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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on Delivered on
26.04.2019 19.07.2019

CORAM

THE HONOURABLE MR. JUSTICE R. MAHADEVAN

W.P (MD) No. 8891 of 2019

and
WMP (MD) Nos. 6893 and 6894 of 2019

Dr.D.Lilly Manoharan
rep. by her Power Agent and husband
T.Alexandar Devaraj ... Petitioner

Versus

1.The State of Tamil Nadu,

rep. by its Secretary to Government,
Health and Family Welfare Department,
Fort St. George,
Chennai – 600 009.

2.The Director of Medical Services,

State of Tamil Nadu,
Teynampet,
Chennai.

3.The Director of Medical Education,

State of Tamil Nadu,
Kilpauk,
Chennai. ... Respondents

Petition filed under Article 226 of the Constitution of India praying

for the issuance of a writ of Certiorarified Mandamus calling for the
records in connection with the impugned order passed by the first
respondent in G.O.(D)No.1176, Health and Family Welfare (I2)
Department, dated 28.10.2013, quash the same and consequently
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directing the respondents 1 to 3 herein to sanction pension and all other

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terminal benefits of the petitioner's wife along with arrears within a

stipulated time.

For Petitioner : Mr.S.Barathy Kannan

For R1 to R3 : Mr.V.Anand, Government Advocate

ORDER

One T.Alexandar Devaraj, on behalf of his wife Dr.D.Lilly Manoharan

in the capacity as her power of attorney, has knocked the doors of this

Court with this writ petition. The challenge is to the order passed by the

first respondent in G.O.(D)No.1176, Health and Family Welfare (I-2)

Department, dated 28.10.2013 whereby the petitioner's wife was

removed from service. As a consequential relief, the petitioner prayed for

issuance of mandamus against the respondents, directing them to

sanction pension and all other terminal benefits of his wife along with

arrears within a stipulated time.

2.Background facts in a nutshell would run thus:

The petitioner's wife Dr.D.Lilly Manoharan, joined as Assistant

Surgeon, Primary Health Centre, Guddalore, the Nilgiris District on

26.03.1973 and was promoted as Civil Surgeon in the year 1994.

While so, vide G.O.Ms.No.367, Health and Family Welfare Department,

dated 23.09.1992, she was permitted to join the foreign medical services

at Kuwait and it was extended till 23.09.1996. Since she fell ill due to

cardiac
http://www.judis.nic.in problem and she continued her treatment upto 2002, she did not

report to duty within the permitted time. Consequently, the Dean,

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Madurai Medical College, Madurai, vide communication bearing No.

16419/E2/92 dated 05.06.1997, called upon the petitioner's wife to

explain as to why disciplinary action should not be taken against her.

Thereafter, disciplinary proceedings was initiated against her. Pending the

same, she came back to India in 2002 and requested to permit her to

join duty. Pursuant to the same, she was given posting order on

20.01.2003 and she joined as Tutor/Assistant Professor of D&G,

Thoothukudi Medical College on 04.03.2003. As she was due to retire on

31.03.2004, the petitioner vide letter dated 21.02.2004, requested the

Dean, Tuticorin Medical College, Tuticorin, to send her pension proposal.

However, the first respondent issued an order in G.O (D) No.277, Health

and Family Welfare Department, dated 30.03.2004, placing the

petitioner's wife under suspension and not permitting her to retire from

service. Thereafter, the first respondent, vide G.O.(D)No.69, dated

25.01.2005, passed an order of punishment removing the petitioner's

wife from service. Challenging the same, she filed a review petition

before the first respondent, who vide, G.O(D)No.1176, Health and Family

Welfare Department, dated 28.10.2013, rejected the review petition,

thereby affirming the order of punishment inflicted on the petitioner's

wife. Aggrieved over the same, the petitioner preferred an appeal before

the first respondent on 20.10.2017. The appeal preferred by the

petitioner on behalf of his wife, did not evoke any response. Pending

such appeal, the petitioner has filed this writ petition.

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3.Assailing the order impugned herein, the learned counsel for the

petitioner vehemently contended that the petitioner's wife overstayed at

Kuwait, due to her ill health, which was neither wilful nor wanton and

hence, the same cannot be termed as 'unauthorised absence'; without

providing an opportunity of personal hearing, exparte enquiry was

conducted, which ended in punishment of removal from service and the

same is a flagrant violation of the principles of natural justice; while

imposing such punishment, the disciplinary authority altogether

overlooked the factum of illness of the petitioner's wife and this by itself

should be treated as sufficient for nullifying the order of punishment;

Even otherwise, the punishment so inflicted upon the petitioner's wife is

shockingly disproportionate to the charges proved against her; and

considering the fact that the petitioner's wife has rendered 20 years of

service as Assistant Surgeon and 10 years of service as Civil Surgeon,

the punishment of removal from service inflicted on her, may be

modified, so as to enable the petitioner's wife to get pensionary benefits

due to her.

