BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/06/2008 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.A (MD) NO. 547 OF 2007 S.Tamilarasan ... Appellant Vs 1.The District Collector, Thanjavur District, Thanjavur. 2.The Panchayat Union Commissioner, Pattukkottai, Thanjavur District. ... Respondents Appeal filed under Clause 15 of the Letters Patent, against the order of the learned Single Judge of this Court in W.P(MD)No.1301 of 2006 dated 13.02.2007. !For Appellant ... Mr.M.Ravi ^For Respondents... Mr.R.Janakiramulu, Spl. G.P. :ORDER
(ORDER OF THE COURT WAS MADE BY S.J.MUKHOPADHAYA, J.)
The appellant was dismissed from service for unauthorised absence from duty. He
was also convicted in a criminal case, but subsequently acquitted in appeal.
Having challenged the order of dismissal, learned single Judge, without deciding
the case on merit, remitted the matter to the authorities to pass orders after
taking into consideration the order passed in the criminal appeal.
2. The fact of the case as appears from record is that the appellant along with
another person was implicated in a criminal case for offence u/s 302 r/w Section
34 IPC. He was taken into custody and so could not attend the office. He was
convicted in S.C. No.49/93, but acquitted by this Court in C.A. No.448/99 vide
judgment dated 28th Jan., 2003. Thereafter, he was released from Central
Prison, Trichy, pursuant to the appellate order.
Having released, the appellant preferred a representation on 7th Feb., 2003, for
rejoining the duty and to treat the period of absence as duty for all purpose.
But it was not accepted and he came to know that he was removed from service and
so he challenged the order of removal dated 19th June, 2001.
3. While the appellant was in custody, he was suspended on 24th Oct., forenoon
for absence from duty. Inspite of notice, the appellant having not joined, the
matter was referred to the Commissioner of Pattukottai Panchayat Union on whose
advice the appellant was removed from service on 19th June, 2001. The aforesaid
fact was brought to the notice of the Court, but learned single Judge, instead
of interfering with the order of removal having remitted the matter back to
consider the case on the basis of the judgment passed in C.A. No.448/99, the
present appeal has been preferred.
4. The main plea taken by the appellant is that the order of punishment of
removal from service has been imposed on 19th June, 2001, without giving
opportunity to the appellant.
On the other hand, according to learned counsel for the respondent, the
appellant was served with number of notices, but failed to report for duty and
so he was removed from service.
5. We have heard the learned counsel for the parties and noticed the rival
contentions and the orders on record.
6. It is not in dispute that the petitioner was removed from service for the
charge of unauthorized absence from duty. From the order of removal dated 19th
June, 2001, it will be clear that he was held absent from duty wilfully. Though
such allegation has been made, but it is not in dispute that before such removal
no charge was framed, no enquiry officer was appointed, no document was marked
as exhibit, no person was named as prosecution witness and without holding any
departmental proceeding and without holding the appellant guilty for the
charges, he was removed from service on the ground of wilful absence from duty.
Further, the appellant having implicated in a criminal case and taken into
custody, if could not attend the duty till he was acquitted in the criminal
appeal, it cannot be construed to be misconduct under the meaning ‘unauthorised
absence from duty’. Learned single Judge, while dealing with the matter, failed
to discuss the relevant case and without taking into consideration the fact that
acquittal in the criminal appeal has nothing to do with removal from service,
which was due to absence from duty, remitted the matter to the authority.
7. In view of the finding as given above, as the order of removal cannot be
sustained, we set aside the order of removal dated 19th June, 2001, reinstate
the appellant to the post from which he was removed from service.
So far as arrears of salary is concerned, the appellant being in custody upto
Feb., 2003, we allow only 50% of the salary for the said period, which otherwise
he is entitled towards subsistence allowance and if not paid. So far as the
period after the appellant was released from custody upto the date of filing of
O.A. No.1387/03, i.e., 16th April, 2003 is concerned, the appellant having not
moved before the Court during this period, he shall not be entitled for salary.
So far as the period from 17th April, 2003 upto the date of the present judgment
is concerned, as the matter remained pending with this Court and could not be
taken up, we allow 50% of the arrears for the said period.
The period of absence from duty during which he was taken into custody and not
allowed to join because of the order of removal should be counted towards duty
for all other purposes except salary for which a specific finding has already
been given. If he has not attained the age of superannuation, the appellant
should be reinstated in service immediately failing which the authorities will
be liable to pay full salary from the date of the judgment.
8. The order passed by learned single Judge is set aside and the writ appeal is
allowed with the aforesaid observations and directions. But there shall be no
order as to costs.
arul/GLN
To
1.The District Collector,
Thanjavur District,
Thanjavur.
2.The Panchayat Union Commissioner,
Pattukkottai,
Thanjavur District.