IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2011 CORAM: THE HONBLE MR.JUSTICE K.CHANDRU W.P.No.44634 of 2006 (O.A.No.5125 of 2000) T.Govindan Kutty Nair ...Petitioner Vs 1.The Secretary, Health and Family Welfare Department, Fort St.George, Chennai 600 009. 2.The Secretary, Personnel and Administrative Reforms Department, Fort St.George, Chennai 600 009. 3.Director of Medical and Rural Health Services, Chennai 600 006. 4.Joint Director of Medical Services, Coimbatore District, Tiruppur. 5.District Medical officer, Coimbatore District, Tiruppur. 6.Medical Officer, Government Hospital, Cinchona, Coimbatore District. 7.The Accountant General, (P&E) Tamil Nadu, 261, Anna Salai, Chennai 600 018. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of mandamus, directing the respondents herein to compute the arrears of salary, pension and other terminal benefits payable to the petitioner in respect of his services under respondents 1 to 6 up to the date of his voluntary retirement of 23.10.75 and pay the same to the petitioner as also future pension payable to him. For Petitioner : Ms.M.Deepa For Respondents : Mr.R.Murali, G.A. For R1 to R6 Mr.Vijayshankar for R7 O R D E R
The petitioner filed O.A.No.5125 of 2000 before the Tamil Nadu Administrative Tribunal, seeking for a direction to compute his arrears of salary, pension and other terminal benefits in respect of the services rendered by him under respondents 1 to 6 up to the date of his voluntary retirement on 23.10.75 and to pay the arrears of salary as well as his future pension.
2. The original application was admitted on 28.07.2000. On notice from the Tribunal, the Joint Director of Health Services, Coimbatore at Tiurpur had filed a reply affidavit dated 23.01.2003 together with supporting documents.
3. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.44634 of 2006.
4. On 25.10.2010, another learned Judge of this Court observed that the petitioner was 85 years old and the respondents do not have his Service Register. Even assuming that his Voluntary Retirement request was not accepted, as he was not removed from service, it should be presumed that he was deemed to have been retired on reaching the age of superannuation as per FR 56(1)(a). Further, this Court directed the respondents 1 to 3 to be present with all records.
5. Subsequently, it was informed that the respondents were not willing to concede the request of the petitioner as the petitioner is not eligible for any relief as set out in the reply affidavit. Therefore, this Court heard the arguments on both sides.
6. The case of the petitioner was that he had entered into Government service on 13.10.1950 as a Male Nursing Assistant at the Police Training School Dispensary, Tiruchirapalli. Thereafter, he was transferred to several places and finally to the Government Hospital at Cinchona. He claimed that he had voluntarily retired from service on 23.10.1975. At the time of his retirement, his salary for the month of July 1974 was Rs.220/- together with D.A. The petitioner also claims that he had obtained Medical Leave sanctioned from 23.02.1973 to 18.04.1973 when he was working in Government Leprosy Subsidiary Centre, Thamarapalayam, Erode Taluk. In view of his mother’s critical condition, as she was mentally ill, she required his constant attention. The petitioner was also having indifferent health and hence, he could not join duty on the expiry of his sanctioned leave. It was at that time, he was transferred to his last place of employment as Male Nursing Assistant i.e., at the Government Hospital, Cinchona. He joined duty at Cinchona on 01.07.1974. After he joined duty, he was asked to explain his long leave taken without permission. His explanation was not kindly received by the respondents. Therefore, he was constrained to seek voluntary retirement vide his letter dated 23.07.1974. No disciplinary proceedings were initiated against him. He attended his work till 29.08.1974. Despite having served 24 years, he was not paid any terminal benefits.
7. Thereafter, the petitioner sent a representation to the Chief Minister’s Grievance Cell on 04.03.1996. The Joint Director of Medical Service asked the petitioner to appear for an enquiry. The petitioner furnished all the information available but there was no response. The 4th respondent wrote a letter dated 04.03.1997 to the District Collector, Coimbatore stating that all the records relating to the petitioner’s service were sent to the third respondent. To the shock of the petitioner on 20.08.1998, the petitioner was informed that he will not be paid any retirement benefits as his service records could not be traced. The petitioner claimed that since he had already retired from service with effect from 23.10.1975, as borne out by the 6th respondent’s letter dated 17.05.1995 and the 4th respondent’s letter dated 04.03.1996, he is entitled to be treated as having been retired from service. In the letter dated 04.03.1996, all that the 4th respondent informed was that, it was the claim of the petitioner that he had retired on 23.10.1975 and that he was not paid pensionary benefits. In view of his request, he was called for to attend the office.
