IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.4300 of 2010 and M.P.NOs.1 and 2 of 2010 Dr.R.Subramanian .. Petitioner Vs. 1.The Anna University, represented by its Registrar, Chennai-600 025. 2.The Professor and Head of the Department, Department of Electronics Engineering, (previously known as the Director), The School of Instrumentation and Electronics Engineering), Madras Institute of Technology, Anna University, Chennai-600 044. 3.The Madras Medical Board, represented by its Dean, Madras Medical College and Hospital, Chennai-600 003. .. 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 communication issued by the first respondent dated 4.6.1998 in proceedings No.40242/PR13/94 and consequential Memo Nos.40242/PR22/94 dated 12.6.2007 and 16.11.2009, quash the same and consequently, direct the respondents to reinstate the petitioner with suitable alternative employment with pay protection and all other consequential monetary and service benefits from the date on which he became unfit and unable to attend duty i.e. with effect from 28.1.1996. For Petitioner : Mr.V.Ajay Khose For Respondents : M/s.G.M.Associates for R1 Mr.K.H.Ravikumar, GA for R3 https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner has come forward to challenge the order, dated 12.06.2007 passed by the first respondent university and a further order, dated 16.11.2009 and after setting aside those two orders, he seeks for reinstatement with suitable alternative employment with pay protection and all other consequential monetary and service benefits from the date on which he became unfit and unable to attend duty, i.e. on 28.1.1996. 2.By the first impugned order, the petitioner who was working as an Assistant Professor in the department of Electronics Engineering at MIT Campus was informed that he was absenting from duty from 27.2.1996 without prior intimation and leave application. A specific charge was framed against him and he was removed from service by the Syndicate at its 119th Meeting held on 15.4.1998. He was also given a final order on 4.6.1998 with the information that he should file an appeal to the Chancellor within 60 days. Since the petitioner was not available, a notification was also published in “The Hindu” newspaper. The petitioner did not prefer any appeal. Nearly after 12 years, he made a representation that he was severely affected by memory loss and quadriplegia and requested for considering his case sympathically. Therefore, it was stated that his request cannot be considered and his removal as on 4.6.1998 was in terms of disciplinary power vested with the University. 3.In the second order, once again the petitioner’s attention was drawn to the unauthorized absence and on being removed, he did not prefer any further appeal. The petitioner, who was working as the Assistant Professor in Electronics Engineering sent a leave letter seeking for leave on 5.2.1996. Subsequently, he claimed that he attended certain medical treatment and he was having disability in many parts of his body. The petitioner was notified by the University as early as 12.3.1996 directing him to report for duty. The petitioner did not join duty despite several representations. His whereabouts were not known to the University as there was no further communication from him. The petitioner was informed that absence without leave is a misconduct and a charge memo was framed. Subsequently, the matter was placed before the Syndicate, which passed a resolution to remove him with an immediate effect. The same was also communicated to the petitioner by an order, dated 4.6.1998. The University took all steps to find out his whereabouts and a letter sent in this regard came back undelivered. The Commissioners of Police, Chennai and Madurai were also requested to enquire. But there was no response from those authorities. All the procedure under the University's statutes relating to disciplinary action was waived and he was removed from service. Notifications were also issued in “The Hindu” and “Dinamalar” newspapers. 4.Even as per the admission of the petitioner, it is only after 10 years he sent a representation dated 8.6.2006 stating that he was having health problem and hence could not report for work. Thereafter, the petitioner started sending medical certificates showing his current health condition. But, nevertheless the https://hcservices.ecourts.gov.in/hcservices/ respondent University held that because of his unauthorized absence, he was removed from service and that there is no question of reconsidering his request after a decade. It is against these orders as noted already, this writ petition was filed. 5.Mr.Ajay Khose, the learned counsel appearing for the petitioner contended that he was taking treatment for quadriplegia and he was suffering memory loss. He gained memory and was able to recollect his position only later. He applied under the Right to Information Act, seeking for copies of ordering his removal. After getting the same, he filed the present writ petition. The principal contention raised was that under Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, he cannot be removed and therefore, his removal was illegal. Since he did not know as to what had happened between the years 1996 to 2006, his initially approaching the authorities and later coming to this court cannot be called as laches. 