A.Sahadevan, v. The Senior Regional Manager

ORDER Heard the learned counsel on either side.

2.The petitioner was employed as Salesman in a liquor outlet run by TASMAC. The petitioner entered service way back in the year 2003. He suffered from Jaundice and took treatment for a long time. He submitted representation dated 20.06.2014 to the second respondent to allow him to join duty. The second respondent issued memo dated

12.11.2015 seeking explanation. The petitioner offered his explanation. Enquiry was conducted. Thereafter order dated 31.01.2017 was issued imposing fine of Rs.5,000/- as punishment. The petitioner was also denied backwages for the period of absence. The petitioner accepted the order and remitted the fine amount. However, the petitioner was not given any posting order. When the petitioner submitted a representation on 25.10.2017 indicating that he will have to take recourse to legal action, order dated 08.11.2017 was passed terminating his service. Left with no other option, the petitioner has filed the present writ petition challenging the impugned orders and seeking reinstatement.

3.The learned counsel appearing for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition and called upon this Court to set aside the impugned orders and grant relief as prayed for.

4.The respondents have filed counter affidavit and the learned standing counsel took me through this contents. The primary argument of the learned standing counsel is that the petitioner was unauthorizedly absent for a very long period and therefore, his services were rightly terminated. It is further contended that the petitioner cannot take advantage of the order dated 31.01.2017 passed by the then District Manager imposing penalty of Rs.5,000/- alone. Reinstatement order could have been issued only by the Managing Director. The said order is not in consonance with the provisions set out in the Code of Prevention and Detection of Fraudulent Acts in Tamil Nadu State Marketing Corporation Limited, 2014. The learned standing counsel also pointed out that the petitioner was only a contractual employee and not a permanent employee and therefore, no interference is called for. He pressed for dismissal of the writ petition.

5.I carefully considered the rival contentions and went through the materials on record. Let me first examine the provisions of 2014 Code. The said Code is intended to deal with acts of fraud. The expression "fraud" has been defined in Regulation 2(e). The act committed by the petitioner will not amount to fraud. It will however fall under the expression "other irregularities". One cannot deny that unauthorized absent is an act of misconduct. Circular dated 22.09.2017 issued by the Managing Director, TASMAC reads as follows:- "nrd;id cah;ePjpkd;wk; fl;lis kD vz;.6304/ 2009 rptFkhh; vjph; Nkyhz;ik ,af;Feh;> lh];khf; kw;Wk; ,Uth; vd;w tof;fpy; 15.3.2010y; toq;fpa jPh;g;gpy; lh];khf; filg; gzpahsh;fs; kPJ xOq;F eltbf;if vLg;gJ rk;ke;jkhf 1946k; tUl jkpo;ehL epiy Mizfs; rl;lk; lh];khf; epWtdj;jpw;Fg; nghUe;Jk; vd cj;jputpl;Ls;sJ. 1947k; tUl khjphp jkpo;ehL epiy Mizfs; gphpT 16 (e)y; "habitual absence without leave or absence without leave for more than 10 consecutive days" vd Fwpg;gplg;gl;Ls;sJ. vdNt> 10 ehl;fSf;Fk; Nkyhf njhlh;e;J jfty; mspf;fhky; gzpf;F tuhky; ,Ug;gJ fLikahd xOq;fPdk; MFk;. ,e;j xOq;fPdj;jpw;F xOq;F eltbf;if vLg;gJ mtrpakhFk;. vdNt> midj;J khtl;l Nkyhsh;fSk;> 10 ehl;fSf;Fk; Nky; jftypd;wp njhlh;e;J gzpf;F M[uhfkhy; ,Uf;Fk; gzpahsh;fs; kPJ Fw;wrhl;L Fwpg;ghiz toq;fp> cs; tprhuiz mYtyiu epakpj;J tprhuiz elj;jp ,Wjp Miz toq;FkhW mwpTWj;jg;gLfpwJ." Even according to the respondents, this circular is the latest instruction on the subject. On going through the materials on record, one can easily come to a conclusion that the instruction set out in the circular dated

22.09.2017 was adhered to. An enquiry officer was appointed. The petitioner was found guilty of misconduct. Fine amount of Rs. 5,000/- was imposed on the petitioner. As far as the petitioner is concerned, the second respondent is the disciplinary authority. I, therefore, conclude that the disciplinary action initiated against the petitioner attained finality on 31.01.2017 itself.

