C JANAKIRAM Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) This writ petition was filed challenging G.O. (D) No. 141, Health and Family Welfare (12) Department dated 31.1.2003, in which the first respondent, accepting the views of the Tamil Nadu Public Service Commission, imposed the punishment of removal from service on the petitioner Dr. C. Janakiram for the proven charges. Mr. S. Ilamvaluthi, learned counsel for the petitioner heavily contended that when the petitioner was departmentally proceeded with for four charges, namely, that he unauthorisedly absented from duty from 4.1.1984 to 25.4.1985, that he disobeyed the orders of the Director of Medical Education issued on 12.12.1984 directing him to rejoin duty immediately, that he again unauthorisedly absented from duty from 17.1.1987 and that he disobeyed the orders of the Director of Medical Education issued on 25.2.1988 and 11.3.1989, the disciplinary authority, on completion of the enquiry, after receiving the report from the enquiry officer and again complying with the further procedure viz., issuance of second show cause notice and receiving a written representation from the petitioner, proposed to impose the punishment of compulsory retirement. At that stage, when the first respondent consulted the Tamil Nadu Public Service Commission, the Tamil Nadu Public Service Commission recommended for major punishment from compulsory retirement to one of removal from service on the petitioner. Therefore, after consulting the Tamil Nadu Public Service Commission and accepting the views of the Tamil Nadu Public Service Commission, the first respondent should not have directly imposed the punishment of removal from service on the petitioner for the proven charges without giving a further opportunity to explain as to the quantum of punishment proposed to be imposed by the first respondent, that too on the acceptance of views of the Tamil Nadu Public Service Commission.

(2.) In response to the said submission, Mr. N. Srinivasan, learned Additional Government Pleader for the respondents, by relying upon the detailed counter affidavit, submitted that when the petitioner was subjected to disciplinary proceedings for the four major charges, it is an admitted fact that a fair and proper opportunity was afforded to the petitioner till the completion of the enquiry. Only after completion of enquiry, when the enquiry officer submitted his report holding the petitioner guilty of all the charges, the first respondent, though decided to impose the punishment of compulsory retirement, as per Rule, before imposing any punishment, should consult the Tamil Nadu Public Service Commission, as the petitioner was appointed by the Tamil Nadu Public Service Commission. In exercise of that power, when the first respondent had consulted the Tamil Nadu Public Service Commission on the adequacy or inadequacy of the proposed punishment, the Tamil Nadu Public Service Commission, after going through the records along with the report of the enquiry officer, coupled with the punishment of compulsory retirement as proposed by the first respondent, thought it fit to recommend for the punishment of removal from service. Only thereafter the first respondent, rightly accepting the views made by the Tamil Nadu Public Service Commission as per sub-clause (c) of Clause (3) of Article 320 of the Constitution of India, who have assessed the guilt and the service records of the delinquent officer along with the suitable punishment to be imposed against him, imposed the major penalty of removal from service. When the Tamil Nadu Public Service Commission, on being consulted, has recommended another punishment of removal from service, there is nothing wrong on the part of the first respondent to accept the said recommendation, since the Tamil Nadu Public Service Commission has got such power as conferred under Article 320(3)(c) of the Constitution of India. The learned Additional Government Pleader for the respondents, by bringing to the notice of this Court Regulation 18(1) of the Tamil Nadu Public Service Commission Regulations, 1954, supported the impugned order. Arguing further before the Court that when the first respondent has decided to dispense with the services of the petitioner by imposing the lighter punishment of compulsory retirement, cannot refuse the recommendation made by the Tamil Nadu Public Service Commission for enhancing the punishment to one of removal from service. On this basis he prayed for no interference with the impugned order.

(3.) This Court, having seen that the petitioner was departmentally prosecuted for unauthorised absence from duty from 4.1.1984 to 25.4.1985 and also for one another charge that after a short spell of duty he again unauthorisedly absented from 17.1.1987 and going on sending piecemeal leave applications and that he failed to rejoin duty as directed in the office memos dated 12.12.1984, 25.2.1988 and 11.3.1989 respectively and thus he neglected his duty, finds that he was finally imposed with the punishment of removal from service. But before passing this order, the disciplinary authority, after accepting the report of the enquiry officer on all the charges that the petitioner was guilty, thought it fit to impose a lighter punishment of compulsory retirement. But the first respondent cannot directly impose even that punishment, as it has to necessarily and legally consult the Tamil Nadu Public Service Commission for the reason that the petitioner was appointed only through the Commission. In that process, the Tamil Nadu Public Service Commission, in exercise of the power conferred under Regulation 18(1) of the Tamil Nadu Public Service Commission Regulations, 1954, after seeing that the petitioner was going to be imposed with a lighter punishment viz., compulsory retirement for proven major charges, rightly, assessing the adequacy of punishment that was proposed by the first respondent against the petitioner, disagreeing with the quantum of punishment, recommended the suitable punishment of removal from service. When Article 320(3)(c) of the Constitution of India also gives enormous power to the Tamil Nadu Public Service Commission to afford proper assistance to the Government in assessing the guilt or otherwise of the delinquent officer as well as the suitability of punishment to be imposed, the process of consultation by the first respondent-Government with the Tamil Nadu Public Service Commission cannot be considered as an empty formality by merely discarding the recommendation given by the Tamil Nadu Public Service Commission, more particularly, when the Tamil Nadu Public Service Commission, after going into the service records of the petitioner, reached a conclusion that the petitioner being an Assistant Professor of Bio-chemistry in Chengalpattu Medical College, was unauthorisedly absent from duty for a long time from 4.1.1984 to 25.4.1985, should be visited with a punishment of removal in lieu of compulsory retirement. Again the Tamil Nadu Public Service Commission also found that the petitioner was once again unauthorisedly absent from duty from 17.1.1987 and bent upon sending piecemeal leave applications regardless of the paramount welfare of students and thereby failed to rejoin duty even though there was a direction given by the superior officer and thus he neglected his duty. Only by taking note of these serious lapses and the dereliction committed by the petitioner, the Tamil Nadu Public Service Commission has rightly come forward to recommend for the punishment of removal from service in lieu of compulsory retirement and the first respondent also rightly, accepting the recommendation, imposed the punishment of removal from service. Therefore, the question of issuing notice on the proposed punishment, as contended by the learned counsel for the petitioner, that is a part of the fundamental right, is absolutely far from acceptance. In this context, a recent judgment of the Apex Court in Punjab National Bank and Others v. K.K. Verma, 2011 AIR(SC) 120 can be usefully referred to, in which it has been unambiguously held that there is no second opportunity available to the delinquent employee after the finding of guilt on the quantum of punishment, since the said right being the second right is taken away by the 42nd amendment. In fact, in the said judgment, while dealing with the 42nd amendment, the Apex Court has held as follows: