S SUBRAMANIAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE petitioner was initially appointed as Vaccinator in the Public Health Department and joined duty on 18.11.1970. After his satisfactory and continued service for about 24 years, he was promoted as Health Inspector with effect from 01.11.94. Whileso, his daugher, Kayalvizhi, aged about 17 years, expired on 29.04.1995, which caused great mental agony and imbalance in the minds of the petitioner and his family, as a result, he was not in a position to attend his official work and thereby, he failed to submit his leave application for his absent from duty from 02.05.1995 onwards, which also resulted because of his sickness and was undergoing medical treatment. Due to his continues absent, the 3rd respondent/Deputy Director of Health Services, Krishnagiri, received a report dated 14.11.1995 from the Medical Officer, Government Primary health Centre, Singarapettai. Following the said report, the 3rd respondent initiated disciplinary proceedings against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, in his proceedings Na.Ka.No.4108/A1/95, dated 30.05.1996, by framing the following two charges:- i. Absence from duty without permission and without submitting leave application from 02.05.1995 ii. Failure to achieve the target Blood Test Campaign and failure to canvass any person for Family Planning Operations during 1994 and 1995 On receipt of the charge memo, the petitioner submitted his detailed explanation. Having not satisfied with the explanation offered by the petitioner, the 3rd respondent conducted enquiry and after completion of the enquiry, submitted a copy of the enquiry report in his Memo Na.Ka.5108/A1/95, dated 17.09.1996. THEreafter, he was called upon to submit his further explanation. In response, the petitioner submitted his further explanation, but the 3rd respondent, rejecting his explanation, by accepting the findings of the enquiry officer, passed final impugned order, removing the petitioner from service.

(2.) LEARNED counsel appearing for the petitioner contended that the order of removal imposed against the petitioner on the basis of Fundamental Rule 18(3), suffered from substantial illegalities and procedural infirmities, since the respondent proceeded against the petitioner as he remained absent for more than 1 year, even without mentioning the date upto which the petitioner was on leave. Further, the violation of FR 18(3) and G.O.Ms.No.1046, P&AR, dated 13.11.1987 has not been alleged in the first charge and no document has been produced as the basis for the charge. It was further alleged that the order of removal from service, is grossly disproportionate and the same is contrary to Article 21 of the Constitution of India. On that basis, prayed for setting aside the impugned order.

(3.) PRIMA facie the petitioner absented from duty, without prior permission, for more than one year from 02.05.1995 and also failed to achieve the target of blood test campaign and failed to canvas any person for Family Planning Operations during 1994 and 1995. The explanation offered by the petitioner, in respect of his first charge, that in view of his daughter's death on 29.04.1995, he was mentally upset and due to mental agony, he was not in a position to attend his official work for one year, is totally unacceptable explanation. Therefore, the enquiry officer dismissed his explanation and found him guilty of the same. The disciplinary authority, on receipt of the enquiry officer's report, sent a copy of the enquiry report dated 17.09.96 to the petitioner calling upon him to submit his further representation. The petitioner also, after receipt of the copy of the enquiry officer's report, in his letter dated 30.10.96, without making any further representation on the enquiry report, has merely refuted the enquiry report and requested for 10 days time for submitting death certificate of his daughter and other documents to prove that he was physically and mentally affected due to the death of his daughter. Therefore, when these two charges were found proved, the disciplinary authority imposed the punishment of removal from service as per Fundamental Rule 18(3), which is extracted as under:- -(3) When a Government servant (permanent or approved probationer) does not resume duty after remaining on leave for a continuous period of six months or one year, as the case may be, under sub-rule(1) or (2), or remains absent from duty after the expiry of his leave otherwise than on foreign service or on account of suspension or on account of leave for employment abroad under Section II-A of the Tamil Nadu Leave Rules, 1933 for any period which, together with the period of leave granted to him, exceeds the limit, he shall be liable for disciplinary action under Tamil Nadu Civil Services (Discipline and Appeal) Rules- A mere reading of Fundamental Rule 18 (3) as mended by the G.O.Ms.No.154 P&AR Department, dated 08.08.2000 based on the order passed by the Tamil Nadu Administrative Tribunal dated 21.10.99, clearly goes to show that if a Government servant unauthorisedly absented himself for continuous period of more than a year, such act of unauthorised absence exceeding a year, attracts the punishment of removal from service. Since the punishment was already imposed by the disciplinary authority on the ground that the petitioner himself had accepted two charges framed on him by the 3rd respondent, the lapse of unauthorised absence from duty for more than one year from 02.05.95 onwards, stood proved the case of the petitioner and the same was covered by FR 18(3), which was inforce at that time r/w G.O.Ms.No.1046 P&AR Department, dated 13.11.87, as it was incorporated then as per the amendment carried out in FR 18(3). Though the subsequent G.O.Ms.No.154 P&AR (FRIII) Department, came into force on 08.08.2000, deleting the statutory punishment of removal from service for unauthorised absence from duty, yet his case cannot be legally acceptable, as the disciplinary authority had no other option, except to pass the punishment of removal from service on 13.06.97. Therefore, the contention raised by the learned counsel for the petitioner that there is nothing regarding second charge in the concluding portion that led to the punishment, is squarely unacceptable. PRIMA facie if a Government servant is under any compulsion to be absent for more than a year, he can present such compelling reasons before the enquiry officer, during the enquiry with supporting evidences, like medical certificate in respect of his mental illness. Again, there are enough provisions and opportunities for a Government servant to defend himself against the charge of unauthorised absence from duty.