A.Ezhilarasi v. The Deputy Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 29.03.2021 Delivered on : 26.04.2021

CORAM

THE HONOURABLE MR.JUSTICE R.MAHADEVAN Writ Petition No.24544 of 2013 and M.P.No.1 of 2013 A.Ezhilarasi ... Petitioner ..vs..

1. The Deputy Commissioner of Police Headquarters, I/C: Armed Reserve Coimbatore City.

2. The Commissioner of Police, Coimbatore City.

... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records of the respondents in connection with the impugned order passed in C No.F3/WP 38907/2006 dated 03.11.2011, CPO No.1854/2011, C No.F3/WP 38907/2006 dated 29.11.11 and Na.Ka.No.O-1/39492/2013 dated 03.08.2013 and quash the same and direct the respondents to settle the death benefits of late S.Anandan, formerly AR Nayak 2056, as if he died while he was in service along with interest @ 12% p.a. and further direct the respondents to appoint the petitioner on Compassionate ground and further direct the respondents to grant all attendant benefits to the petitioner. For Petitioner : Mr.Venkataramani, Sr.C.

for Mr.M.Muthappan For Respondents : Mr.P.Chinnadurai, AGP

ORDER

The prayer made in this writ petition is to issue a certiorarified mandamus to call for the records relating to the orders dated 03.11.2011, 29.11.2011 and 03.08.2013 passed by the respondents and quash the same and consequently direct the respondents to settle the death benefits of one S.Anandan as if

he died while he was in service, and appoint the petitioner on Compassionate ground and grant all attendant benefits to the petitioner along with interest @ 12% p.a.

2.The case projected in the writ petition is as follows: 2.1 The petitioner's husband by name S.Anandan, was appointed as directly recruited Gr.II Police Constable in TSP VIII Battalion, Veerapuram, on 28.02.1995. Subsequently, he was transferred to District Armed Reserve, Coimbatore City in November 1998. Thereafter, he was promoted as Nayak in the Armed Reserve on 14.02.2005.

2.2 While so, on 14.07.2005, he applied for one day casual leave and went to his native place, however, due to his family circumstances, he did not report to duty continuously for a period of 21 days, as a result of which, he was declared as deserter on 19.08.2005.

2.3 On receipt of the desertion order, the petitioner's husband contacted the Assistant Commissioner of Police, Armed Reserve, Coimbatore and explained the reason for his absence and requested to take him back for duty. Acceding the said report, he was permitted to join duty on 23.08.2005 and accordingly, he reported for duty and was serving as Nayak.

2.4 In the mean while, the petitioner's husband was issued with a charge memo dated 24.11.2005 in PR.No.94/F4/2005 under Rule 3(b) of the TNPSS (D&A) Rules for his unauthorised absence from duty without leave or permission for a continuous period of 21 days, to which, he submitted a detailed explanation on 19.12.2005.

2.5 Being dissatisfied with the same, enquiry was conducted and the enquiry officer submitted a report dated 30.12.2005 holding that the charges framed against the petitioner's husband have been proved. The disciplinary authority / first respondent accepted the findings of the enquiry officer and passed an order dated 19.03.2006, imposing the punishment of removal from service with effect from 04.03.2006 against the petitioner's husband.

2.6 Challenging the aforesaid order of punishment, the petitioner's husband preferred an appeal, but belatedly, due to his family circumstances, which was rejected by the second respondent as time barred, without deciding the same on merits, by order dated 25.09.2006.

2.7 Aggrieved over the orders passed by the respondents 1 and 2, the petitioner's husband filed WP.No.38907 of 2006,

during the pendency of which, he died on 08.03.2008 due to heart ailment. Therefore, the said writ petition was contested by the petitioner and her two children.

2.8 By order dated 22.09.2011, the aforesaid writ petition was disposed of, setting aside the orders passed by the respondents 1 and 2 and remitting the matter to the respondents for fresh consideration with regard to quantum of punishment, for which, three months time was granted.

2.9 Pursuant to the aforesaid order, the first respondent by order dated 03.11.2011, modified the punishment imposed on the petitioner's husband into one that of compulsory retirement. A consequential order of modification of punishment was also passed on 29.11.2011. However, the monetary benefits payable were not disbursed to the petitioner.

