K. Manickam vs Secretary to Government Rural Development Departments and Others

Vinod K. Sharma, J.—The Petitioner has approached this Court with a prayer, for issuance of a writ, in nature of certiorari, to quash the

order, dated 2nd November 2005, removing the Petitioner from service.

The admitted facts leading to the filing of the case are that the Petitioner while working as ''Rural Welfare Officer Grade-I'', was on unauthorized

leave for more than three years.

The stand of the Petitioner was that he had met with an accident, therefore, was not medically fit to join duty. Inspite of the fact, that the

Petitioner was absent from duty, no departmental action was taken.

It was, on 22nd November 1990, the Petitioner approached the District Collector (Development), for permission to join duty. Petitioner was

referred to the Medical Board. The Medical Board, on 2.5.1991, gave a fitness certificate to the Petitioner, certifying that he was fit to join duty.

Instead of accepting, the certificate of fitness, the District Collector, the appointing and punishing authority of the Petitioner, issued a charge

memo for absence from duty, on 17th February 1991, treating the absence to be misconduct.

The Petitioner was not allowed to superannuate on 28th February 1991 and placed under suspension, pending departmental enquiry.

The enquiry officer held the Petitioner guilty of misconduct of absence from the duty, vide, his report, dated 8th December 1991.

The District Collector, on consideration of the report of the enquiry officer, thought it appropriate to seek sanction of the State Government to

regularize the absence of the Petitioner, being the appointing and punishing authority of the Petitioner. This was for the reason that he was not

competent to sanction leave for more than three years without sanction of the Government.

The Respondents 1 and 2, instead of accepting or rejecting the request of the District Collector, passed the impugned order, removing the

Petitioner from service.

The Petitioner has approached this Court, to challenge the impugned order, on following grounds:

(i) That the impugned order was without jurisdiction, as the competent authority to impose punishment of removal of service, in the case of the

petitioner, is the District Collector.

(ii) That the impugned order is violative of principles of natural justice, as the Petitioner was not paid any subsistence allowance during the period

of suspension, i.e., from 27th February 1991 till 2nd November 2005. i.e., the date of passing of the impugned order.

The learned Additional Government Pleader appearing for the State, contends that under Rule 18 of the Fundamental Rules, the Government

was competent to take disciplinary action against the Petitioner, as leave beyond the period of one year, could not be granted. The Petitioner,

therefore, was absent from duty which is a serious misconduct.

Rule 18 reads as under:

18(1) Except leave on medical certificate or study leave under rule 84, no Government Servant (Permanentor Approved Probationer), who has

not completed five years of service, shall be granted leave of any kind for a continuous period exceeding six months at any one time.

(2) Exception medical certificate or study leave under rule 84 no Government servant (Permanent or Approved Probationer), who has completed

five years of service, shall be granted leave of any kind of a continuous period exceeding one year at any one time.

(3) When a Government servant (Permanent or Approved Probationer) does not resume duly after remaining on leave for a continuous period of

six months or one year, as the case may be, under sub-rules (1) or (2), or remains absent from duty after the expiry of his leave otherwise than on

foreign service; or on account of suspension or on account of leave for employment abroad u/s II-A of the Tamil Nadu Leave Rules, 1933 for any

period which, together with the period of leave granted to him, exceeds the limit, he shall be liable for disciplinary action under Tamil Nadu Civil

Services (Discipline and Appeal) Rules

(4) There shall be an interval of a period of three years between two spells of the maximum leave so granted.

The learned Additional Government Pleader also placed reliance on Rule 53 of the Fundamental Rules, in support of the contention, that the

subsistence allowance payable to the Petitioner was liable to be reduced to the amount of pension, to which, the Petitioner would have been

entitled to, therefore, it cannot be said that the Petitioner was not paid subsistence allowance.

On consideration, I find force in the contention raised by the learned counsel for the Petitioner.

The impugned order is prima facie without jurisdiction, as the right to dismiss or remove the Petitioner from service, vested with the appointing

authority i.e., the District Collector.

The State Government, on reference, could have accepted or rejected the recommendation and remanded the case back to the District

Collector, to take appropriate action, in accordance with law, to impose punishment, for the proved misconduct. The State Government, while

considering the request, had no jurisdiction to remove the Petitioner from service, as by doing this, the Petitioner right of appeal has been taken

away.

The Learned Counsel for the Petitioner is also right in contending that the enquiry proceedings against the Petitioner stood vitiated, for non-

payment of subsistence allowance, in view of the law laid down by the Hon''ble Supreme Court, in the case of Jagdamba Prasad Shukla Vs. State

of U.P. and Others, .

The contention of the learned Additional Government Pleader that under Rule 18, the State Government could have passed an order of

removal, cannot be sustained as under Rule 18, the absence of duty beyond the period mentioned therein, only constitutes the misconduct, but

does not result in automatic removal of an employee, as it is for the competent authority to consider on the materials available, as to what

punishment is to be imposed, if the employee is found to be guilty. In the present case, the Petitioner was absent for the medical reason, and even

under Rule 18, there is no bar to grant leave for medical grounds.

It is also interesting to note here that the Respondents had not taken any action against the Petitioner during the period of absence, but when

the Petitioner was declared medically fit to join duty, it was decided to hold departmental enquiry against the Petitioner.

The reliance on Rule 53, by the learned Additional Government Pleader, is again misplaced, as Rule 53 clearly stipulates that subsistence

allowance equivalent to pension is to be paid to the employee, after attaining the age of superannuation, which admittedly, was not paid. The

explanation is also not forthcoming, as to why more than 12 years, were taken by the State Government to take a decision on the recommendation

of the District Collector, to regularize the absence period of the Petitioner.

The impugned order, on the face of it, besides being without jurisdiction is arbitrary and amount to colourable exercise of power. It was not

appropriate to order removal of service, after a lapse of 12 years, in view of the recommendations, made by the competent authority to regularize

the absence period.

For the reasons stated, the writ petition is allowed, impugned order is set aside.

Though under normal circumstance, this Court would have remanded the case back to the competent authority, to take appropriate action, in

view of the enquiry report, but keeping in view of the fact that more than 20 years, have lapsed from the date of submission of enquiry report, it

would be appropriate, if the recommendation made by the District Collector, i.e. the competent authority, is ordered to be accepted, and the

period spent by the Petitioner is be treated as leave without pay, and treated to have retired on attaining age of superannuation on 28th February

1991.

The Petitioner be released with the consequential benefits, i.e. retrial benefits/pension etc., within six months of the receipt of a certified copy of

this order.

No costs.