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Madras High CourtWP/8121/2011allowed

V.Jayakumar v. The District Manager-I

2022-01-27Honourable Mr Justice D. Krishnakumar5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.01.2022

CORAM:

THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR W.P.No.8121 of 2011 V.Jayakumar

...Petitioner

Vs.

1. The District Manager I, Tamilnadu State Marketing Corporation Ltd., Coimbatore Division, Coimbatore.

2. The Senior Regional Manager, Tamilnadu State Marketing Corporation Ltd., Coimbatore Division, Coimbatore.

...Respondents

Prayer :

Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order passed by the 2nd respondent Pa.Mu.2863/09/A1 dated 05.05.2010 and quash the same in respect of the petitioner consequently direct the respondents to reinstate the petitioner in his service as a salesman in the TASMAC shop with continuity of service Back Wages and all other attendant benefits. For Petitioner : Mr.P.R.Thiruneelakandan For Respondents : Mr.K.Sathish Kumar

O R D E R

The petitioner was working as a Supervisor in Tasmac Shop No.2220, K.N.G. Pudur Pirivu, Coimbatore and he was transferred to Shop No.1682 and deputed to the respondent office to look after the office work. While so, due to illness, the petitioner could not report for duty on 17.5.2007. He submitted letter to the first respondent and sought for two months leave from 18.5.2007. The said letter was accepted by the first respondent and granted leave to the petitioner and he handed over charge to the other Supervisor. According to the

petitioner, he took treatment for Hepatitis virus fever. On 18.11.2007, he produced another leave letter seeking one more month leave for taking treatment. After recovered from illness, on 5.12.2007, he reported for duty, but he was denied employment and directed the petitioner to appear before the enquiry officer on 18.12.2007 for the alleged unauthorised absent from 18.11.2007. Based on the aforesaid charges levelled against the petitioner, the respondent has passed the impugned order by imposing punishment of dismissal from service and the same was confirmed by the second respondent by his order in Pa.NMu.4449/2008/A1, dated 12.12.2008. As against the order of termination, the petitioner has preferred a writ petition in W.P.No.9699 of 2009 before this Court. By order dated 4.12.

2009 this Court found that the appellate authority without applying his mind, confirmed the order of the original authority and therefore, set aside the order of the appellate authority and remitted the matter back to the appellate authority to take a fresh decision. Pursuant to the order passed by this Court in W.P.No.9699 of 20009, dated 4.12.2009, the appellate authority has passed the order by confirming the termination order passed by the original authority. Challenging the said order, the petitioner has preferred the present writ petition before this Court.

2. Counter affidavit has been filed by the first respondent wherein it is stated that the petitioner went on leave from 17.5.2007 and on 5.12.2007 without intimation and therefore, explanation was called for from the petitioner. On 18.12.2007 the petitioner submitted a medical certificate to substantiate his illness from 18.5.2008 to 17.12.2007. Further, it is stated that the petitioner was pursuing 2nd year Diploma in Teacher Training Education during the academic year 2007-2008 without prior permission from the respondent. Further, the petitioner submitted forged medical certificate and therefore, the petitioner was terminated from service and the appeal preferred before the Senior Regional Manager was dismissed by his order dated 12.12.2008. This Court in W.P.No.9699 of 2009 quashed the impugned order of the second respondent and directed the appellate authority to give personal hearing to the petitioner and pass final orders. Pursuant to the said order, fresh enquiry was conducted and the termination order passed by the second respondent was confirmed by the appellate authority.

3. Heard the rival submissions of the parties and perused the materials available on record.

4. The charges levelled against the petitioner is that the petitioner was unauthorisedly absent from 18.11.2007. The petitioner without obtaining prior permission from the respondent, absent from duty. Based on the enquiry officer's

report, the original authority viz., the first respondent has passed an order by stating that the petitioner has not submitted leave application for availing leave from 18.11.2007 and further stated that the petitioner was in the habit of taking leave unauthorisedly and not attending shop and hence, the termination order has been passed.

5. According to the counsel appearing for the petitioner, the petitioner had undergone Diploma in Teacher Training Course which is two years Course in the middle of 2007 when the petitioner was out of employment. Charges levelled against the petitioner is only in respect of unauthorised absent from 18.11.2007. According to the counsel appearing for the petitioner, the Hon'ble Supreme Court as well as this Court in various decisions, held that authority cannot impose severe punishment of termination of service in the case of unauthorised absence. Therefore, the said punishment is excessive, disproportionate to the charge levelled against the petitioner and the same is unsustainable.

