Habitual unauthorised absence, failure to comply with orders, and proportionality of punishment in disciplinary actions

JUDGMENT

(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records of the respondent in his proceedings in mYtyf foj vz;/vg;1(M) gpupt[-IV/2013/1222 njjp 17th April 2013 and quash the same and thereby direct the respondent to reinstate the petitioner in the services with all back wages and all benefits.)

The order of removal from service issued by the respondent-University dated 17.04.2013, is sought to be quashed in the present writ petition.

2. The writ petitioner was appointed as Peon in the University of Madras by the respondent on 08.08.2007 and the petitioner joined duty on 16.08.2007. The petitioner was made permanent on 26.10.2009 after completion of the probation period of two years. The petitioner remained unauthorisedly absent for the period from 30.08.2011 to 10.04.2012.

3. The petitioner states that due to some family circumstances and on account of health issues, he could not report for duty and remained absent. However, the petitioner states that his absence from duty was not willful and due to certain compelling reasons.

4. The respondent-Univeristy initiated departmental disciplinary proceedings and issued a charge memorandum under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. An Enquiry Officer was appointed, who in turn conducted an enquiry. The petitioner conceded the charges and pleaded guilty with reference to the allegtion of unauthorised absence. Thus, the Enquiry Officer hold that the charges against the writ petitioner are held proved. The report of the Enquiry Officer was accepted by the Disciplinary Authority, who in turn imposed the penalty of removal from service. Thus, the petitioner is constrained to move the present writ petition.

5. The learned counsel for the petitioner contended that though the petitioner admitted the allegations of unauthorised absence, the absence was not willful and due to certain compelling circumstances. Thus a lenient view is to be taken in respect of the mitigating circumstances pleaded by the delinquent official.

6. The learned counsel appearing on behalf of the respondent objected the said contention raised on behalf of the petitioner by stating that the petitioner was a chronic absentee. It is not the case where on one occasion, the petitioner remained unauthorisedly absent. In fact, the petitioner remained unauthorisedly absent from 18.02.2011 to 01.03.2011 (12 days) and 03.03.2011 to 05.04.2011 (34 days). The petitioner submitted an explanation stating that he could not report for duty due to his family circumstances. Thus, the respondent had taken a lenient view on compassionate grounds and warned about the lapses and the respondent further informed that the petitioner should be more careful in attending the office duty in future. The petitioner was further informed by the respondent that non-compliance of the office orders would be viewed seriously and suitable actions would be initiated against the writ petitioner based on the materials already available on records. Even thereafter, the petitioner submitted Earned Leave applications on medical certificate for his absence from duty and the said leave period was regulated as 'Leave on Loss of Pay' vide proceedings dated 23.05.2009.

7. The learned counsel for the respondent states that the petitioner had availed 235 days of leave during the period between 08.08.2011 and 10.04.2012. The petitioner had not followed the instructions given by the respondent. Again the petitioner had violated the office orders and remained unauthorisedly absent. He remained unauthorisedly absent for duty from 30.08.2011 to 04.09.2011 and from 03.10.2011 to 09.10.2011 and thereafter he was continuously absent for duty from 10.10.2011 to 10.04.2012 (i.e., 184 days).

8. The learned counsel appearing on behalf of the respondent reiterated by stating that during the first occasion, the respondent has taken a leni