IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.04.2010 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.39641 of 2004 S.H.Amiruddin ..Petitioner Vs. 1. The Secretary to Government, Fort St. George, Chennai - 9. 2. The Director of Medical Education, Kilpauk, Chennai - 600 010. ..Respondents Petition filed 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 orders of the 1st respondent in G.O.Ms.No.368, Health Department, dated 05.03.1990 and G.O.2.D.No.48, dated 27.05.1992 and to quash the same and consequently direct the 1st respondent to treat the period of absence as duty for all purposes. For Petitioner : Mr.R.Saseetharan for Mr.S.Kumara Devan For Respondents : Mr.A.Suresh, GA (Education) ORDER The petitioner, S.H.Amiruddin was working as Assistant Reader in Pharmacognosy at Madras Medical College. He applied for two years extraordinary leave by presenting an application on 09.04.1986, to the 1st respondent/the Secretary to Government. As no order was issued, the petitioner presented another application seeking voluntary retirement to the 1st respondent/the Secretary to Government on 23.04.1986 through proper channel namely, the 2nd respondent/the Director of Medical Education, Kilpauk, Chennai. 2. After applying for voluntary retirement, the petitioner left for Bombay to visit his daughter's house by availing leave by leaving his vacation address in his department and informing the H.O.D. for future communication. The Professor of Pharmacognosy, by letter dated 08.05.1986, directed the petitioner to join duty on the basis https://hcservices.ecourts.gov.in/hcservices/ of the Dean's letter for the reason that the vacation availed by the petitioner stood cancelled and in the said letter, the petitioner was also directed to give certain clarifications in respect of his extraordinary leave application. The said letter dated 08.05.1986 was received on 15.05.1986 when the petitioner was in Bombay. Since the petitioner became sick while he was in Bombay, he was advised not to travel. 3. In view of his illness and medical advice, a letter dated 16.05.1986 was written by the petitioner from Bombay requesting the respondent to grant leave for two months from 16.05.1986 on medical grounds. In the meanwhile, on 13.06.1986, the Director of Medical Education, the 2nd respondent herein, in his memo, declined to grant extraordinary leave for two years and directed the petitioner to report for duty forthwith and the said memo was addressed to the petitioner's Chennai address. 4. In the meanwhile, having not recovered from illness, the petitioner was advised to avail medical leave by the Doctor at Bombay namely, Dr.Hemant.C.Metha, to take rest for one month from 22.06.1986. The petitioner replied to the memo dated 13.06.1986 from Bombay on 25.06.1986 by enclosing medical certificate stating that the petitioner, did not avail the extraordinary leave though he applied in his letter dated 09.04.1986 by clearly mentioning that in the event of not granting two years extraordinary leave, alternatively his application for voluntary retirement may be considered and on that basis it was informed that the memo dated 13.06.1986 would not be relevant. 5. Further, it was also stated that since no order was passed either positively or negatively within 90 days on his application dated 23.04.1986 for voluntary retirement till the last day, i.e. 21.07.1986, it should be presumed that he was allowed to go on voluntary retirement. With this explanation, the petitioner requested the 2nd respondent to regularise his leave and to pass necessary orders on his voluntary retirement. But, the copy of the rejection order dated 22.07.1986 was served upon the petitioner on 25.07.1986 stating that the notice of the retirement is conditional. Therefore, his request for voluntary retirement cannot be considered. Subsequently, on 12.08.1986 a charge memo was served upon the petitioner's residential address. Following the charge memo, after returning to his residential place in September, the petitioner submitted his explanation on 12.09.1986, pointing out that the charge memo against the petitioner's retirement was illegal and hence, any action after retirement was not biding upon him. But, the 2nd respondent appointed the Additional Director of Medical Education from Salem Medical College as Enquiry Officer and directed the petitioner, by letter dated 07.01.1986, to attend the enquiry on 28.01.1988. https://hcservices.ecourts.gov.in/hcservices/ 6. Though the petitioner was requested to produce some of the relevant documents on 13.11.1986 itself the same were not furnished. However, the petitioner attended the enquiry on 28.01.1988 without prejudice to his stand as per the letter dated 12.09.1996, and the same day, the enquiry was closed. The Enquiry Officer submitted his report to the 2nd respondent holding that charge Nos.2, 3 and 4 were proved except charge No.1 which was partly proved. Even without sending a copy of the Enquiry Report to the petitioner, the 1st respondent sent a report to the Tamil Nadu Public Service Commission seeking its opinion on 19.05.1989 but, the Tamil Nadu Public Service Commission advised the 1st respondent/the Secretary to Government to remove the petitioner from service on 07.11.1989. On receipt of the views of the Tamil Nadu Public Service Commission, the 1st respondent passed an order of removal on 05.03.1990 and further direction was issued to the 2nd respondent to furnish a copy of the Enquiry Report to the petitioner. Thereafter, a copy of the Enquiry Report and the views of the Tamil Nadu Public Service Commission were communicated to the petitioner by the 2nd respondent after the order of removal on 28.04.1990. 