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Judgment
P. Jyothimani, J.—The writ Petitioner was originally appointed as a Joint Commercial Tax Officer (Regular) and posted at Udhagamandalam
in the year 1967, and thereafter, he was transferred as Joint Commercial Tax Officer (Audit) Coimbatore in 1967 and promoted as Commercial
Tax Officer in 1972 and posted as Commercial Tax Officer at Ooty in 1975, however, he was transferred to Madras in 1976.
The next avenue of promotion was Assistant Commissioner of Commercial Taxes, which is based on merit and ability and the Petitioner was
placed in 1976 seniority list. However, in 1976, many of his juniors had been promoted, but he was neglected. When he was working as
Commercial Tax Officer at Ooty, he was proposing to take action against a hotel, Kurinji and that was obstructed by the officials and that is the
reason why he was transferred to Madras.
In respect of certain irregularities, he was awarded with Censure in October, 1976 and his appeal was also rejected. A writ petition was filled
against the Censure, which was dismissed and on writ appeal, final order was passed on 11.8.1986, directing the Respondent to give promotion to
the Petitioner retrospectively from 1976 with all attendant benefits, and since the same was not given, a contempt application was filled. In the
meantime, he was given promotion as Deputy Commissioner and due to the ill-health of his mother, he was unable to join the post of Deputy
Commissioner.
At that time, the Department appealed to the Supreme Court and obtained an order of stay. However, the Supreme Court directed that the
Petitioner should be promoted, and accordingly, he was promoted as Assistant Commissioner in 1987, by which time many of his juniors were
already promoted and granted I.A.S. status. Thereafter, the Petitioner was transferred with ill motive, in respect of which also the Petitioner
approached this Court and obtained an order of stay, however, within six months another transfer was effected and due to his ill health, he applied
for leave for a period of three years on medical ground. On the date of superannuation, viz., on 31.5.1995, the Government suspended the
Petitioner not allowing him to retire from service and retained him in service under Fundamental Rule 56(1)(c) for conducting enquiry for absence
from duty unauthorisedly from 27.4.1991 to 31.5.1995.
The Deputy Commissioner (Commercial Taxes), Coimbatore was appointed as the Enquiry Officer, who conducted the Enquiry and has given a
report holding that the charges are proved except the second charge. The department has not passed any final order for 12 years and it was
ultimately on 19.7.2006, has passed the impugned order of removal from service.
The impugned order of removal from service is challenged as not proportionate to the charges framed and on the ground that the Petitioner was
on medical leave for long time, which was not questioned; that the entire action is ill motivated apart from the fact that there has been an
extraordinary delay in passing the final order, which has not been explained.
In the counter affidavit filed by the Respondent, it is stated that by letter dated 31.07.1993, the Petitioner has applied for leave, to which he was
eligible up to 31.12.1993. On expiry of leave, he has not joined nor applied for extension of leave. Subsequently, he reached the age of
superannuation on 31.5.1995 and he was placed under suspension and not allowed to retire from service in view of pending departmental
proceedings against him and charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued to the
Petitioner on 19.10.1994.
The Deputy Commissioner (Commercial Taxes), Coimbatore, was appointed as an Enquiry Officer. The Enquiry Officer, in his enquiry report
has held that six out of seven charges framed against the Petitioner were proved, except the second charge. The Enquiry Officer''s report was
communicated to the Petitioner on 22.10.1998.
The Petitioner submitted a petition dated 06.01.1999, requesting for an interview with the Special Commissioner and Commissioner
(Commercial Taxes) during his camp at Coimbatore. Ample time was given to the Petitioner to submit his further representation. Provisional
conclusion for punishment of removal of the Petitioner was arrived at after ascertaining the views of the Tamil Nadu Public Service Commission
(TNPSC) and ultimately, the Government passed the impugned Government Order on 19.07.2006, removing the Petitioner from service.
It is stated that the Petitioner has suffered various other punishments, like recovery, censure, stoppage of increment for six months without
cumulative effect. The appeal filed by the Department to the Supreme Court was disposed of with direction to consider the case of the Petitioner
for promotion, which shall take effect prospectively. According to the Respondent, sufficient opportunity has been given to the Petitioner and the
domestic enquiry has been conducted by following the principles of natural justice and the charges are very serious in nature since the Petitioner
has fraudulently abandoned the job.
