← Library
Madras High CourtWP/27375/2011disposed of

R.Babu, v. The District Manager,

2018-04-20Honourable Mr Justice Satrughana Pujahari5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :: 20-04-2018

CORAM

THE HONOURABLE MR.JUSTICE SATRUGHANA PUJAHARI W.P.No.27375 OF 2011 R.Babu ...

Petitioner -vsThe District Manager, Tamilnadu State Marketing Corporation Ltd. (TASMAC), Coimbatore Division, Coimbatore, TamilNadu.

...

Respondent Petition under Article 226 of the Constitution of India, praying for issuance of writ of certiorarified mandamus, to call for the records of the respondent relating to the impugned order Na.Ka.No.1151/07/R.V.1, dated 05.01.2008, quash the same and consequently direct the respondent to reinstate the petitioner in service as salesman in TASMAC at Coimbatore Division, with continuity of service, backwages and all attendant benefits.

For petitioner : Mr.P.R.Thiruneelakandan For respondent : Mr.K.Sathish Kumar

O R D E R

Heard the learned counsel for the parties.

2. This Writ Petition has been filed by the petitioner, challenging the order of termination issued against him on the delinquency of unauthorised absence of duty for three years, inasmuch as he did not join duty pursuant to an order of transfer by the respondent, to be illegal, arbitrary and contrary to law, as he had not been given a reasonable opportunity of hearing before the impugned order was passed.

3. Though counter affidavit has been filed filed by the respondent, the same is not available on record. But, it is supplied in the Court today, justifying the order of termination, inasmuch as the petitioner remained absent unauthorisedly from duty for about three years and being given an opportunity of hearing; he also admitted the fact that he remained unauthorisedly absent for duty and, therefore, the impugned order cannot be found fault with.

4. During the course of hearing, learned counsel appearing for the petitioner submits that the petitioner does not dispute the finding that he remained unauthorisedly absent for duty; the authority ought not to have imposed the punishment of dismissal on him; The said punishment of dismissal therefore being shockingly disproportionate and the same needs to be set aside, more particularly, taking into consideration the mitigating circumstance that the petitioner is the only earning member

of the family and, therefore, the authority should have visited the same with any other minor punishment. It is also submitted that in the event of the order of dismissal being set aside and revisited with any other punishment, he will not claim backwages.

5. Learned counsel for the respondent, however, submits that in view of the long period of absence and owing to defiance of the order of transfer, the punishment imposed on the petitioner cannot be said to be disproportionate and, as such, the same needs no interference.

6. Be that as it may, considering the fact that the petitioner was a salesman and after the order of transfer he could not join duty due to certain difficulties faced by him; but he is ready and willing to join duty now; and the delinquency is only one of unauthorised absence coupled with the fact of mitigating circumstance that the petitioner is a salesman and has a family to support, this Court is of the view that the punishment of dismissal imposed on the petitioner is shockingly disproportionate and the same is, accordingly, set aside. The matter is remitted to the disciplinary authority to revisit the punishment of dismissal with any other punishment, by reinstating the petitioner in service within two months from the date of receipt of a copy of this order.

It is made clear that the petitioner, on such reinstatement, as submitted by him, shall not claim, or is not entitled to, any backwages. This view of mine is fortified by a Division Bench decision of this Court in W.A.No.1689 of 2009, wherein the delinquency of unauthorised absence of four years visited him an order of dismissal has been set aside.

7. Writ Petition stands disposed of with the aforesaid order. However, in the circumstances, there shall be no order as to costs. Index : Yes/No 20-04-2018 Internet : Yes/No Speaking/Non-speaking dixit To The District Manager, Tamilnadu State Marketing Corporation Ltd. (TASMAC), Coimbatore Division, Coimbatore, TamilNadu.

SATRUGHANA PUJAHARI,J.

dixit W.P.No.27375 OF 2011 20-04-2018