IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:06.06.2011
CORAM:
THE HON'BLE MR.JUSTICE P.JYOTHIMANI
WRIT PETITION NO.11410 of 2007
and M.P.No.1 of 2007
..
K.Rajan .. Petitioner
vs.
The State of Tamil Nadu rep.
By The Secretary Government
Commercial Taxes and
Registration Department,
Government of Tamil Nadu
Fort St.George, Chennai. .. Respondent
Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein.
For petitioner : Mr.K.Kalyanasundaram,Sr.Counsel for Mr.G.Sethuraman
For respondent : Mr.K.Radhakrishnan Govt.Advocate (Taxes)
..
ORDER
The writ petitioner was originally appointed as a Joint Commercial Tax Officer (Regular) and posted at Udhagamandalam in the year 1967, and thereafter, he was transferred as Joint Commercial Tax Officer (Audit) Coimbatore in 1967 and promoted as Commercial Tax Officer in 1972 and posted as Commercial Tax Officer at Ooty in 1975, however, he was transferred to Madras in 1976.
2. The next avenue of promotion was Assistant Commissioner of Commercial Taxes, which is based on merit and ability and the petitioner was placed in 1976 seniority list. However, in 1976, many of his juniors had been promoted, but he was neglected. When he was working as Commercial Tax Officer at Ooty, he was proposing to take action against a hotel, Kurinji and that was obstructed by the officials and that is the reason why he was transferred to Madras.
3. In respect of certain irregularities, he was awarded with Censure in October, 1976 and his appeal was also rejected. A writ petition was filled against the Censure, which was dismissed and on writ appeal, final order was passed on 11.8.1986, directing the respondent to give promotion to the petitioner retrospectively from 1976 with all attendant benefits, and since the same was not given, a contempt application was filled. In the meantime, he was given promotion as Deputy Commissioner and due to the ill-health of his mother, he was unable to join the post of Deputy Commissioner.
4. At that time, the Department appealed to the Supreme Court and obtained an order of stay. However, the Supreme Court directed that the petitioner should be promoted, and accordingly, he was promoted as Assistant Commissioner in 1987, by which time many of his juniors were already promoted and granted I.A.S. status. Thereafter, the petitioner was transferred with ill motive, in respect of which also the petitioner approached this Court and obtained an order of stay, however, within six months another transfer was effected and due to his ill health, he applied for leave for a period of three years on medical ground. On the date of superannuation, viz., on 31.5.1995, the Government suspended the petitioner not allowing him to retire from service and retained him in service under Fundamental Rule 56(1)(c) for conducting enquiry for absence from duty unauthorisedly from 27.4.1991 to 31.5.1995.
5. The Deputy Commissioner (Commercial Taxes), Coimbatore was appointed as the Enquiry Officer, who conducted the Enquiry and has given a report holding that the charges are proved except the second charge. The department has not passed any final order for 12 years and it was ultimately on 19.7.2006, has passed the impugned order of removal from service.
6. The impugned order of removal from service is challenged as not proportionate to the charges framed and on the ground that the petitioner was on medical leave for long time, which was not questioned; that the entire action is ill motivated apart from the fact that there has been an extraordinary delay in passing the final order, which has not been explained.
7. In the counter affidavit filed by the respondent, it is stated that by letter dated 31.07.1993, the petitioner has applied for leave, to which he was eligible up to 31.12.1993. On expiry of leave, he has not joined nor applied for extension of leave. Subsequently, he reached the age of superannuation on 31.5.1995 and he was placed under suspension and not allowed to retire from service in view of pending departmental proceedings against him and charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued to the petitioner on 19.10.1994.
8. The Deputy Commissioner (Commercial Taxes), Coimbatore, was appointed as an Enquiry Officer. The Enquiry Officer, in his enquiry report has held that six out of seven charges framed against the petitioner were proved, except the second charge. The Enquiry Officers report was communicated to the petitioner on 22.10.1998.
