(Prayer: Writ Appeal filed under Clause 15 of Letters Patent against the Order dated 20.04.2018 passed in WP No. 11687 of 2012 on the file of this Court.)
R. Subbiah, J.
1. This intra-court appeal has been filed as against the order dated 20.04.2019 passed in W.P.No.11687 of 2012 in the writ petition filed by the respondent herein, by which, the learned Single Judge modified the punishment of removal from service imposed by the appellants against the respondent, into one of compulsory retirement from service.
2. The respondent herein entered into service of the appellant-Board on 24.12.1980 as Technical Assistant. He was thereafter promoted as Junior Engineer on 03.10.1993. As a Junior Engineer, after transfer and posting to several places, he was posted to work in Area-IV of North Madras, Chennai - 600 013. While he was working as such, he proceeded on earned leave for 80 days from 19.09.2002 to 07.12.2002 purportedly on the ground that he had to confront local and anti-social elements and was subjected to abuse and threats when he did not fall in line with their dictum in diverting supply of water etc., Therefore, fearing threat to his life, he left his residence and was living for sometime at an undisclosed place. It is stated that his request for transfer from North Madras Area was also not considered by the appellants. Subsequently, owing to family circumstances, he absented himself from duty. While so, he came to know that a charge memo under Regulation 10 (2) of CMWSS Board (Discipline and Appeal) Regulations, 1978 was issued to him on 18.07.2003 for alleged unauthorised absence from 08.12.2002. However, charge memo was not served on him. The appellants-Board, after resorting to substituted service in serving the charge memo, placed the matter before the Employment Committee for a final decision, without proceeding to conduct an enquiry. The Committee decided to remove the respondent/writ petitioner from the services of the Board for his continued unauthorised absence from duty. Finally, an exparte order of removal from service was passed by the Vigilance Officer/General Manager of the Board by proceedings dated 12.04.2005. The order dated 12.04.2005 was sent to the respondent and it was received by his family members.
3. On coming to know about the punishment of removal from service in the year 2005, the respondent sent a representation on 07.09.2007 seeking to sanction pensionary benefits. Simultaneously the respondent also filed an appeal dated 15.10.2007 against the order of removal from service as per the Regulations of the Board, inter-alia, seeking for reinstatement from service. By a letter dated 18.07.2009 of the Deputy General Manager of the Board, the respondent was informed about the rejection of his pensionary benefits by citing that he was already awarded the punishment of removal from service and the question of payment of pension will not arise. However, there was no reply received with respect to the status of the statutory appeal submitted by him on 15.07.2007. The respondent has therefore filed WP No. 1123 of 2009 challenging the order removing him from service on 12.04.2005 and the order of rejection of pensionary benefits dated 18.10.2007. The writ petition was dismissed on 14.02.2010 with liberty to file an appeal to appellate authority. Accordingly, the respondent preferred a statutory appeal on 07.05.2010 duly explaining the reason for his continued absence and prayed for sympathetical consideration of his case. He also sent a representation on 06.07.2010 to the Government. The first respondent, by proceedings dated 14.09.2011, rejected the appeal pursuant to the recommendation made by the Committee which scrutinised the appeal. Challenging the order dated 14.09.2011 of the first appellant, the instant writ petition has been filed by the respondent before this Court.
4. The writ petition was opposed by the appellants by filing a detailed counter affidavit. It is stated that the writ petitioner/respondent was on unauthorised absence for a long time and it was not disputed by him. However, the learned single Judge recorded a finding that the delinquency is not such that it warrants removal from service and set aside the punishment of removal from service by substituting it with an order of compulsory retirement from service. The learned Single Judge also observed that the financial benefit, if any, accrued to the respondent/writ petitioner on account of suspension, be given to him notionally till the date of the order and actual benefits from the date of order.
5. Aggrieved by the order passed by the learned Single Judge modifying the punishment of removal from service into one of compulsory retirement, this writ appeal is filed.
