The High Court held that the petitioner's removal from service was excessive and unduly harsh given his medical ailment and the authorities' perfunctory appellate process.
Petitioner reinstated in service without payment of back wages but with continuity of service.
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
Reserved on : 25.04.2022
Pronounced on : 11.05.2022
Coram
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P. No.34060 of 2007
and W.M.P.Nos.1 and 2 of 2007
P.Ganesh Prasad
...Petitioner
Vs.
Prayer:
Writ petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus calling for the records relating to the order of dismissal of service of the petitioner in proceeding no. A.N1(1)/ 8999/ 2006 dated 06.02.2006 of the third respondent which was confirmed by the second respondent vide his proceedings in Proc.No.O.P1(1)/ 26887/ 2007 dated 20.05.2007 and further confirmed by the proceedings of the first respondent in Government Order (1t) No.531 dated 14.09.2007 so as to quash the same and reinstate the petitioner into service.
For Petitioner : Mr.B.Manoharan
For Respondents: Mrs.R.L.Karthika Government Advocate
O R D E R
The present writ petition is filed challenging the order of dismissal from service passed by the 3rd respondent herein on 06.02.2007 which was confirmed by the 2nd respondent vide order dated 20.05.2007 and also by the first respondent vide order dated 14.09.2007.
| Charge 1 | P.Ganesh Prasad, Junior Assistant While working in Tappal Section applied for Earned Leave from 18.07.2005 to 31.07.2005 and Medical Leave from 01.08.2005 to 08.11.2005 and stayed away from duty from 09.11.2005 without any intimation. Only after, a memo was issued to him to report to duty, he joined duty on 25.01.2006. Thus, without submitting any leave application, he stayed away from duty unauthorizedly till 24.01.2006. He has failed to serve as a responsible Government Servant and thus caused much dislocation to office work and hardship to administration. |
|---|---|
| Charge 2 | During the year 2005 and 2006 (as noted in the Annexure-II) he has been in the habit of availing leave without prior permission. Submitting leave applications belatedly and staying away from duty without submitting either leave application or intimation. |
| Charge 3 | Though P.Ganesh prasad joined duty on 25.01.2006, he stayed away from duty without any leave application from 13.02.2006 to 16.02.2006. Thereafter, he again stayed away from duty from 28.02.2006 to till date (29.05.2006). By his action he has failed to act as a responsible Government Servant and caused much dislocation to office work. |
Charge 4
Since, P.Ganesh Prasad very often stayed away from duty, the work allotted to him in Tappal Section was very much affected. By his action, he has violated the rule 20(1) of Tamil Nadu Government Servants Conduct Rules.
a) That the petitioner was not given an opportunity to put forth his explanation while imposing the major punishment of removal from service.
b) There was no examination by the medical committee.
c) The impugned proceedings stood vitiated for noncompliance with the mandatory requirement set out under rule 74 of the Tamil Nadu Fundamental Rules. The order of dismissal has been made looking to the antecedents without providing any opportunity to the petitioner.
d) The order of the Appellate and Revisional Authority stood vitiated for non-consideration of grounds raised in particular that evidence of treatment for medical aliment was being submitted.
e) That the punishment is excessive and unduly harsh on applying the doctrine of proportionality.
| Sl.No. | Punish | ment | Proceedings No. | ||
|---|---|---|---|---|---|
| 1. | Stoppage cumulative one year |
of in effect |
creme for |
nt without a period of |
O.P.I(1)/40456/2002, dated 23.07.2002 |
| 2. | Stoppage cumulative one year |
of in effect |
creme for |
nt without a period of |
O.P.I(1)/19064A/02, dated 05.09.2002. |
| 3. | Stoppage cumulative two years |
of effect |
incre for |
ment with a period of |
O.P.1(1)/74757/04, dated 18.11.2005. |
appointed on compassionate grounds and submitted that this Court may consider reducing the punishment, which was resisted by the counsel for the respondent stating that no interference is warranted under Article 226.
"18. ... 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 authority/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."
"17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any
authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the "doctrine of proportionality".
“26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the
Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months. “
“The above appeal was filed against the final judgment/order dated 16.03.2002 passed by the High Court of Delhi in C.W.P.No.6261 of 1998. The main issue relates to the alleged unauthorised absence for 2 months and 8 days for which penalty of removal from service was imposed by the respondents on the appellant.
Thus, the present one is a case wherein we are satisfied that the punishment of removal from 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 upto the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spend 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 o 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.”
Sd/-
Assistant Registrar(CS II)
//True Copy//
Sub Assistant Registrar
Psa
To
+1cc to the Government Pleader, S.R.No.31411
W.P. No.34060 of 2007 and W.M.P.Nos.1 and 2 of 2007
NR(CO) CT 02/06/2022
3 issues framed by the court
Whether the punishment of removal from service was disproportionate and excessive in view of the petitioner's medical condition.
Whether the appellate and revisional authorities failed to apply the doctrine of proportionality by confirming removal without considering new evidence.
What relief is appropriate given the long pendency of the writ petition.
Colour shows how this judgement treated each authority
P. Ganesh Prasad
The State of Tamil Nadu, Represented by the Revenue Secretary
The Special Commissioner, Commissioner of Revenue Administration
The Joint Commissioner, Revenue Administration
MOHAMMED SHAFFIQ
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
