IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 29.01.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE M.VENUGOPAL W.P. NO. 37611 OF 2003 AND W.P.M.P. NO. 45653 OF 2003 R.Mahendra Babu .. Petitioner - Vs - The High Court of Judicature at Madras rep. by the Registrar General Chennai 600 104. .. Respondent Writ Petition filed for the issuance of a writ of certiorarified mandamus calling for the records on the file of the respondent in connection with the order passed in Proc. ROC No.4839/93 Estt.II dated 2.2.94 and quash the same and direct the respondent to reinstate the petitioner in service with all monetary and service benefits as stated therein. For Petitioner : Mr. R.Singaravelan For Respondent : Mr. S.Gopinathan, AGP ORDER
S.J.MUKHOPADHAYA, J.
The petitioner, who was working as Office Assistant of this Court, has preferred this writ petition against the order contained in proceeding ROC No.4839/93 Estt.II, dated 2nd Feb., 1994 with further prayer to direct the respondent, Madras High Court to reinstate him in the service with all consequential benefits, including monetary benefits.
2. It appears that the petitioner was appointed as an Office Assistant (Peon) by direct recruitment on 21st Aug., 1975. According to him, due to illness caused by renal stones (gall bladder stones) and ulcer, he was not able to attend office between 4th May, 1993 and 13th May, 1993 and again from 17th May, 1993 onwards. As he was seriously ill, he also could not apply for leave in advance though time to time he informed the office regarding illness and forwarded doctor’s certificate to regularise the leave. He was examined by doctors and Medical Board, who recommended complete rest for about a month, but even thereafter he failed to join duty. The stand taken by petitioner is that due to illness and pain he was not even able to walk and so he had to apply for extension of leave from time to time and informed that he will join duty on 2nd Sept., 1993, but even thereafter he could not join due to such illness. In the meantime, he was charge-sheeted for unauthorised absence from duty and proceeded in the departmental enquiry. The enquiry officer having found the charges proved, held him guilty for which he has been inflicted with major punishment of dismissal from service by proceeding ROC No.4839/93 Estt.II dated 2nd Feb., 1994.
The petitioner has taken further plea that he preferred appeal in the year 1995, but no action has been taken by the authorities.
3. Learned counsel appearing for the petitioner referred to the charge sheet, enquiry report and the order of punishment. It was submitted that the enquiry officer submitted the report without taking into consideration the relevant documents, including the medical certificates in support of the claim as already filed before the authorities by the petitioner. According to him, the disciplinary authority framed charges, held enquiry and, therefore, all the records were available with him, which should have been taken into consideration, particularly when the petitioner, in his reply, has stated that he was unwell, suffering from pain due to gall bladder stones and ulcer supported by medical certificate and report submitted by the Medical Board. It was also suggested that the punishment of dismissal from service is disproportionate to the charges. The punishment order has been issued on mere presumption that the petitioner was working in some other organisation.
4. Though the writ petition was preferred in 2003, but no counter affidavit has been filed by the respondent Madras High Court. The averment as made in the writ petition has not been disputed. In absence of such counter affidavit, we had to call for the original records, which were produced. We have also gone through the said file and noticed the relevant documents as available in the file relating to departmental proceeding which is numbered as D.Dis. No.3103/94.
5. Learned counsel for the respondent referred to the file and other documents as enclosed by petitioner with his typed set and submitted that the enquiry was conducted in accordance with law. Charge was framed for unauthorised absence from service, the petitioner was given an opportunity to appear in the departmental enquiry, he appeared, whereinafter, taking into consideration the evidence on record, the enquiry officer submitted the report, copy of which was forwarded to the petitioner and, thereafter, the Registrar (now known as Registrar General) passed the impugned order of dismissal dated 2nd Feb., 1994. It was further submitted that there is a delay in preferring the writ petition, the order of termination having been issued in 1994.
