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Judgment
P.R. Shiva Kumar, J.—The petitioner Dakshinamoorthy entered the services of the Tamil Nadu Industrial Investment Corporation on
02.06.1998 as Assistant-cum-Typist. Later on, he was promoted as Senior Assistant and he joined the post in the Vellore Branch/Vellore
Regional Office on 04.02.1998. After his transfer to Tiruvannamalai branch office, the nearest branch, he was re-transferred and he joined Vellore
Branch office in June 2001. On 22.05.2003, the petitioner was transferred from Vellore Branch to Salem Special Recovery Branch. But he did
not joint duty at Salem after he was relieved from the Vellore Branch. However, as per his request for retention at Vellore branch, he was allowed
to join duty at Vellore branch on 26.06.2003. The period during which he was unauthorizedly absent was treated as leave on loss of pay. Again
the petitioner was transferred to Madurai Regional Office on 22.07.2003 and therefore relieved from the Vellore Branch office on 28.08.2003. In
stead of reporting for duty, he went on leave till 08.08.2003 and joined duty in the Madurai Regional Office on 08.08.2003 on the premise that he
was suffering from piles. As the said act on the part of the petitioner was considered to be an intentional avoidance of joining duty at Madurai
Regional Office, he was referred to the Regional Medical Board, Government Head Quarters Hospital, Vellore on 27.11.2003. The Medical
Board, on examining the petitioner, found that he had been taking treatment for piles and recommended regularization of the leave from
11.08.2003 to 14.01.2004 and the Medical Board directed the petitioner to join duty on 14.01.2004. However, the petitioner did not join duty on
14.01.2004 and on the other hand, submitted a Medical Certificate to the effect that he needed treatment for the above said ailment. Again he was
referred to the Regional Medical Board for the second time on 07.07.2004. The Medical Board, on examining the petitioner for the second time,
took a lenient view and recommended regularization of the leave upto 25.08.2004 and directed the petitioner to join duty on 25.08.2004.
However, the petitioner joined duty only on the next day, namely 26.08.2004 and attended office on 27.08.2004. Once again he absented from
duty from 30.08.2004 till 07.09.2004. On 08.09.2004, he reported for duty and from the next day, i.e., 09.09.2004 he was absent from duty, but
furnished leave application on the ground that he was suffering from fever, body pain, respiratory track infection, plies with anemia, dysentery,
cough, bronchitis etc., Again, he was referred to the Regional Medical Board, Vellore and the Regional Medical Board advised him to join duty.
But the petitioner did not pay heed to the advice of the Medical Board. In the meanwhile, he had been issued with a charge memo on 11.03.2004
for the unauthorized absence for which he submitted his explanations. Once again a charge memo came to be issued on 24.02.2005 for which also
he submitted his explanation. The explanations of the petitioner were found not satisfactory and a domestic enquiry conducted by the Enquiry
Officer appointed for that purpose. The delinquencies with which he was charged were found by the Enquiry Officer to be proved. After affording
an opportunity to the petitioner to be heard regarding the findings of the Enquiry Officer, the report of the Enquiry Officer was accepted and he
was ultimately removed from service as a penalty, of course after giving him an opportunity regarding the punishment to be imposed. The said
order of removal from service was passed on 23.02.2006. As against the said order of the second respondent, the petitioner preferred an appeal
to the Board of Directors and the Board rejected the appeal, vide Procds. No. Admn./2006-07 dated 25.09.2006. The said order is challenged in
the present writ petition.
Learned counsel for the petitioner argued that almost major part of the period of absence was regularized as leave on medical certificate based
on the recommendation of the Regional Medical Board to which the petitioner was referred; that the frequent spell of absence on medical ground
prompted the employer to moot out the possibility of retiring the petitioner on medical ground and that having chosen to initiate proceedings for
retiring the petitioner on medical grounds, the management was not justified in proceeding with the disciplinary enquiry on the ground of the alleged
unauthorized absence being one which could not be reasonably explained. Learned counsel for the petitioner contended further that the very fact
that the management initiated proceedings for retiring him on medical ground would show that he was suffering from such ailments which would
have made it difficult for the petitioner to discharge his official functions and that, in such circumstances, for the ailments with which he was
suffering, the management ought not to have imposed a penalty of removal from service.
On the other hand, initially it was contended on behalf of the respondents that the very act on the part of the petitioner in refusing to go to the
place to which he was transferred would show insubordination on the part of the petitioner and his adamant nature in defying the orders of not only
the management, but also the Medical Boards. It was also pointed out that out of 941 days from 29.07.2003 to 20.03.2006, he attended office at
Madurai Regional Office only on 4 days, namely 08.08.2003, 26.08.2004, 27.08.2004 and 08.09.2004 and that the same will be enough to
justify the act on the part of the management in taking a decision to remove the petitioner from service as a penalty.
Of course, in the absence of initiation of any proceedings for retiring the petitioner on medical grounds, the management would have been fully
justified in taking such a decision to remove the petitioner from service as a penal measure on proved misconduct of unauthorized absence. But the
fact remains that almost major part of the period of absence had been regularized on the recommendation of the Medical Board to which the
petitioner was referred and that the continued absence of the petitioner from duty prompted the management to issue a show-cause notice on
07.12.2005 as to why he should not be retired on medical grounds. After having issued such a notice, the management ought not to have chosen to
proceed with the Disciplinary Proceedings without dropping the proceedings based on such show-cause notice. The very fact that the management
issued such a show-cause notice would amount to an admission on the part of management that the petitioner was suffering from piles and related
ailments. When such was the case, the management ought to have proceeded with their earlier proposal to retire him on medical grounds rather
than imposing a penalty of removal from service. During the course of hearing in this writ petition it was represented by the learned counsel for the
petitioner that the petitioner would not be much aggrieved, but on the other hand, would be satisfied if the penalty is converted into a compulsory
retirement without detriment to the monetary benefits payable to such retirees on compulsory retirement.
Mr. P.H. Aravind Pandian, learned Additional Advocate General, who came into the picture at a later point of time for representing the
respondents, had advised the respondents in a proper manner, which resulted in their giving a consent for converting the order of removal into one
of compulsory retirement with monetary retiral benefits. Learned Additional Advocate General has also produced a letter of the Tamilnadu
Industrial Investment Corporation signed by the Senior Manager (Law) stating that the Board has resolved to modify the punishment awarded to
the petitioner from one of removal from service to compulsory retirement from service. The same is recorded. Learned counsel for the petitioner is
also agreeable for the same. In view of the same, the writ petition shall stand disposed of recording the undertaking of the respondents to convert
the order of removal into one of order of compulsory retirement with monetary benefits. The respondents are directed to pass consequential orders
and disburse the applicable monetary benefits within 8 weeks from the date of receipt of a copy of this order.