High Court quashed removal orders dismissed an employee for alleged absence without conducting a proper enquiry, directing reinstatement with continuity of service but no back wages due to his advanced age.
Reinstatement of the petitioner with continuity of service and attendant benefits, but without back wages, within 15 days.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11/07 /2013
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.42390 of 2002
Dr.E.Karthikeyan ... Petitioner Vs. Tamil Nadu Pollution Control Board, Rep. by its Chairperson, 100, Anna Salai, Chennai-600 032. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, to call for the records relating to the order bearing reference Proc.No.CS/25261/2001, dated 30.05.2002 along with the Pro.No.PER/P2/1441/LAD-1/91, dated 28.08.1992 of the respondent Board and quash the same as being illegal, arbitrary, unconstitutional and consequently direct the respondents to reinstate the petitioner with back- wages continuity of service and all other attendant benefits and pass such other orders or directions as may be deemed fit and proper, award costs.
The brief facts of the case are as follows:-
The petitioner stated that he joined the Tamil Nadu Pollution Control Board on 01.02.1989, as an Environmental Scientist. During his service, he was subjected to frequent transfers, even though these transfer orders were not due to administrative exigencies. He was shocked to receive a charge sheet dated 17.01.1992. The contents of the charge sheet was that he had
been absenting himself frequently right from the date of joining service i.e., 01.02.1989. It was also alleged that he had disobeyed the order of transfer and he had been lethargic in his work. On 04.02.1992, he had submitted a detailed explanation and denied the charges. The charge sheet, did not disclose any such specific instances. He also explained that, from 01.02.1989 to 28.08.1992 i.e., the date of removal, he had been on earned leave and also on leave of loss of pay during different spells and it had been intimated to the Board. An Enquiry Officer was appointed and he had conducted enquiry on 11.06.1992. On that day, he could not appear for the said enquiry, since he felt sick and requested the Enquiry Officer for an adjournment. Accordingly, the Enquiry Officer seems to have adjourned the enquiry to 17.08.1992. On 17.08.1992, as he had not recovered from his illness he had requested for an adjournment once again, by enclosing an authenticated medical certificate.
removal dated 28.08.1992 is ex-facie illegal and is in gross violation of Regulation 8(2) of the Tamil Nadu Pollution Control Board Regulations. The petitioner further stated that against the order of the dismissal authority, he filed an administrative appeal to the Pollution Control Board in November 1994 and he explained the reasons for the delay in preferring this Department appeal, wherein he raised substantial question of law such as to vagueness of the charge sheet, denial of reasonable opportunity to defend the case, non-furnishing of enquiry report etc., The same was brought to the notice of the appellate authority and it was communicated that neither the Enquiry Officer's proceedings nor the report of the Enquiry Officer was given to him and as such he was greatly prejudiced. The Appellate Authority had not decided his appeal on merits and merely rejected it on the ground that the appeal was belated as per Regulation 25. In fact, the regulation 25 will apply only in Government. He made representations on 14.10.1995 and 09.08.1996 to consider his appeal on merits but it was of no avail. Therefore, he filed writ petition in W.P.No.13917 of 1996 before this Court. This Court was pleased to dispose of the writ petition in W.P.No.13917 of 1996, by its order dated 26.02.2001 with the following observations:-
"...5. the period of limitation which is prescribed in the Rules must be considered reasonably. The petitioner has suffered a punishment of termination of service. The period of limitation requires to be considered liberally. No doubt the petitioner has to file a proper petition for condonation of delay as required under Section 19(3) of the Regulations. But without returning the papers or even referring the Regulation 93, the appeal has been rejected by mentioning Regulation Nos.13 and 25. Regulation 25 relates to revision to be filed before the Government.
I am inclined to hold that no prejudice would be caused in entertaining the appeal, considering the nature of the penalty imposed against the petitioner.
Therefore, the respondents are directed to take up the appeal filed by the petitioner on file and dispose of the same on merits within a period of 4 months from the date of receipt of a copy of this order.
