IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07-04-2010
CORAM :
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
W.P. No. 34378 of 2006
Dr. C. Selvakumari .. Petitioner
Versus
1. The Secretary to Government
Government of Tamil Nadu
Health & Family Welfare Department
Fort St. George
Chennai 600 009
2. The Director of Medical and Rural Health
Services
Chennai .. Respondents
O.A. No. 5297 of 1998 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court, which was filed praying to call for the records of the first respondent dated 30.05.1997 in Ref.No.G.O. (D) No.624, Health and Family Welfare Department and served on the applicant on 02.07.1997 and quash the same and direct the respondents to pay all the retirement benefits to the applicant.
For Petitioner : Mr. K. Azhagiriswamy, Sr. Counsel
for Mr. T. Ravikumar
For Respondents : Mrs. Lita Srinivasan
Government Advocate
ORDER
The petitioner was appointed as Assistant Surgeon in the year 1966 and she had put in more than 30 years of service. While so, on 05.05.1992, she applied for six months leave and extended the leave periodically by making separate applications. At that time, the petitioner was working at ESI Hospital, Coimbatore. While so, by proceedings dated 14.10.1992 of the Superintendent of ESI Hospital, the petitioner was informed that consequent on Dr. Mohana Ramachandran joining duty on 12.10.1992, she is deemed to have been relieved of her duties from 05.05.1992. According to the petitioner, a copy of the proceedings was marked to the Joint Director, Medical Services, Government Head Quarters Hospital, Nagercoil and therefore, she was under the impression that she should report duty at Nagercoil on expiry of leave. Accordingly, the petitioner reported for duty at Nagercoil on 04.05.1993 and again went on leave from 05.05.1993. On 22.10.1994, the petitioner has submitted a petition for voluntary retirement with effect from 05.05.1992. On 05.12.1994, the petitioner was informed that there was no provision to retire her from service with retrospective effect, hence, her request is rejected. While so on 30.03.1995, by proceedings of the second respondent, the petitioner was informed that the leave applied for by her has been refused due to exigency of service and she was directed to join duty at ESI Hospital, Vellore pending regularisation of leave. Pursuant to such order, the petitioner also joned duty. While so, on 25.12.1995, a charge memo was issued to the petitioner containing two charges on the last date of her service and she was kept under suspension. While the first charge relates to securing a passport in violation of the Government Servants Conduct Rules, the second charge relates to unauthorised absence from 05.05.1992 to 16.04.1995. The petitioner has submitted a detailed explanation denying the charges. An enquiry officer was appointed to conduct enquiry, who, has submitted his report holding that the charge relating to unauthorised absence alone was proved. The report was communicated to the petitioner and she submitted her further explanation, but without considering her submission, the first respondent passed the impugned order dated 30.05.1997 removing her from service. Challenging the same, the petitioner has filed Original Application before the Tribunal. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 34378 of 2006.
2. The learned senior counsel for the petitioner argued that the petitioner has applied leave on 05.05.1992 for six months which was extended by her periodically. On 04.05.1993 she joined duty at Nagercoil and extended the leave further. According to the learned senior counsel for the petitioner, the respondents have never rejected her leave application nor sanctioned leave. While so, on 22.10.1994, the petitioner submitted a petition for voluntary retirement with effect from 05.05.1992, but the same was rejected by an order dated 05.12.1994. The learned senior counsel for the petitioner contended that the leave letters submitted by the petitioner was rejected only on 30.03.1995 and she was directed to join duty at Vellore. Immediately, in obedience to the order, the petitioner joined duty at Vellore. Thereafter, the petitioner worked continuously till her retirement on 30.07.1996. The grievance of the petitioner was that on the date of her superannuation she was placed under suspension and was not allowed to retire. In the impugned order, it was specifically mentioned that charges relating to unauthorised absence from duty from 05.05.1992 was pending against her and therefore she was placed under suspension. According to the learned senior counsel for the petitioner, when the petitioner reported for duty on 30.03.1995, the suspension order was not passed, but after lapse of one year and four months, that too on the date of her retirement, she was kept under suspension which is per se illegal and arbitrary.
3. The learned senior counsel for the petitioner also brought to the notice of this Court that in respect of three identical persons who were also working as Doctors along with the petitioner, when they have availed leave beyond a period of three years without leave sanctioned or without even filing leave application, the respondents took a lenient view and imposed punishment of stoppage of increment for a period of two years with cumulative effect in the case of Dr. Mariappan by virtue of G.O. Ms. No.281 dated 02.03.1995, who unauthorisedly absented for more than two years and 11 months. Taking into consideration the services rendered by him for nearly 18 years, such a punishment was imposed. In this case, the petitioner has submitted leave application, but the respondents has chosen to pass the order of removal from service.
4. Similarly, in the case of Dr. D. Lizy Rajasekar, the first respondent issued G.O. Ms. No.609 dated 10.05.1999 whereby her request for leave was rejected, but the punishment of stoppage of increment for two years with cumulative effect was imposed as per 18 (3) of Fundamental Rules. Finally, in the case of Dr. B. Selvaraj, the first respondent issued G.O. D No. 686 dated 31.05.1999 and he was also imposed with punishment and the same was subsequently modified with stoppage of increment for three years with cumulative effect. In the case of Dr. Selvaraj, he was unauthorisedly absented himself for a period of five years and six months. Therefore, the learned senior counsel for the petitioner would contend that when similarly placed persons, during the relevant time, have been given a lesser punishment, even though the petitioner has submitted leave application, the same was not considered and she was imposed with punishment of removal from service, which is arbitrary and illegal.
