Madras High Court
K.Kannan vs The Additional Chief Secretary To ... on 4 December, 2021
W.P.No.23251 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.12.2021
CORAM
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
W.P.No.23251 of 2019
K.Kannan .. Petitioner
Vs
1. The Additional Chief Secretary to Government,
Home (Police V) Department,
Secretariat,
Chennai - 9
2. The Director General of Police,
Santhome High Road,
Mylapore,
Chennai - 4.
3. The Commissioner of Police,
Salem City.
4. The Deputy Commissioner of Police,
Crime and Traffic,
i/c Law and Order,
Salem City. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution
of India to issue a Writ of Certiorarified Mandamus to call for the records
relating to the fourth respondent vide P.R.No.36/H1/2014 dated
25.09.2014 and consequently the orders of the third, second and first
1/17
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W.P.No.23251 of 2019
respondents vide Tha.Pa.No.36/H.1/2014 dated 12.11.2014,
R.C.No.346143/AP.1(2)/ 2015 dated 22.07.2016 and G.O.(D) No.1237
Home (Police5) Department dated 29.10.2018 respectively and to quash
the same and direct the respondents to reinstate the petitioner in service
with all attendant benefits.
For Petitioner : Mr.S.Vijayakumar
For Respondents : Mr.G.Nanmaran,
Special Government Pleader
ORDER
This writ petition has been filed to issue a Writ of Certiorarified
Mandamus to call for the records relating to the fourth respondent vide
P.R.No.36/H1/2014 dated 25.09.2014 and consequently the orders of the
third, second and first respondents vide Tha.Pa.No.36/H.1/2014 dated
12.11.2014, R.C.No.346143/AP.1(2)/ 2015 dated 22.07.2016 and
G.O.(D) No.1237 Home (Police5) Department dated 29.10.2018
respectively and to quash the same and direct the respondents to reinstate
the petitioner in service with all attendant benefits.
2. The petitioner joined as Junior Assistant in March 2013,
selected through Tamil Nadu Public Service Commission and allotted to
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W.P.No.23251 of 2019
Police Department, Salem City. On 22.05.2014, according to the
petitioner, he applied for casual leave to attend a function of his family
after obtaining prior sanction from the superiors. On the same day, he
received a charge memorandum from the 4th respondent under Rule
17(a) of the Tamil Nadu Civil Servants (Discipline and Appeal) Rules.
The charge against the petitioner was that he had taken leave without
proper permission on 22.05.2014 and left the work spot on his own
without informing any of his superiors. He was also alleged to have left
the office on his own volition and thereafter, he had casually informed
about his absence in the subsequent days without taking permission or
sanction of leave from the superior authorities. The petitioner was also
placed under suspension.
3. According to the petitioner, when he came to the office on
26.05.2014, he was refused permission to join duty and sign in the
attendance register and he was informed about the disciplinary action
initiated against him. When the petitioner attempted to rejoin duty, he
was issued with another charge memo under 17(b) of the Tamil Nadu
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W.P.No.23251 of 2019
Civil Servants (Discipline and Appeal) Rules on 02.06.2014 alleging
unauthorised absence on 23.05.2014. According to the petitioner, on
23.05.2014, he did sign the attendance register and left the work spot
because of the declaration of 10th result of his daughter. After
ascertaining the result of the daughter, he immediately returned to the
office after 45 minutes but was served with the charge memorandum.
According to him, for the said allegation, by no stretch of legal standards
major penalty proceedings could said to have attracted the terms in Rule
17(b) of the Tamil Nadu Civil Servants (Discipline and Appeal) Rules.
4. In response to the charge memorandum, the petitioner submitted
his representation, setting out the facts forcing him to leave the work spot
for a brief period on the relevant days. However, enquiry was conducted
into the charge and on its conclusion, a report was submitted on
10.09.2014 holding the charge proved. Finally, notwithstanding the
explanation of the petitioner against his absence on that particular days,
the 4th respondent passed an order on 25.09.2014 removing the
petitioner from service. Being aggrieved by the order of removal from
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W.P.No.23251 of 2019
service, the petitioner filed an appeal to the 3rd respondent on
22.10.2014.
5. The Appellate Authority, the 3rd respondent herein confirmed
the findings of the Disciplinary Authority in the appeal vide proceedings
dated 12.11.2014. The petitioner has also filed a mercy petition to the
2nd respondent on 05.12.2014 and the same was also rejected on
22.07.2016. Subsequently, the review petition has been filed before the
1st respondent on 16.11.2016 and the same also came to be rejected by
the Department on 29.10.2018. Challenging the orders of rejection and
the punishment order of removal from service, the petitioner is before
this Court.