4.The respondents have filed position notes sworn by the Dean,

Government Thoothukudi Medical College, Thoothukudi, and have

countered all the material allegations made by the petitioner. It is stated

inter alia that vide G.O.No.367, H&FW Department, dated 23.09.1992,

the petitioner's wife was permitted to join duty into the foreign medical
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services at Kuwait from 24.09.1992 to 23.09.1993 on EOL without pay

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and allowances; as per G.O.Ms.No.917/H dated 06.07.1995, she was

permitted to stay abroad from 24.09.1993 to 23.09.1994, on EOL

without pay and allowances; based on G.O.Ms.No.175, H&FW Dept.,

dated 07.02.1996, she was permitted to continue in foreign service till

23.09.1996 on EOL without pay and allowances but she did not join duty

on 24.09.1996 and she continued to stay abroad beyond the stipulated

time i.e., from 24.09.1996 to 03.03.2003. It is further stated therein that

the petitioner's wife reported for duty on 04.03.2003 as Tutor/Assistant

Professor in O&G at Government Thoothukudi Medical College; however,

she applied unearned leave on medical certificate for 30 days from

10.03.2003 to 09.04.2003 and extended her leave from 10.04.2003 for

30 days; she joined duty on 02.05.2003, but applied for leave on

04.05.2003, 05.05.2003 and 06.05.2003 to attend promotion

counseling; though she was referred to Medical Board for examination

on 06.05.2003, she did not appear for the same and she proceeded on

continuous leave from 16.06.2003 as detailed below:

(i)Unearned Leave on Private affairs for 3 months from

16.06.2003;
(ii)Unearned Leave on Private affairs for 1 month from 16.09.2003;
(iii)Unearned Leave on Private affairs for 70 days from 16.10.2003;
(iv)Unearned Leave on Private affairs for 30 days from
15.12.2003 to 14.01.2004; and
(v)Unearned Leave on Private affairs from 15.01.2004 to
23.02.2004.

The aforesaid leave periods were not regularised. It is also stated therein
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that she rejoined duty on 26.02.2004; she was due to retire on
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31.03.2004; however as per G.O(D) No.277/H&FW (1-2) Dept, dated

30.03.2004, she was placed under suspension from 30.03.2004 and as

per G.O(D) No.278/H&FW (1-2) Dept., dated 30.03.2004, she was not

permitted to retire from service; subsequently, she was imposed with the

punishment of removal from service vide G.O(D)No.69, H&FW(1-2)dept.,

dated 25.01.2005; and the same was confirmed by rejecting the review

petition filed by the petitioner's wife, vide G.O(D) No.1176/H&FW Dept.,

dated 28.10.2013, which is impugned herein.

5.Adding further, the learned Government Advocate appearing for

the respondents submitted that because of the act of misconduct

committed by the petitioner's wife, the disciplinary action was instituted

and the same was conducted in accordance with the Tamil Nadu Civil

Services (Discipline and Appeal) Rules, during the course of which, she

was given sufficient opportunities, but she failed to avail the same; the

disciplinary authority, upon considering the Enquiry Officer's report that

the charges have been proved against her and after obtaining the views

of the Tamil Nadu Public Service Commission, imposed the punishment of

removal from service on her; and the same was also affirmed by the

Appellate Authority. Thus, according to the learned Government

Advocate, there is no illegality or irregularity in the order impugned

herein and hence, the writ petition is liable to be dismissed.

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6.Heard the learned counsel appearing on either side and perused

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the materials available on record.

