S. Ponniah vs Secretary to Government, Revenue Department and Others

N. Paul Vasanthakumar, J.—Prayer in the Writ Petition is to quash the order of the 4th respondent dated 18.2.2004, confirmed by the second respondent by order dated 28.7.2004, further confirmed by the first respondent in G.O.(2-D) No. 504, Revenue Department, dated 23.8.2007 and consequently direct the third respondent to promote the petitioner as Deputy Tahsildar.

The case of the petitioner is that he was appointed as Junior Assistant on 31.8.1989 and posted at Taluk Office, Palayamkottai. Petitioner was subsequently promoted as Assistant in the year 1994 and he was transferred to Radhapuram Taluk Office in-the year 2003. Petitioner applied for leave after joining at Radhapuram. However, the 4th respondent framed charges under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, on 1.12.2003. The crux of the charge was that the petitioner unauthorisedly absented from 1.9.2003 to 13.9.2003, 15.10.2003 to 17.10.2003 and 11.11.2003 to 26.11.2003 i.e., totally for 46 days. Petitioner submitted his explanation to the said charge memo. However, by order dated 18.2.2004, a punishment was of stoppage of increment for a period of one year without cumulative effect was imposed by the 4th respondent. Petitioner preferred an Appeal before the second respondent, which was dismissed on 28.7.2004, against which the petitioner filed further Appeal to the Government. The said Appeal was also dismissed by the'' first respondent by order dated 23.8.2007.

The Tahsildar, Radhapuram, again issued fresh charge memo on 20.10.2005 for which the petitioner submitted explanation and thereafter on 27.12.2005 an adverse order was passed stopping increment for six months. Petitioner filed Appeal before the 4th respondent, which was dismissed. Revision filed by the petitioner against the said order was allowed on 29.11.2007. The third respondent invited particulars to prepare the panel for promotion to the post of Deputy Tahsildar for the year 2006 and the petitioner''s name was not included. When representation was submitted it was replied by stating that the petitioner was imposed with two punishments. Again the third respondent invited particulars for preparing panel of Deputy Tahsildars for the year 2007 on 21.1.2008 and petitioner''s name was included in Sl. No. 7. However, he was not given promotion. According to the petitioner, 4th respondent issued an order on 7.8.2004 and regularized the leave and consequently the charges of unauthorised absence are deemed to be dropped and the petitioner having been denied promotion only on the basis of the charges and punishment, he has filed this Writ Petition with the above prayer.

The learned Counsel appearing for the petitioner submitted that the main charge levelled against the petitioner is Charge No. 2 i.e., unauthorised absence. The other charges viz. Charge No. 1 and 3 are consequential to the Charge No. 2 i.e., unauthorised absence and further submitted that the alleged unauthorised absence having been regularized by sanctioning leave by the 4th respondent, Disciplinary Proceeding initiated alleging the petitioner unauthorisedly absented and the punishment imposed are liable to be set aside and consequentially petitioner is entitled to get promotion from the date when his junior was given promotion as Deputy Tahsildar.

Heard the learned Government Advocate appearing for the respondents.

The point in issue is as to whether the charges framed against the petitioner on 1.12.2003 can be proceeded in the light of sanction of leave by the District Revenue Officer, through his proceeding dated 7.9.2004.

The charges framed against the petitioner as per charge memo dated 1.12.2003 are as follows:

Charge No. 1 : Negligent in performing official duty and performed duty without involvement and not properly taken action in the files from 13.6.2003, the date of taking charge as Assistant in Radhapuram Tahsildar Office.

Charge No. 2 : From 13.6.2003 to 25.11.2003, attended duty for only 35 days and availed Unearned Leave on Medical Certificate from 4.8.2003 to 31.8.2003; Earned leave from 20.10.2003 to 26.10.2003; Unearned leave on Medical Certificate from 27.10.2003 to 10.11.2003 Casual leave for two days on 10.10.2003 and 13.10.2003 without prior permission absented from duty without permission or leave letter from 1.9.2003 to 30.9.2003, 15.10.2003 to 17.10.2003 and from 11.11.2003 to 26.11.2003 and thus violated the Government Rules.

Charge No. 3 : Failure in performing the duties and responsibilities as a Government Servant.

The Charge Nos. 1 and 3 are consequential to Charge No. 2 as the said charges cannot independently stand.