6. Mr.S.Vijayakumar, the learned counsel for the petitioner would
submit that the issuance of 17(b) charges in respect of a day's absence by
the petitioner amounted to malafide exercise of power and cannot be
countenanced both in law and on facts. On the face of it, the punishment
imposed, assuming the charge was proved, was shockingly
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W.P.No.23251 of 2019
disproportionate which cannot be countenanced in law at all. The learned
counsel in support of his legal contention as to the proportionality of the
punishment has cited the following decisions.
1. 2010(2) SCC 497 (G.Vallikumari Vs. Andhra Education Society an
others)
2. 2010 7 MLJ 48 (P.Anthony Rajamani vs. Commissioner of Police,
Coimbatore City, Coimbatore-18)
3. Law Finder Doc Id # 820070 Allahabad bank vs. Krishna Narayana
Tewari in C.A.No.7600/2014 dated 02.01.2017
4. Order in W.P.No.32814/2018 dated 17.12.2019 passed by
the learned single Judge of this Court.
5. Judgment in C.A.No.11395/2018 (Hanuman Sahai vs. State of
Rajasthan) dated 27.11.2018 passed by the Hon'ble Supreme Court of
India.
6. Judgment in C.A.No.5633/2019 (Rathin ghosh vs. west bengal state
Electriity Disribution Com.Ltd.) dtaed 29.07.2019 passed by the Hon'ble
Supreme Court of India.
7. Order in W.P.(MD).No.17662/2017 (R.Raja vs. Commissioner, HR &
CE and another) dated 26.11.2019 passed the learned Single Judge of
this Court (Madurai Bench).
7. From the above decisions, it could be seen that the Courts have
applied the legal principle of proportionality doctrine in interfering with
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W.P.No.23251 of 2019
the quantum of punishment imposed on the delinquent Government
servant, whenever the Court found such punishment as excessive, harsh,
not commensurate with the gravity of the misconduct alleged to have
been proved.
8. The learned counsel would therefore submit that this is a fit case
where this Court's intervention could be justified in relation to the
penalty imposed, as the removal from service in the facts and
circumstances of the case, is excessive and harsh. Unfortunately, all the
authorities rejected the representations of the petitioner without due
appreciation atleast on the quantum of the penalty imposed on the
petitioner in consideration of the charges framed against the petitioner.
According to the learned counsel, the issuance of charge memo under
Rule 17(b) was tainted with malafides and the same cannot be
countenanced at all.
9. On behalf of the respondents, Mr.G.Nanmaran, the learned
Special Government Pleader appeared and a detailed counter affidavit
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W.P.No.23251 of 2019
has been filed by the 3rd respondent.
10. In the counter affidavit, it has been stated in paragraph No.8
that the petitioner had been a chronic absentee and the details of his
absence from duty abandoning the office by the petitioner were stated in
the tabular column furnished in the counter affidavit, which is extracted
hereunder.
23.05.2013 & 24.05.2013 : 2 days Casual Leave
17.06.2013 & 18.06.2013 : 2 days Casual Leave
05.07.2013 : Permission for one hour but not
returned to office
08.08.2013 : 1 day Casual Leave
07.10.2013 : 1 day Casual Leave
09.10.2013 & 10.10.2013 : Other duty
11.10.2013 : Permission
19.10.2013 to 23.10.2013 : 3 days Casual leave and 2 days
Holiday permission
02.12.2013 & 03.12.2013 : Other duty
04.12.2013 to 10.12.2013 : 7 days – Absent for duties
30.12.2013 : Other duty
02.01.2014 to 06.01.2014 : 5 days Absent for duties
03.03.2014 to 09.03.2014 : 7 days – Absent for duties
13.03.2014 : 1 day – Casual leave
21.03.2014 : Other duty
25.03.2014 & 26.03.2014 : Other duty
02.04.2014 Other duty
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W.P.No.23251 of 2019
03.04.2014 : Not turned up to office.
Considered as other duty
30.04.2014 : Other duty
06.05.2014 to 12.05.2014 : 7 days absent for duty
11. According to the counter affidavit, frequent absence of the
petitioner affecting the administrative work, forced the authorities to take
a stern view against the petitioner. According to the counter affidavit, the
petitioner was already given a chance by issuing a charge memo under
17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules,
1955 to correct himself when he was a probationer. But despite the same,
on 23.05.2014, he came to the office, signed the staff attendance register
and left the office without taking permission and never turned up for duty
till 27.05.2014. When he was contacted over the phone, he had casually
replied that he was on casual leave. In the said circumstances, the
authorities were left without any option except to initiate disciplinary
action against the petitioner.
