IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.10.2009 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.NO.7429 OF 2007 T.Duraimanickam .. Petitioner Versus Superintendent of Police District Police Office Thanjavur – 613 001. .. Respondent PRAYER : This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.1362 of 2002 from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records relating to the impugned order of dismissal from service passed by the respondent herein in his proceedings in D.O.71/2002, C.No.K1/PR.128/2001 dated 23.01.2002 and quash the same and consequently direct the respondent to reinstate the Petitioner into service with all consequential monetary and service benefits. For Petitioner : Mrs.Nirmala Daisy For Respondent : Mr.P.Muthukumar Government Advocate O R D E R The Original Application in O.A.No.1362 of 2002 before the Tamil Nadu Administrative Tribunal is the present writ petition. 2.Heard Mrs.Nirmala Daisy, learned counsel for the petitioner and Mr.P.Muthukumar, learned Government Advocate for the respondent. 3.The petitioner was appointed as Junior Assistant on compassionate ground on 17.02.1995. While so, a charge memo dated 17.09.2001 under Rule 17(b) of the Tamil Nadu Civil Service https://hcservices.ecourts.gov.in/hcservices/ (Discipline and Appeal) Rules was issued against him. The allegations made in the charge sheet are as follows: "1) jpU.jp.Jiukhzpf;fk; ,sepiy cjtpahsh; 1.6.2001 Kjy;; 7.6.2001 tiu vt;tpj Kd; mDkjpnah tpLg;ngh ,d;wp gzpf;F tuhky; ,Ue;J tpl;L 8.6.2001 md;W 1.6.2001 Kjy; 10.6.2001 tiu 10 ehl;fSf;F kUj;Jtr; rhd;Wg;bgw;W jhkjkhf mDg;gpa bray; kpft[k; xG';fPdkhdJk; kw;Wk; fz;of;fj;jf;f bray; . 2) 11.6.2001 Kjy; bjhlh;e;J Mg;brz;oy; ,Ue;j braYf;F gzpf;F cld; mwpf;if bra;a mDg;gg;gl;l Fwpg;ghizia 24.6.2001 md;W bgw;Wf;bfhz;l gpd;dUk; bjhlh;e;J vt;tpj jftnyh Kd; mDkjpnah ,d;wp Mg;brz;oy; ,Ug;gJ kpft[k; xG';fPdkhd bray;. " 4.An enquiry was conducted. Based on the enquiry report, the petitioner was dismissed from service by the respondent, by the impugned order dated 23.01.2002. 5.The petitioner filed Original Application in O.A.No.1362 of 2002 (W.P.No.7429 of 2007) to quash the impugned order dated 23.01.2002 of the respondent, dismissing him from service. 6.While admitting the Original Application on 17.04.2002, the Tribunal granted interim stay of termination. It is stated that based on the interim stay, the petitioner was reinstated in service and he still continues in service. 7.The learned counsel for the petitioner states that the first charge is of a trivial nature. An employee cannot be found fault for absence without intimation when he was ill. Since he gave a medical certificate on 08.06.2001 for ten days from 01.06.2001 to 10.06.2001, the learned counsel for the petitioner states that the respondent was not correct in finding fault for such an action. It is submitted that submitting medical certificate on 08.06.2001 could not be described as a belated submission of medical certificate. 8.Regarding charge No.2, it is stated that the petitioner was not well even after 10.06.2001. However, when he reported to duty on 03.10.2001 with a medical certificate, he was not permitted to join duty citing the pendency of the disciplinary proceedings. It is stated that the Enquiry Officer also recorded about the reporting of the petitioner on 03.10.2001. Finally, it is submitted by the learned counsel for the petitioner that in any event, dismissing the petitioner from service for absence for a short period is disproportionate to the charges. The learned counsel for the petitioner relies on a decision of the Honourable Apex Court in https://hcservices.ecourts.gov.in/hcservices/ CHAIRMAN – CUM – MANAGING DIRECTOR, COAL INDIA LIMITED AND ANOTHER VS. MUKUL KUMAR CHOUDHURI AND OTHERS reported in 2009 AIR SCW 5596. 9.I have considered the submissions made on either side. As rightly submitted by the learned counsel for the petitioner, the first charge has no substance. The employee cannot be found fault for not submitting leave letter on 08.06.2001, seeking medical leave from 01.06.2001. In the case of leave on medical grounds, the authorities cannot expect that the employee should furnish the leave application before proceeding on leave. In this connection, the judgment dated 12.08.2008 of a Division Bench of this Court in W.A.No.801 of 2008 can be usefully referred to and the relevant passage is extracted here-under: "10.From the records, it would be evident that the second respondent – workman took a specific plea that he applied for leave on medical grounds, during which period, the charges were framed against him, and therefore, it was contended that the order of dismissal from service, was not justified in law. 11.The said claim of the second respondent-workman was resisted by the appellant-Management of TNSTC on the ground that mere submission of the leave application was not sufficient and he ought to have obtained prior permission from the TNSTC for availing of any leave, in order to justify his absence. 12.We are not inclined to accept such a submission of the TNSTC, as no person can ask for prior leave if he falls ill, as the illness does not come giving notice to a person." Hence, the first charge fails. 10.As far as the second charge is concerned, even the Enquiry Officer recorded the defence statement of the employee that he reported to duty on 03.10.2001 along with medical certificate, but he was not permitted to join duty due to the pendency of the disciplinary proceedings. The said statement of the defence was recorded in the report of the Enquiry Officer. The version of the employee was not controverted by way of cross examination. 11.Further, in any event, I am not giving my opinion on the second charge in view of the order that is going to be passed hereafter. Further, the judgment of the Honourable Apex Court relied on by the petitioner, squarely covers the issue and the extreme punishment of dismissal is disproportionate to the charges, as per https://hcservices.ecourts.gov.in/hcservices/ the decision of the Honourable Apex Court. Para 26 of the judgment of the Honourable Apex Court referred to above is extracted here- under: "26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the respondent No.1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months". https://hcservices.ecourts.gov.in/hcservices/ The petitioner continues in service pursuant to the interim order dated 17.04.2002 of the Tribunal. He is in employment for the past seven years. 12.Taking into account the totality of the matter, I am of the considered view that the impugned order is liable to be quashed. However, the matter is remanded back to the respondent, to consider afresh, in the light of the observations made by me above and to pass an appropriate order on the quantum of punishment and to impose any punishment other than dismissal, as expeditiously as possible. 13.With the aforesaid direction, the writ petition is disposed of. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar TK To The Superintendent of Police District Police Office Thanjavur – 613 001. + 1 cc to Govt. Pleader CC SR 54659 + 1 cc to M/S.G.Bala & Daisy, CC SR 54570 W.P.No.7429 of 2007 MRD (CO) RH (30.10.09) https://hcservices.ecourts.gov.in/hcservices/