According to the learned counsel appearing for the respondent, the petitioner has stated before the appellate authority that during the relevant period, he had undergone Teacher training Course. The appellate authority found that the petitioner had undergone Teacher Training Course during the period 2007 to 2009 without obtaining prior permission from the respondent Corporation as well as there is no provision to permit the petitioner to continue in service. According to the counsel appearing for the petitioner, the reason recorded by the appellate authority is unsustainable and stated that the appellate authority relying upon the reference 11 communication sent by the head office on 24.4.2009, passed the impugned order. According to the counsel appearing for the petitioner, the aforesaid communication is only prospective in nature.

Therefore, the aforesaid communication cannot be held against the petitioner for imposing the punishment of termination from service.

6. The specific ground raised by the learned counsel appearing for the respondent is that the petitioner submitted forged medical certificate to the respondent. This Court directed the Commissioner of Police, Coimbatore to investigate and submit detailed report before this Court and the report also filed by the Commissioner of Police and the same is also part and parcel of the record. According to the learned counsel appearing for the respondent, charges levelled against the petitioner is that during the period from 18.5.2007 to 26.12.2007 the petitioner was unauthorisedly absent. Therefore, based on the aforesaid charge, the first respondent proceeded against the petitioner and passed the impugned order. On verification, it is found that the petitioner undergone Teacher training Course during the period 2007 to 2009. Therefore, the

appellate authority passed an order by stating that the petitioner was unauthorisedly absent during the relevant period and confirmed the order of the first respondent.

7. According to the learned counsel appearing for the petitioner, the punishment is excessive and disproportionate to the charges levelled against the petitioner. This Court directed the Commissioner of Police to investigate and file report before this Court and the same was filed by the Commissioner of Police, Coimbatore before this Court. The petitioner had undergone Teacher Training Course during the period 2007 to 2009 without obtaining prior permission from the respondent corporation. The petitioner undergone Teacher training Course when he was out of employment and further, he was working in the respondent Corporation as Part time Supervisor and therefore, there is no legal impediment to pursue any degree without affecting part time work.

There is no charge framed against the petitioner for pursing Teacher training Course during the relevant period. The present charge is only in respect of absent from duty from 18.5.2007 to 17.12.2007. Without giving opportunity to the petitioner to submit his explanation to the findings of the appellate authority, the impugned termination order has been passed. In the punishment order passed by the respondent as well as counter affidavit filed by the respondent, it is stated that the petitioner was absent from 17.5.2007 without any prior intimation to the respondent Corporation. According to the learned counsel appearing for the petitioner, the stand taken by the respondent in the counter affidavit, has not been whispered in the charges.

Therefore, this Court is of the view that the respondent Corporation without framing charges as stated in the counter affidavit and also without providing opportunity to the petitioner, the impugned order has been passed and therefore, the respondent violated the principles of natural justice. The impugned punishment order has been passed without any justification and the same is unsustainable. Therefore, this Court has no hesitation to quash the impugned order passed by the respondent.

8. In view of the above, the impugned order passed by the respondent dated 5.5.2010 is quashed. However, liberty is granted to the respondent to proceed afresh and frame charges against the petitioner with all relevant particulars in accordance with law to proceed disciplinary proceedings in accordance with law, after providing due opportunity to the petitioner and take final decision on its own merits, as expeditiously as possible, preferably within a period of four months from the date of receipt of a copy of this order.

9. The writ petitioner shall also co-operate with the enquiry proceedings. If any delay on the part of the respondentCorporation in concluding the disciplinary proceedings, it is open to the petitioner to approach the respondent-Corporation for reinstatement into service without any back wages. 10.

The writ petition is allowed with the above directions,. No costs.

Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar vaan To

1. The District Manager I, Tamilnadu State Marketing Corporation Ltd., Coimbatore Division, Coimbatore.

2. The Senior Regional Manager, Tamilnadu State Marketing Corporation Ltd., Coimbatore Division, Coimbatore.

+1cc to Mr.P.R.Thiruneelakandan , Advocate, S.R.No.5039 W.P.No.8121 of 2011 KSM[co] NSK 16/02/2022