6.The learned counsel for the petitioner placed reliance upon the following judgments: (i)A.Veeriya Perumal Vs. Secretary to Government, Health and Family Welfare Department, Chennai reported in 2006 (4) MLJ 335. (ii)G.Muthu Vs. Management of Tamil Nadu State Transport Corporation (Madurai) Ltd., rep by its Managing Director, Madurai reported in 2006 (4) MLJ 1669. (iii)V.Palanishanmugavel and others Vs. The General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Tirunelveli and others reported in 2007 (4) CTC 478. These judgments were relied only for the purpose of pressing into service his argument based on Section 47 of the Disabilities Act, 1995. 7.The learned counsel also relied upon the judgment of the Supreme Court in Bhagwan Dass v. Punjab State Electricity Board reported in (2008) 1 SCC 579 to contend that the Supreme Court took exception to the insensitivity of the Punjab Electricity Board in not rehabilitating a victim to an incapacitative disablement. 8.He further placed reliance upon another judgment of the Supreme Court in Narendra Kumar Chandla Vs. State of Haryana and others reported in 1994 (4) SCC 460, where the Supreme Court even before the advent of the Act, in paragraph 7 held as follows: "7. Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer https://hcservices.ecourts.gov.in/hcservices/ must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties. Asking the appellant to discharge the duties as a Carrier Attendant is unjust. Since he is a matriculate, he is eligible for the post of LDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. For a Clerk, typing generally is not a must. In view of the facts and circumstances of this case, we direct the respondent Board to relax his passing of typing test and to appoint him as an LDC. Admittedly on the date when he had unfortunate operation, he was drawing the salary in the pay scale of Rs 1400-2300. Necessarily, therefore, his last drawn pay has to be protected. Since he has been rehabilitated in the post of LDC we direct the respondent to appoint him to the post of LDC protecting his scale of pay of Rs 1400-2300 and direct to pay all the arrears of salary." It is not clear as to how the decisions of the Supreme Court and this Court will have a bearing on the case of the petitioner. In all those cases, there is a finding that it was a case hit by Section 47 and that the aggrieved parties were before the court without laches. 9.It must be noted that the Persons with Disability Act came into force with effect from 7.2.1996 as per the notification issued by the Central Act under Section 1(3) of the Act. Whereas the petitioner had been absenting from 29.1.1996 and thereafter, he never returned to the University's service for more than 14 years. His first communication was only in June, 2006, i.e. nearly after 10 years after his absence. The petitioner did not explain his absence and then came to this court on his own sweet will and claimed protection under Section 47 of the Act. Since the petitioner had been terminated for his unauthorized absence, the petitioner cannot contend that it was on account of his disability that he was absent and that it was wrong on the part of the first respondent university to dispense with his service. Nothing prevented his near relatives to inform the University about his health condition and inability to attend the University. A post of a Professor in an University cannot be kept vacant indefinitedly. On the other hand, the petitioner’s coming to this court in order to go back to the University after a decade cannot be entertained. No court can entertain such a stale claim made by the petitioner. 10.At this stage, if any direction given to the University will be a misplaced synpathy and will only jeopardize the working of the University. The materials produced by the petitioner are not sufficient to explain the inordinate delay. This court is not willing to entertain the writ petition on the strength of the judgments cited at the bar. They have no direct application to the facts of the case on hand. https://hcservices.ecourts.gov.in/hcservices/ 11.The Supreme Court vide its judgment in Union of India and others Vs. M.K.Sarkar reported in 2010 (2) SCC 59 in paragraphs 14 to 16 observed as follows: "14.The order of the Tribunal allowing the first application of respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. The ill-effects of such directions have been considered by this Court in C.Jacob V. Director of Geology and Mining:(SCC pp.122-23, para 9) "9.The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realise the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored." 15.When a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the https://hcservices.ecourts.gov.in/hcservices/ limitation, or erase the delay and laches. 16.A court or tribunal, before directing "consideration" of a claim or representation should examine whether the claim or representation is with reference to a "live" issue or whether it is with reference to a "dead" or "stale" issue. If it is with reference to a "dead" or "stale" issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct "consideration" without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect." (Emphasis added) 12.In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition stands closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vvk To 1.The Registrar, The Anna University, Chennai-600 025. 2.The Professor and Head of the Department, Department of Electronics Engineering, (previously known as the Director), The School of Instrumentation and Electronics Engineering), Madras Institute of Technology, Anna University, Chennai-600 044. 3.The Dean, The Madras Medical Board, Madras Medical College and Hospital, Chennai-600 003. + 1 CC to Mr.V.Ajoy Khose,Advocate,SR.20936 + 1 CC to Government Pleader,SR.21053 W.P.NO.4300 of 2010 KA(CO) EM/16.4.10 https://hcservices.ecourts.gov.in/hcservices/