8. In the reply affidavit filed by the respondents, it was claimed that the petitioner worked at the Government Hospital, Cinchona upto 28.08.1974. Thereafter, he was unauthorisedly absented himself. In the meanwhile, the Coimbatore District was bifurcated into two districts and it is only when the petitioner sent his representation dated 02.02.1995 to the Chief Minister’s grievance cell, he was asked to submit all particulars for taking further action. The Medical Officer at Cinchona had informed that the petitioner had joined at Cinchona on 01.07.1974 and worked upto 28.08.1974. His pay was also drawn only upto that date. Since no relevant records were available and not even traceable as it related prior to bifurcation, his claim could not be verified. The petitioner was asked to attend the office with all the records including voluntary retirement order, GPF Account Slip etc. But the petitioner informed that as he was 71 years old and also due to financial position, he could not come over to Tiruppur without any attendant. It was also stated that all the records in respect of his retirement had already been submitted to the District Medical Officer and Director of Medical and Rural Health Services. The petitioner did not produce the relevant records. Unless the petitioner produced all relevant records like Service Register, GPF account, retirement order, the question of his being granted any relief may not arise. All the documents which are referred to in the reply was enclosed pursuant to the direction issued by this Court dated 25.10.2010.
9. An additional counter affidavit dated 01.02.2011 was also filed by the respondents. It was claimed that in the Government Lepory Subsidiary Centre, the petitioner was irregular in his duties and he had not rejoined in his duty after the expiry of his leave. Because of his irregular service, he might have been transferred to the Government Hospital, Cinchona. Even at Cinchona, he had worked only for 50 days and remained absent. On a perusal of the duty salary drawn and remitted back from the treasury only a minimum scale of pay was claimed for the petitioner. It was also claimed while the petitioner in his representation dated 19.11.1994 had mentioned as ‘self retirement’, but no letter to that effect was produced about his voluntary retirement. In his representation dated 03.05.1996, he claims that he was compulsorily retired. In the absence of any credible evidence, the petitioner’s claim cannot be accepted.
10. In the light of the above, it should be noted that though the petitioner claims that he has been voluntarily retired from service, he has not produced any document to that effect and in such matter, no presumption can be made. Even as per the admission of the petitioner, he stared sending letters at different intervals and the letter which was sent to the Chief Minister’s grievance cell and the letter sent to the Joint Director, merely requested the petitioner to come with all the relevant records. Complaint to the higher authorities were made by the petitioner only in the year 1996, which is nearly after a period of 22 years after his alleged voluntary retirement. In the matter of voluntary retirement or retirement, the question of any presumption will not arise. However, it is not clear as to why the petitioner slept over the matter and then came to the Tribunal after 25 years of his alleged voluntary retirement and staked his claim that if it is not the case of voluntary retirement, it should be presumed as retirement on reaching the age of superannuation. This Court is not inclined to entertain such a writ petition especially when the petitioner had not moved the Court at an earlier point of time and had also not produced any credible materials to substantiate his grievance. The inability of the respondents to produce records, no presumption can be drawn in favour of the petitioner.
11. In this context, it is necessary to refer to the judgment of the Supreme Court in C.Jacob v. Director of Geology and Mining and another reported in (2008) 10 SCC 115. In that case the Supreme Court more or less dealt with a similar claim of another Government servant and in paragraphs 12,13 and 16, the Supreme Court observed as follows:-
“12. When a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for the purpose of pension. That will be a travesty of justice.
13. Where an employee unauthorisedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches the court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage indiscipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back wages.
16. The petitioner neither produced the order of termination, nor disclosed whether the termination was by way of dismissal, removal, compulsory retirement or whether it was a case of voluntary retirement or resignation or abandonment. He significantly and conveniently, produced only the first sheet of a show-cause notice dated 8-7-1982 and failed to produce the second or subsequent sheets of the said show-cause notice in spite of being called upon to produce the same. There was absolutely no material to show that the termination was not preceded by an enquiry. When a person approaches a court after two decades after termination, the burden would be on him to prove what he alleges. The learned Single Judge dealt with the matter as if he the petitioner had approached the court immediately after the termination. All this happened, because of grant of an innocuous prayer to consider a representation relating to a stale issue.”
12. In view of the above, the case of the petitioner cannot be entertained by this Court. Hence, the writ petition stands dismissed. No costs.
15.02.2011
svki
Index : Yes/No
Internet: Yes/No
To
1.The Secretary,
Health and Family Welfare Department,
Fort St.George,
Chennai 600 009.
2.The Secretary,
Personnel and Administrative Reforms Department,
Fort St.George,
Chennai 600 009.
3.Director of Medical and Rural Health Services,
Chennai 600 006.
4.Joint Director of Medical Services,
Coimbatore District,
Tiruppur.
5.District Medical officer,
Coimbatore District,
Tiruppur.
6.Medical Officer,
Government Hospital,
Cinchona,
Coimbatore District.
7.The Accountant General,
(P&E) Tamil Nadu,
261, Anna Salai,
Chennai 600 018.
K.CHANDRU,J.
Svki
W.P.No.44634 of 2006
(O.A.No.5125 of 2000)
15.02.2011