7.The undisputed facts emerging from the pleadings of the parties

and the records are that the petitioner's wife, while serving as Assistant

Surgeon, was permitted to join duty in the foreign medical services at

Kuwait on three occasions, viz., (i)from 24.09.1992 to 23.09.1993,

(ii)from 24.09.1993 to 23.09.1994 and (iii)from 24.09.1994 to

23.09.1996 and she had to report to duty on 24.09.1996. However, she

failed to do so and she continued to stay abroad from 24.09.1996 to

03.03.2003 i.e., more than six years, for which, she was subjected to

disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services

(Discipline and Appeal) Rules and the charges framed against her are as

follows:

Charge -1:

“that Dr.Lilly Manoharan, formerly Assistant Professor in

Obstetrics and Gynaecology, Madurai Medical College,
Madurai, who was permitted by the Government to take up
employment in Kuwait in G.O (D) No.367, Health and Family
Welfare Department, dated 23.09.1992 and G.O (D) No.917,
Health and Family Welfare Department, dated 06.07.1995 for
the period from 24.09.1993 to 23.09.1994 and G.O. (D) No.
175 Health and Family Welfare Department, dated
07.02.1996 for the period from 24.09.1994 to 23.09.1996
(for a total period of 4 years) and relieved on 24.09.1992,
had failed to rejoin duty on 24.09.1996 Forenoon and
continue to overstay abroad, without proper sanction from
the Government and that her continued overstay abroad is
construed as unauthorised absence from duty from
24.09.1996 to till date.”

Charge-2:

“that she had disobeyed the orders of her superiors by

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failing to report to duty in Tamil Nadu Medical Service as
directed by the Director of Medical Education Memo No.
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109138/E3/2/1996 dated 17.07.1997.”

In the mean while, she reported to duty on 04.03.2003 and she was

permitted to join duty. Again, she proceeded on continuous leave from

16.06.2003 and rejoined duty on 26.02.2004. She was due to retire on

31.03.2004, but she was placed under suspension on 30.03.2004.

Subsequently, the disciplinary proceedings ended in the punishment of

removal from service, and the same was also affirmed by the appellate

authority.

8.The contentions of the learned counsel for the petitioner are on

four folds: (i)the overstay of the petitioner's wife at abroad was neither

wilful, nor wanton, but only due to her ill health and as such, she cannot

be penalised for the same, by treating it as 'unauthorised absence';

(ii)without providing an opportunity of hearing, exparte enquiry was

conducted and it ended in the punishment of removal from service

against her and therefore, it is violative of principles of natural justice;

(iii)the punishment so inflicted on her is shockingly disproportionate to

the charges proved against her and hence, the same may be set aside;

and (iv)having regard to the period of service rendered by her and also

considering the reason for which she remained absent from duty, the

punishment inflicted on her may be modified, so as to receive pensionary

benefits.

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9.Repudiating the arguments so advanced on the side of the

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petitioner, the learned Government Advocate appearing for the

respondents submitted that the petitioner's wife, without obtaining

permission, overstayed abroad and she did not report to duty, despite

the directions issued by the respondent authorities; she did not submit

any application for extension of leave or give explanation for her

unauthorised absence and even she did not participate in the enquiry or

produce medical records to defend her case; there is no violation of

principles of natural justice and hence, the order of punishment passed

against her is perfectly valid in law and the same warrants no

interference at the hands of this Court.

10.As regards the first contention raised by the learned counsel for

the petitioner, 'Unauthorised absence' by itself is normally a serious

misconduct. If the proved unauthorised absence is persistent and for a

long period - as in the present case - it will be inexcusable. The Apex

Court in Delhi Transport Corporation v. Sardar Singh [(2004) 7 SCC 574]

opined that when the employee concerned proceeds on leave without

permission, it inevitably affects the work of the employer. In such cases,

the employee concerned is required at least to bring some material on

record to show as to how the absence was on the basis of the sanctioned

leave and as to how there was no negligence. That burden is cast on the

employee, who claims that there was no negligence and/or lack of

interest to establish it by placing relevant materials in support thereof. In

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Mithilesh Singh v. Union of India [(2003) 3 SCC 309], the employee was
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charged for having left duties without permission. In defence, the

employee had contended that he had made application for grant of leave.

The Supreme Court opined that mere application for grant of leave

cannot be considered to be proper intimation for absence. On that

finding, the Supreme Court proceeded to hold that absence from duty

without proper intimation is a grave offence warranting removal from

service. [Also refer: Regional Manager, Central Bank of India v. Vijay

Krishna Neema and ors. -(2009) 5 SCC 567]. Thus, this Court has to

examine whether the petitioner's wife has successfully rebutted the

charges framed against her in the present case and substantiated her

defence by producing any evidence and contemporaneous record in that

behalf.