6. We have heard the counsel for the parties, noticed their contentions and perused the records as available from which the following facts emerge :-
Before the enquiry officer, one P.R.Kanagasubramanian, Assistant of this Court was only examined on behalf of the High Court. He has stated that the petitioner applied for leave on medical grounds for 10 days from 17th May, 1993 to 26th May, 1993 by letter dated 19th May, 1993 received by the office on 25th May, 1993. He has applied for extension of the said leave for 6 days from 27th May, 1993 to 1st June, 1993, by his letter dated 27th May, 1993, received by the office on 1st June, 1993. The medical certificate was not enclosed with the two letters. In his letter dated 3rd June, 1993, the petitioner again applied for extension of leave for 9 days from 2nd June, 1993 to 10th June, 1993 and had enclosed medical certificate for the period from 17th May, 1993 to 10th June, 1993. The said application was received on 9th June, 1993. He again applied for extension of leave for 15 days by letter dated 15th June, 1993 for the period from 11th June, 1993 to 25th June, 1993 received by the office on 18th June, 1993. It followed by letter dated 24th June, 1993 received by office on 28th June, 1993, whereby he requested that he may be granted leave till 30th June, 1993. He assured that he will join duty on 2nd July, 1993 without fail. Along with the said application, though it was mentioned that medical certificate for the period 17th May, 1993 to 30th June, 1993 was enclosed, but no such medical certificate was received. By his letter dated 30th June, 1993, received by the office on 7th July, 1993, he applied for extension of leave for 20 days from 26th June, 1993 to 15th July, 1993. He had enclosed with the said letter a medical certificate for the period from 11th June, 1993 to 15th July 1993. For the period from 17th May, 1993 to 15th July, 1993, he was referred to the Medical Board, Government Head Quarters Hospital, Kancheepuram, by High Court’s letter dated 12th July, 1993. In response to the reference, the Medical Board had recommended medical leave upto 2nd Aug., 1993. Earlier, in his letter dated 14th July, 1993, received by office on 22nd July, 1993, he had applied for extension of leave for 3 days for the period 16th July, 1993 to 18th July, 1993, enclosing the copy of the medical certificate. He was to join duty on 3rd Aug., 1993, but he did not join duty and applied for leave for 30 days from 3rd Aug., 1993 to 1st Sept., 1993 by letter dated 3rd Aug., 1993, received by the office on 6th Aug., 1993. In the said letter, he stated that he could not join duty because of ill-health and wanted to avail leave from 3rd Aug., 1993 to 1st Sept., 1993. He assured that he will join duty on 2nd Sept., 1993 without fail, but failed to join on 2nd Sept., 1993. On 2nd Sept., 1993, he was placed under suspension. By a letter dated 2nd Sept., 1993, he requested to extend the leave from 2nd Sept., 1993 to 10th Sept., 1993, which was received in the office on 6th Sept., 1993.
The aforesaid facts is noticed on the basis of the statement of the prosecution witness, P.R.Kanagasubramanian, so as to accept such statement as basic fact not disputed by parties.
7. From the charge sheet it will be evident that the petitioner was charge-sheeted for the period from 4th May, 1993 to 13th May, 1993 and for the subsequent period, 3rd Aug., 1993, upto the date of issuance of the charge sheet, i.e., 9th Sept., 1993. For proper appreciation, the charge as was levelled against the petitioner is extracted hereunder:-
“The following charge is framed against him :
“That you, Thiru R.Mahendrababu (under suspension), Office Asst., High Court, Madras, have absented yourself unauthorisedly from 4.5.93 to 13.5.93. You have not submitted any leave application for the period from 4.5.93 to 13.5.93. But you have applied for leave only from 17.5.93 to 18.7.93. Even though the period of leave recommended by the Medical Board expired on 2.8.93, you have not joined duty on 3.8.93. Instead of joining duty on 3.8.93, you have again applied for extension of leave from 3.8.93 to 1.9.93 and assured that you will join duty on 2.9.93. You have neither joined duty on 2.9.93 nor submitted any leave application. This irresponsible attitude of your amounts to carelessness, negligence and dereliction of duty”.”
From the charge sheet it will be evident that the charge related to the petitioner’s irresponsible attitude, which amounts to carelessness, negligence and dereliction of duty. The question arises for consideration, in the present case, is whether the charge as alleged and the facts as admitted and pleaded by the petitioner before the disciplinary authority, enquiry officer as also in the present writ petition constitute any such charge of carelessness, negligence and dereliction of duty.
8. We are aware of our jurisdiction that under Article 226, this court cannot sit in appeal over the findings of the enquiry officer nor could substitute its finding like the appellate authority. The High court can interfere with any inquiry report or order of punishment, if it is found to be without jurisdiction or not based on evidence or perverse or that no charge is made out to punish the employee.
