CIVIL APPEAL 34378 of 2006 on 30 May 1997

ORDER

The petitioner was appointed as Assistant Surgeon in the year 1966 and she had put in more than 30years of service. While so, on 05.05.1992, she applied for six months leave and extended the leaveperiodically by making separate applications. At that time, the petitioner was working at ESIHospital, Coimbatore. While so, by proceedings dated 14.10.1992 of the Superintendent of ESIHospital, the petitioner was informed that consequent on Dr. Mohana Ramachandran joining duty on12.10.1992, she is deemed to have been relieved of her duties from 05.05.1992. According to thepetitioner, a copy of the proceedings was marked to the Joint Director, Medical Services,Government Head Quarters Hospital, Nagercoil and therefore, she was under the impression thatshe should report duty at Nagercoil on expiry of leave. Accordingly, the petitioner reported for dutyat Nagercoil on 04.05.1993 and again went on leave from 05.05.1993. On 22.10.1994, the petitionerhas submitted a petition for voluntary retirement with effect from 05.05.1992. On 05.12.1994, thepetitioner was informed that there was no provision to retire her from service with retrospectiveeffect, hence, her request is rejected. While so on 30.03.1995, by proceedings of the secondrespondent, the petitioner was informed that the leave applied for by her has been refused due toexigency of service and she was directed to join duty at ESI Hospital, Vellore pending regularisation of leave. Pursuant to such order, the petitioner also joned duty. While so, on 25.12.1995, a chargememo was issued to the petitioner containing two charges on the last date of her service and shewas kept under suspension. While the first charge relates to securing a passport in violation of theGovernment Servants Conduct Rules, the second charge relates to unauthorised absence from05.05.1992 to 16.04.1995. The petitioner has submitted a detailed explanation denying the charges.An enquiry officer was appointed to conduct enquiry, who, has submitted his report holding that thecharge relating to unauthorised absence alone was proved. The report was communicated to thepetitioner and she submitted her further explanation, but without considering her submission, thefirst respondent passed the impugned order dated 30.05.1997 removing her from service.Challenging the same, the petitioner has filed Original Application before the Tribunal. On abolitionof the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 34378 of2006.

2. The learned senior counsel for the petitioner argued that the petitioner has applied leave on05.05.1992 for six months which was extended by her periodically. On 04.05.1993 she joined duty atNagercoil and extended the leave further. According to the learned senior counsel for the petitioner,the respondents have never rejected her leave application nor sanctioned leave. While so, on22.10.1994, the petitioner submitted a petition for voluntary retirement with effect from 05.05.1992,but the same was rejected by an order dated 05.12.1994. The learned senior counsel for thepetitioner contended that the leave letters submitted by the petitioner was rejected only on30.03.1995 and she was directed to join duty at Vellore. Immediately, in obedience to the order, thepetitioner joined duty at Vellore. Thereafter, the petitioner worked continuously till her retirementon 30.07.1996. The grievance of the petitioner was that on the date of her superannuation she wasplaced under suspension and was not allowed to retire. In the impugned order, it was specificallymentioned that charges relating to unauthorised absence from duty from 05.05.1992 was pendingagainst her and therefore she was placed under suspension. According to the learned senior counselfor the petitioner, when the petitioner reported for duty on 30.03.1995, the suspension order wasnot passed, but after lapse of one year and four months, that too on the date of her retirement, shewas kept under suspension which is per se illegal and arbitrary.

3. The learned senior counsel for the petitioner also brought to the notice of this Court that inrespect of three identical persons who were also working as Doctors along with the petitioner, whenthey have availed leave beyond a period of three years without leave sanctioned or without evenfiling leave application, the respondents took a lenient view and imposed punishment of stoppage ofincrement for a period of two years with cumulative effect in the case of Dr. Mariappan by virtue ofG.O. Ms. No.281 dated 02.03.1995, who unauthorisedly absented for more than two years and 11months. Taking into consideration the services rendered by him for nearly 18 years, such apunishment was imposed. In this case, the petitioner has submitted leave application, but therespondents has chosen to pass the order of removal from service.

4. Similarly, in the case of Dr. D. Lizy Rajasekar, the first respondent issued G.O. Ms. No.609 dated10.05.1999 whereby her request for leave was rejected, but the punishment of stoppage ofincrement for two years with cumulative effect was imposed as per 18 (3) of Fundamental Rules.Finally, in the case of Dr. B. Selvaraj, the first respondent issued G.O. D No. 686 dated 31.05.1999and he was also imposed with punishment and the same was subsequently modified with stoppage ofincrement for three years with cumulative effect. In the case of Dr. Selvaraj, he was unauthorisedlyabsented himself for a period of five years and six months. Therefore, the learned senior counsel forthe petitioner would contend that when similarly placed persons, during the relevant time, havebeen given a lesser punishment, even though the petitioner has submitted leave application, thesame was not considered and she was imposed with punishment of removal from service, which isarbitrary and illegal.

5. The learned Government Advocate appearing for the respondents, relying on the reply affidavit ofthe respondents as well as the original file, submitted that there was no reference at all to theearlier leave applications submitted by the petitioner and the only leave application submitted by herwas rejected by the respondents on 05.02.1995 and she was directed to join duty at Vellore region.The petitoner, on her own volition went to Nagercoil and reported to duty, but on the same day, sheleft without furnishing her address or address to which communications can be sent to her. Thelearned Government Advocate, relying on the files, submitted that the petitioner reported for dutybefore the concerned authorities at Nagercoil on 9.45 am. Even in the application for joining duty atNagercoil, though no order was specifically passed directing her to join duty at Nagercoil, thepetitioner did not give the forwarding address in the case of leave. Immediately, the next day, thepetitioner went on leave and this was done to circumvent the long absence and break the barrier.

6. I have considered the submission of both sides. The learned Government Advocate is not in aposition to submit as to why no action was taken against the petitioner during the period when shewas on leave for a long time. In fact, the petitioner had accepted the order passed by therespondents and joined duty at Vellore immediately and thereafter, she was in continuous service tillher superannuation. Even during the period of absence of the petitioner, admittedly, no disciplinaryproceedings were initiated against her and this is the biggest lacuna which the respondents havecommitted. Moreover, as per the decision of the Honourable Supreme Court, an employee shouldnot be kept under suspension on the last date of his retirement and such a practice was depricatedby the Honourable Supreme Court. In this case, even though the respondents contend that thepetitioner was absent for a long time from 05.05.1992 to 14.06.1995, no action was taken by them.Even, when the petitioner joined duty at Vellore as directed by the respondents by proceedingsdated 30.03.1995, no action was taken against her, but only on the last date of her service namely on30.07.1996, she was kept under suspension, which is unreasonable.

7. In the impugned order of punishment, no specific reason has been given excepting to state thatthe petitioner was continuously absent from duty. This is not a case where the petitionerunauthorisedly absented from duty. The petitioner has duly submitted leave application, but therespondents did not reject or accept the leave applications. As stated above, only on 30.03.1995, itwas stated that the leave applications submitted by the petitioner was rejected due to exigency ofservice.

8. It is seen from the original files that the address which is shown in the service register of thepetitioner was the corect address and the respondents cannot plead that the petitioner did notfurnish address for communication in the leave applications. Moreover, subsequent communicationssent by the respondents have been received by the petitioner at the address given in the serviceregister. Even otherwise, in the impugned order of punishment, no valid reasons was assigned toimpose the punishment of removal from service.

9. It is also to be mentioned that the petitioner was a Doctor by profession and she was appointed totake care of the essential services in the hospital, but the petitioner absented herself from duty forthree years. The respondents are also equally at fault for not taking any action in time. Moreover, inthe case of similarly placed persons, who were also charged for unauthorised absence for periodsranging from 3 years to 5 years, the respondents have taken a leinent view and imposed lesserpunishment, but the petitioner alone was removed from service, which is arbitrary anddisciminatory.

10. The learned senior counsel for the petitioner submitted that in any event, the punishmentimposed on the petitoiner is severe and it requires to be modified. It is well settled that when thepunishment imposed by the authorities are shockingly disproportionate to the charges, the Court can interfere. In this context, it is relevant to look into the decision of the Honourable SupremeCourt reported in (Jagdish Singh v. Punjab Engg. College) (2009) 7 SCC 301 wherein the HonourableSupreme Court held in Para Nos. 8 and 9 10 as under:-

8. The courts and the tribunals can interfere with the decision of the disciplinary authority onlywhen they are satisfied that the punishment imposed by the disciplinary authority is shockinglydisproportionate to the gravity of the charges alleged and proved against a delinquent employee andnot otherwise. Reference can be made to the decision of this Court in V. Ramana v. A.P. SRTCwherein it is stated: (SCC p.348, paras 11-12)

11. The common thread running through in all these decisions is that the court should not interferewith the administrator’s decision unless it was illogical or suffers from procedural impropriety orwas shocking to the conscience of the court, in the sense that it was in defiance of logic or moralstandards. In view of what has been stated in Wednesbury case the court would not go into thecorrectness of the choice made by the administrator open to him and the court should not substituteits decision for that of the administrator. The scope of judicial review is limited to the deficiency indecision-making process and not the decision.

12. To put it differently unless the punishment imposed by the disciplinary authority or the appellateauthority shocks the conscience of the court/tribunal, there is no scope for interference. Further toshorten litigations it may, in exceptional and rare cases, impose appropriate punishment byrecording cogent reasons in support thereof. In a normal course if the punishment imposed isshockingly disproportionate it would be appropriate to direct the disciplinary authority or theappellate authority to reconsider the penalty imposed.

9. The other principle that requires to be kept in view is the observation made by this Court inKerala Solvent Extractions Ltd. v. A. Unnikrishnan wherein it is stated: (SCC p. 621, para 10) 10. — In recent times, there is an increasing evidence of this, perhaps well meant but whollyunsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process.The reliefs granted by the courts must be seen to be logical and tenable within the framework of thelaw and should not incur and justify the criticism that the jurisdiction of the courts tends todegenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintainthe integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logicallyfrom the legal findings and the judicial results must be seen to be principled and supportable onthose findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of thelegitimacy of the process will eventually lead to mutually irreconcilable situations and denude thejudicial process of its dignity, authority, predictability and respectability.

11. In this case, taking into consideration that the petitioner had put in more than 30 years ofservice and she was kept under suspension on the last date of her service and the punishmentimposed on the petitioner is definitely shocking the conscience of this Court, I am inclined to modifythe punishment imposed on the petitioner into one of compulsory retirement so as to enable thepetitioner to get retirement benefits. Accordingly, the punishment of removal of service passed bythe first respondent by impugned order dated 30.05.1997 is set aside and the punishment ismodified into one of compulsory retirement.

10. The writ petition is allowed to the extent indicated above. No costs.

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To1. The Secretary to GovernmentGovernment of Tamil NaduHealth & Family Welfare DepartmentFort St. GeorgeChennai — 600 009

2. The Director of Medical and Rural HealthServicesChennai