The alleged unauthorised absence period is regulated as per the order of the District Revenue Officer, Tirunelveli, dated 7.9.2004 as follows:

1.6.2003 to 12.6.2003 ... 12 days Earned Leave 4.8.2003 to 31.8.2003 ... 28 days Unearned Leave on Medical Certificate 1.9.2003 to 30.9.2003 ... 30 days Earned Leave 15.10.2003 to 26.10.2003 ... 12 days Earned Leave 27.10.2003 to 10.11.2003 ... 15 days'' Unearned Leave on Medical Certificate 11.11.2003 to 26.11.2003 ... 16 days Earned Leave 1.6.2004 to 23.6.2004 ... 23 days Earned Leave 24.6.2004 to 16.7.2004 ... 23 days Unearned Leave on personal affairs with half pay.

From the'' perusal of the above order of the District Revenue Officer, Tirunelveli, it is evident that the whole period in which the petitioner was allegedly absented unauthorisedly was regularized and the leave having been regularised, the charge memo issued for the said period alleging that the petitioner has unauthorisedly absented cannot be proceeded and the same should be dropped. On the contrary, the respondents have proceeded further and imposed the punishment, which is challenged in this Writ Petition stating that by imposition of punishment, petitioner was denied the promotion as Deputy Tahsildar even though his juniors were given promotion for the year 2006 as Deputy Tahsildar.

Similar issue as to whether after regularizing the leave a person can be proceeded for unauthorised absence, came up for consideration before this Court m the decision reported in K. Orianto v. Managing Director Tamil Nadu Rubber Corporation Ltd. and Anr. 200 WLR 848. wherein Honorable Justice P. Sathasivam (as he then was) held that the charge itself is not maintainable after the leave is regularized. The said judgment was rendered following the decision of Andhra Pradesh High Court decision reported in G. Papaiah v. Assistant Director, Medical Services AIR 1996 AP 75. In the said decision, paragraph 16 reads thus--

...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 regularize 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 pray, 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 regularize the petitioner''s intentional absence for the period, the very purpose of granting the leave being to regularize 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 order passed by this Court in K. Orianto v. Managing Director Tamil Nadu Rubber Corporation Ltd. and Anr. 200 WLR 484, 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 stating the following reasons:

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 regularized. 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 regularized 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.

The above judgment was followed by me in the decision reported in Dr. G. Rajendran v. Secretary to Government Health and Family Welfare Department 2006 (2) MLJ 686, wherein it was found that after the leave period was regularized, the issuance of charge memo, conduct of disciplinary proceeding, imposition of punishment for the unauthorised absence are all unsustainable and the Writ Petition was allowed.

A Division Bench of this Court in W.A. No. 1172 of 2001, in which I am also a party, by order dated 23.2.2007 considered the sanction of leave and held that after sanctioning the leave the charge for unauthorised absence cannot be maintained and ordered to reinstate the appellant therein in service with continuity of service, back wages and all consequential monetary benefits.

The Honourable Supreme Court in the decision reported in The State of Punjab and Others Vs. Bakshish Singh, considered similar issue and in paragraphs 3 and 4 held as follows:

Having affirmed the findings of the Trial Court that the charge of absence from duty did not survive, the Lower Appellate Court proceeded to consider the question whether absence from duty was a misconduct of the gravest kind so as to warrant the maximum penalty of dismissal from service or it was a mere misconduct for which lesser punishment would be appropriate. Having found that it was not a case of misconduct of the gravest kind, the Lower Appellate Court remanded the case back to the punishing authority for passing a fresh order of punishment. The appellant then filed a Second Appeal in the High Court which was dismissed summarily.

It will thus be seen that the Trial Court as also the Lower Appellate Court had both recorded the findings that the period of absence from duty having been regularized and converted into leave without pay, the charge of absence from duty did not survive. Once it was found as a fact that the charge of unauthorized absence from duty did not survive, we fail to understand how the Lower Appellate Court remand the matter back to the punishing authority for passing a fresh order of punishment. In the fact of these findings, specially the finding of the Trial Court that proper opportunity of hearing was not given and the signatures of the respondent were obtained under duress during departmental proceedings which have not been set aside by the Lower Appellate Court, we are of the view that there was no occasion to remand the case to the punishing authority merely for passing a fresh order of punishment.

(Emphasis supplied)

In the said decision, the Supreme Court upheld the order of the Trial Court in allowing the Suit taking note of the sanction of leave, which was earlier treated as unauthorised absence.

In the light of the above decisions and having regard to the undisputed fact that the alleged unauthorised absence of the petitioner having been regularized as stated supra, the charges framed against the petitioner and the consequential punishment imposed cannot be sustained. The denial of promotion to the petitioner was only due to the pendency of charge/punishment and therefore it has to be reviewed by the third respondent. The petitioner is to be given promotion from the date of promotion given to his junior. The third respondent is directed to pass orders granting promotion to the petitioner from the date of promotion given to the petitioner''s junior, within two weeks hum the date of receipt of copy of this order.

The Writ Petition is allowed with the above directions. No costs. Connected Miscellaneous Petition are closed.