2.10 Thereafter, the petitioner submitted a representation dated 29.07.2013 seeking compassionate appointment, which was rejected on 03.08.2013. Feeling aggrieved, the petitioner is before this Court with the present writ petition for the aforesaid relief.

3.The learned senior counsel appearing for the petitioner has made two fold submissions. The first submission is that when this court had set aside the order of removal from service passed by the disciplinary authority as confirmed by the appellate authority and remanded the matter to the respondents for fresh consideration in the earlier WP.No.38907 of 2006 by order dated 22.09.2011, the charges framed against him, get abated due to the death of the petitioner's husband and the disciplinary action initiated against him is no longer pending and in such circumstances, the respondents ought to have quashed the punishment imposed on the petitioner's husband, whereas they modified the same into one of compulsory retirement, which is illegal, arbitrary, and contrary to law.

He further submitted that even otherwise, the modified punishment of compulsory retirement is shockingly disproportionate to the charges framed against the petitioner's husband. The second submission is that in view of the setting aside the order of punishment by the order of this Court in WP.No.38907 of 2006, it is presumed that the petitioner's husband died, while he was in service and therefore, the petitioner is entitled for appointment on compassionate grounds, but her claim was rejected, stating that her husband, by the order of modified punishment, compulsorily retired from service, which is also arbitrary, illegal and contrary to law.

Thus, the learned senior counsel prayed to set aside the orders impugned herein and consequently, direct the respondent authorities to provide compassionate appointment and grant all the monetary benefits due to her husband.

4.On the other hand, the learned Additional Government Pleader appearing for the respondents submitted that taking note of all the facts and circumstances of the case and also based on the material evidence, the respondents have rightly passed the orders impugned herein and therefore, the same do not require any interference at the hands of this Court.

5.This court considered the submissions made on either side and carefully perused the materials available on record. 6.From the facts referred to above and the documents enclosed in the typed set of papers, certain basic facts are not in dispute and the same need not be traversed herein. 7.The main crux of the matter is that earlier, the petitioner's husband challenged the order imposing the major penalty of removal from service, by filing WP.No.38907 of 2006, which was allowed by this Court, vide order dated 22.09.2011, the relevant portion of which, for better appreciation, is extracted below:

"10.Though it may be true that the petitioner did not exhaustively plead about the various family circumstances, which prevented him from immediately reporting for duty, yet such averments made in the writ affidavit have not been stated to be false. In the absence of any reason to disbelieve the peculiar condition in which the petitioner was pushed, this court is able to perceive the mental agony and trauma, which the petitioner would have undergone owing to his mother's sickness, his child's death, his wife is suffering from congenital heart decease, the second daughter having been operated upon for heart ailment coupled with the burden to care of his brother's family who died in a road accident. Therefore, all the circumstances could be taken into consideration for taking a more lenient view against the petitioner.

11.Therefore, considering the entire facts and circumstances of the case and taking note of the decision rendered by the Hon'ble Supreme Court, followed by this Court and the decision of the Hon'ble Division Bench, this is the fit case where the order of penalty of removal from service imposed on the deceased writ petitioner is liable to be set aside.

12.In view of the above reasoning, the writ petition is allowed and the impugned order is set

aside and the matter is remanded to the first respondent for fresh consideration, for reconsidering the matter with regard to quantum of punishment imposed on the deceased writ petitioner. While reconsidering the matter, the first respondent shall also take into consideration that the original writ petitioner is no more and he has left behind his widow aged about 32 years, one minor son aged about 9 years and a minor daughter aged about 4 years and the authority shall pass appropriate orders on merits and in accordance with law as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed." Pursuant to the aforesaid order, the first respondent reconsidered the matter and passed an order dated 03.11.

2011, modifying the punishment of removal from service into one of compulsory retirement, in the following lines: "...Considering that the delinquent has left behind his widow aged about 32 years, one minor son aged about 9 years and a minor daughter aged about 4 years, it is ordered to retire the delinquent compulsorily retire from service from the date of original order i.e., 04.03.2006."

Accordingly, the second respondent passed the order of modification of punishment dated 29.11.2011 and paragraph 7 of the said order would further run thus:

"7.Consequent on the modification of punishment monetary benefits if any will be drawn and paid to his wife and legal heirs separately."

Thereafter, the second respondent by order dated 03.08.2013, rejected the petitioner's application dated 29.07.2013, seeking compassionate appointment, stating that such employment be given to the legal heirs of the government servant, who died, while in service, whereas her husband died, after he was imposed with the punishment of compulsory retirement.