7. Aggrieved by the order of removal dated 28.04.1990, the petitioner preferred a Review Petition before the 1st respondent on 11.07.1990, but, the same was rejected by the 1st respondent by order dated 27.05.1992 and, thereafter, the 1st respondent affixed the rejection order as well as the Tamil Nadu Public Service Commission's views on the door of the petitioner's house on 27.07.1992. 8. The petitioner approached the Tamil Nadu Administrative Tribunal challenging the order of removal. As the same was not taken on record, the present Writ Petition has been filed. 9. The crux of the argument advanced by the learned counsel appearing for the petitioner is that the order of removal was passed without following the minimum requirement of fair play like without supplying the document, without cross examination of witnesses and without furnishing the Enquiry Report before imposing major punishment and, therefore, the punishment of removal cannot stand the test of fair play in the eye of law. The further argument advanced by the learned counsel for the petitioner is that 1st respondent has no authority to take disciplinary proceedings against the petitioner. After the retirement of the petitioner from service and since the mandatory period of 90 days from 23.04.1986 was over even on 21.07.1986 itself, the order of removal which came to be passed 23.07.1986 has no legal basis and the final orders based on the illegal disciplinary proceedings cannot stand scrutiny in the eye of law. On that basis, it was argued that the order of removal was bad and therefore, the same is liable to be set aside. 10. In reply, the learned counsel appearing for the respondents submits that the petitioner absented himself from duty from https://hcservices.ecourts.gov.in/hcservices/ 04.07.1985 to 31.03.1986 and again from 24.04.1986 onwards by leaving station without obtaining prior permission. Further, he disobeyed the instructions issued to him to report to the Directorate by Office Memo dated 14.10.1985 and 27.12.1985. Again, he disobeyed the orders issued by the respondent's Office in Memo dated 21.07.1986, directing him to join duty not later than 28.06.1986 when his voluntary retirement request was refused. Therefore, a Charge Memo was issued calling upon him to submit his explanation. Accordingly, the petitioner, denying the charges, submitted his explanation by letter dated 24.06.1985 requesting to regularise his earlier leave period from 01.06.1984 to 03.06.1985 and also to sanction extraordinary leave for six months from 04.07.1985 onwards. After calling for remarks from the Dean, the petitioner was again directed by Office letter dated 14.10.1985 to report for duty in the office of the Joint Director of Medical Education (Administration), but, he has not reported for duty. Again, he was directed by another Office letter dated 27.12.1985 to see the Joint Director of Medical Education (Administration) and to report for duty on or before 31.12.1985. Yet, again, the petitioner did not obey the order but, he sent another letter dated 22.12.1985 requesting to extend his leave period by another eight months from 04.01.1986 by mentioning in his letter dated 29.01.1986 stating that he received the Office communication dated 27.12.1985 but as the time was short, it was informed that he did not report for duty in the office of the Joint Director of Medical Education. Again, he requested to sanction extraordinary leave on 04.07.1985 and extension thereon. Once again, his request for extension of extraordinary leave for eight months was also refused by the Director and he was asked to rejoin duty on or before 31.03.1986. Accepting the said letter, the petitioner joined duty on 31.03.1986, but, again he went on leave from 24.04.1986 without applying for vacational leave in writing. 