Regularization of medical leave by the competent authority and rejoining duty based on medical fitness renders disciplinary action unsustainable.

JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order passed by the first respondent herein in his proceedings C.No.A2/PR No.3/Appeal/2012 dated 23.01.2013 and the order of dismissal from service passed by the second respondent herein in his proceedings Tha.Pa.3/2012 dated 07.11.2012 and quash the same and direct the respondents herein to reinstate the petitioner into service together with all consequential service and monetary benefits within a time frame.)

1. The order of dismissal from service which was confirmed by the Appellate Authority is under challenge in the present writ petition.

2. The writ petitioner joined as Grade II Police Constable on 12.09.1986 and was promoted to the post of Grade I Police Constable on 22.07.1997. He was further promoted to the post of Head Constable on 22.07.2002. The petitioner has served about 25 years in the Department. On 22.05.2009 while the petitioner was on duty he fell ill due to severe chest pain and entered on medical leave. The petitioner was taken to a nearby private hospital for immediate treatment. The petitioner was unconscious and the Doctors diagnosed as Chronic Peptic ulcer. Thereafter, the petitioner took Ayurvedic treatment in his native place. The petitioner submitted medical report for the purpose of extension of medical leave. The leave applications were received by the competent authorities. The said leave period was regularized by the Superintendent of Police in proceeding dated 03.04.2012.

3. Thereafter, the Department directed the petitioner before the Medical Board and on obtaining the fitness certificate, the petitioner joined duty. Thereafter, the charge memo was issued under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules on 12.04.2012. The petitioner denied the charges by stating that he submitted leave applications properly and his leave period was also regularized. Without considering the said facts, an enquiry was ordered and the Enquiry Officer also failed to consider these documents and submitted his report on 18.07.2012 and thereafter a second show cause notice was issued. The petitioner submitted his further objections on 11.10.2012 and thereafter, disciplinary authority issued the impugned order of dismissal from service in proceedings dated 07.11.2012. The petitioner preferred an appeal on 13.12.2012 and the said appeal was rejected by the Appellate Authority on 23.01.2013. Thus, petitioner is constrained to move the present writ petition.

4. The learned counsel for the petitioner mainly contended that the mis-conduct, if at all alleged by the respondent, the same did not exist as on the date of issuance of charge memorandum, as entire leave period was regularized by the competent authority namely Superintendent of Police in proceedings dated 03.04.2012. Once the period of medical leave was regularized in accordance with leave Rules in force and the petitioner joined Government service on obtaining fitness certificate from the competent Medical Board, initiation of further disciplinary proceedings is unsustainable and therefore consequently the punishment is liable to be set aside.

5. In respect of the said contention, the learned counsel for the petitioner relied on the judgment in the case of Dr.G.Rajendran Vs. The Secretary to Government, Health and Family Welfare Department reported in (2006) 2 M.L.J 686, wherein the following observations are made in paragraphs 6 & 7 which are extracted hereunder;

"6. The point in issue is, whether the respondents are entitled to take disciplinary action after sanction of leave for which the petitioner applied.

7. Admittedly, the petitioner had applied for leave and the same was also sanctioned and salary for the said date was also paid. A similar issue arose before this Court in the decision reported in 2000 WLR 848 (K.Orlanto v. The Managing Direct Ta