IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 29-4-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.33542 of 2007 J.B.J. Alexander ... Petitioner Vs. 1. The Secretary to Government, Health and Family Welfare (I-1) Department, Fort St.George, Chennai – 9. 2. The Special Commissioner of Indian Medicine and Homeopathy, Madras – 106. 3. The District Siddha Medical Officer, Trichirapalli. ... Respondents The prayer in the writ petition is to issue a writ of certiorari calling for the records of the second respondent in his proceedings in Ref.No.19839/E2/1/2003 dated 11.9.2006 and the records of the first respondent in his proceedings in G.O.(D)No.760 dated 25.6.2007, quash the same and reinstate the petitioner in service with backwages and all benefits. For Petitioner : Mr.M.Kalyanasundaram, Senior Counsel for Mr.K.Lavan For Respondents : Mrs.E.Ranganayaki, Government Advocate (Education) O R D E R The prayer in the writ petition is to quash the order of removal from service passed by the second respondent in his proceedings dated 11.9.2006, confirmed in appeal by the Government in G.O.(D)No.760, Health and Family Welfare Department, dated 25.6.2007 and direct the respondents to reinstate the petitioner in service with backwages and all attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the petitioner is that he was appointed as Pharmacist on 1.1.1974 in the District Headquarters Hospital in Nagapattinam and he worked for 33 years and was removed from service based on a charge memo issued on 19.11.2003 framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Petitioner having denied the charges, an enquiry was conducted and enquiry report was submitted on 29.9.2005. Relying on the said enquiry report, petitioner was removed from service by order dated 11.9.2006, which was challenged in W.P.No.37066 of 2006 before this Court. The said writ petition was dismissed by this Court on 9.10.2006 taking note of the fact that a statutory appeal is provided against the said order under Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Thereafter petitioner filed statutory appeal before the Government on 17.11.2006 and the said appeal was rejected by the first respondent on 25.6.2007. The said order of removal passed by the second respondent, confirmed by the first respondent is challenged in this writ petition on the ground that removal from service after 33 years of unblemished record of service on the ground of unauthorised absence is unproportionate and highly excessive. 3. Petitioner attained the age of superannuation during pendency of the writ petition and now he is aged 59 years. Petitioner filed an additional affidavit on 12.4.2010 and contended that charge Nos.1 and 2 are for unauthorised absence for the period from 13.3.1999 to 28.9.2000 and the said period of leave was covered by the medical certificate and the only mistake committed by the petitioner was that the petitioner submitted leave application belatedly. Insofar as Charge No.3 is concerned, i.e, unauthorised absence from 30.7.1996 to 30.11.1997, punishment has already been imposed by order dated 21.9.2001 and thereafter the leave was regularised as earned leave from 30.7.1996 to 6.12.1996 (for 130 days) and as extraordinary leave from 7.12.1996 to 30.11.1997 (for 359 days) and therefore the charge No.3 framed for the second time is not maintainable. 4. In the Additional affidavit the petitioner prayed that the order of punishment of removal from service may be modified as punishment of compulsory retirement with effect from 11.9.2006 and may be denied retirement benefits from 11.9.2006 to 31.1.2010 i.e, till the date of his normal date of superannuation, and pay all retirement benefits with arrears of pension from 1.2.2010 with other benefits within a reasonable period. The prayer in the additional affidavit reads as follows: "it is prayed that this Hon'ble Court may be pleased to convert the punishment of removal from service for charges 1&2 of absence from duty from 13.3.1999 to 28.9.2000 one and half years covered by a medical certificate as one of compulsory https://hcservices.ecourts.gov.in/hcservices/ retirement (as per F.R.56(2)) with effect from 11.9.2006 (date of removal from service) and denying retiral benefits from 11.9.2006 to 31.1.2010 (date of superannuation) and to pay all retirement benefits with arrears from 1.2.2010 together with all attendant benefits with a reasonable period of time to be fixed by this Hon'ble Court and thus render justice." The additional affidavit filed by the petitioner, particularly the prayer made, which is extracted above is recorded. 