Full Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
14. 07.2014 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU W.P.No.16445 of 2012 P.C.Damodaran ... Petitioner Vs. 1.Union of India, rep. by its Secretary to Government, Ministry of Home Affairs, Central Industrial Security Force, New Delhi. 2.Senior Commandant, CISF Unit ASC, Airport Authority of India, Internal Air Cargo Terminal, Chennai Airport, Chennai 27. 3.Deputy Inspector General, CISF SZ Head Quarters, Chennai Airport Section, Rajaji Bhavan, Adyar, Chennai 600 020. 4.Special Director General, Airport Sector, Central Industrial Security Force, Ministry of Home Affairs, Block No.13, CGO Complex, Lodhi Road, New Delhi 3. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying to issue writ of certiorarified mandamus calling for the records from the respondent and quash the impugned order passed by the 4th respondent in his order dated 29.11.2011 with Ref.No.V-11014/APS/PCD/29/LS/2011 by the Revisional Authority and consequently, reinstate him in service with all monetary and consequential benefits from the date of his removal from service till the date of the petitioner rejoin duty. For Petitioner : Mr.S.Raveendran For Respondents : Mr.N.Ramesh Central Govt. Standing Counsel -------- ORDER
(Order of the Court was made by N.PAUL VASANTHAKUMAR,J.) This writ petition is filed to set aside the order of removal from service passed by the Original Authority dated 26.10.2010 and confirmed by the Appellate Authority dated 08.2.2011 as well as the Revisional Authority dated 29.11.2011 and for a direction to reinstate the petitioner with all monetary and consequential benefits.
2. The case of the petitioner is that he joined in the 2nd respondent's office as Constable Dobhi on 1.2.1978 and he had completed 31 years of service and he received several reward certificates from the Inspector General and Deputy Inspector General of Central Industrial Security Force. According to the petitioner, he is suffering from tuberculosis for the past several years and due to his ill-health, he could not attend the duties and he applied for medical leave from 09.10.2009 to 10.8.2010 for a period of 310 days and he has also filed medical certificate issued by the Senior Civil Surgeon. Earlier also the petitioner took medical leave on different spells by producing the medical certificates. Availing of leave by the petitioner was seriously viewed and the petitioner was issued with a charge memo on 01.3.2010 under Rule 36 of Central Industrial Security Force Rules, 2001 as under:- Charge No.1 An act prejudicial to good orders and discipline of the Force on the part of No.783170019 W/M P.C.Damodharan of CISF Unit ASG Chennai in that No.783170019 W/M P.C.Damodharan is overstaying from medical rest w.e.f. 09.10.2009 without any authority or permission from the competent authority. This act on the part of No.783170019 W/M P.C.Damodharan of CISF Unit ASG Chennai tantamount to gross indiscipline and misconduct and dereliction of duty which is unbecoming to a member of a disciplined Force. Charge No.2 No.783170019 W/M P.C.Damodharan CISF Unit ASG Chennai is a habitual offender in which he has been awarded two major penalties and eight minor penalties on various occasion for unauthorised over stay/absent without leave/leave/medical rest, but he failed to improve his conduct and thus become an incorrigible character which is unbecoming to a member of the Force. The petitioner neither chosen to deny the above said charges nor participated in the enquiry. After conducting exparte enquiry, finding was recorded by the Enquiry Officer with regard to proof of the allegations.
3. Mr.S.Raveendran, learned counsel appearing for the petitioner submitted that due to ill-health of tuberculosis, the petitioner is taking treatment continuously and therefore, he was not in a position to deny the charges alleged and he could not also participated in the enquiry. The learned counsel submitted that after the punishment was imposed, the petitioner has submitted his appeal before the Appellate Authority on 22.11.2010 wherein it is stated that the petitioner served for 31 years and he was given rewards by the Inspector General and the Deputy Inspector General, Commandant and Assistant Commissioner of Central Industrial Security Force and his entire family is depending upon the salary received by him. In the appeal memorandum, it is stated that the petitioner's mother is suffering with heart ailment and his father is a deaf and blind person. The petitioner's wife is suffering from bone cancer and his son is a physically disabled person. The daughter of the petitioner studied upto B.Sc. and his elder son studied upto 10th standard and his youngest son studied upto 5th standard and no one in his family is employed and the petitioner is bed-ridden due to tuberculosis in blood and taking treatment in Rajiv Gandhi Government General Hospital, Chennai. Therefore, his case may be considered sympathetically and the punishment may be modified taking note of the peculiar facts and family circumstances as he could not attend the duties and pleaded for pardon. It is the further submission of the learned counsel for the petitioner that the Appellate Authority without considering the family conditions, solely relying on the earlier imposition of penalties for 10 times, has rejected the appeal and the revision filed by the petitioner was also rejected by the Revisional Authority.
4. Mr.N.Ramesh, learned Central Government Standing Counsel appearing for the respondents submitted that the petitioner was imposed with punishment 10 times for various delinquencies and the order of removal from service is justified.