10.1 A cursory glance at the documents produced in the form of

typed set of papers would disclose that the petitioner's wife was granted

permission to join foreign medical services at Kuwait from 23.09.1992

and it was extended till 23.09.1996 and she had to report duty on

24.09.1996, but she did not join duty. She has not submitted any

requisition for extension of leave within the stipulated time. Whereas,

according to the petitioner, she sent a representation on 14.06.1996 to

the respondents 2 and 3 requesting to extend the leave from 24.09.1996

to 24.09.1997. However, no postal receipt or acknowledgment card was

produced to substantiate the same. Further, she has not produced any
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medical records to strengthen her case. In the absence of any concrete

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material to substantiate her stand, this Court has no other option except

to hold that the petitioner's wife's overstayed abroad beyond the

permitted period, which can be treated as 'unauthorised absence' and the

contention raised by the learned counsel for the petitioner in this regard

is summarily rejected.

11.As far as the second contention relating to violation of principles

of natural justice is concerned, this Court carefully considered the orders

passed by the disciplinary authority as well as the appellate authority.

Notably, the petitioner's wife did not mend her ways and remained

absent unauthorisedly for more than six years i.e., from 24.09.1996 till

her date of rejoining duty on 04.03.2003, which constituted serious

misconduct on her part. Moreover, she did not submit her statement of

defence. Although she was given sufficient opportunities to defend her

case, she did not participate in the enquiry proceedings, leaving it to the

Enquiry Officer to proceed ex parte against her. Even she did not respond

to the Enquiry Officer's report holding that the charges framed against

her have been proved. In such circumstances, it is not open to the

petitioner to complain that she was not given reasonable opportunity in

the enquiry, which violates the principles of natural justice. This position

is fortified by the decision of the Supreme Court in Bank of India v.

Apurba Kumar Saha [(1994) 2 SCC 615]; Ranjan Kumar Mitra v. Andrew

Yule & Co. and others [(1997) 10 SCC 386]; and Chairman, Ganga
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Yamuna Gramin Bank and others v. Devi Sahai [(2009) 11 SCC 266].
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11.1 At this juncture, it is apt to refer to the observation of the

Supreme Court in Dharmarathmakara Raibahadur Arcot Ramaswamy

Mudaliar Educational Institution vs. Educational Appellate Tribunal and

another [(1999) 7 SCC 332], which reads as under:-

"Giving an opportunity or an enquiry is a check and

balanced concept that no one's right be taken away without
giving him/her opportunity or when enquiry in a given case
or where the statute requires. But this cannot be in a case
where allegations and charges are admitted and no possible
defence is placed before the Authority concerned. What
enquiry is to be made when one admits violations....ln case
where the facts are almost admitted, the case reveals itself
and is apparent on the face of the record, and inspite of
opportunity no worthwhile explanation is forthcoming as in
the present case, it would not be a fit case to interfere with
the termination order."

11.2 Applying the aforesaid observation to the facts of the present

case, it is clearly established that the petitioner's wife was provided full

opportunity to defend herself, but she failed to make use of the same.

Further, there is no procedural irregularity in conducting the disciplinary

proceedings. In view of the same, this Court is of the opinion that there

is no lacuna in the decision making process and hence, the plea of

violation of principles of natural justice, cannot be available to the

petitioner, in the facts and circumstances of the case.

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12.With regard to the quantum of punishment, as aforesaid, the

documents available on records would show that the petitioner's wife did

not submit any representation for extension of leave during the relevant

point of time nor she produced any medical reports to substantiate her

illness. Even she did not participate in the enquiry and defend her case.

As such, the Enquiry Officer concluded that the charges framed against

her have been proved. On the basis of the same, the disciplinary

authority imposed the punishment of removal from service. The appellate

authority also affirmed the same.

12.1 It is well-established law that the Court cannot sit in appeal

over the decision of the Authority competent to impose punishment. The

Apex Court in State of Punjab v. Jit Singh [(2009) 16 SCC 351] held that

in an inquiry with regard to charge of unauthorised absence from duty is

established in the departmental proceedings, the punishment to be

inflicted lies with the Disciplinary Authority. The Court cannot substitute

its own opinion to the punishment so imposed, unless, it was illogical or

suffers from procedural impropriety or was shocking to the conscience of

the Court. [Also Refer: V.Ramana v. A.P.SRTC & Ors. - (2005) 7 SCC

338].

12.2 If the aforesaid factual matrix is examined, in the light of the

aforesaid legal proposition, it is not possible to find any fault with the
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discretion exercised by the disciplinary authority to order the punishment

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of removal of the petitioner's wife from service. In the considered opinion

of this Court, the punishment imposed on her cannot be said to be

excessive and shockingly disproportionate to the misconduct found

proved.