9. It is not in dispute that under the High Court Rules, the Deputy Registrar is the appointing authority. The said Deputy Registrar (Administration) framed charge, communicated vide order dated 9th Sept., 1993. The enquiry was also conducted by the Deputy Registrar (Administration), as evident from order dated 2nd Feb., 1994. The Deputy Registrar being the appointing authority, he being the authority, who initiated proceeding and being the enquiry officer, it will be presumed that he has knowledge of all the records, which were earlier sent to him by the petitioner, including the leave applications. It has been accepted by the prosecution witness, P.R.Kanagasubramanian that the petitioner applied for leave from time to time starting from 17th May, 1993. The only allegation is that though many times he submitted the medical report, but with all leave applications he has not submitted medical report and that he had not applied for leave from 4th May, 1993 to 13th May, 1993, though remained absent. In the records of the High Court, the leave applications are available, including leave applications dated 19th May, 1993, 27th May, 1993, 3rd June, 1993, 15th June, 1993, 24th June, 1993, 30th June, 1993, 14th July, 1993, 3rd Aug., 1993, 3rd Sept., 1993, etc. It has been accepted and also available on the record the hospital ticket, which has been issued by the Health Officer of Government Hospital, Madras (Page No.9 in the office file). Therein, the name of the patient, Mahendra Babu (petitioner) with age (36 years) and disease “Renal Calculus” has been shown and the date has been shown to be 3rd May, 1993. Therein it is mentioned that there is a pain in abdomen since afternoon 1.30 p.m., pain over right IF and lumbar region posterly and tenderness of right IF has been shown apart from Renal Angle Tenderment and the case seems to have been referred to DAS for opinion and further management. Though aforesaid hospital ticket forwarded by the petitioner is on the record along with the registered letter No.194, addressed to the Registrar, High Court, madras, but while framing charge it is mentioned that he absented for the period 4th May, 1993 to 13th may, 1993 without submitting any leave application. Not only such charge was framed, but also the only witness, P.R.Kanagasubramanian, who appeared, also made similar statement like a parrot, which appears to have been made without looking into the records.
10. The reason for going into the depth of the matter is because the petitioner, all the time, has taken plea that he was suffering from severe renal bladder (gall bladder) pain and ulcer pain and not in a position to move, advised by medical board to take rest and had submitted medical certificate, but such stand taken by the petitioner has been simply ignored, may be because of his rank, i.e., Office Assistant (Peon).
11. It is accepted by the prosecution witness that for the period from 17th May, 1993 to 26th May, 1993, he applied for leave, which was on the record of the Court. For the subsequent period also he applied for leave, but the only allegation is that with regard to certain period medical certificate was not enclosed. From the medical certificate, as on record (at Page No.4 of the official file), it will be evident that he was granted certificate of suffering from acute gastritis during the period from 17th May, 1993 to 10th June, 1993, as authorised by Civil Assistant Surgeon, AMA, Tamil Nadu Medical Service. Similar certificate is on record (at page No.11 of the official file), issued by the registered medical practitioner-cum-Civil Assistant Surgeon, AMA, Tamil Nadu Medical Service, Kancheepuram, for the period 11th June, 1993 to 15th July, 1993. Dr.E.S.Thylambal, Joint Director of Health Services, Chengalpet MGR District at Kancheepuram, by her letter dated 21st July, 1993, forwarded the copy of the report of the medical board, which recommended medical leave for 15 days from 19th July, 1993, which is on the record at page No.16 of the official file, but the same has been overlooked.
From the record it further appears that for the subsequent period also the petitioner was examined by Dr.c.Venkatesan, registered medical practitioner, Civil Assistant Surgeon, Tamil Nadu Medical Service, who recommended rest for the period from 30 days from 3rd Aug., 1993 to 1st Sept., 1993, as it was absolutely necessary for restoration of his ill-health. Though the said certificate seems to have been received by registered letter No.38AD dated 4th Aug., 1993, cover of which is available between page Nos.35 and 36 of the file, but on 10th Aug., 1993, a memorandum was prepared whereby he was asked to reply as to why disciplinary action be not taken against him for his unauthorised absence from duty from 3rd Aug., 1993.
