IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 09..6..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 7792 of 1998 A. Narayanaswamy .. Petitioner vs. 1. The Director of Technical Education Government of Tamil Nadu Guindy Chennai 2. The Chairman The Governing Council PSG College of Technology and Polytechnic Peelamedu Coimbatore -641 004 .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records relating to the order of the second respondent dated 11.3.1998 dismissing him from service and quash the same and direct the respondents to reinstated in him service or alternatively to permit him to retire from service on 09.3.1998. For Petitioner : Mr. N. Chandraraj For Respondent 1: Mrs. Geetha Thamaraiselvan, GA For Respondent 2: Mr. A. Jenasenan O R D E R Heard the arguments of the learned counsel for the parties and perused the records. 2. The petitioner challenges the order of dismissal dated 11.3.1998. He was working as a Demonstrator in Chemistry. He was given a charge-memo dated 29.12.1995 stating that he had absented himself from duty from 22.7.1994. He was also charged for not responding to the communications sent by the Principal. Therefore, the Governing Body of the College considered the matter on 25.3.1996 and directed an enquiry to be held against https://hcservices.ecourts.gov.in/hcservices/ him. The enquiry against the petitioner started on 06.5.1996 and he had admitted the charges. On the basis of the findings of the Enquiry Officer holding the petitioner guilty of the charges, the Governing Council agreed with the same and proposed the punishment of dismissal. 3. The Chairman of the Governing Council, who was authorised by the Council, issued a show cause notice for which the petitioner submitted an explanation and informed them about the family circumstances which disabled him from attending to work. Not satisfied with the explanation, he was dismissed from service by an order dated 11.3.1998. In fact, the petitioner was due for retirement on 09.3.1998 but the order of dismissal was passed two days after the date of his age of superannuation. 4. The stand of the petitioner was that he was working as a Demonstrator from the year 1965 and had put in 33 years of service in the institution and dismissing him after he had reached the age of superannuation was really cruel and disproportionate to the gravity of the charges held against him. 5. The learned counsel for the petitioner only contended that no punishment can be given after a person reaches the age of superannuation and even assuming that it was valid, the punishment of dismissal was disproportionate to the gravity of the offence alleged against the petitioner. This Court directed the learned counsel for the second respondent to consider as to whether the second respondent was willing to reconsider the punishment of dismissal in the light of the averments made before this Court. 6. However, A. Jenasenan, learned counsel for the second respondent submitted that the second respondent was not in a position to take any decision in this regard. 7. The only question arises for consideration in the present case is as to whether the punishment of dismissal given to the petitioner after he had put in 33 years of service, is disproportionate to the gravity of the offence alleged against him and as to whether this Court in exercise of power under Article 226 of the Constitution, can modify the punishment in to one of compulsory retirement. 8. In the present case, though there is no defence for the petitioner with regard to his unauthorised absence, but, however, he submitted that his absence was due to family circumstances and fairly submitted that he did not contest the charge-memo. Further, the order of dismissal was passed on 11.3.1998 whereas the petitioner had reached the age of superannuation on 09.3.1998 itself. This Court is also of the opinion that imposing a https://hcservices.ecourts.gov.in/hcservices/ punishment of dismissal that too, at the tail end of service, is very cruel especially, when the petitioner was not guilty of any charge of misappropriation or embezzlement. 9. The Supreme Court, in more than one judgment, has held that if the punishment of dismissal is disproportionate, then this Court, in exceptional circumstances, can interfere with the quantum of punishment while exercising power under Article 226 of the Constitution. The Supreme Court in V.R. Katarki v. State of Karnataka [1991 Supp (1) SCC 267] dealt with the case of a judicial officer and in paragraph 6 observed as follows: Para 6: "The question for consideration now, therefore, is while the finding that the appellant was guilty in terms of the charges found should the appellant have been dismissed from service. Ordinarily, justification of the quantum of punishment imposed in a disciplinary action is not for the court to decide and there have been occasions when this Court has taken interference by the High Courts on quantum of punishment as an act in excess of jurisdiction. While we are cognizant of that fact, keeping the residue of the charges in view, we are inclined to hold that dismissal of the appellant from service was out of proportion and compulsory retirement would meet the ends of justice. We accordingly direct that in place of dismissal, the appellant shall be taken to have been compulsorily retired from service from the date when dismissal became operative." 10. The Supreme Court in Chandra Vilash Rai v. State of Bihar, [(2003) 11 SCC 741] in paragraph 3 observed as follows: Para 3: "Having examined the nature of charges alleged and proved against the two delinquents, we cannot but observe that the charges are serious, more particularly, since they relate to affairs of a cooperative bank. But at the same time, it cannot be disputed that these delinquents have rendered services in the Society for more than 20 years. It also transpires that the so-called delinquency had not been committed on their own but at the behest of the Board of Directors, though in law such action would not exonerate the delinquents from the liabilities which they would incur for such illegalities and irregularities. In the aforesaid premises, we think it appropriate that ends of justice will be met if we alter the punishment of dismissal to one of premature retirement, as https://hcservices.ecourts.gov.in/hcservices/ provided in the Staff Regulations of the Bank, which appear to have been framed by the Board in its resolution dated 12-3-1985, which punishment also is a major punishment and we accordingly so direct. If the delinquents are entitled to any retirement benefits on the basis of such premature retirement, those may be given to them." 11. A Division Bench of this Court, while dealing with a case of a Judicial Officer, who was dismissed only a few days before his retirement, followed the above two judgments of the Supreme Court and converted the dismissal in to one compulsory retirement vide its judgment relating to V.C. Rajamanickam v. State of Tamil Nadu and another [2007 (5) M.L.J. 1185]. 12. Therefore, in the light of the above precedents, the second respondent is hereby directed to impose the punishment of compulsory retirement on the petitioner and communicate the same to the first respondent within a period of four weeks from the date of receipt of a copy of this order. Further, on such communication, they are also directed to forward the pension papers of the petitioner to the Government with necessary endorsemet and claim his pension and terminal benefits as expeditiously as possible. The writ petition is disposed of accordingly. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri To 1.The Director of Technical Education Government of Tamil Nadu,Guindy,Chennai. 2. The Chairman The Governing Council PSG College of Technology and Polytechnic Peelamedu,Coimbatore. +1cc to Mr.A.Jenasenan, Advocate Sr 27623 +1cc to Mr.N.Chandra Raj, Advocate Sr 27699 +1cc to Govt. Pleader Sr 27663 RSY (CO) km/16.6. W.P. No. 7792 of 1998 https://hcservices.ecourts.gov.in/hcservices/