13.As regards the feeble attempt made by the learned counsel for

the petitioner with respect to modification of the punishment, this Court

is of the view that the reliefs granted by the Courts must be seen to be

logical and tenable within the framework of the law and should not incur

and justify the criticism that the jurisdiction of the Courts tends to

degenerate into misplaced sympathy, generosity and private

benevolence. It is essential to maintain the integrity of legal reasoning

and the legitimacy of the conclusions. They must emanate logically from

the legal findings and the judicial results must be seen to be principled

and supportable on those findings. Expansive judicial mood of mistaken

and misplaced compassion at the expense of the legitimacy of the

process will eventually lead to mutually irreconcilable situations and

denude the judicial process of its dignity, authority, predictability and

respectability. [See:Kerala Solvent Extractions Ltd. v. A. Unnikrishnan

and another [1994 (1) SCALE 631)]. In view of the same, the contention

so raised cannot be countenanced by this Court.

14.At last but not least, the High Court's power of judicial review of
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the disciplinary action against the delinquent employee is very limited.

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While scrutinising challenge to the disciplinary action taken against the

delinquent employee, the High Court cannot sit in appeal over the

judgment of the departmental authorities and interfere with the finding

reached by the enquiring/disciplinary authority merely because, on a

re-appreciation of evidence, a different view is possible. The High Court

can interfere with the order of punishment, if it is found to be vitiated

due to violation of the statutory rules or regulations or the principles of

natural justice and such violation is found to have prejudiced the cause of

the delinquent. The High Court can also nullify the order of punishment,

if the finding of guilt recorded by the enquiring/disciplinary authority is

based on no evidence or is influenced by extraneous

factors/considerations.

15.In the ultimate analysis, this Court finds no ground much less

valid ground to upset the order impugned herein. As such, this writ

petition deserves to be dismissed as devoid of merits.

16.Before parting with, this Court wish to observe that even though

the respondents have initiated disciplinary proceedings against the

petitioner's wife during the year 1997 for her overstay abroad beyond the

one permitted, when she came back to India during the year 2002,

surprisingly, she was permitted to join duty without any observation as to

the continuance of the departmental proceedings against her, even after

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her joining, during 2003. In fact, after issuing show cause notice during
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1997, nothing has progressed till 2003, when the petitioner's wife was

unceremoniously permitted to join duty. Further, she once again

remained absent and atleast at this stage, the respondents ought to have

swiftly proceeded with the departmental proceedings. Ultimately, the

respondents have suspended the petitioner's wife from service on

30.03.2004, one day prior to her retirement and retained their right to

proceed against her departmentally. Thereafter, the respondents

conducted enquiry and passed an order on 25.01.2015 removing her

from service, which is questioned in this writ petition. Thus, the inaction

on the part of the respondents has given rise to the filing of the present

writ petition by the petitioner claiming equity, which the respondents

could have avoided. Therefore, this Court specifically directs that the

respondents herein and also all other departments shall not repeat such

lapses in future and ensure that steps are taken then and there, when

delinquency is committed by the Government servant.

17.This Court also wish to observe that the petitioner's wife was a

Doctor by profession and it is not known as to why she should be sent

out of India, when she was in Government service. When the Country is

already facing a dearth of medical professional proportionate to attend to

those suffering from various ailments, sending a Doctor in Government

service to foreign service is not justifiable. It is needless to mention that

medical profession is one of the noblest profession among all the

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professions throughout the world. The responsibilities attached to the

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post of a doctor is lesser than the privileges they could enjoy. Doctor is

considered as a savior at all times and is highly responsible person, who

can save human life. It is the most demanding profession throughout the

globe. The Government servant, who is rendering such public service,

should not, for any reason, be sent on deputation out of India and it is

high time, the Government has to take appropriate steps as a matter of

policy, as are necessary to ensure that none of the Doctors from our

Country are deputed to any other Country either on deputation or

otherwise, when already there is a dearth of such professionals in our

country.

18.With the above observation and direction, this writ petition is

dismissed. However, there is no order as to costs. Consequently,

connected Miscellaneous Petitions are closed.

19.07.2019
Index : Yes/No
Internet : Yes/No
rk

To

1.The State of Tamil Nadu,

rep. by its Secretary to Government,
Health and Family Welfare Department,
Fort St. George,
Chennai – 600 009.

2.The Director of Medical Services,

State of Tamil Nadu,
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Teynampet,
Chennai.
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3.The Director of Medical Education,

State of Tamil Nadu,
Kilpauk, Chennai.

R.MAHADEVAN, J.

rk

W.P(MD)No.8891 of 2019

19.07.2019

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