8.The challenge made in this writ petition is to the aforesaid three orders dated 03.11.2011, 39.11.2011 and 03.08.2013 passed by the respondent authorities, after passing an order in the earlier WP.No.38907 of 2006 on 22.09.2011 filed by the petitioner.

9.It appears that during the pendency of the earlier writ petition, the petitioner's husband died and the matter was proceeded by the petitioner and her children. This Court considering the pathetic situation under which, the petitioner's husband remained absent from duty, had set aside the order of punishment of removal from service and remanded the matter to the respondent authorities for fresh consideration with regard to the quantum of punishment and accordingly, allowed the writ petition, by order dated 22.09.2011. Following the said direction, the first respondent reconsidered the issue and rightly modified the punishment into one of compulsory retirement on sympathetic ground.

10.Though the learned senior counsel for the petitioner made his first submission that in view of the earlier order passed by this Court in WP.No.38907 of 2006 filed by the petitioner's husband, the charges framed against him get abated on account of his death and the disciplinary action does not survive and hence, the respondent authorities ought to have quashed the punishment imposed on him, but they modified the same into one of compulsory retirement, which is arbitrary, illegal and contrary to law, this Court is not inclined to accept the same. Inasmuch the petitioner's husband has died only after the order of punishment of removal from service was imposed on him by the respondent authorities and not during the pendency of disciplinary proceedings, the question of abatement of charges does not arise at all and hence, the first submission of the learned senior counsel for the petitioner has no legs to stand.

11.It is also relevant to point out at this juncture that this Court under its power conferred by Article 226 of Constitution of India, can interfere in the matter of disciplinary proceedings if the disciplinary/enquiry proceedings were conducted in violation of manner prescribed and against the principle of natural justice and if the order of concerned authority is non speaking and unreasoned; and the judicial review is permissible with respect to decision making process and not against the decision itself, unless it is shown that the decision is without any evidence or suffers from malafide or malice or harsh or without jurisdiction. In Indian Oil Corpn. Ltd. v. Ashok Kumar Arora, (1997) 3 SCC 72, it was held by the Supreme Court as under:- "At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance, where it is found that the

domestic enquiry is vitiated because of nonobservance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee."

In Lalit Popli v. Canara Bank, (2003) 3 SCC 583, the Supreme Court has observed as follows:- "17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.

18. In B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44] the scope of judicial review was indicated by stating that review by the court is of decision-making process and where the findings of the disciplinary authority are based on some evidence, the court or the tribunal cannot reappreciate the evidence and substitute its own finding.

19. As observed in R.S. Saini v. State of Punjab [(1999) 8 SCC 90 : 1999 SCC (L&S) 1424] in paras 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits. It was noted as follows: (SCC p. 96) "16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of nonapplication of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or

reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.

17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any nonapplication of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard."

12.Therefore, in the opinion of this Court, the order of punishment of modification passed by the respondent authorities as per the direction of this Court, is fair, just and reasonable and is proportionate to the charges framed against the petitioner's husband and the same warrants no interference. 13.As regards the second submission made on the side of the petitioner relating to compassionate appointment to the petitioner, which cannot be countenanced by this Court, taking note of the fact that at the time of death of the petitioner's husband, he was not in service as he compulsorily retired from service, pursuant to the orders passed by the respondent authorities, which are also upheld by this Court in the preceding paragraph. Having regard to the admitted position that the compassion appointment is intended to provide livelihood to the family of the deceased employee, who all of a sudden faced death, while in service, the order passed by the second respondent rejecting the petitioner's application seeking compassionate appointment, need not be interfered with by this Court.

14.In such view of the matter, this writ petition deserves to be dismissed and is accordingly, dismissed. However, the monetary benefits payable to the petitioner, if any, pursuant to the order of the second respondent dated 29.11.2011, shall be

paid to her, if not already paid, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar rk To

1. The Deputy Commissioner of Police Headquarters, I/C: Armed Reserve Coimbatore City.

2. The Commissioner of Police, Coimbatore City.

+1cc to Mr.M.Muthappan, Advocate, S.R.No.25365 +1cc to the Government Pleader, S.R.No.25698 W.P.No.24544 of 2013 VSN-II(CO) HS(22/07/2021)