the reasons of which he remained absent without obtaining permission, the ends of justice would be met, if punishment imposed by the disciplinary authority is modified to that of stoppage of two increments with cumulative effect and further declare that he would not be entitled for any monetary benefits during the period he was out of service and that period would be counted only for the purpose of his service benefits. We direct the disciplinary authority to issue appropriate orders in this regard within one month from the date of production of certified copy of this Court's order by either of the parties.&quot; 12.Following the above judgment of the Honourable Apex Court, since the facts are more or less similar, we have no hesitation to hold that the ends of justice would be met, if punishment imposed by the disciplinary authority is modified to that of stoppage of two increments with cumulative effect and further declare that the petitioner/delinquent would not be entitled for any monetary benefits during the period he was out of service, applying the principle of 'no work, no pay' and that period would be counted only for the purpose of his service benefits. The respondents are directed to reinstate the petitioner into service within eight weeks from the date of receipt of a copy of this order and the disciplinary authority is directed to issue appropriate orders regarding the above mentioned punishment on the petitioner/delinquent immediately on his reinstatement. With such observations and directions, this Review Application is allowed, modifying the order of the Division Bench of this Court, only with regard to confirmation of the penalty imposed on the delinquent officer. No costs." 8.In J.B.J.ALEXANDER vs. THE SECRETARY TO GOVERNMENT dated https://hcservices.ecourts.gov.in/hcservices/ 29.04.2010, the learned single Judge by making reliance upon the Honourable Apex Court in B.C.CHATURVEDI vs. UNION OF INDIA [AIR 1996 SC 484] has held as follows: "14....... In the said judgment the Supreme Court instead of remanding the matter to the department, following the earlier decision reported in (1995) 6 SCC 749 : AIR 1996 SC 484 (B.C.Chaturvedi v. Union of India) imposed punishment by itself. In AIR 1996 SC 484, in para 18 it is held thus, &quot;18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.&quot; (Emphasis supplied) The same is the view taken by the Supreme Court in the decision reported in (2005) 7 SCC 338 (V.Ramana v. A.P.SRTC). Similar issue was considered by the Supreme Court in the decision reported in AIR 2009 SC 2458 (Jagdish Singh v. Punjab Engineering College). Following the said judgment, I allowed W.P.No.12619 of 2001 dated 13.11.2009 and W.P.No.40097 of 2002 dated 23.12.2009 and set aside the orders of dismissal/removal from service and denied backwages. The above said judgment of the Supreme Court is followed by the Division Bench of this Court in the decision reported in (2009) 7 MLJ 1231 (V.Sethurvelan v. High Court of Judicature at Madras). https://hcservices.ecourts.gov.in/hcservices/ 15.In the case on hand, the petitioner has fairly filed an additional affidavit stating that the punishment may be modified as compulsory retirement, that too from 31.01.2010 and pay the retirement benefits with arrears of pension from 01.02.2010. The petitioner having served in the department for 33 years and the charges being unauthorised absence, to shorten the litigation, I am of the view that interest of justice would be met by ordering modification of the punishment of removal from service to that of compulsory retirement with effect from 31.01.2010. 16.In the result, the punishment imposed against the petitioner is modified to that of compulsory retirement with effect from 31.01.2010. Petitioner is eligible to get retirement benefits based on his service till 11.09.2006 and arrears of pension from 01.02.2010. The respondents are directed to work out the terminal benefits and pension payable from 01.02.2010 and pay the same to the petitioner within a period of eight weeks from the date of receipt of copy of this order. The writ petition is disposed of with the above directions. No costs." 9.Applying the ratio laid down by the Honourable Division Bench, this Court is of the view that the order impugned will have to be modified. 10.Therefore, taking into consideration of the above said facts, this Court is of the view that inasmuch as the petitioner has since retired and she having been put in 33 years of service, the order of dismissal would require interference as disproportionate to the charges framed. Accordingly, the order impugned is hereby set aside and the punishment imposed on the petitioner is hereby modified from that of dismissal to that of voluntary retirement. It is made clear that this order will enable the petitioner to get all her retiral and pensionary benefits and she is not entitled for any other backwages. The said appointment will come into effect from the date of the original order of dismissal passed by the first respondent. Consequently, the first respondent is directed to compute the terminal benefits to the petitioner, within a period of eight weeks thereafter. https://hcservices.ecourts.gov.in/hcservices/ 11.The writ petition is disposed of accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sri To 1.The Personal Assistant to the Collector Office of the Collectorate Chennai – 600 001. 2.The Collector Chennai District Office of the Collectorate Chennai – 600 001. 3.The Special Commissioner for Revenue Administration Chepauk, Chennai – 600 005. 4.The Secretary to the Government Revenue Department Secretariat, Chennai – 600 009. +1cc to Govt. Pleader Sr 63804 +1cc to M/s. D.Geetha, Advocate SR 63701 PA(CO) km/4.11. W.P. NO.6075 OF 2010 https://hcservices.ecourts.gov.in/hcservices/