Mr. Kalyanasundaram, learned senior counsel appearing for the Petitioner would fairly submit that the Petitioner has filed the above writ
petition challenging the impugned order on various substantial grounds, especially the long lapse of time in conducting the enquiry which started in
the year 1995 and concluded in the year 2006 when the final order was passed, nearly after 7 years and for such delay there is no reason given in
the counter affidavit, and therefore, on the basis of various judgments of the Supreme Court, the Petitioner is entitled for the relief claimed by
setting aside the punishment of removal. But, he would fairly submit that, now that the Petitioner has attained the age of superannuation long back,
viz., in 1995 itself and more than 16 years have lapsed, and now considering the nature of charges framed against the Petitioner, if the punishment
is directed to be reduced from removal to that of compulsory retirement, the Petitioner will be able to get certain monetary benefits. He would also
submit that he is making the above submission on the ground that there is no charge of misconduct against him. He would rely upon the judgment of
the Supreme Court in Bhagwan Lal Arya v. Commissioner of Police, Delhi (AIR 2004 SC 2134). He would also rely upon the unreported order
of N. Paul Vasanthakumar, J. in W.P. 33542 of 2007 dated 29.04.2010, wherein the learned Judge, under similar circumstances, modified the
punishment of removal from service into that of compulsory retirement on the basis of proportionality of punishment.
On the other hand, it is the contention of Mr. K. Radhakrishnan, learned Government Advocate that the charges are framed under Rule 17(b)
of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and it is not disputed that sufficient opportunity has been given to the Petitioner and
there is no violation of principles of natural justice and therefore, there is nothing warranting interference with the order of punishment.
Admittedly, on 19.10.1994, seven charges were framed against the Petitioner. The said charges are as follows:
Charge 1. That Petitioner as ACTO Trichy did not transfer 210 appeal files to ACTO, Thanjavur as per order of Chairman, STAT, Madras;
Charge 2. That Petitioner continued even after transfer;
Charge 3. That Petitioner did not join the transferred post as Secretary, STAT, Madurai even after dismissal of stay petition by TAT on 31.7.91;
Charge 4. That Petitioner did not hand over 10 appeal files where he reserved orders, to his successors and sent them to Chairman after a memo
was issued, after 10 months;
Charge 5. That Petitioner did not joint the transferred post as per order dt. 7.4.1992, but applied for leave on 20.4.92 as from 7.4.92, without
mentioning the nature of leave;
Charge 6. That Petitioner applied for leave on 31.7.1993, for which he is eligible upto 31.12.1993 and absented beyond 1.1.94.
Charge 7. From 26.4.1991 to 15.4.92 unauthorized absence. 16.4.1992 to 31.12.1993
Leave to which he is eligible. From 1.1.94 continuous unauthorized absence.
Of course, except Charge No. 2, all other charges are stated to have been proved by the Enquiry Officer. It is also not in dispute that sufficient
opportunity has been given to the Petitioner. The main charge is, unauthorized absence from 26.4.1991 to 15.4.1992 and from 1.1.1994 till the
date of superannuation. The charges are not relating to any misappropriation. The Petitioner has joined duty in the year 1967 and worked till
31.05.1995, nearly for 28 years. Since the Government itself has passed the final order, there is no further appeal available to the Petitioner, and
hence, he has filed the present writ petition. The enquiry was completed admittedly in 1999 and the impugned order was passed on 19.07.2006,
and for the delay, absolutely there is no reason adduced in the counter affidavit except to state that opinion of the TNPSC has been obtained.
In P.V. Mahadevan v. M.D., Tamil Nadu Housing Board 2005 (4) CTC 403 (SC), it was held by the Supreme Court that if any prejudice will
be caused to the delinquent by long unexplained delay, the same has to be considered in favour of the delinquent.
In addition to that, as submitted by the learned senior counsel for the Petitioner, the charges are not relating to misappropriation or misconduct,
but it is only relating to unauthorized absence, admittedly, on medical grounds, and such issue regarding unauthorized absence on medical grounds
was considered by the Supreme Court in Shri Bhagwan Lal Arya Vs. Commissioner of Police Delhi and Others, . The Supreme Court has held
under similar circumstances that the punishment of dismissal or removal from service for unauthorized absence is harsh, in the following paragraph.