9. The petitioner submitted a petition dated 06.01.1999, requesting for an interview with the Special Commissioner and Commissioner (Commercial Taxes) during his camp at Coimbatore. Ample time was given to the petitioner to submit his further representation. Provisional conclusion for punishment of removal of the petitioner was arrived at after ascertaining the views of the Tamil Nadu Public Service Commission (TNPSC) and ultimately, the Government passed the impugned Government Order on 19.07.2006, removing the petitioner from service.
10. It is stated that the petitioner has suffered various other punishments, like recovery, censure, stoppage of increment for six months without cumulative effect. The appeal filed by the Department to the Supreme Court was disposed of with direction to consider the case of the petitioner for promotion, which shall take effect prospectively. According to the respondent, sufficient opportunity has been given to the petitioner and the domestic enquiry has been conducted by following the principles of natural justice and the charges are very serious in nature since the petitioner has fraudulently abandoned the job.
11. Mr.Kalyanasundaram, learned senior counsel appearing for the petitioner would fairly submit that the petitioner has filed the above writ petition challenging the impugned order on various substantial grounds, especially the long lapse of time in conducting the enquiry which started in the year 1995 and concluded in the year 2006 when the final order was passed, nearly after 7 years and for such delay there is no reason given in the counter affidavit, and therefore, on the basis of various judgments of the Supreme Court, the petitioner is entitled for the relief claimed by setting aside the punishment of removal. But, he would fairly submit that, now that the petitioner has attained the age of superannuation long back, viz., in 1995 itself and more than 16 years have lapsed, and now considering the nature of charges framed against the petitioner, if the punishment is directed to be reduced from removal to that of compulsory retirement, the petitioner will be able to get certain monetary benefits. He would also submit that he is making the above submission on the ground that there is no charge of misconduct against him. He would rely upon the judgment of the Supreme Court in Bhagwan Lal Arya vs. Commissioner of Police, Delhi (AIR 2004 SC 2134). He would also rely upon the unreported order of N.Paul Vasanthakumar,J. in W.P.33542 of 2007 dated 29.04.2010, wherein the learned Judge, under similar circumstances, modified the punishment of removal from service into that of compulsory retirement on the basis of proportionality of punishment.
12. On the other hand, it is the contention of Mr.K.Radhakrishnan, learned Government Advocate that the charges are framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and it is not disputed that sufficient opportunity has been given to the petitioner and there is no violation of principles of natural justice and therefore, there is nothing warranting interference with the order of punishment.
13. Admittedly, on 19.10.1994, seven charges were framed against the petitioner. The said charges are as follows:
“Charge.1. That petitioner as ACTO Trichy did not transfer 210 appeal files to ACTO, Thanjavur as per order of Chairman, STAT, Madras;
Charge.2. That petitioner continued even after transfer;
Charge.3. That petitioner did not join the transferred post as Secretary, STAT, Madurai even after dismissal of stay petition by TAT on 31.7.91;
Charge.4. That petitioner did not hand over 10 appeal files where he reserved orders, to his successors and sent them to Chairman after a memo was issued, after 10 months;
Charge.5. That petitioner did not joint the transferred post as per order dt.7.4.1992, but applied for leave on 20.4.92 as from 7.4.92, without mentioning the nature of leave;
Charge.6. That petitioner applied for leave on 31.7.1993, for which he is eligible upto 31.12.1993 and absented beyond 1.1.94.
Charge.7. From 26.4.1991 to 15.4.92 unauthorized absence. 16.4.1992 to 31.12.1993 Leave to which he is eligible. From 1.1.94 continuous unauthorized absence.”
14. Of course, except Charge No.2, all other charges are stated to have been proved by the Enquiry Officer. It is also not in dispute that sufficient opportunity has been given to the petitioner. The main charge is, unauthorized absence from 26.4.1991 to 15.4.1992 and from 1.1.1994 till the date of superannuation. The charges are not relating to any misappropriation. The petitioner has joined duty in the year 1967 and worked till 31.05.1995, nearly for 28 years. Since the Government itself has passed the final order, there is no further appeal available to the petitioner, and hence, he has filed the present writ petition. The enquiry was completed admittedly in 1999 and the impugned order was passed on 19.07.2006, and for the delay, absolutely there is no reason adduced in the counter affidavit except to state that opinion of the TNPSC has been obtained.
