State Of Tamil Nadu And Ors vs T. Vijila

M.M. Sundresh, J

The respondent was appointed as Grade - II Police Constable in the year 2003. She was married in the year 2005. Thereafter, on 10.09.2006 she applied for medical leave, which was granted till 29.09.2006, as she was suffering from illness of Osteo Chondrotitis. She asked for extension of leave. She was asked to appear before the Medical Board. She did not appear. Thereafter, charges have been framed and after conducting enquiry, she was removed from service. After exhausting the statutory remedy, she filed the Writ Petition. The learned Single Judge while holding that factually she was suffering from illness and the absence of leave was not wilful and deliberate, directed her reinstatement with continuity of service, but without back wages.

The learned Special Government Pleader appearing for the appellants submitted that it is a case of continued absence. Even before the enquiry officer and the Medical Board, she did not appear. The Writ Petition itself has been filed belatedly in the year 2014, challenging the conclusion of the proceedings, dated 03.06.2010.

Taking note of the fact that the respondent was working in a Police Force, the learned Single Judge ought not to have interfered with the decision arrived at.

The learned counsel appearing for the respondent submitted that there is no finding to the contrary that she was not suffering from illness. Now, she is hale and healthy and will be in a position to do the normal work. The punishment imposed was disproportionate to the charges framed. Therefore, no interference is required.

During the course of hearing, we directed the respondent to appear before the Medical Board, offering herself for examination, so as to assess her fitness. Accordingly, she appeared before the Medical Board constituted by the Dean, Kanniyakumari Government Medical College Hospital, Asaripallam. The Medical Report furnished by the learned Special Government Pleader before us would indicate that the respondent would be in a position to undertake the normal activities.

From the records, it appears that the respondent was suffering from continued illness. Though she has not appeared for the enquiry, she did contest the final decision made. Even the report furnished before us would suggest that she is fit enough to carry out the work. In the case of illness, disentitling an employee from doing the work, an employer will have to consider the alternative one. As rightly stated by the learned Single Judge it is not as if the respondent has wilfully failed to attend the duty.

However, there is an element of delay at every stage including at the time of filing the Writ Petition. It is also a fact that she was absent unauthorisedly. The learned Single Judge while applying the doctrine of proportionality, has ordered reinstatement with continuity of service when primarily, respondent was at fault. She did not pursue her request for leave thereafter.

In such view of the matter, we are inclined to modify the order of the learned Single Judge and while setting aside the order impugned in the writ petition, by ordering reinstatement, but without back wages and without continuity of service from the date on which she was unauthorisedly absent till the date of rejoining. Appropriate orders will have to be passed for rejoining within a period of eight weeks from today.

This Writ Appeal is partly allowed accordingly. No costs. Consequently, connected Miscellaneous Petition is closed.