11. Therefore, the Professor of Pharmacognosy, by his letter dated 08.05.1986, cancelled the vacational leave of the petitioner and directed him to rejoin duty. Immediately, the petitioner sent a letter dated 16.05.1986, stating that he is suffering from Jaundice and therefore, he prayed for grant of medical leave from 16.05.1986 for two months. But he did not enclose any medical certificate in support of his request for grant of medical leave. Therefore, an enquiry was conducted. The Enquiry Officer conducted a detailed enquiry and submitted his final report holding that the charges framed against the petitioner were proved and on the basis of the findings of the Enquiry Officer, the order of removal was passed. Out of four charges, charge Nos.2,3 and 4 were proved and charge No.1 was partly proved to the extent that he was unauthorisedly absented from duty from 04.07.1985 to 30.03.1986 and from 16.05.1986 onwards and not from 24.04.1986. Thereafter, the Director of Medical Education has remitted the case to the Government for passing final orders. https://hcservices.ecourts.gov.in/hcservices/ 12. The Government, after examining the entire gamut of the petitioner's case, arrived at a provisional conclusion and submitted the papers for approval to the Tamil Nadu Public Service Commission. The Tamil Nadu Public Service Commission also has granted approval that the petitioner may be removed from service. 13. Once again, the Government having examined the case of the petitioner and on consideration of the relevant records, and finding that the leave applied for by the delinquent from 04.07.1985 to 30.03.1986 and again from 16.05.1986 has not been sanctioned, finally came to the conclusion that the leave cannot be claimed as a matter of right as it should be sanctioned by the competent authority. But, in the present case, since the petitioner, did not rejoin duty in spite of a direction issued by the Director and as such, he disobeyed the orders of the superiors. The order of removal from service of the State Government was passed by the Secretary to Government in G.O.Ms.No.368, Health and Family Welfare Department, dated 05.03.1990. 14. Aggrieved by the punishment of removal from service, the petitioner preferred a Review Petition on 11.07.1990. After carefully considering the Review Application and the connected records in consultation with the Tamil Nadu Public Service Commission, the Review Petition was dismissed on the ground that the Review petitioner has not put forth any new point worth consideration. As against the dismissal order, the present Writ Petition has been filed. Since the petitioner was admittedly on leave and did not even obey the direction issued by the Superior Officer to rejoin duty, the punishment of removal from the services of the State Government cannot be entertained by this Court. 15. Heard the learned counsel on both sides. 16. When the petitioner applied for leave from 04.07.1985 to 31.03.1986 and again from 16.05.1986, the said leave applications were not considered and they were rejected by the competent authorities. Once the leave applications were rejected, a specific direction was given to the petitioner to rejoin duty. Though, the petitioner has submitted an application seeking voluntary retirement from the services of the State Government, he cannot ignore the direction issued by the respondents directing the petitioner to rejoin duty till suitable alternative arrangements are made. Therefore, for the reason that the petitioner went on leave disobeying the direction given by the respondents to rejoin duty, a charge memo was issued calling upon him to submit his explanation thereof and on consideration of the petitioner's explanation stating that he was advised to take medical leave by the Doctor and he was unable to attend the office, the same having not accepted by the respondents, an enquiry officer was appointed to go into the charges levelled against the petitioner. The Enquiry Officer also submitted https://hcservices.ecourts.gov.in/hcservices/ his detailed report holding that the charge Nos.2, 3 and 4 were proved and charge No.1 was also partly proved. Thereafter, the respondent passed final order of removal from service. 17. Aggrieved by the said order, when Review Petition was filed, the reviewing authority also, having seen that no new point was raised in the Review Petition, by concurring with the findings of the disciplinary authority confirmed the order of punishment of removal from service. Though, the disciplinary authority found the petitioner guilty, sought approval of the Tamil Nadu Public Service Commission. The Tamil Nadu Public Service Commission also, after independently examining the records of the petitioner, advised the respondents that the petitioner, S.H.Amirddin may be removed from service. On that basis, the petitioner was removed from the services of the State Government. 18. The learned counsel appearing for the petitioner made a point that the petitioner made a request to permit him to retire voluntarily if the extraordinary leave applied by him could not be sanctioned for any reason. The letter dated 23.04.1986 was received by the Dean on 26.04.1986. Therefore, orders ought to have been issued within three months from the date of receipt of notice. The three months notice period expired on 25.07.1986, but, the intimation issued by the Director of Medical Education refusing the petitioner's request for voluntary retirement dated 21.07.1986 was received by one Julaikha on 24.07.1986. Again, the Government letter dated 22.07.1986, refusing his request for voluntary retirement was also received by the same person on 27.07.1992. Since the communication refusing his request for permission to go on voluntary retirement was received by the petitioner within the stipulated time of three months, his contention that he proceeded on voluntary retirement only after completion of the three months notice period cannot be rejected. 