The order dated 16-1-1995 passed by the Respondents was produced by the Respondents themselves in their reply to CWP before the High
Court of Delhi that they had sanctioned leave without pay for the period from 7-10-1994 to 15-12-1994, the period of alleged unauthorised
absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing
sanction for leave for the period in question, the employee''s legitimate expectation would be that no stern action would be taken against him with
respect to the alleged act of misconduct which by no stretch of imagination can be considered an act of gross misconduct or continued misconduct
indicating incorrigibility and complete unfitness for police service. It is not the case of the Respondents that the Appellant is a habitual absentee. He
had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is
excessive and disproportionate. We are of the view that the punishment of dismissal/removal from service can be awarded only for acts of grave
nature or as cumulative effect of continued misconduct proving incorrigibility or complete unfitness for police service. Merely one incident of
absence and that too because of bad health and valid and justified grounds/reasons cannot become the basis for awarding such a punishment. We
are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires Rules 8(a) and 10
of the Delhi Police (Punishment and Appeal) Rules, 1980 and is liable to be set aside. The Appellant also does not have any other source of
income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of which, not
only he but his entire family totally dependent on him will be forced to starve. These are the mitigating circumstances which warrant that the
punishment/order of the disciplinary authority is to be set aside.
In that case, the Supreme Court has also held as follows:
Thus, the present one is a case wherein we are satisfied that the punishment of removal fro8m service imposed on the Appellant is not only
highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have
set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law
and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already
lost, we deem it proper to set aside the punishment of removal from service and instead direct the Appellant to be reinstated in service subject to
the condition that the period during which the Appellant remained absent from duty and the period calculated up to the date on which the Appellant
reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The Appellant shall not be entitled to any service
benefits for this period. Looking at the nature of partial relief allowed hereby to the Appellant, it is now not necessary to pass any order of
punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The Appellant must report
on duty within a period of six weeks from today to take benefit of this judgment.
Having held so, the Supreme Court set aside the punishment of removal and directed for reinstatement with condition that during the absence the
delinquent concerned should not be entitled for any service benefits. Therefore, the Hon''ble Supreme Court instead of remanding the matter back
to the Department, on finding that the punishment is shockingly disproportionate, has itself modified the order in order to render substantial justice.
That decision was based on the earlier judgment in B.C. Chaturvedi Vs. Union of India and others, , wherein in paragraph 18, it was held as
follows:
A review or the above legal position would establish that the disciplinary authority, being fact-finding authorities have exclusive power to
consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view
the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its
own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority
shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate 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 Supreme Court further held that in such event, even though the appellate authority being the fact finding authority has exclusive power, with
a view to shorten the litigation, the Court can reduce the punishment appropriately in exceptional cases treating them as rarest of rare cases.
Following the said decision, in the order dated 29.04.2010, N. Paul Vasanthakumar, J. in W.P. No. 33542 of 2007 (J.B.J. Alexander v.
Secretary to Government, Health and Family Welfare Department, Chennai and Ors.), has modified the punishment of removal into compulsory
retirement with effect from 31.01.2010, in the following words:
In the case on hand, the Petitioner has fairly filed an additional affidavit stating that the punishment may be modified as compulsory retirement,
that too from 31.1.2010 and pay the retirement benefits with arrears of pension from 1.2.2010. The Petitioner having served in the department for
33 years and the charges being unauthorized absence, to shorten the litigation, I am of the view that interest of justice would be met by ordering
modification of the punishment of removal from service to that of compulsory retirement with effect from 31.1.2010.
In the result, the punishment imposed against the Petitioner is modified to that of compulsory retirement with effect from 31.1.2010. Petitioner
is eligible to get retirement benefits based on his service till 11.9.206 and arrears of pension from 1.2.2010. The Respondents are directed to work
out the terminal benefits and pension payable from 1.2.2010 and pay the same to the Petitioner within a period of eight weeks from the date of
receipt of copy of this order.
On the facts of the present case, the learned senior counsel appearing for the Petitioner has fairly submitted that the punishment of removal may
be converted into compulsory retirement due to the above said reasons of laches and disproportionate punishment that too, long after the date of
retirement. Considering the above said facts and circumstances of the case, applying the ratio of the Supreme Court, I am of the view that this can
be treated as one of the rarest of rare cases, so as to enable this Court to render substantial justice by modifying the impugned order of removal
from service into one of compulsory retirement, instead of remanding the matter again to the Government for decision.
Accordingly, the impugned punishment of removal from service of the Petitioner dated 19.07.2006, stands modified into one of compulsory
retirement with effect from 1.1.2010. The Petitioner will be entitled for retirement benefits based on his service till the date of superannuation, viz.,
31.5.1995 and arrears of pension from 1.1.2010. The Respondent is directed to work out the terminal benefits and pension payable from
1.1.2010 to the Petitioner and pay the same within 12 weeks from the date of receipt of a copy of this order.
The writ petition is ordered accordingly. No costs. Connected miscellaneous petition is closed.