5. The learned Government Advocate appearing for the respondents, relying on the reply affidavit of the respondents as well as the original file, submitted that there was no reference at all to the earlier leave applications submitted by the petitioner and the only leave application submitted by her was rejected by the respondents on 05.02.1995 and she was directed to join duty at Vellore region. The petitoner, on her own volition went to Nagercoil and reported to duty, but on the same day, she left without furnishing her address or address to which communications can be sent to her. The learned Government Advocate, relying on the files, submitted that the petitioner reported for duty before the concerned authorities at Nagercoil on 9.45 am. Even in the application for joining duty at Nagercoil, though no order was specifically passed directing her to join duty at Nagercoil, the petitioner did not give the forwarding address in the case of leave. Immediately, the next day, the petitioner went on leave and this was done to circumvent the long absence and break the barrier.
6. I have considered the submission of both sides. The learned Government Advocate is not in a position to submit as to why no action was taken against the petitioner during the period when she was on leave for a long time. In fact, the petitioner had accepted the order passed by the respondents and joined duty at Vellore immediately and thereafter, she was in continuous service till her superannuation. Even during the period of absence of the petitioner, admittedly, no disciplinary proceedings were initiated against her and this is the biggest lacuna which the respondents have committed. Moreover, as per the decision of the Honourable Supreme Court, an employee should not be kept under suspension on the last date of his retirement and such a practice was depricated by the Honourable Supreme Court. In this case, even though the respondents contend that the petitioner was absent for a long time from 05.05.1992 to 14.06.1995, no action was taken by them. Even, when the petitioner joined duty at Vellore as directed by the respondents by proceedings dated 30.03.1995, no action was taken against her, but only on the last date of her service namely on 30.07.1996, she was kept under suspension, which is unreasonable.
7. In the impugned order of punishment, no specific reason has been given excepting to state that the petitioner was continuously absent from duty. This is not a case where the petitioner unauthorisedly absented from duty. The petitioner has duly submitted leave application, but the respondents did not reject or accept the leave applications. As stated above, only on 30.03.1995, it was stated that the leave applications submitted by the petitioner was rejected due to exigency of service.
8. It is seen from the original files that the address which is shown in the service register of the petitioner was the corect address and the respondents cannot plead that the petitioner did not furnish address for communication in the leave applications. Moreover, subsequent communications sent by the respondents have been received by the petitioner at the address given in the service register. Even otherwise, in the impugned order of punishment, no valid reasons was assigned to impose the punishment of removal from service.
9. It is also to be mentioned that the petitioner was a Doctor by profession and she was appointed to take care of the essential services in the hospital, but the petitioner absented herself from duty for three years. The respondents are also equally at fault for not taking any action in time. Moreover, in the case of similarly placed persons, who were also charged for unauthorised absence for periods ranging from 3 years to 5 years, the respondents have taken a leinent view and imposed lesser punishment, but the petitioner alone was removed from service, which is arbitrary and disciminatory.
10. The learned senior counsel for the petitioner submitted that in any event, the punishment imposed on the petitoiner is severe and it requires to be modified. It is well settled that when the punishment imposed by the authorities are shockingly disproportionate to the charges, the Court can interfere. In this context, it is relevant to look into the decision of the Honourable Supreme Court reported in (Jagdish Singh v. Punjab Engg. College) (2009) 7 SCC 301 wherein the Honourable Supreme Court held in Para Nos. 8 and 9 10 as under:-
8. The courts and the tribunals can interfere with the decision of the disciplinary authority only when they are satisfied that the punishment imposed by the disciplinary authority is shockingly disproportionate to the gravity of the charges alleged and proved against a delinquent employee and not otherwise. Reference can be made to the decision of this Court in V. Ramana v. A.P. SRTC wherein it is stated: (SCC p.348, paras 11-12)
11. The common thread running through in all these decisions is that the court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. To put it differently unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed.
9. The other principle that requires to be kept in view is the observation made by this Court in Kerala Solvent Extractions Ltd. v. A. Unnikrishnan wherein it is stated: (SCC p. 621, para 10)
10. In recent times, there is an increasing evidence of this, perhaps well meant but wholly unsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability.
11. In this case, taking into consideration that the petitioner had put in more than 30 years of service and she was kept under suspension on the last date of her service and the punishment imposed on the petitioner is definitely shocking the conscience of this Court, I am inclined to modify the punishment imposed on the petitioner into one of compulsory retirement so as to enable the petitioner to get retirement benefits. Accordingly, the punishment of removal of service passed by the first respondent by impugned order dated 30.05.1997 is set aside and the punishment is modified into one of compulsory retirement.
10. The writ petition is allowed to the extent indicated above. No costs.
rsh
To
1. The Secretary to Government
Government of Tamil Nadu
Health & Family Welfare Department
Fort St. George
Chennai 600 009
2. The Director of Medical and Rural Health
Services
Chennai