12. Admittedly, the petitioner was placed under suspension on 2nd Sept., 1993 and he took part in the enquiry proceeding on 27/28th Oct., 1993. Thus, it will be evident that the charge for absence from duty was only for the period from 3rd Aug., 1993 to 9th Sept., 1993 (about six weeks), i.e., the period as referred in the memorandum dated 10th Aug., 1993 and the date of charge sheet, i.e., 9th Sept., 1993. The disciplinary authority, who framed the charge, is the authority, who held the enquiry but the authorities failed to notice that the charge only related to the period from 3rd Aug., 1993, onwards, in regard to which a medical certificate had already been forwarded by the petitioner vide registered letter No/38AD dated 4th Aug., 1993, which is already on the record of the office.
13. From the aforesaid fact it will be evident that the enquiry officer, who is also the authority who framed the charge and is the appointing authority, submitted report without taking into consideration the relevant record and without citing those evidence held the petitioner guilty for the charges on wrong presumption that he had not produced any medical certificate for such period. This not only shows the indifferent attitude of the officer, who framed charges and held the enquiry, but also shows non-application of mind on the part of the authorities and that the enquiry report is not based on evidence.
The petitioner, all the time, though highlighted that he had submitted the medical report and it will be presumed that nobody will keep a copy of the same in anticipation that departmental proceeding may be initiated in future, such certificate being already on record of respondent, we are of the view that the petitioner was not supposed to prove innocence, but it was for the respondent to prove the charge, but they failed.
14. One of the ground taken is that of delay in filing the writ petition. The petitioner has pleaded and enclosed with the typed set a copy of appeal preferred before the Hon’ble Chief Justice of this High Court dated 5th Sept., 1995 and the respondent has not disputed the same by filing any counter affidavit. Though learned counsel for the respondent, at the time of hearing, submitted that actually no such appeal was received, but from the record we find that even such statement is incorrect as it appears that an appeal is on the record on which a note was given sometime in June, 1996, to place the matter before the Acting Chief Justice. In the said appeal a question was raised as to under which provision the said petition could be entertained, but it appears that the Registry of the High Court, thereafter, never placed the matter before the Chief Justice. In such background, as no right of any individual will be affected, we are not inclined to reject the writ petition on the ground of delay.
15. Another fact has come to our notice, from the impugned order dated 2nd Feb., 1994. Though the disciplinary authority is the Deputy Registrar (Administration) under the High Court Rules, but punishment order of dismissal dated 2nd Feb., 1994, was passed by the Registrar (now known as Registrar General) of this Court, an authority higher than the appointing authority. Learned counsel appearing on behalf of the respondent referred to Rule 17 to show that even higher authority is empowered to pass order of punishment; if tht be so, in that case, the appeal should have been placed before the Hon’ble the Chief Justice of the High Court, under Rule 18.
16. It will be also evident from the impugned order dated 2nd Feb., 1994, that the said order of punishment has been passed on extraneous consideration. Though the charge was that the petitioner failed to join duty on 2nd Sept., 1993, and, thereby, the allegation of unauthorised absence from duty for about 38 days was levelled, but while order of punishment was passed, the Registrar observed as follows :-
“It appears that he is gainfully employed elsewhere”
Aforesaid extraneous consideration, we have noticed, as it appears that such ground was taken to impose major punishment of dismissal from service, or otherwise for unauthorised absence from duty for about 38 days, generally punishment of dismissal from service is not inflicted, being disproportionate to the gravity of the charges. However, as we have already pointed that the petitioner has properly explained his absence and has submitted medical report, in support of his claim and the respondent failed to notice such evidence, we do not propose to remit the matter to the respondent.
17. For the reasons aforesaid, while we declare the enquiry report as perverse, not based on evidence and based on extraneous consideration, we set aside the order of punishment dated 2nd Feb., 1994. In the result, the writ petition is allowed and the petitioner stands reinstated. However, as the petitioner moved before this Court after much delay and was absent for duty for certain period, we do not allow any arrears of salary for the period from 2nd Feb., 1994 till date of reinstatement, though the intervening period will be counted as duty for all other purposes, including fixation of pay, future promotion and post retirement benefits. The respondent is directed to accept his joining on an early date, preferably within a week from the date of receipt/production of a copy of this order. The writ petition is allowed. But there shall be no order as to costs.
GLN
To
The Registrar General
High Court
Madras 600 104.