Full Judgment
JUDGMENT
(Judgment of the Court was delivered by CHITRA VENKATARAMAN, J)
1. This Writ Appeal is against the order of the learned single Judge passed in W.P.(MD)No. 10075 of 2007 dated 28.9.2010 wherein this Court rejected the Writ Petition as misconceived and bereft of reasons. The order under challenge before the learned single Judge relates to an order of dismissal from service in a departmental enquiry on the ground that the appellant had abstained from attending the office continuously without giving any reason.
2. The facts leading to the filing of the Writ Appeal are as follows:- (i) The appellant herein joined as Office Assistant in the year 1977 in the respondent Municipality. He was subsequently promoted as a sanitary work supervisor and the nature of his work is to allot work to several sanitary workers and to maintain muster roll. Evidently, without even applying for leave from his higher officials, the appellant herein did not report to duty from 28.1.2004 to 4.3.2004. The Sanitary Inspector submitted a report on 4.3.2004 on the said fact and based on that, the disciplinary proceedings were initiated by the Municipality through the Commissioner as per Rule 5(2) of the Regulations 1977 framed under the Tamil Nadu Municipal Public Health Services (Non- Centralised, Regular) Discipline and Appeals Regulations. The charge memo was issued to the appellant and the same was received on 7.4.2004. The appellant was asked to submit an explanation within 15 days from the date of receipt of charge memo. Admittedly, no explanation was given for the charges.
(ii) The appellant states that he was suffering from Hepatitis B and was hospitalised from 28.1.2004 to 31.10.2004. He could not move any where. Hence, he could not apply for the leave. His wife who was illeterate went in person to the respondent Municipality and informed about the appellant's illness and requested to grant leave. After recovery from illness on 31.10.2004, he applied for medical leave from 28.1.2004 to 31.10.2004 along with medical certificate issued by the Government Hospital and requested the first respondent to allow him to join duty. However, the petitioner was directed to get the medical certificate from the medical board and accordingly, appeared before the medical board. The appellant states that the board recommended that his case be considered on medical grounds and that he was fit for service. Thereafter, from 1.11.2004 to 5.12.2004, once again he applied for medical leave along with medical certificate on account of further illness. When he reported to duty on 6.12.2004, he was not allowed to attend work. In the background of this, the appellant states that the first respondent passed an order on 20.9.2005 removing him from service on the ground that he abstained from duty without any authorisation. Aggrieved by the said order, the appellant preferred an appeal before the second respondent, who once again confirmed the order in proceedings Na.Ka.No.12808/06/J1 dated 19.9.2007. Aggrieved by this, the present Writ Petitioner is before this Court.
3. On notice, the respondents filed the counter in the Writ Petition stating that inspite of several opportunities granted to the appellant to appear in person before the Commissioner to represent his case, the petitioner did not avail any of his opportunities and hence, an exparte order was passed removing the appellant from service. It is stated that although the appellant received the questionnaire on 18.6.2004, and thereafter, ultimately, intimation was given on 14.9.2004 to appear in person before the Commissioner, the appellant did not appear. On 3.11.2004, the Commissioner received the letter enclosing certificate from Dr.K.Rajasekaran from the appellant dated nil sent through Courier service that he was suffering from jaundice from 28.1.2004 to 31.10.2004.
4.The respondents submit that even after the Medical Board's Certificate dated 1.12.2004 with the leave applied for the petitioner from 28.1.2004 to 1.12.2004 can be regularised, the appellant did not join duty. Going by G.O.Ms.No.1046, P & AR (FR III) Dept., dated 13.11.1987 and Rule 18 that a Government servant having completed 5 years of service, can avail leave not exceeding one year, rightly proceedings was initiated against the petitioner. Even after the paper publication in Tamil daily Dinaboomi, the appellant had not come forward to make his explanation. In the circumstances, left with no other choice, the appellant was sent out of service.
5. Learned single Judge pointed out to the records produced and held that, it was evident that the petitioner was continuously absent for one reason or the other and had no intention to report to work. Learned single Judge pointed out to the decision in Government of India and Another vs. George Philip reported in 2006 (13) SCC 1, and held that such unauthorised absence cannot be countenanced by the authority that the Government servant is also endowed with the fundamental duty to maintain discipline and devotion to duty. In the face of this, the Court rejected the petition. Hence the present appeal.
6. Learned counsel for the appellant herein pointed out to the nature of work entrusted to the appellant, and contended that this, ultimately, led the petitioner being admitted in the Government Hospital for treatment of Hepatitis B, a fact which is also not disputed by the medical board which examined the appellant. Thus, without adverting to any of these conditions, a harsh treatment has been meted out to the appellant, which is disproportionate to the charge. Hence, learned counsel for the appellant submits that the order of punishment passed by the respondents herein dismissing the appellant from service is totally arbitrary.
7. Learned counsel for the appellant further pointed out that the appellant is a lower grade employee and he had rendered 28 years of unblemished service. That by the order of the dismissal, he would not have the fruits for 28 years of service.
8. It is further stated that there was no proper enquiry conducted as per the regulation of the Tamil Nadu Municipal (Non-Centralised Regular) Public Health Establishment Discipline and Appeal Regulation Act, 1977. In the circumstances, learned counsel for the appellant prays for setting aside the order of the respondents thereby the order of the Writ Court.
9. On notice, the respondents reiterated the contention taken in the course of the Writ Proceedings and the reasons stated in the order of the learned single Judge.