5. The writ petition was admitted on 23.10.2007. The respondents are served with notice in the writ petition as early as on 6.11.2007. In M.P.No.1 of 2007 by order dated 29.9.2008 this Court fixed the date of final hearing in the second week of January, 2009 and directed to file counter before the said period. But no counter affidavit is filed in spite of granting time on several occasions, i.e., on 22.12.2009, 9.2.2010, 6.4.2010 and 13.4.2010. While the writ petition was taken up for hearing on 13.4.2010, the learned Government Advocate was orally directed to circulate counter affidavit and time was granted till 20.4.2010. Till date no counter affidavit is filed and the learned Government Advocate circulated a draft counter affidavit and requested this Court to treat the same as instructions given to the Government Advocate. 6. The learned Senior Counsel appearing for the petitioner submitted that even though the absence is long period, the leave period mentioned in Charge No.3 has already been regulated due to the regularisation of the leave period and the petitioner has already been punished by withholding increment and therefore no charge could be framed for the said period of unauthorised absence. In respect of charge Nos.1 and 2, the petitioner due to his illness of jaundice affecting his left limb, he took medical treatment and submitted medical certificate and leave application for the period from 13.3.1999 to 28.9.2000 and non-submitting leave application with medical certificate is a technical mistake committed by the petitioner. According to the learned Senior Counsel, the leave having been taken on bona fide reason i.e., illness even assuming that the charges are proved, the punishment of removal from service imposed is unproportionate to the gravity of charges and due to removal of the petitioner from his service, his entire 33 years of service right from 1.1.1974 upto 11.9.2006 is rendered useless and the same has deprived the petitioner of getting his terminal benefits and pension and the same is arbitrary. The learned Senior Counsel finally submitted that the said plea raised by the petitioner has not been considered either by the disciplinary authority or by the appellate authority and therefore this Court has to interfere with regard to the punishment and an order may be passed in terms of the additional affidavit filed by the petitioner. The learned Senior https://hcservices.ecourts.gov.in/hcservices/ Counsel also cited the decisions of the Supreme Court reported in AIR 2004 SC 2131 (Bhagwan Lal Arya v. Commissioner of Police, Delhi) and (2009) 7 SCC 248 (Ramanuj Pandey v. State of M.P.) in support of his contentions. 7. The learned Government Advocate on the basis of the instructions submitted that the petitioner was punished for unauthorised absence from 30.7.1996 to 30.11.1997 after initiating disciplinary action and was imposed with punishment of stoppage of increment for one year without cumulative effect and the said period was thereafter regularised after imposing the punishment. The leave application submitted by the petitioner on 11.11.2002 seeking leave for 17 months as unearned leave on medical certificate was examined by the third respondent and rejected the same on the ground that the medical certificate was issued without any date by the Medical Officer. The petitioner initially applied for medical leave for 30 days with effect from 30.4.1999 and thereafter he has not submitted any leave application and remained absent unauthorisedly till the date of his relief from Alangudi. Petitioner submitted leave application only in the year 2002 i.e, after two years and he was allowed to rejoin duty at Andimadam with effect from 14.11.2000. The Medical Officer, who issued medical certificate, recommended leave for a period from 30.4.1999 to 28.9.2000, which cannot be accepted as no Medical Officer can foresee the date of recovery exactly. Thus, the Medical Certificate was found invalid and disciplinary action was taken after rejecting the leave request for unauthorised absence, which was also found proved during enquiry and based on the findings of the Enquiry Officer for the three charges, punishment of removal from service was passed as the charges were framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The petitioner habitually committed unauthorised absence and therefore he is not entitled to argue the point with regard to the proportionality of the punishment in this case. The Disciplinary Authority as well as the Appellate Authority considered all aspects and there is no illegality in the order of removal from service of the petitioner. 8. I have considered the rival submissions of the learned Senior Counsel appearing for the petitioner as well as the learned Government Advocate appearing for the respondents. 9. The issues for consideration in this writ petition are, (1) Whether charge No.3 framed against the petitioner, for which already petitioner was punished, is maintainable? (2) Whether the punishment imposed against the petitioner i.e, removal from service, for the charges 1 and 2 is proportionate to the gravity of the charges, even if the same are held to be proved ? 