6.The respondents ought to have permitted the petitioner to rejoin duty after he remitted the fine amount within time. Since no posting order was issued, the petitioner was constrained to submit a representation indicating that he will have to knock the doors of the Court, if posting order was not issued. It was this so-called threat made by the petitioner which triggered the impugned orders. Vide order dated

08.11.2017, the second respondent terminated the petitioner from service. Interestingly, the said order places reliance on the enquiry report dated

02.12.2015. In other words, the proceedings dated 31.01.2017 as well as the proceedings dated 08.11.2017 are anchored on the very same enquiry report. When once the disciplinary action had concluded and culminated in a particular manner, it could not have been reviewed or recalled in the absence of a specific provision to that effect.

7.The order dated 08.11.2017 is also liable to be set aside on the ground of violation of principles of natural justice. The first respondent did not consider the contentions projected by the petitioner and mechanically confirmed the order passed by the second respondent.

8.I can understand if the petitioner's conduct suffered from dishonest or ill-motive. No doubt the petitioner was absent for a long period. It was only due to illness. If during this period, the respondents had formally passed any adverse order, it would be a different matter altogether. That is not the case. Till the petitioner applied to the second respondent seeking permission for rejoining duty, no adverse order was passed against the petitioner. Only in the year 2017 when the petitioner sought posting order, enquiry officer was appointed and the petitioner was found guilty and an order of penalty was passed. It has been held in quite a few cases that for unauthorized absence for medical reasons, dismissal or termination of service cannot be the punishment. The authority concerned cannot mechanically impose punishment. The gravity of misconduct must be taken into account. Any punishment should be proportionate to the nature of misconduct. As rightly pointed out by the learned counsel for the petitioner, Regulation 7 contemplates imposition of punishments cataloged therein or imposition of penalty or both. In this case, the second respondent chose to impose penalty instead of the punishment set out in Regulation 7. The choice is left to the disciplinary authority. Having exercised his discretion in a particular manner, when there was no provision for review or recall, the issue could not have been revisited. The order dated 08.11.2017 passed by the second respondent was patently without jurisdiction. Since such an order has been confirmed by the first respondent, the order dated 31.01.2017 also has to be set aside.

9.The writ petitioner through his counsel informs the Court that he will not press for backwages. This undertaking is placed on record.

10.The impugned orders are set aside and the second respondent is directed to reinstate the petitioner and give an appropriate posting order within a period of four weeks from the date of receipt of a copy of this order. This writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.

12.05.2023 NCC : Yes/No Index : Yes / No Internet : Yes/ No ias

G.R.SWAMINATHAN, J. ias Pre-Delivery Order in

12.05.2023 (1/2)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 29.11.2022 Pronounced on : 12.05.2023 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN and W.M.P.(MD)No.1840 of 2019 A.Sahadevan ... Petitioner Vs. 1.The Senior Regional Manager, Tamil Nadu State Marketing Corporation Ltd., (TASMAC), Madurai. 2.The District Manager, Madurai South, Tamil Nadu State Marketing Corporation Ltd., (TASMAC), Madurai, SIPCOT Complex, Kappalur, Madurai. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order passed by the 2nd respondent in Na.Ka.No.3/2016/A, dated 08.11.2017, quash the same, and consequently direct the 2nd respondent to reinstate the petitioner into the service with all service benefits. For Petitioner : Mr.R.V.Rajkumar For Respondents : Mr.H.Arumugam, Standing Counsel.