6. It is the submission of the learned counsel for the appellants that the respondent/writ petitioner was holding a responsible post, but he absented himself unauthorisedly from 08.02.2002 and charges were framed against him. The charge memo could not be served, as he was evading the receipt of it. It was further found that door was locked for a long time and enquiry revealed that no such person was residing in the last known address of the respondent. Therefore, a publication was effected in Tamil Dailies - Dina Thanthi as well as Dina Bhoomi on 20.05.2004 in which the respondent was directed to appear before the Board on 14.06.2004 at 11.00 am, but he did not appear. Thereafter, the examination committee convened on 06.07.2004 held that charges are proved. It was further reasoned that enquiry could not be conducted for the reason that the charge memo could not be served on the respondent, as his whereabouts were not known. Therefore, for the proved charges, the respondent was removed from service. Further, as per the order dated 14.02.2010 passed in WP No. 1123 of 2009, the respondent filed a statutory appeal, in which he did not deny the unauthorised absence or the period of his absence. His only contention was, fearing for his life, he left the place of residence and absented himself. Such an explanation of the respondent, who occupied a responsible post, cannot be accepted. Such a person need not be shown any sympathy or leniency in the matter of imposition of punishment. However, the learned Single Judge modified the punishment of removal from service into one of compulsory retirement without considering the nature and magnitude of the charges against him. The learned counsel therefore prayed to set aside the order of the learned Single Judge and to restore the order of removal from service imposed on the respondent.
7. Per contra, the learned counsel for the respondent would only contend that the discretion exercised by the learned single Judge to substitute the punishment imposed on the respondent need not be interfered with by this Court. He also further contended that the order of punishment has not been preceded by any enquiry and even the charge memo has not been served on the respondent. In any event, taking note of the continued service rendered by the respondent from 24.12.1980 for a period of more than 22 years, the learned Single Judge has, in exercise of power conferred under Article 226 of The Constitution of India, had modified the punishment so as to enable the respondent/writ petitioner to get some monetary benefits for the period of service rendered by him. He therefore prayed for dismissal of the writ appeal filed by the appellants.
8. We have heard the learned counsel for both sides and perused the materials placed on record.
9. At the outset, we find that the respondent was holding a responsible position in the cadre of Junior Engineer. The reasons assigned by the respondent for not turning up for duty are bald, vague and they cannot be attached any significance. The respondent, who held a responsible position, cannot feign ignorance about his responsibilities and the administrative inconvenience that may be caused to the appellants due to his absence from attending duty for a continued period of more than two and half years from 19.09.2002 till the date of removal from service on 12.04.2005. We are not oblivious of the fact that when a person holding a responsible person did not turn up for duty without even informing the employer, the administrative inconvenience that would have caused to the employer cannot be evaluated with ease. Therefore, we find that the charges against the respondent are proved and it warrants punishment.
10. At the same time, we find that the respondent had rendered 22 years of service prior to his unauthorised absence from duty. This has weighed the mind of the learned Single Judge of this Court to modify the punishment of removal from service into one of compulsory retirement. We are also of the opinion that the 22 years of service rendered by the respondent, is one of the mitigating circumstances appearing in favour of him for modific
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ation of the punishment. However, we wish to observe that this is always not a criteria for modification of the punishment imposed on the persons like the respondent, who held a responsible post and it depends from case to case basis. In other words, but for the 22 years of service rendered by the respondent, we would have definitely interfered with the order passed by the learned Single Judge. The learned Single Judge also, invoking the discretionary powers conferred under Article 226 of The Constitution of India, modified the punishment with an observation that the monetary benefits payable to the respondent will take effect from the date of the passing of the order. Having regard to such an order passed by the learned Single Judge, we desist from interfering with such order passed by the learned single Judge. 11. In the result, we confirm the Order dated 20.04.2018 passed by the learned single Judge in WP No. 11687 of 2012. The Writ Appeal fails and it is dismissed. No costs.