10. Issue No.1: The charges levelled against the petitioner are as follows: https://hcservices.ecourts.gov.in/hcservices/ "Charge No.1 That the said Thiru J.B.J.Alexander, while functioning as Pharmacist (Siddha), at the above station was on unauthorized absence for the period from 13.3.1999 to 28.9.2000 i.e., for more than a year and half in violation of the limit prescribed in rule 18(3) Fundamental Rules. Charge No.2: That the said Thiru J.B.J.Alexander, while functioning as Pharmacist (Siddha) at the above station was on unauthorised absence with effect from 13.3.1999 to 28.9.2000. For the above unauthorized absence he submitted his leave application dated 11.11.2002 received by the District Siddha Medical Officer, Nagapattinam on 14.11.2002 requesting Unearned Leave on Medical Certificate, in violation of instructions issued in Government Lr.No.411, Personnel and Administrative Reforms Department, dated 05.01.1980, Government Lr.No.65114/1982-6, Personnel and Administrative Reforms Department, dated 05.04.1983 and Government Lr.No.1692/1978-2, Personnel and Administrative Reforms Department, dated 22.03.1978. Charge No.3: That the said Thiru J.B.J.Alexander, while functioning as Pharmacist (Siddha) at the above station was on leave continuously combined with unauthorized absence from 30.7.1996 to 30.11.1997 and again from the above said period mentioned in charge-2 in violation of rule 18(4) of Fundamental Rules." From the perusal of the charges it is evident that there are two spells of unauthorised leave i.e., from 30.7.1996 to 30.11.1997 and from 13.3.1999 to 28.9.2000. 11. In the instructions given to the learned Government Pleader by way of draft counter affidavit, in para 3 it is stated that the unauthorised absence from 30.7.1996 to 30.11.1997 was subjected to disciplinary action and the petitioner was imposed with punishment of stoppage of increment for one year with cumulative effect and the said period was regularised as earned leave for 130 days and as extraordinary leave without medical certificate for 359 days. The https://hcservices.ecourts.gov.in/hcservices/ said punishment having been imposed for the unauthorised absence, it is not open to the respondents to frame charge No.3 for the same allegation. Thus, the learned Senior Counsel for the petitioner is justified in contending that framing of charge No.3 for the unauthorised absence from 30.7.1996 to 30.11.1997 is a double jeopardy. Thus, issue No.1 is decided in favour of the petitioner. 12. Issue No.2: For the petitioner's unauthorised absence from 13.3.1999 to 28.9.2000, charges 1 and 2 are framed. The crux of the said charges are, unauthorised absence and submission of leave application belatedly and the medical certificate produced for long period is found unacceptable. It is not stated in the impugned order of punishment that the petitioner was not suffering from any disease as claimed in his affidavit during the said period. Even though the said charges are proved against the petitioner, punishment of removal from service has been passed based on the ground that all the three charges are proved. As already stated, framing of charge No.3 for which already proceeding was initiated and order of punishment was imposed, is improper and even though charges 1 and 2 are found to be proved, the punishment having been imposed on the basis of the proof of all the charges and the petitioner having raised a point of unproportionality with regard to the punishment imposed with reference to the gravity of charges, the same ought to have been considered by the second respondent, namely the Disciplinary Authority, or at least by the first respondent, the Appellate Authority, while considering the appeal. 13. Admittedly, petitioner has filed an appeal under Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, which mandates that the appellate authority shall consider whether the punishment is proper or excessive. The first respondent in its order dated 25.6.2007 simply relied on the views given by the TNPSC and not applied its mind as required to be followed under Rule 23. The relevant portion of the order of the appellate authority reads as follows: "4. The Government have examined the appeal with connected records carefully and independently along with the views offered by the Tamil Nadu Public Service Commission. Accepting the views of the Commission, the Government have decided to reject the appeal preferred by Thiru J.B.J.Alexander, Pharmacist (Siddha), Government Primary Health Care, Aandimadam, Trichy District, against the punishment of removal from service imposed in the proceedings second read above as devoid of merits. Accordingly, the Government do and hereby direct that the appeal preferred by Thiru J.B.J.Alexander, Pharmacist (Siddha), Government Primary Health Centre, Aandimadam, Trichy District against the punishment of removal https://hcservices.ecourts.gov.in/hcservices/ from service by the Special Commissioner of Indian Medicine and Homeopathy, Chennai in the proceedings second read above be rejected as devoid of merits." From the reading of the order of the appellate authority it is evident that proportionality of the punishment i.e., whether the punishment