IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 31-01-2011 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.28024 of 2006 M.Purushothaman (died) 2. P.Kangavali 3. M.P.Senthil Kumar 4. P.Jayasuriya (P2 to P4 substituted as petitioners in the place of deceased petitioner order, dated 13.12.2010, PJMJ, in M.P.No.1 of 2010.) .. Petitioner. Versus 1.The Secretary, Department of Fisheries and Animal Husbandry, Government of Tamilnadu, Fort St.George, Chennai-600 009. 2.The Special Commissioner, Department of Fisheries, Teynampet, Chennai-600 006. 3.The Joint Director, Fisheries, Nagapattinam Region, Nagapattinam-611 001. .. Respondents. Prayer: Petition filed seeking for a Writ of Certiorarified Mandamus, to call for the records connected with the issuance of the impugned orders G.O.Ms.No.23, dated 1.3.2005 of the first respondent treating the period from 7.10.1991 to 4.10.1995 as extraordinary medical leave without certificate, without pay, together with the order Na.Ka.No.27366/M3/2005, dated 27.5.2006 of the 1st and 2nd respondents as illegal, void and quash the same and consequently, direct the respondents to pay salary and other admissible allowances for the period from 7.10.1991 to 4.10.1995, with interest at the rate of 18% per annum till the date of payment. For Petitioner : Mr.V.Parthiban for M/s.Paul & Paul For Respondents : Mr.C.K.Vishnu Priya (AGP) O R D E R
This writ petition had been filed by one M.Purushothaman, who had retired from service, as an office assistant, having worked under the third respondent. He had retired from service, on 31.10.2002, on attaining the age of superannuation. Since, M.Purushothaman had died, during the pendency of the writ petition before this Court, his legal heirs had been brought on record in his place, as the petitioners in the writ petition, by an order passed by this Court, on 13.12.2010, in M.P.No.1 of 2010 in W.P.No.28024 of 2006.
2. In the affidavit filed in support of the writ petition, it has been stated that M.Purushothaman, while working as an office assistant at Nagapattinam, had been transferred to Mallipattinam, by an order, dated 9.9.1991, based on certain false allegations. As, he was a heart patient and as he was undergoing treatment at Nagapattinam, he did not comply with the direction issued in the order of transfer.
3. It had also been stated that M.Purushothaman had challenged the transfer order, before the Tamil Nadu Administrative Tribunal, in O.A.No.3416 of 1991. The said application had been disposed of by the Tribunal, on 3.10.1991, with a direction to the respondent to consider the request of the petitioner for posting him, either at Nagapattinam, or at any other nearby place. Pursuant to the direction issued by the Tribunal, a fresh order of transfer had been issued, on 18.10.1991, transferring him to Pudukottai. Since, the distance between Nagapattinam and Pudukottai was more than the distance between Nagapattinam and Mallipattinam, he had filed a contempt application before the Tribunal, in C.A.No.197 of 1993.
4. The contempt application had been closed, on 6.8.1993, based on the representation of the respondent Department that the original order had been complied with. While so, the respondent Department had filed a review application, in R.A.No.127 of 1991, in O.A.No.3416 of 1991, seeking a review of the earlier order of the Tribunal, dated 3.10.1991. The review application had been dismissed by the Tribunal, on 4.12.1991.
5. It had also been stated that the petitioner had made repeated representations to the respondent department to give him a posting at Nagapattinam or in any other nearby place. Instead of accepting the request made by the petitioner, a charge sheet, dated 7.3.1994, had been issued, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955.
6. The petitioner was constrained to file another original application before the Tamil Nadu Administrative Tribunal, in O.A.No.1335 of 1995, seeking a direction to the respondent Department to consider and pass appropriate orders on the representation of the petitioner, dated 15.12.1994. The Tribunal had directed the respondent department to pass final orders on the representation, within four weeks from the date of receipt of a copy of the order, dated 21.3.1995. Thereafter, an order, dated 28.9.1995, had been passed cancelling the earlier order of transfer to Pudukottai and posting the petitioner, as an office assistant, at Nagapattinam. Based on the said order, the petitioner had joined duty, on 4.10.1995. Thereafter, he had made several representations for the grant of increments and other allowances and for the regularisation of his service from 28.9.1991 to 4.10.1995.
7. It had also been stated that an enquiry had been conducted on the charges levelled against the petitioner in the charge sheet, dated 7.3.1994. The enquiry report had been submitted, on 5.6.2002, exonerating the petitioner from all the charges. Thereafter, the petitioner had made a representation to treat the period of his absence as `compulsory wait’ and for the grant of increments and other benefits, from 7.10.1991 to 4.10.1995. While so, the petitioner had retired from service on 31.10.2002.