In the result, the writ petition is disposed of with the above said observations."
notice to the learned standing counsel of the Board on 30.04.2002. It was only thereafter, that the respondent-Board passed the impugned order on 30.05.2002, which is perfunctory. Thereafter, this Court was pleased to close the contempt petition on 18.06.2002 since the orders had been passed by the Board and communicated to the respondents.
with a medical certificate and this was followed by a telegram dated 18.08.1992 and in spite of it, the petitioner was set exparte and dismissed from service and thereby he had been put into irreparable loss and hardship and the interest of the petitioner had been prejudiced. The order dated 30.05.2002 of the Appellate Authority, that too after a contempt petition was filed, is really very cursory and is doing lip service to the orders of this Court. A perusal of the orders dated 30.05.2002 of the Appellate Authority will show that none of the points raised by the petitioner had been considered or discussed. The learned senior counsel, in support of his contention had cited a judgment which is reported in 2002 (2) SCC (L & S) 290 (AMAR NATH CHOWDHURY v. BRAITHWAITE & CO. LTD.
"A. Domestic enquiry - Appeal - Participation of disciplinary authority deciding - Impermissibility - The same person, acting as disciplinary authority removing the employee from service and thereafter, in his capacity as Chairman-cum-Managing Director of the employer company, presiding over, and participating in the deliberations of, the meeting of the Board of Directors while deciding the said employee's appeal - In the absence of an enabling statutory provision such dual function, held violated the rule against bias - In view of the definition of the expression "Board" plea to uphold such dual function by applying the doctrine of necessity, rejected - Hence, the non-speaking order dismissing the appeal, passed by the Board set-aside and the matter remitted to the Board to decide the appeal by a speaking order in accordance with law-Braithwaite and Co. (Conduct, Discipline and Appeal) Rules, R.3(d)Appeal-Non-speaking order of dismissal of - If proper - Domestic enquiry - Natural justice - Bias - Nemo debet esse judex in propria causa."
Authority should have communicated the enquiry report, if any, and sought for the petitioner's comments before confirming the harsh punishment imposed by the respondent. If the report of the Enquiry Officer had been communicated to the petitioner, he would have had an opportunity to explain his case. The order of removal dated 28.08.1992 issued by the disciplinary authority is contrary to the mandatory provisions of Regulations 8 (2) of the Tamil Nadu Pollution Control Board. As per the findings of the impugned order, list of witnesses were not mentioned and list of documents had also not been marked. The learned counsel has cited the below mentioned judgments in support of his arguments:-
(i) G.Vallikumari v. Andhra Education Society reported in (2010) 2 Supreme Court Cases 497
"A. Education and Universities - Delhi School Education Act, 1973 (18 of 1973) - Ss.8, 12 and Ch.IV - Extent and nature of Government control under, over private recognized aided/unaided minority educational institutions - Constitutionality of S.8(2) - S.8(2) subjecting all dismissal, removal, reduction in rank or termination to the approval of Director of Education (Government of Delhi) - S.12 excluding all unaided private minority schools from the preview of Ch.IV - Rights of minorities in private recognized institutions under Article 30, held, are violated only by S.8(2) and not by Ss.8(1), (3), (4) and (5) whether aided or unaided partly holding exclusions in S.12 as discriminatory accordingly, held, Ch.IV except S.8(2) is applicable to private recognized aided as well as unaided minority educational institutions and the authorities concerned of the Education Department are bound to enforce the same against all such institutions - Constitution of India - Ar.13 -Doctrine of severability Application - Unconstitutional statutory provisions severed from valid ones - Statute Law - Severability."
(ii) KRUSHNAKANT B. PARMAR v. UNION OF INDIA reported in (2012) 3 Supreme Court Cases 178
"Service Law - Misconduct - Absence from duty/unauthorized absence/Absenteeism - Wilful absence - Proof - Necessity - Appellant unauthorizedly absent from duty during three consecutive periods (36 days, 32 days and 234 days) - Consequent allegations of failure to maintain devotion to duty and conduct unbecoming of government servant and dismissal based thereupon - Sustainability - Held, for sustaining such allegations it must be proved that unauthorized absence was wilful - If absence is due to compelling circumstances under which it is not possible to report for or perform duty, such absence cannot be held to be wilful and employee guilt of misconduct - In instant case, neither inquiry officer nor appellate authority found absence of appellant wilful
despite his specific defence that he was prevented from attending duty and was not allowed to sign attendance register - Evidence produced by appellant to substantiate his claim was ignored by authorities concerned and on basis of irrelevant facts and surmises he was held guilty- Impugned order of dismissal passed by the dismissal authority, and affirmed by appellate authority, CAT and High Court, set-aside - Considering that appellant had suffered a lot since 1996 when proceedings were initiated against him, matter not remitted to disciplinary authority - Appellant directed to be reinstated and paid 50% back wages - Departmental Enquiry
(iii) M.Natarajan Vs. The Managing Director, Chennai Metropolitan Water Supply and Sewerage Board and others (W.A.No.1172 of 2001, dated 23.02.2007)
"11. In view of the above cited decisions, we are of the view that the respondents having regularized the period of absence from 12.05.1997 to 27.07.1997 and the subsequent period till joining duty by the appellant, the charge framed against the appellant are not maintainable. Therefore, the consequential enquiry and the subsequent imposition of punishment of compulsory retirement are also unsustainable. The learned single judge has not averted to this aspect of the matter in the impugned order dated 18.12.2000.
