The doctrine of proportionality and the principle of judicial review in determining the quantum of punishment in cases of unauthorized absence and disobedience of orders.

JUDGMENT

(Prayer: Writ petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus calling for the records of the 1st respondent in G.O.(D) No.1497 dated 10.12.2007 and the order in G.O.(D) No.43 dated 13.01.2009 and quash the same and direct the respondents to reinstate the petitioner in Tamil Nadu Medical Service with all consequential and other service benefits.)

1. The short question that may arise for consideration in this writ petition is as to whether the punishment of removal of service by the respondents for unauthorized absence and alleged disobedience of orders of the higher authority is excessive and harsh on applying the doctrine of proportionality.

2. The petitioner had joined the Tamil Nadu Medical Services as Medical Officer in the Primary Health Centre, Olakur, Villupuram District on 20.08.1986. The petitioner was serving as a professor of Pharmacology in the Chengalpattu Medical College, Chengalpattu. The petitioner's father was seriously ill due to diabetes and his mother was a hypertensive patient. The petitioner had to take care of his aged and ailing parents. The petitioner had applied for an earned leave of 20 days from 12.07.2004 to 31.07.2004 to take care of his parents which was sanctioned. As the petitioner's parents continued to require medical attention the petitioner applied for further leave for 6 months on loss of pay. However, his leave application on loss of pay for 6 months was refused due to alleged exigency of service on 19.08.2004. The refusal of leave was communicated to the petitioner by a phonogram dated 19.08.2004 issued by Dean Incharge, Chengalpattu Medical College, Chengalpattu. The petitioner explained his position to the 4th respondent and requested for sanction of leave on loss of pay. Though the petitioner was to join duty on 01.08.2004 after the earned leave was over, the petitioner was unable to join as his ailing parents needed his presence and attention. The petitioner was allowed to join duty on 27.05.2005 vide letter dated 06.04.2005, from the Director, Medical Education. The 4th respondent vide proceedings dated 02.06.2005 in Na.Ka.No.7906/Ni1/2004 stated that the petitioner having joined the duty the period of leave from 12.07.2004 to 27.05.2005 can be regularized.

3. Whileso a Charge Memo was issued on 07.09.2005 by the 3rd respondent/ Director of Medical Education though the petitioner submitted his explanation to the charge memo, the same was rejected on 07.09.2006 by the Director of Medical Education and one Dr.V.Gangatharan who was appointed as an enquiry officer to enquire the charges framed as against the petitioner by following the procedures laid down under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

4. Two charges were framed against the petitioner viz.,

(a) Unauthorized absence from 01.08.2004 to 26.05.2005.

(b) The application for leave on loss of pay from 01.08.2004 having been refused by means of a telegram followed by a letter and with the direction to the petitioner to join duty immediately, the failure on the part of the petitioner to join duty in terms of the said direction was treated as constituting disobedience to the orders of the superior.

5. It is submitted by the learned counsel for the petitioner that the punishment of removal from service is grossly disproportionate and harsh, if one takes into account the fact that the petitioner absence was only in view of the medical crisis in his family and the petitioner has until then been regular in service and not absented himself. In support of his contention reliance was sought to be placed on the judgment of the Supreme Court reported in (2009) 8 MLJ 460 (SC) in the case of Mukul Kumar Choudhuri and others wherein while dealing with case of unauthorised absence it was found by the Supreme Court that the punishment of removal of service was harsh and excessive.

6. To the contrary it was submitted by Mrs.Karthika learned