IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.12.2006
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
Writ Petition No.44427 OF 2002
S.Ramalingham .. Petitioner
vs.
1. The Managing Director,
Tamil Nadu State Transport
Corporation Ltd.,
(Villupuram Division III),
Kancheepuram District
2. The General Manager,
Tamil Nadu State Transport
Corporation,
(Villupuram Division III),
Kancheepuram District. .. Respondents
Writ Petition filed under Article 226 of the
Constitution of India praying to issue a writ of
certiorarified mandamus as stated therein.
For petitioner : Mr.P.I.Thirumoorthy
For respondents : Mr.V.R.Kamalanathan
for R1 and R2
O R D E R
The writ petition has been filed for the issuance of a
writ of certiorarified mandamus to call for the records
pertaining to the order of the second respondent in
Ku.No.727/6807/cha11/TPTC/97, dated 16.11.1998 and the
proceedings of the first respondent in Letter
No.727/6807/Cha11/TPTC/97, dated 23.4.2002 and quash the
same and consequently to direct the second respondent to
reinstate the petitioner as Chief Cook with due seniority
and all attendant terminal and service benefits.
The brief facts of the case, as stated by the
petitioner, are as follows:
2. The petitioner was appointed as an Assistant Cook in
the respondent Corporation, on 17.6.1989. Thereafter, he was
promoted as the Chief Cook and posted at Vandavasi Bus Depot
Canteen. While so, on 6.11.1997, charges were framed against
the petitioner for absence from work for the periods from
5.10.1997 to 31.10.1997 and from 21.10.1997 to 31.10.1997,
without prior permission. Another charge memo was issued, on
20.1.1998, for absence from work for the periods from
4.12.1997 to 12.12.1997 and from 16.12.1997 to 24.12.1997.
The petitioner had replied to the charges, explaining the
reasons for the unauthorised absence. An enquiry was
conducted and the report of the enquiry was submitted, on
10.3.1998. Thereafter, a show cause notice was issued, on
17.3.1998. The petitioner had replied to the show cause
notice, on 21.3.1998. Accepting the reply, the petitioner
was directed to join duty, on 24.3.1998. Thereafter, he had
joined in service and was discharging his duties sincerely
and without blemish. The petitioner was served with an
order, dated 16.11.1998, by the second respondent, removing
him from service. Therefore, the petitioner had preferred an
appeal, which was rejected by the first respondent, on
23.4.2002. Hence, the petitioner had preferred the present
writ petition challenging the order, dated 16.11.1998,
passed by the second respondent removing him from service
and the proceedings of the first respondent, dated
23.4.2002, confirming the order of removal.
3. The main contention putforth by the learned counsel
appearing on behalf of the petitioner is that the petitioner
was not given sufficient opportunity to defend himself
during the enquiry. Further, he was not given the report of
the Branch Manager, dated 7.11.1998, which was one of the
main documents relied on by the second respondent, while
passing the impugned order, dated 16.11.1998. It has also
been pointed out that the second respondent had taken into
consideration the earlier incidents, when the petitioner is
alleged to have absented himself from duty. However, the
petitioner had not been given an opportunity to explain his
position with regard to those incidents. It was further
contended that the explanation submitted by the petitioner
was not considered by the second respondent, while passing
the impugned order of dismissal, dated 16.11.1998. It was
also contended by the learned counsel appearing on behalf of
the petitioner that the punishment of dismissal from service
for the charge of unauthorised absence is highly
disproportionate in nature.
4. The learned counsel appearing on behalf of the
respondent Corporation has filed a counter-affidavit stating
that according to clause 24(6) of the standing orders of the
Corporation, an employee of the Corporation cannot absent
himself from the duty for more than 8 days and any such
unauthorised absence would amount to serious misconduct on
the part of the employee. The petitioner was unauthorisedly
absent from 5.10.1997 to 13.10.1997 and from 21.10.1997
without prior intimation or permission from the authorities
concerned. A report, dated 31.10.1997, was submitted by the
Superintendent of the concerned Depot, where the petitioner
was employed.
5. Based on the said report, a disciplinary action was
initiated against the petitioner by issuing a charge memo,
dated 6.11.1997. The petitioner had submitted a
representation, dated 4.11.1997, requesting the Management
of the respondent Corporation to employee him in service.
Considering the representation made by the petitioner, he
was permitted to join duty by an order, dated 6.11.1997,
without prejudice to the disciplinary action already
initiated against him. The petitioner had submitted his
explanation to the charge memo and since his explanation was
not satisfactory, an enquiry was conducted against the
petitioner. The Enquiry Officer by his report, dated
10.3.1998, had found that the charges against the delinquent
employee were proved. While so, the petitioner had again
remained absent, from 4.12.1997, unauthorisedly. Therefore,
another charge memo, dated 20.1.1998, was issued to him. The
petitioner had not offered his explanation for the said
charge. However, an enquiry was conducted and the enquiry
officer by his findings, dated 10.3.1998, held that the
charges were proved. Based on the findings of the enquiry
officer in both the cases, a second show cause notice, dated
17.3.1998, was issued to the delinquent employee calling for
an explanation as to why he should not be removed from
service for his habitual absence from the duty. The
petitioner had submitted his explanation, dated 21.3.1998.
6. Based on the explanation and his request made to the
Management, the petitioner was permitted to join the duty by
an order, dated 24.3.1998. However, since the petitioner had
failed to correct himself and again remained absent, from
21.10.1998 to 28.10.1998 and from 2.11.1998 onwards, he was
dismissed from service by an order, dated 16.11.1998.
7. In such circumstances, it cannot be stated that the
punishment of dismissal from service is disproportionate in
nature, nor can it be stated that the impugned order passed
by the second respondent and confirmed by the first
respondent is arbitrary, illegal and contrary to the
principles of natural justice. The petitioner was given full
opportunity to defend himself during the enquiry
proceedings. Further, he was also given repeated chances to
redeem himself. However, the petitioner had failed to make
use of the opportunities given to him. Therefore, he
deserves no sympathy from this Court.
8. Heard the learned counsels appearing for the
petitioner as well as for the respondents.
9. At this stage of the hearing of the writ petition,
it was stated by the learned counsel appearing on behalf of
the petitioner that the petitioner has been suffering
without any work and he has been unable to maintain his
family. Further, the petitioner is prepared to be re-
employed in the respondent Corporation without any backwages
and he is also prepared to suffer an increment cut for two
years, without cumulative effect. Further, the petitioner
would also submit an undertaking to the authorities
concerned to the effect that he would not absent himself
unauthorisedly in future. Since there were no serious
objections from the respondents to the suggestions made by
the learned counsel appearing for the petitioner. In such
circumstances, the respondents are directed to re-employ the
petitioner in the service of the respondent Corporation,
based on his undertaking, which would be submitted by the
petitioner in writing, within a period of six weeks from the
date of receipt of a copy of this order.
10. With the above directions, the writ petition is
disposed of. No costs.
lan
To
1. The Secretary,
The Government of Tamil Nadu
Tamil Development and Culture Department,
Fort St. George, Chennai – 600 009.
2. The Director of Tamil Development,
Kuralagam, Chennai – 600 108.