IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.06.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.30077 of 2006 M.Basheer .. Petitioner Vs. 1.The Secretary to Govt., Labour and Employment Dept., Fort St. George, Chennai-9. 2.The Commissioner of Employment and Training, Chepauk, Chennai-5. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records in pursuant to the impugned order passed by the second respondent in proceeding Sa.Mu.Aa.No.AP2/118440/93, dated 22.1.96 and the impugned order of confirmation of punishment passed by the first respondent in G.O.(D) No.501, Labour and Employment Department, dated 23.6.97 and to quash these orders and consequently, to direct the respondents to reinstate the applicant retrospectively with effect from the date of termination with full salary and consequential service benefits. For Petitioner : Mr.Subburaj For Respondents : Mr.P.Gurunathan, GA ORDER Heard both sides. 2.The petitioner has filed O.A.No.8508 of 1997, seeking to challenge the order of the second respondent, dated 22.1.1996 and also the order of the first respondent, dated 23.6.1997. 3.In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.30077 of 2006. On notice from the Tribunal, the respondents have filed a reply affidavit, dated 28.09.1998, justifying the action against the petitioner. 4.The petitioner was working as the Hostel Superintendent-cum- Physical Training Officer at the Government ITI, Guindy, Chennai. He proceeded on leave for more than 5 years from 2.7.82 to 18.5.88. Initially, he applied for Earned Leave for 30 days from 2.7.82 to 31.7.82. Therefore, the Principal of the ITI, Cuddalore instructed him to join duty within 7 days by his letter dated 30.10.82. When the letter was sent to the last known address of the petitioner, it came https://hcservices.ecourts.gov.in/hcservices/ back unserved. The petitioner never turned up for duty. However, he sent leave letter seeking for leave from 3.7.82 to 31.7.84. By a letter dated 24.2.84, he requested to posting him at Chennai, but since there was no vacancy, he was posted to duty at ITI Nagercoil. He did not join duty in that place. Subsequently, he was given posting at ITI, Mettur Dam. There also, he did not join duty. Once again, he requested for a posting in some other place. He was finally given a posting at ITI, Cuddalore and he joined duty on 19.5.88. 5.The petitioner was given a charge memo under Rule 17(b), dated 28.2.94 for remaining absent for 5 years in contravention of FR 18(2). The petitioner submitted an explanation dated 23.3.94. He did not request for any enquiry. But, however, an enquiry was conducted on 24.3.1995 and the charge against the petitioner was found proved. He was given a copy of the enquiry report. The petitioner submitted a further explanation, dated 19.6.95. The petitioner, except stating family reasons, did not furnish any other information. Therefore, he was given the punishment of removal from service, by the order of the second respondent, dated 22.01.1996. 6.The petitioner sent an appeal to the first respondent State vide his appeal memorandum dated 8..2.1996. The first respondent consulted the TNPSC. The TNPSC gave its advise dated 15.11.96. It was thereafter, the State Government vide G.O.(D) No.501, Labour and Employment Dept., dated 23.6.97 rejected his appeal. The State Government rejected the stand of the petitioner that he was given already a punishment of censure by the Principal of Government ITI and therefore, he cannot be given another punishment for the same reason. 7.In the reply affidavit, in para 10 and 13, it was averred as follows: "10. ... So he was informed of the fact of conducting enquiry in Director proceedings No.OP2/18440/93, dt.15.7.94. The enquiry was conducted on 24.3.95. During the enquiry he himself accepted the charges framed against him. So the statement of applicant that "sufficient opportunity was not given" is not correct. The copy of the Enquiry Report was also communicated to the applicant in Director's Proceedings No.OP2/118440/93, dated 19.5.95 for submitting his representation if any, by giving a reasonable time. It is informed no illegal action was taken against the applicant and necessary action was initiated based on the rules and regulations. .... 13. ... it is submitted that the punishment (Censure) awarded by the Principal was cancelled and denova action was initiated by the Director of Employment and Training, since the Director of Employment and Training is the appointing authority for the post of Hostel Superintendent-cum-Physical Training Officer. So the final orders issued in Director's Proceedings No.OP2/118440/93, dt.22.1.96 is as per rules in force and not liable for cancellation." https://hcservices.ecourts.gov.in/hcservices/ 8.The learned counsel for the petitioner contended that the petitioner was imposed with the punishment of warning of Censure and he was also permitted to rejoin duty and therefore, no second punishment can be given to him in terms of the service rules. It is not clear under what authority, the Principal of the ITI imposed the punishment of Censure, especially when the petitioner had committed a major misconduct. As rightly contended by the respondents, the second respondent is the appointing authority for the post held by the petitioner. Therefore, he alone could have initiated action against the petitioner. Even otherwise, when the State Government has power under Rule 36 to review any order of punishment and it does not have any limitation prescribed therein. 9.With reference to the contention that no proper opportunity was given, it is necessary to refer to the judgment of the Supreme Court in V.C., Banaras Hindu University and others v. Shrikant reported in [2006 (11) SCC 42]. In that case, the Supreme Court dealt with the case of a University Lecturer going abroad and applying for extension of leave. In paragraphs 41, 57 and 60 of the judgment, it was observed as follows:- Para 41:"Although, laying down a provision providing for deemed abandonment from service may be permissible in law, it is not disputed that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of the Constitution of India. If the action taken by the authority is found to be illogical in nature and, therefore, violative of Article 14 of the Constitution, the same cannot be sustained. Statutory authority may pass an order which may otherwise be bona fide, but the same cannot be exercised in an unfair or unreasonable manner. The respondent has shown before us that his leave had been sanctioned by the Director being the Head of the Department in terms of the Leave Rules. It was the Director/Head of the Department who could sanction the leave. Even the matter relating to grant of permission for his going abroad had been recommended by the Director. The respondent states, and it had not been controverted, that some other doctor was given the charge of his duties. We have indicated sufficiently that the Vice-Chancellor posed unto himself a wrong question. A wrong question leads to a wrong answer. When the statutory authority exercises its statutory powers either in ignorance of the procedure prescribed in law or while deciding the matter takes into consideration irrelevant or extraneous matters not germane therefor, he misdirects himself in law. In such an event, an order of the statutory authority must he held to be vitiated in law. It suffers from an error of law." Para 57:"The matter may, however, be different in a case where despite having been given an opportunity of hearing, explanation regarding his unauthorised absence is not forthcoming or despite giving him an opportunity to join his duty, he fails to do so, as was the case in Punjab & Sind Bank v. Sakattar Singh." https://hcservices.ecourts.gov.in/hcservices/ Para 60:"A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding: (SCC p.345, para 20) “A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice.” 10.In the light of the above, there is no case made out to entertain the writ petition. Accordingly, the writ petition stands dismissed. No costs. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar vvk To 1.The Secretary to Govt., Labour and Employment Dept., Fort St. George, Chennai-9. 2.The Commissioner of Employment and Training, Chepauk, Chennai-5. W.P.NO.30077 OF 2006 MBS(CO) EM/11.6 https://hcservices.ecourts.gov.in/hcservices/