15. In P.V.Mahadevan vs. M.D., Tamil Nadu Housing Board (2005 (4) CTC 403 (SC)], it was held by the Supreme Court that if any prejudice will be caused to the delinquent by long unexplained delay, the same has to be considered in favour of the delinquent.
16. In addition to that, as submitted by the learned senior counsel for the petitioner, the charges are not relating to misappropriation or misconduct, but it is only relating to unauthorized absence, admittedly, on medical grounds, and such issue regarding unauthorized absence on medical grounds was considered by the Supreme Court in Bhagwan Lal Arya vs. Commissioner of Police, Delhi (AIR 2004 SC 2131). The Supreme Court has held under similar circumstances that the punishment of dismissal or removal from service for unauthorized absence is harsh, in the following paragraph.
” 11. The order dated 16-1-1995 passed by the respondents was produced by the respondents themselves in their reply to CWP before the High Court of Delhi that they had sanctioned leave without pay for the period from 7-10-1994 to 15-12-1994, the period of alleged unauthorised absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing sanction for leave for the period in question, the employees legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered an act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. 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 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.
17. In that case, the Supreme Court has also held as follows:
” 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.”
Having held so, the Supreme Court set aside the punishment of removal and directed for reinstatement with condition that during the absence the delinquent concerned should not be entitled for any service benefits. Therefore, the Honble Supreme Court instead of remanding the matter back to the Department, on finding that the punishment is shockingly disproportionate, has itself modified the order in order to render substantial justice. That decision was based on the earlier judgment in B.C.Chaturvedi vs. Union of India (AIR 1996 SC 484), wherein in paragraph 18, it was held as follows:
18. A review or the above legal position would establish that the disciplinary 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.
18. The Supreme Court further held that in such event, even though the appellate authority being the fact finding authority has exclusive power, with a view to shorten the litigation, the Court can reduce the punishment appropriately in exceptional cases treating them as rarest of rare cases. Following the said decision, in the order dated 29.04.2010, N.Paul Vasanthakumar,J. in W.P.No.33542 of 2007 (J.B.J.Alexander vs. Secretary to Government, Health and Family Welfare Department, Chennai and others), has modified the punishment of removal into compulsory retirement with effect from 31.01.2010, in the following words:
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 33years and the charges being unauthorized 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 11.9.206 and arrears of pension from 1.2.2010. The respondents are directed to work out the terminal 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.
19. On the facts of the present case, the learned senior counsel appearing for the petitioner has fairly submitted that the punishment of removal may be converted into compulsory retirement due to the above said reasons of laches and disproportionate punishment that too, long after the date of retirement. Considering the above said facts and circumstances of the case, applying the ratio of the Supreme Court, I am of the view that this can be treated as one of the rarest of rare cases, so as to enable this Court to render substantial justice by modifying the impugned order of removal from service into one of compulsory retirement, instead of remanding the matter again to the Government for decision.
20. Accordingly, the impugned punishment of removal from service of the petitioner dated 19.07.2006, stands modified into one of compulsory retirement with effect from 1.1.2010. The petitioner will be entitled for retirement benefits based on his service till the date of superannuation, viz., 31.5.1995 and arrears of pension from 1.1.2010. The respondent is directed to work out the terminal benefits and pension payable from 1.1.2010 to the petitioner and pay the same within 12 weeks from the date of receipt of a copy of this order.
The writ petition is ordered accordingly. No costs. Connected miscellaneous petition is closed.
Kh
To
The Secretary Government
Commercial Taxes and
Registration Department,
Government of Tamil Nadu
Fort St.George,
Chennai