8. The first respondent had issued an order, on 1.3.2005, regularising the period in question, by relaxing the relevant provisions of the fundamental rules. However, while regularising the said period, the first respondent had treated the period as `extraordinary leave’, without pay. In such circumstances, the petitioner had submitted a detailed representation to the first respondent, on 4.7.2005, requesting that his absence from duty should be treated as `compulsory wait’ and all the benefits due to him for the period, from 7.10.1991 to 4.10.1995, ought to be granted.
9. In the counter affidavit filed on behalf of the respondents, it had been stated that an order had been passed transferring the petitioner from Nagapattinam to Mallipattinam area, on 9.9.1991, on administrative grounds. The petitioner had not joined in duty in the new station. Instead, he had challenged the transfer order before the Tamil Nadu Administrative Tribunal, in O.A.No.3416 of 1991. The said application had been disposed of by the Tribunal, on 3.10.1991, with the direction to the respondent department to consider the request of the petitioner for posting him, either at Nagapattinam or at any other nearby place. Considering the health condition of the petitioner he was posted at Pudukottai area, during the month of October, 1991, where sufficient medical facilities were available and since, no vacancy in the post of office assistant was available, in and around Nagapattinam area. The said transfer order had not been issued with any mala fide intention, as alleged by the petitioner.
10. The contempt application filed by the petitioner before the Tamil Nadu Administrative Tribunal, in C.A.No.197 of 1993, had been rejected by an order of the Tribunal, dated 26.8.1993. Thus, it was clear that the order of transfer passed by the respondent department, transferring the petitioner to Pudukottai area, was in consonance with the earlier direction issued by the Tamil Nadu Administrative Tribunal. Thereafter, the petitioner had been absent from duty, unauthorisedly, from 7.10.1991. Since, the petitioner had not joined in duty, as per the order of transfer, issued to him in the month of October, 1991, the question of treating the period from 7.10.1991, as `compulsory wait’ does not arise. Thereafter, based on the direction issued by the Tamil Nadu Administrative Tribunal, on 21.3.1995, the earlier order of transfer issued to the petitioner had been revised and he had been posted at Nagapattinam. The petitioner had joined in duty at Nagapattinam, on 4.10.1995. The period, from 7.10.1991 to 4.10.1995, had been treated as earned leave, without pay and allowances, by an order of the Government, in G.O.Ms.No.23, Animal Husbandry and Fisheries (FS-II) Department, dated 1.3.2005. The Government had reiterated its earlier stand, by rejecting the appeal filed by the petitioner.
11. In view of the averments made on behalf of the petitioner, as well as the respondents and in view of the submissions made by the learned counsels appearing on their behalf and on a perusal of the records available, it is seen that the petitioner had not joined in duty on his transfer from Nagapattinam to Pudukottai area, pursuant to the directions issued by the Tamil Nadu Administrative Tribunal, dated 3.10.1991, in O.A.No.3416 of 1991. It is also noted that the contempt application filed by the petitioner, in C.A.No.197 of 1993, had been rejected, by the Tribunal, by its order, dated 26.8.1993.
12. It is also noted that the petitioner had been transferred to Pudukottai area, as there was no vacancy at Nagapattinam, at the relevant point of time and also for the reason that Pudukottai had sufficient medical facilities. It is also seen that the petitioner had not challenged the order of transfer passed by the respondent department transferring the petitioner from Nagapattinam to Pudukottai. However, based on the order passed by the Tamil Administrative Tribunal, dated 21.3.1995, directing the second respondent therein to consider and pass orders on the representation of the petitioner, dated 15.12.1994, the earlier order of transfer, transferring the petitioner to Pudukottai area had been revised and the petitioner had been posted at Nagapattinam. The petitioner had joined duty at Nagapattinam, on 4.10.1995. It is also clear that the petitioner had not joined in duty at Pudukottai, based on the earlier order of transfer issued to him, during the month of October, 1991. No proper reasons have been shown by thepetitioner for his absence from duty, from 7.10.1991 to 4.10.1995.
13. In such circumstances, it would not be open to the petitioner to claim the payment of salary and other allowances, for the period from 7.10.1991 to 4.10.1995, when he had not been in duty. . Therefore, the impugned orders passed by the respondents treating the period of his absence, as `earned leave’, instead of treating it as `compulsory wait’, as requested by the petitioner, cannot be held to be arbitrary or illegal. As such, the writ petition is devoid of merits. Hence, it is dismissed. No costs.
Index:Yes/No 31-01-2011
Internet:Yes/No
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M.JAICHANDREN,J.
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To
1.The Secretary,
Department of Fisheries and
Animal Husbandry,
Government of Tamilnadu,
Fort St.George,
Chennai-600 009.
2.The Special Commissioner,
Department of Fisheries,
Teynampet,
Chennai-600 006.
3.The Joint Director,
Fisheries, Nagapattinam Region,
Nagapattinam-611 001.
Pre-Delivery Order in
Writ Petition No.28024 of 2006
31-01-2011