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Judgment
N. Paul Vasanthakumar, J.—The prayer in the writ petition is to quash the order issued in G.O.(D) No. 863, dated 16.7.96 imposing the
punishment of stoppage of increment for one year without cumulative effect.
The brief facts necessary for disposal of the writ petition are that the petitioner, while working as Assistant Medical Officer in Government
Primary Health Centre, Edapalli, Nilgris District, was issued with a show cause notice stating that on 8.5.1995 at 4.00 p.m., when the Secretary to
the Government came for inspection, the petitioner was not on duty. The petitioner submitted his explanation on 06.06.1995 and stated that on
08.5.1995 at about 12.00 noon, his health condition being not alright, he applied for leave to the In-charge Medical Officer and left the office at
1.00.p.m. and the said leave was also sanctioned by the competent authority. A charge memo was issued by the second respondent on
04.12.1995 under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and the explanation of the petitioner having not
accepted, the impugned order was passed imposing the punishment stopping the petitioner''s increment for one year without cumulative effect.
Learned counsel for the petitioner produced a document to show that the petitioner''s request for the leave was reasonable and the Medical
Officer, Government Primary Health Centre, Edapalli on 17.1.96 certified that petitioner''s service is fully satisfactory and the leave applied by the
petitioner was a genuine reason. Learned counsel further submitted that the leave was also sanctioned and the petitioner was also paid salary for
the said date.
Learned Government Advocate pointing out the averments made in the counter affidavit submitted that when the Secretary, Health Department
was visiting the hospital, the petitioner was not available in the office and therefore, the show cause notice was issued and the explanation of the
petitioner being not satisfactory disciplinary action was taken under Tamil Nadu Civil Services (Discipline and Appeal) Rules, pursuant to which
the impugned order of punishment was imposed.
I have considered the rival submissions made by the learned Counsel for the petitioner as well as the learned Government Advocate for the
respondents.
The point in issue is, whether the respondents are entitled to take disciplinary action after sanction of leave for which the petitioner applied.
Admittedly, the petitioner had applied for leave and the same was also sanctioned and salary for the said date was also paid. A similar issue
arose before this Court in the decision reported in 2000 WLR 848 (K. Orlanto v. The Managing Director Tamilnadu Rubber Corporation Ltd.,
and Anr.) wherein this Court set aside the order of dismissal from service imposed against a Teacher on the ground that after sanctioning of
medical leave, it is not open to the department to issue charge memo, continue the disciplinary proceedings and punish the Teacher. The learned
single Judge in para 15 of the judgment held as under,
It is unfortunate that having passed an order on 13.3.1995 accepting her case and regularising those periods, in the counter affidavit, the very
same officer has stated that either ""there is no question of petitioner''s absence being regularised by sanctioning of leave on loss of pay, and in fact
the entire period of absence was unauthorised absence"". The said statement is directly contrary to the conclusion arrived at by the very same
officer in Na.Ka. No. 4911/89 Ka, dated 13.3.1995.
The said Judgment was rendered following the Judgment of the Andhra Pradesh High Court reported in AIR 1996 AP 75 (G. Papaiah v. Asst.
Director, Medical Services). Further in para 16 the learned Judge held as under.
In that case, charge No. 2 relates to absence of the petitioner therein from duty for the period commencing from 16.5.1973 and ending with
25.5.1973. the Major, Officer Commanding in his order dated 18.6.1973, granted ten days EOL from 16.5.1973 to 25.5.1973 (both days
inclusive) to the petitioner to regularise his intentional absence for the period. An argument was made on behalf of the employer that
notwithstanding the grant of extraordinary leave to the petitioner therein, he can be proceeded against for his absence from duty for that period.
Rejecting the said contention learned single Judge has concluded as follows:
I am unable to agree with the learned Counsel for the respondent that notwithstanding the grant of the extraordinary leave to the petitioner, he can
be proceeded against for his absence from duty for that period. Whether it is an extraordinary leave, ordinary leave, leave on pay, leave on half
pay, medical leave, or casual leave, nonetheless it is a leave. The kind of nature of leave is not material but the substance of the matter is that the
petitioner was granted leave. When once leave is granted to a public servant, in respect of a particular period, it must be considered that he is
permitted to absent himself from duty for that period. In such a case, it is not permissible or open to the employer or any other authority to proceed
against the public servant for absenting from duty for the same period and punish him. The employer, either private or public cannot blow hot and
cold. The authorities should have refused to grant leave of any kind to the petitioner and then proceeded to punish him after due and proper
enquiry and after affording reasonable opportunity to him. When once leave has been granted, it cannot be said that the petitioner had absented
himself from duty and thereby made himself liable to be punished. Hence, the second charge relating to the absence of the petitioner from duty
from 16th May, 1973 to 25th May, 1973, both days inclusive, is not sustainable. I may add that the very order granting extraordinary leaves states
that such leave has been granted to regularise the petitioner''s intentional absence for the period. the very purpose of granting the leave being to
regularise the petitioner''s intentional absence, it is not open to the respondent to initiate any proceedings against the petitioner for his absence from
duty for that period. Judged from any angle, the second charge must be quashed and it is not sustainable.
The above order of the learned single Judge was challenged in W.A. No. 473 of 2000 and the same was dismissed by a Division Bench of this
Court on 22.3.2000 wherein reasons are stated as follows,
The counsel for the appellant contended that the respondent was unauthorisedly absent for a long period and therefore the disciplinary authority
was justified in dismissing the appellant from service. But it is relevant to note that the respondent herein had submitted application for leave and
this application for leave was granted and it was specifically stated that the previous absence was regularised. The counsel for the appellant
contended that the regularisation was given only for the purpose of straightening the service records of the respondent and the appellants never
treated the absence as authorised. We find no force in the said contention as the leave was applied by the respondent was granted by the
appellants-Corporation and the absence was regularised by the concerned authority. The learned single Judge has extracted the order passed by
the authority in the impugned judgment. In view of the said circumstances, we do not find any force in the contention now advanced by the
appellant. Writ appeal is dismissed.
Subsequently, the order of the learned single Judge reported in the 2000 WLR 848 (cited above) was implemented.
In this case, there is no dispute with regard to the sanction of leave for the date when petitioner applied for leave and after sanction of leave, it is
not open to the respondents to initiate disciplinary proceedings on the ground that the petitioner without applying leave was absent for duty. In fact
the medical Officer, Government Primary Health Centre, Edapalli, in his report dated 17.1.1996 certified as follows,
Petitioner''s request for leave is found genuine. petitioner''s discharge of duties, conduct are satisfactory and on public interest the action initiated
against the petitioner may be dropped.
The reason stated in the impugned order that petitioner''s statement that he submitted leave application and only thereafter he absented on the
particular day cannot be taken as erroneous statement in view of the sanction of leave by the competent authority and regulating pay of the
petitioner for the leave, which he availed of. Therefore the issuance of charge and the conduct of disciplinary proceeding and the imposition of
punishment are all unsustainable.
Consequently, the impugned order is set aside and the writ petition is allowed. No costs.