5. The only contention raised by the petitioner is that the petitioner having served 31 years, even though, he was imposed with some punishments, if the punishment of removal from service is modified into one as punishment of compulsory retirement from the date of imposition of punishment, the petitioner would be in a position to get the terminal benefits payable from the date of the order of the Original Authority dated 26.10.2010. The petitioner is also continuously producing medical records to show that he is taking treatment for tuberculosis from Rajiv Gandhi Government General Hospital, Chennai. Therefore, there is no dispute regarding the ailment of the petitioner with regard to tuberculosis and taking treatment till date.
6. In the appeal memorandum dated 22.11.2010, the petitioner has narrated the sufferings, not only faced by him, but also faced by the parents of the petitioner, wife and children. The English translation of appeal memorandum of the petitioner dated 22.11.2010 reads thus:- Respected Sir, A letter written by P.C.Damodharan, a Dhobi who is working under you. Sir, I was removed from service on 26.10.2010. Sir, I have been bedridden for a few months due to T.B. I am taking treatment from a Government Doctor. Sir, I have been already taking treatment for my liver problem. I have sent medical certificate to the office. It is 31 years since I joined C.I.S.F. I worked efficiently day and night without committing any mistakes. I have been awarded with rewards and certificates by I.G., D.I.G., Commandant, A.C. I am the eldest son in our family. I am very poor. I have a mother, father, wife and three children. I have been taking care of them only through my salary. My mother is a heart patient. My father is deaf and blind. My wife suffers from bone cancer. My son is physically challenged. My daughter has studied B.Sc. , my son has studied up to 10th standard and my youngest son has studied only upto 5th standard. None of my children are working. I request you sir, the D.I.G. to show mercy on this poor, and I pray you with my hands together to give me employment for 6 months at Tirupathi airport. Sir, I can take care of these patients only if you reinstate me in service. Sir, my wife, mother and father died on the same day. My wife became mentally retarded. Sir, I request you to give me employment in Tirupathi airport. Sir, I request you only for these reasons. Otherwise, I have to commit suicide by hanging. Sir, I request you to pardon me and give me employment. I herewith enclose photocopy of my medical certificate and my family photograph. Sir, I request you to give me my salary. Sir, I am very poor. I request you to show mercy on this poor. I pray with my hands together to pardon me if I had written anything wrongly in this letter. Thank you, Salutations. Yours obediently, 7. Inspite of narrating his status of the family, the Appellate Authority and the Revisional Authority have not chosen any sympathy. Considering the said peculiar facts in this case as well as 31 years of service rendered by the petitioner, who is now aged 55 years and also the nature of charges levelled against him, namely, over staying after medical rest, which is not willful, we are of the view that this is a fit case to interfere with the proportionality of punishment, as the punishment imposed is excessive.
8. The Hon'ble Supreme Court, in the decision reported in (2004) 4 SCC560(Shri Bhagwan Lalarya v. Commissioner of Police) and (2012) 3 SCC178(Krushnakant B.Parmar v. Union of India) held that unless unauthorised absence was due to willful act on the part of the delinquent officer, extreme punishment of dismissal from service shall not be imposed. The Division Bench of this Court in the judgment in W.A.No.58 of 2011 dated 27.1.2011 (R.Ramesh v. The Deputy Inspector General of Police and others) also taken the same view. In the decision reported in 2013 (3) MLJ228:
2013. (2) LLN259(S.Shanmugarajan v. State of Tamilnadu), the Division Bench of this Court, of which one of us (N.P.V.,J.) was a party considered the similar issue of unauthorised absence of a police constable and set aside the order of punishment by applying the principles of proportionality in imposing punishment. Thus the issue regarding interference by Courts in extreme punishment of removal/dismissal from service imposed against the delinquent officer in a given case, particularly, if willful absence from duty is not proved, is no longer res integra.
9. In the fine, the impugned order of removal from service passed against the petitioner dated 26.10.2010 by the 4th respondent, confirmed by the 3rd respondent by order dated 08.2.2011 and also confirmed by the 2nd respondent dated 29.11.2011 are set aside and the punishment of removal from service is modified as one of compulsory retirement from the date of the order of the 4th respondent dated 26.10.2010. The terminal benefits payable to the petitioner pursuant to the modification of the punishment now imposed, shall be calculated and paid to the petitioner within a period of four weeks from the date of receipt of a copy of this order. The writ petition is allowed accordingly. No costs. (N.P.V.,J.) (K.R.C.B.,J.) 14.07.2014 Index : Yes/No Internet : Yes/No bbr Note: Issue copy of order on :
15. 7.2014. To 1. The Secretary to Government, Ministry of Home Affairs, Central Industrial Security Force, New Delhi.
2. The Senior Commandant, CISF Unit ASC, Airport Authority of India, Internal Air Cargo Terminal, Chennai Airport, Chennai 27.
3. The Deputy Inspector General, CISF SZ Head Quarters, Chennai Airport Section, Rajaji Bhavan, Adyar, Chennai 600 020.
4. The Special Director General, Airport Sector, Central Industrial Security Force, Ministry of Home Affairs, Block No.13, CGO Complex, Lodhi Road, New Delhi 3. N.PAUL VASANTHAKUMAR,J AND K.RAVICHANDRABAABU,J bbr W.P.No.16445 of 2012 14.07.2014