IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.12.2009 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.Nos.12095 and 14778 of 2007 and M.P.No.1 of 2007 S.N.Rahman ...Petitioner in both WPs Vs 1.The Principal Chief Conservator of Forest, Panagal Building, Saidapet,Chennai – 600 015. 2.The Forest Utilisation Officer, 259, Anna Salai, Chennai – 600 006. .. Respondents in both WPs Prayer in W.P.No.14778 of 2007 Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the report of the Enquiry officer issued in Na.Ka.No.1265/2003 Pa dated 18.01.2007 which was communicated to the petitioner on 09.03.2007 by the Forest Utilisation Officer and quash the same and direct the respondents to accept the petitioner's request for voluntary retirement and permit the petitioner to retire from service. Prayer in W.P.No.12095 of 2007 Petition under Article 226 of the Constitution of India praying for a Writ of mandamus, directing the respondents to accept the petitioner's representation dated 06.02.2006 for voluntary retirement and to permit the petitioner to retire from service. For Petitioner : Ms.Selvi George For Respondents : Mr.Rajasekar, G.A.(F) C O M M O N O R D E R Heard both sides. 2. The petitioner in these two writ petitions is one and the same. In the first writ petition (W.P.No.12095/2007), the petitioner has sought for a direction to the respondents to accept his representation dated 06.02.2006 to go on a voluntary retirement, thereby permitting him to retire from service. https://hcservices.ecourts.gov.in/hcservices/ 3. It is the case of the petitioner that he joined the Forest Department in the year 1976 as a Junior Assistant. Thereafter, by a transfer of service from the ministerial service, he was promoted and appointed as a Forester in the year 1983. However, the petitioner became sick during 1986 and underwent medical treatment. He was admitted in Sankara Nethralaya at Chennai and underwent vitrectomy, endolaser photocoagulation, SF6 and revision, sclera buckling in the right eye on 15.11.1993. He was discharged on 17.11.1993. The subsequent post operation review was done by the hospital during the months of November and December 1993. Subsequently, he also underwent further treatment at Malar Hospital in Adyar. 4. Whileso, by a proceeding of the second respondent, a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules was issued to the petitioner on the ground of unauthorised absence. In response to the charge memo, the petitioner gave a detailed explanation. The charge against the petitioner was he was absent from duty from 01.11.2004. According to the petitioner, he had given a leave application on medical grounds for the period from 01.11.2004 to 31.01.2006. The petitioner also had 18 months Medical Leave to his credit. Without considering his explanation, the Enquiry Officer submitted his report. 5. The petitioner was directed to appear before the Medical Board on 01.11.2006. When the petitioner appeared before the Medical Board, the Medical Board sanctioned medical leave for the period from 01.11.2004 to 31.01.2006. While sanctioning the medical leave, the Medical Board also declared the petitioner as medically unfit to continue in service on the basis of vision certificate issued by the Kilpauk Medical College and Hospital, Chennai. It was opined by the Medical Board that his eye sight is categorically converged and the feeding vision reduced to 30 Degrees and he is partially colour blind. 6. Under the said circumstances, the petitioner requested the Department to permit him to retire from service and he had sent a letter dated 22.11.2006 to the respondent. 7. In the mean while, it transpires that the respondents have conducted an ex parte enquiry and sent a notice to the petitioner's address at No.49, Devaraj Mudali Street, Triplicane, Chennai -5 whereas his actual address is No.16/1, Ballanna Street, Royapettah, Chennai -14. It was in this address the petitioner was living for 14 years. On the basis of the enquiry report, the petitioner was asked to submit his further explanation. Hence, the petitioner came forward to file the first writ petition. 8. Notice of motion was ordered on this writ petition on 02.04.2007. On notice from this Court, the respondents have filed a counter affidavit dated Nil (July 2007). https://hcservices.ecourts.gov.in/hcservices/ 9. In the counter affidavit, it was stated that the leave for the unauthorised absence from 01.11.2004 to 31.01.2006 was not granted. Even after 31.01.2006, he did not report for work. The Enquiry Officer's report was sent only to the last known address and it has been acknowledged by his wife on three occasions earlier and only on one occasion, it came back 'unserved'. If there was a change of residential address, it should have been communicated to his superiors. But it was not done by the petitioner. The petitioner was directed to appear before the Medical Board at the Government General Hospital, but he failed to do so. It was thereafter, the charge memo was framed against him. In the ex-parte enquiry, a report was also prepared calling for his final opinion. With reference to the representation made by the petitioner, the counter affidavit is totally silent. 10. In the mean while, the petitioner filed the second writ petition (W.P.No.14778 of 2007) challenging the notice asking him to give his explanation on the enquiry report dated 18.01.2007. When that writ petition came on 15.06.2007, the matter was directed to be posted along with the previous writ petition and pending the writ petition, the respondents were directed not to pass any final order. 11. On that writ petition, the respondents have filed a counter affidavit dated 07.07.2007. Though it repeated the contents of the previous counter affidavit, there was no averment regarding the action taken on the voluntary retirement request made by the petitioner. 12. Ms.Selvi George, the learned counsel for the petitioner submitted that once the petitioner was chronically ill and was undergoing treatment, and a vision certificate was produced to show that he was partially colour blind and his left eye was converged and reduced to 30 degrees, he cannot expected to continue in service. The Medical Board by its report dated 01.11.2006 opined that he has been suffering from Retinal detachment (re) and optic atrophy, he is unfit for the present post as per the ophthmic and reunion. 13. When the petitioner has been undergoing treatment and also informed the department about his medical condition, there is no question of conducting an ex-parte enquiry against of the petitioner and hold him guilty of unathorised absence. In the present case, the petitioner himself was willing to go on voluntary retirement, which request was made by his representation dated 06.02.2006 (a copy of which is found in page 2 of the typed set). It is rather unfortunate that the respondents did not even pass orders on the said representation, may be under the specious plea that he was facing a charge memo which charge itself was ironically related to his absence. https://hcservices.ecourts.gov.in/hcservices/ 14. Ms.Selvi George had also produced a latest medical certificate from the Senior Civil Surgeon dated 27.11.2009, wherein the Doctor had certified as follows: "This is to certify that Mr.S.N.Rahman previously employed as Forester, office of the Forest utilisation was operated for Retinal Detachment in (RE) Optic atrophy. I find him that he is a legally BLIND PERSON and there is no possibility of any visual improvement in future considering the seriousness of the opthalmic problem he has. He is visually handicapped person." 15. Considering the fact that the petitioner had put in long service and there being no other charges pending against the petitioner, this Court is of the opinion that the petitioner should be allowed to go on voluntary retirement with all the concomitant benefits. 16. In the result, both the writ petitions will stand allowed. No costs. The Enquiry Report and the Show cause notice calling for explanation from the petitioner including the charge memo will stand set aside. The respondents are directed to consider the petitioner's representation dated 06.02.2006 and treat it as a request for voluntary retirement and then permit him to go on voluntary retirement from the date on which three months expired from the date of notice with all consequential benefits. The respondents are directed to pass appropriate orders within eight weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Principal Chief Conservator of Forest, Panagal Building, Saidapet,Chennai – 600 015. 2.The Forest Utilisation Officer, 259, Anna Salai, Chennai – 600 006. + 1 ccs to Spl Government Pleader, SR No.69817 MRD(CO) SR/31.12.2009 Order in W.P.Nos.12095 and 14778 of 2007 https://hcservices.ecourts.gov.in/hcservices/