19. Secondly, his request for voluntary retirement was indisputably a conditional one. Since the petitioner himself has stated that if his request for leave could not be considered for any unforeseen reason, he may be permitted to retire voluntarily from service by treating his letter dated 23.04.1986 as a notice of 90 days. This clearly indicates that his application for voluntary retirement atleast may be considered, if his request for extraordinary leave is not favourably considered. What the petitioner pleads with his department is, grant him extraordinary leave, if not, to allow him to leave the job/service on voluntary retirement. Therefore, I hold that though the respondents are right in refusing his request for extraordinary leave, but they have no right to refuse him to leave the service on voluntary retirement. 20. Even FR 56 (3) (a) permits a Government servant, who has attained the age of 50 years or who has completed 20 years of qualifying service to retire from service by giving notice of not https://hcservices.ecourts.gov.in/hcservices/ less than three months in writing. Again Rule 56 (3) (e) also finds in favour of the petitioner, as Rule 56 (3) (e) mandates the appointing authority to accept the notice of voluntary retirement given by a Government servant subject to the following conditions being satisfied. For useful reference, Rule 56 (3) (a), (e) and (f) are extracted hereunder :- "(3) Voluntary retirement.- (a) A Government servant who has attained the age of fifty-years or who has completed twenty years of qualifying service may retire from service by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate superior officer for information. Before giving such notice, he may satisfy himself by means of a reference to such authority that he has completed the required number of years of qualifying service. * * * * * * * * (e) notice of voluntary retirement given by a Government servant shall be accepted by the appointing authority, subject to the following conditions being satisfied namely:- (i) that no disciplinary proceedings are contemplated or pending against the Government servant concerned for the imposition of a major penalty; (ii) that no prosecution is contemplated or pending in a Court of Law against the Government servant concerned; (iii) that a report from the Director of Vigilance and Anti-corruption has been obtained to the effect that no enquiry is contemplated or pending against the Government servant concerned; (iv) that no dues which cannot be recovered from his Death-cum-Retirement Gratuity are pending to be recovered from the Government servant concerned; and (v) that there is no contractual obligation to serve the Government during the period in which the Government servant concerned seeks to retire voluntarily. (f) The appointing authority shall issue orders before the date of expiry of notice either accepting https://hcservices.ecourts.gov.in/hcservices/ the voluntary retirement or not. Otherwise, the Government servant shall be deemed to have been retired voluntary from service at the end of the period of notice: 21. In the present case, when the petitioner has submitted his application seeking permission to retire voluntarily, as per FR 56 (3), the respondent also has not indicated in the impugned order that his request for voluntary retirement cannot be considered in view of pendency of disciplinary proceedings nor mentioned that a report from the Director of Vigilance and Anti-Corruption is awaited, but only hurdle indicated by the competent authority in refusing the request of the petitioner to go on voluntary retirement is that the letter seeking permission to go on voluntary retirement was a conditional one and, therefore, on that basis his request was rejected. Nowhere Rule 56 empowers the competent authority to refuse the request of voluntary retirement of any Government servant if he is making any conditional request. In the present case also, the petitioner had originally made a request for extraordinary leave for certain period and in the alternative, on the refusal to consider his application for extraordinary leave, the petitioner requested the respondent to relieve him on voluntary retirement. The said request made by the petitioner cannot be considered to be a conditional request. On that basis, the impugned order being contrary to Rule 56 (3) (a), (e) and (f), the same is liable to be quashed. Accordingly, the impugned order is set aside and writ Petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar smn To 1. The Secretary to Government, Fort St. George, Chennai - 9. 2. The Director of Medical Education, Kilpauk, Chennai - 600 010. + 1 c.c. to M/s. S. Kumaradevan, Advocate. S.R.No.26111. + 1 c.c. to The Government Pleader. S.R.No.22839. W.P.No.39641 of 2004 AKR (CO) GSK 23.04.2010. https://hcservices.ecourts.gov.in/hcservices/