10.Heard the learned counsel for the appellant and the learned counsel for the respondents.
11. Although in matters of disciplinary proceedings, this Court ordinarily does not interfere with the order of punishment as what an appellate court would normally do, considering the gravity of the mitigating circumstances shown by the appellant with reference to the ailment and the nature of duties discharged, the punishment has to be characterised as disproportionate and reducing the punishment given to one of compulsory retirement, this Court is inclined to modify the order of the Writ Court. As far as the present case is concerned, it is not denied by the respondents that the appellant was a sanitary worker and he had completed 28 years of service of the respondent Municipality. It is a matter of record that the appellant suffered from Hepatitis B. In the proceedings of the medical board, the physical condition of the appellant was assessed and a certificate was issued that the appellant had recovered from his illness and was fit to resume duty in the Government service as on 31.10.2004.
12. Admittedly, the appellant did not join duty thereafter. It is stated that the appellant was suffering from stomach pain. It is no doubt, true after the medical board's report the appellant did not report to duty. Notice was issued to the appellant to participate in the enquiry, there was no efforts taken by the appellant to appear before the enquiry officer or respondents. Paper publication was also made informing him about the enquiry. The fact remains that the order of removal from service had been made on this score that the appellant had not responded to the proceedings initiated and had abstained from reporting the duty for nearly 1. years. This is viewed so inspite of the report by the medical council as to the illness that the appellant suffered.
13. It is trite law that the order of punishment passed based on the findings of enquiry imposing punishment, must not be disproportionate to the charges levelled. In the decision reported in (1995) 6 SCC 749 (B.C. Chaturvedi Vs. Union of India), a Three Judge Bench of the Apex Court held that the High Court or Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty; but, if the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the High Court or Tribunal, it would appropriately mould the relief, either directing the Disciplinary Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. The said view was again reiterated in (2005) 7 SCC 338 (Ramana Vs. A.P.S.R.T.C. and Ors).
14. In 2005 (4) CTC 390 (Tamilnadu State Transport Corporation (Madurai) Limited, rep. by its Managing Director formerly known as the Management of Kattabomman Transport Corporation Limited Vs. The Presiding Officer, Industrial Tribunal and C.Vijayakumarraj), this Court considered the case of unauthorised absence charge, wherein an order of punishment in the nature of dismissal was passed. Setting aside the dismissal order, the Division Bench of this Court held that the order of dismissal was disproportionate to the charges of unauthorised absence, particularly when the delinquent officer took the plea that he was on leave on account of his illness. Following the said decision, in the decision in reported in (2011) 1 LLJ 646 (Tamil Nadu State Transport Corporation (Villupuram Division-I) Ltd. Vs. The Joint Commissioner of Labour (Conciliation) and R.Jayaraman), this Court considered a case of unauthorised absence. Referring to the decision of the Supreme Court and the Division Bench decision of this Court referred to above, this Court considered the proportionality of the punishment meted out therein. The facts therein show that the petitioner was employed in the Transport Corporation on daily wage basis initially and subsequently absorbed on permanent basis. On unauthorised absence from reporting to duty for about two months, a charge memo was issued. An enquiry was conducted and the charges were found proved. A show cause notice was issued proposing the punishment of dismissal, for which there was no explanation. Thus an order of punishment was passed by way of dismissal from service. In the meantime, since an industrial dispute was pending before the Labour Court, the Management sought for approval under Section 33(2)(b) of the Industrial Disputes Act. The petition was rejected by the Labour Court, against which, writ petition was filed by the Transport Corporation. In considering the merits of the order of punishment, this Court reiterated the principles laid down by the series of decisions of the Apex Court on the proportionality of the punishment and held that for the charge of unauthorised absence, dismissal of workman was too harsh. Thus following the decision of this Court as well as that of the Apex Court reported in AIR 2009 SC 2458 (Jagdish Singh Vs. Punjab Engineering College), this Court referred to the guidelines given by the Apex Court in the matter of shortening of litigation for reconsidering the proportionate punishment to be meted out therein.
15. The Apex Court pointed out that in the matter of considering the proportionality of punishment meted out to a person who had not reported to duty indefinitely, the circumstances which had resulted in the absence of its merit need to be considered. Applying the said decision to the facts of this case that the appellant had rendered service in the respondent Municipality for 28 years, considering the nature of work discharged by him as sanitary worker entrusted with the duty of removing the garbage regularly and that he also suffered from Hepatitis B and was in hospital for nearly one year from 28.1.2004 to 5.12.2004, this Court feels that the harshness of the punishment meted out needs to be reduced to a case of compulsory retirement. It is no doubt true that in the order passed by the learned single Judge, relying on the decision of the Supreme Court reported in 2006 (13) SCC (1) supra, it is stated that unauthorised absence cannot be countenanced by the authority and Government servant is duty bound to report to duty and maintain discipline. There can be no serious doubt on this proposition of law. Yet, as rightly pointed out by learned counsel for the respondents, given the facts herein that the appellant was sick with Hepatitis B and has hospitalised for nearly one year, we feel that it is a fit case where this Court should step in in the interest of justice to reduce the harshness of the punishment, to make the order of dismissal as an order of compulsory retirement.
16. With the above observation, the order of the learned single Judge dated 28.9.2010 passed in W.P.(MD)No.10075 of 2007 stands modified and accordingly, the Writ Appeal is disposed of. No costs.
17. The respondents shall work out pensionary benefits payable to the appellant as expeditiously as possible in accordance with law.