S. Rajasekaran vs The Joint Director Government Stationery and Printing Department Commissionerate of Stationery and Printing, The Assistant Director Government Stationery Stores and The Branch Manager Government Press

K. Chandru, J.—The Petitioner has filed the present writ petition seeking to challenge the order of dismissal dated 22.04.2010 passed by

the first Respondent Joint Director, Government Stationery and Printing Department, Chennai.

When the writ petition came up on 27.09.2010, this Court directed the learned Special Government Pleader to take notice for the Respondents.

On notice from this Court, the Respondents have filed a counter affidavit dated 15.12.2010. The Petitioner has filed a reply affidavit dated

05.04.2011.

It is seen from the records that the Petitioner was appointed as Mazdoor on compassionate ground on 16.08.1993. Since there were

complaints against the Petitioner''s behaviour, including using of filthy language against female employees and also due to administrative reason, he

was transferred to Government Branch Press, Pudukkottai. He was relieved from duty on 30.04.2005. He joined duty at the Branch Press,

Pudukkottai on 07.05.2005 and worked for three months only. Thereafter, he absented himself from duty from 01.08.2005 without any prior

intimation. A charge memo was given to the Petitioner for his unauthorised absence, by the third Respondent, on 14.09.2005. The Petitioner did

not give any reply to the charge memo. Therefore, the Branch Manager passed an order dated 24.07.2006 stopping the increment of the Petitioner

for a period of six months without cumulative effect. Even thereafter, the Petitioner did not join duty and a further charge memo under Rule 17(b)

of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was framed against him. The Petitioner was asked to submit his explanation. But he

did not file any reply to the charge memo. Since the Petitioner requested the Respondents to permit him to join duty, he was permitted to join duty

vide proceedings dated 27.10.2007, but without prejudice to the pending disciplinary action. Even thereafter, the Petitioner did not join duty and

despite several reminders being sent, he did not join duty. Therefore, an Enquiry Officer was appointed on 19.03.2009. The Petitioner attended

the enquiry and gave oral explanation. The Enquiry Officer found that the Petitioner was guilty of the charges levelled against him and he was

directed to give his further explanation. Since there was no reply, the Joint Director of Stationery and Printing, Chennai had sent a memo dated

26.10.2009 to the Petitioner asking him to appear for personal hearing. But the Petitioner did not appear even for the personal hearing and

therefore, another memo dated 01.12.2009 was issued to the Petitioner asking him to appear before the appointing authority namely, the Joint

Director. Thereafter, he was removed from service from the date of his absence viz., 01.08.2005, vide order dated 22.04.2010. It was contended

that since the Petitioner was absented for more than five years and despite several opportunities, he did not report for duty, he is entitled to be

removed from service.

The contention of the Petitioner was that his transfer itself was illegal, as he is a low paid employee and his consent for transfer was not obtained

and though he was transferred, he has been illegally terminated from service. It was further stated that no proper enquiry was conducted before

passing the impugned order. The Petitioner also placed reliance upon the following judgments to contend that his termination was illegal and

therefore, the same is liable to be set aside.

1 Union of India (UOI) Vs. T.R. Varma,

A.K. Kraipak and Others Vs. Union of India (UOI) and Others,

S.N. Ghouse v. State of West Bengal 1985 (2) SLR 454 CAL

M. Sathaiah v. The Joint Director of Agriculture CDJ 2010 MHC 7661

But however, considering the facts and circumstances of the case, it must be held that the Petitioner never had any intention to join at the

transferred place namely Pudukkottai. The statement that he was a low paid employee, cannot be a ground, since persons with very same salary

were also working in Pudukkottai. In any event, the issue relating to transfer, cannot be urged at this point of time. When once the Petitioner had

absented himself unauthorisedly and did not give any satisfactory explanation, the Respondents, on the basis of the available materials, had

terminated him from service. The proposition of law projected by the Petitioner by citing the judgments referred to above, cannot help his cause.

The question of absence will have to be seen from its own contest and the Petitioner had no explanation for his long absence.

In this context, it is necessary to refer to the judgment of the Supreme Court in L and T Komatsu Ltd. Vs. N. Udayakumar, wherein it has been

held that the unauthorised absence is a serious misconduct and in such matters, no indulgence can be shown. In this regard, paras 6, 7 and 8 of the

said judgment may be usefully extracted hereunder:

It is submitted that habitual absenteeism is gross violation of discipline. It is also submitted that the parameters for the exercise of (sic jurisdiction

under) Section 11-A of the Act have not been kept in view by the Labour Court and the High Court.

In response, learned Counsel for the Respondent submitted that because of personal problems there was unintentional absence and that should

not have been seriously viewed. The reply to the second show-cause notice on which the emphasis is laid by the Appellant to contend that the

Respondent had admitted his guilt was taken under coercion. It is also submitted that the discretion for exercise of jurisdiction u/s 11-A has been

rightly exercised.

So far as the question whether habitual absenteeism means the gross violation of discipline, it is relevant to take note of what was stated by this

Court in Burn and Co. Ltd. v. Workmen (AIR p.530, para 5)

There should have been an application for leave but Roy thought that he could claim, as a matter of right, leave of absence though that might be

without permission and though there might not be any application for the same. This was gross violation of discipline. Accordingly, if the Company

had placed him under suspension that was in order. On these findings, it seems to us that the Tribunal erred in holding that it could not endorse the

Company s decision to dispense with his services altogether. In our opinion, when the Tribunal upheld the order of suspension it erred in directing

that Roy must be taken back in his previous post of employment on the pay last drawn by him before the order of suspension.

Similar view has already been expressed by the Supreme Court in its judgment in LIC of India v. R. Dhandapani reported in 2006 (13) SCC

613 and in paragraph 8, it has been held as follows:

In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the

legitimacy of judicial reasoning and process. The relief''s granted by the courts must be seen to be logical and tenable within the framework of the

law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and

private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically

from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken

and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the

judicial process of its dignity, authority, predictability and respectability. (See Kerala Solvent Extractions Ltd. v. A. Unnikrishnan.)

In the light of the same, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.