Employees right to alternate employment cannot be deprived of solely on ground of medical invalidation.

D. Murugesan, J.

The appellant joined in the Medical Department on 4.8.66. He was issued with a Charge Memo dated 28.5.99 containing six charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. As all the charges were held to be proved in the enquiry, finally, the Government in G.O.(D) No.1074, Health and Family Welfare (I-1) Department dated 5.10.2004 imposed the punishment of Censure on the appellant. He was also issued with another Charge Memo dated 14.12.99 containing one charge, which was also held to be proved. Finally the Government in G.O.(D) No.214, Health and Family Welfare (I-1) Department dated 17.3.2006 imposed the punishment of Censure. The appellant was also issued with another Charge Memo dated 30.6.99 containing twelve charges. In the enquiry all the charges were held to be proved, as could be seen from the report of the enquiry officer dated 2.2.2002. While the matter was pending before the Government, a clarification was sought regarding the retirement of the appellant on medical invalidation. However, the Government refused to retire the appellant from service on the ground that the orders are to be passed in respect of the Charge Memo dated 30.6.99. Ultimately, by order dated 11.7.2006, the appellant was permitted to retire from service on medical invalidation with effect from 22.2.2002 A.N. without prejudice to the disciplinary proceedings pending against him with a further direction permitting the appellant to draw provisional pension at the rate of Rs.3,255/-.

2. We have heard the learned counsel for the appellant and the learned Government Pleader for the respondent.

3. Insofar as the punishments of Censure imposed on the appellant on 5.10.04 and 17.3.2006, we are of the considered view that those punishments are liable to be set aside in view of the fact that they were inflicted even after holding that the appellant was mentally unsound when he had committed the misconduct, as contained in both the Charge Memos dated 28.5.99 and 14.12.99. Hence we set aside both the orders imposing punishment of Censure on the appellant.

4. In view of the above, the only question that remains to be considered is whether the Charge Memo dated 30.6.99 and the final order dated 11.7.2006 permitting the appellant to retire from service on medical invalidation with effect from 22.2.2002 A.N. are valid and could be sustained in the eye of law.

5. By an order dated 11.7.2006, the appellant was permitted to retire from service on medical invalidation. By the proceedings of the Regional Medical Board, Government General Hospital held on 22.2.2002, the Medical Board found that the appellant was unfit to continue in service, as he has a large ischemic infarction left middle cerebral artery territory causing severe aphasia and he is also hypertensive and diabetic. But for the medical invalidation, the appellant would attain the age of superannuation only on 31.8.2006.

6. On the above facts, it is now to be considered as to whether the appellant could be deprived of the benefit to alternate employment and consequently the salary and other benefits attached to such post on the ground of medical invalidation till the date of superannuation on 31.8.2006.

7. The right of the appellant to continue in employment shall be considered with reference to his right to livelihood. Article 21 of the Constitution of India reads as follows:

"Article 21: Protection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law"

8. Article 21 protects "the right to livelihood as an integral facet of right to life". Such right includes the right to live with human dignity. Such human dignity could be achieved only if there is a protection to the employment, of course, subject to disciplinary proceedings.

9. The Apex Court, while considering the absorption of an employee who is physically incapacitated due to disease while in service, in N