imposed by the Disciplinary Authority is proper or excessive, is not considered. In view of the said patent error committed by the appellate authority, the learned Senior Counsel for the petitioner is justified in contending that the proportionality of the punishment imposed against the petitioner for the charges of unauthorised absence in respect of charges 1 and 2 has not been considered. How the appellate authority shall consider the appeal and pass orders in appeal is decided in the Division Bench decisions of this Court reported in (1983) 2 MLJ 513 (G.Srinivasan v. The Government of Tamil Nadu, rep.by the Commissioner and Secretary to Government, Revenue Department, Madras-9); 2008 WLR 86 (The Joint Commissioner of Police & Another v. G.Anandan) and in the decisions of the Supreme Court reported in AIR 1986 SC 1040 : (1986) 2 SCC 651 (R.P.Bhat v. Union of India); (2006) 4 SCC 713 (Narinder Mohan Arya v. United India Insurance Company Ltd & Others) and (2009) 2 SCC 570 (Roop Singh Negi v. Punjab National Bank and Others). No useful purpose would be served by remitting the matter to the second respondent as the petitioner attained the age of superannuation as early as on 31.1.2010 and the punishment of removal from service was passed as early as on 11.9.2006. 14. How the charges of unauthorised absence on medical ground is to be considered and punishment shall be imposed is considered by the Supreme Court in the decision reported in (2004) 4 SCC 560 : AIR 2004 SC 2131 (Bhagwan Lal Arya v. Commissioner of Police, Delhi). In paragraphs 11 and 14 it is held thus, "11. ........ It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal/removal from service can be awarded only for acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility or complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become the basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority https://hcservices.ecourts.gov.in/hcservices/ inflicting a penalty of removal from service is ultra vires Rules 8(a) and 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of which, not only he but his entire family totally dependent on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside. 14. Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated up to the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment." (Emphasis Supplied) In the said judgment the Supreme Court instead of remanding the matter to the department, following the earlier decision reported in (1995) 6 SCC 749 : AIR 1996 SC 484 (B.C.Chaturvedi v.Union of India) imposed punishment by itself. In AIR 1996 SC 484, in para 18 it is held thus, https://hcservices.ecourts.gov.in/hcservices/ "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact- finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." (Emphasis supplied) The same is the view taken by the Supreme Court in the decision reported in (2005) 7 SCC 338 (V. Ramana v. A.P.SRTC). Similar issue was considered by the Supreme Court in the decision reported in AIR 2009 SC 2458 (Jagdish Singh v. Punjab Engineering College). Following the said judgment, I allowed W.P.No.12619 of 2001 dated 13.11.2009 and W.P.No.40097 of 2002 dated 23.12.2009 and set aside the orders of dismissal/removal from service and denied backwages. The above said judgment of the Supreme Court is followed by the Division Bench of this Court in the decision reported in (2009) 7 MLJ 1231 (V.Senthurvelan v. High Court of Judicature at Madras). 15. In the case on hand, the petitioner has fairly filed an additional affidavit stating that the punishment may be modified as compulsory retirement, that too from 31.1.2010 and pay the retirement benefits with arrears of pension from 1.2.2010. The petitioner having served in the department for 33 years and the charges being unauthorised absence, to shorten the litigation, I am of the view that interest of justice would be met by ordering modification of the punishment of removal from service to that of compulsory retirement with effect from 31.1.2010. 16. In the result, the punishment imposed against the petitioner is modified to that of compulsory retirement with effect from 31.1.2010. Petitioner is eligible to get retirement benefits based on his service till 11.9.2006 and arrears of pension from 1.2.2010. The respondents are directed to work out the terminal https://hcservices.ecourts.gov.in/hcservices/ benefits and pension payable from 1.2.2010 and pay the same to the petitioner within a period of eight weeks from the date of receipt of copy of this order. The writ petition is disposed of with the above directions. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vr To 1. The Secretary to Government, Health and Family Welfare (I-1) Department, Fort St.George, Chennai – 9. 2. The Special Commissioner of Indian Medicine and Homeopathy, Madras – 106. 3. The District Siddha Medical Officer, Trichirapalli. 1 cc To M/s.K.Lavan, Advocate, SR.28909 W.P.No.33542 of 2007 rv(co) pmk.6.5.2010. https://hcservices.ecourts.gov.in/hcservices/