employee and as he had performed his duty to the full satisfaction of his superiors. The petitioner has been frequently transferred from one place to another viz., on 20.04.1990, he was transferred from Madras to Tuticorin; on 08.01.1991, he was transferred from Tuticorin to Ambattur. On the very same day, he was transferred from Enviromental Lab, Ambattur to Greams Road, Chennai. The learned senior counsel further pointed out that this Court was pleased to direct the respondent to dispose the Department appeal on merits. This order has been passed in writ petition in W.P.No.13917 of 1996. It clearly shows that there is a prima facie case on the side of the petitioner and hence, this Court was pleased to give the direction of disposing the appeal on merits, but the Appellate Authority had disposed the appeal cursorily and that too also after a contempt petition was filed before this Court and as such, the respondent had passed the order in a prejudicial manner due to which the petitioner has been put into great hardship.
thereby causing hardship to daily functioning of the office of the board.
(i) The petitioner is a qualified scientist and he has been selected by the Public Service Commission Board after conducting competitive exams and as such, it is evident that he is qualified to do his work as a scientist. The value of scientist cannot be compared with other categories of employees of any Department, especially considering that he is an Environmental Scientist whose value to the general public is of paramount importance.
(ii) Within 10 months of joining duty, he has been regularized. It clearly proves that he has been sincere, efficient in his service and obedient to his superiors.
(iii) As per medical certificates submitted before this Court, it is seen that the petitioner fell sick on 5 occasions.
(iv) As per this direction of this Court in W.P.No.13917 of 1996, this Court had directed the Appellate Authority to dispose the appeal, by considering the period of limitation liberally. However, this Court is of the view that the writ petitioner was set exparte before the enquriy authority. On the basis of exparte order, the petitioner has filed the Department appeal. So, the Department appeal is not maintainable since the enquiry proceedings of the Enquiry Officer was not conducted in the presence of the petitioner. Therefore, there is a lacuna in the order dated 28.08.1992 passed by the Enquiry Authority. Therefore, fresh enquiry is of paramount importance as only then the details of the charges can be decided on merits.
(v) At this stage, a fresh enquiry cannot be ordered since an inordinate delay had already been caused.
(vi) In the facts and circumstances of the case, the punishment of removal from service due to frequent absence, as pointed out by the respondent is too harsh, as the petitioner's services had been regularized. As such, this Court is of the view that the punishment imposed should be substituted by a lesser punishment.
(vii) This Court is of the view that "removal" and "dismissal" from service stand almost on the same footing and both could bring about termination of service. The only difference between the two is that in the case of dismissal, the employee is disqualified from future employment with his current employer whereas in the case of removal, he is not debarred from getting future employment. Hence, this Court is of the view that the petitioner has to be reinstated considering that he had been removed from service and not dismissed, however without any backwages, as at this stage the petitioner being advanced in age does not have scope of getting employment anywhere else.
Sd/-
Deputy Registrar.
/true copy/
Sub Asst. Registrar.
r n s
To The Chairperson, The Tamil Nadu Pollution Control Board, 100, Anna Salai, Chennai-600 032.
1 CC To Mr.A.Ilango, Advocate SR NO.35068 1 CC To M/s.Row & Reddy, Advocate SR NO.35270 W.P.No.42390 of 2002 mrd[co] gp/25.7
3 issues framed by the court
Whether removal from service violates principles of natural justice due to ex-parte enquiry proceedings.
Whether punishment of removal is appropriate given the petitioner's illness and regularized service.
Whether the petitioner is entitled to reinstation with or without back wages.
2 provisions across 2 enactments
Dr. E. Karthikeyan
Tamil Nadu Pollution Control Board
C.S. Karnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