12. According to the counter statement, the petitioner deserved to
be imposed with a penalty of removal from service due to his lethargic
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W.P.No.23251 of 2019
conduct and attitude to his work, lacking devotion to duty. Unless such
drastic action is taken, the petitioner would keep repeating his acts of
misconduct affecting the administration, resulting in dislocation of the
normal day-to-day routine work.
13. This Court heard the submission of the learned counsel for the
petitioner as well as the learned Special Government Pleader for the
respondents. Perused the materials and the pleadings placed on record.
14. This Court finds that the petitioner conduct was not to the
satisfaction of the superior authorities as he had been on and off taking
casual leave showing lack of devotion to duty. Frequent absence of the
petitioner must have caused dislocation in the administration resulting in
grave provocation for the superior authorities to take severe action
against the petitioner. But while reacting to the act of misconduct, the
superior authorities cannot lose sight of the fact that their response to the
so called lapse committed on the part of the petitioner, cannot be met
with the disproportionate reaction, as in the present case.
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W.P.No.23251 of 2019
15. No doubt, the petitioner was required to be proceeded against
departmentally for his casual approach to his day-to-day duties, failing in
his duty as a responsible member of the Force. But at the same time,
removing him from service can never be a punishment which can said to
be commensurate with the gravity of the misconduct committed by the
petitioner. There are so many other punishments which could have been
inflicted on the petitioner without terminating the service of the
petitioner.
16. From the citations as relied on by the learned counsel, it could
be seen that the punishment of removal from service in the circumstances
of the case, is shockingly disproportionate, which cannot be
countenanced, both on facts and in law.
17. The reasons set forth in the counter affidavit and the arguments
advanced on behalf of the respondents in inflicting extreme punishment
of removal from service is legally unsustainable. The punishment of
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W.P.No.23251 of 2019
removal from service cannot be resorted to by the respondents for a
simple absence of the petitioner for a period of few days. Even assuming
that the absence was not properly explained by the petitioner, the
reaction of the respondents as could be inferred from the tenor of the
counter affidavit was more out of anger against the conduct of the
petitioner and not on the basis of dispassionate consideration of the
lapses committed by the petitioner.
18. When an employee commits an act of misconduct, it is
incumbent upon the superior officer to deal with the lapse with
composure, unruffled by provocation, particularly when extreme
punishment of removal from service was being resorted to. The
punishment imposed on the employee in such circumstances should not
only caution him to be careful in his duties in future, but at the same
time, it should equally reflect that the authority acted with equanimity.
The doctrine of proportionality in awarding punishment is a well
recognised legal principle and the Courts have, in deserving cases,
invoked the doctrine, whenever it found there was transgression. In this
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case, in the opinion of this Court, infliction of removal from service is an
abuse of the power vested in the authorities which cannot be
countenanced in law at all.
19. It is unfortunate that the superior authorities, presumably
harboured needless malignity against the petitioner in affirming the
punishment imposed on the petitioner, mechanically. On the whole, this
Court is of the view that uniformly, all the authorities have shown lack of
sensitivity and appreciation in dealing with the lapses of inferior officer
and this Court has no hesitation to hold that the punishment of removal
from service is shockingly disproportionate to the gravity of the
misconduct committed by the petitioner.
20. While holding that the removal from service cannot be
countenanced in law, this Court is of the view that the same has to be
replaced and modified with a minor penalty. The petitioner herein
having been kept out of employment and lost his livelihood for several
years now, loss of employment for over seven years itself is a very
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serious and harsh consequence befallen the petitioner.
21. The petitioner being removed from service on 25.09.2014 and
suffered non-employment for more than 7 years, denying him salary for
the long period of non-employment is a suitable punishment to be
imposed on him for his repeated acts of misconduct and exhibiting lack
of devotion to duty.
22. However, it is clarified that the petitioner is entitled to all other
benefits like notional fixation of pay, continuity of service and other
consequential service benefits as if he had been continued in service
without any break.
23. For the above said reasons, the impugned order in
P.R.No.36/H1/2014 dated 25.09.2014 passed by the 4th respondent and
the consequential orders of 3rd, 2nd and 1st respondents vide
Tha.Pa.No.36/H.1/2014 dated 12.11.2014, R.C.No.346143/AP.1(2)/
2015 dated 22.07.2016 and G.O.(D) No.1237 Home (Police5)
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W.P.No.23251 of 2019
Department dated 29.10.2018 respectively are hereby set aside and the
respondents are directed to reinstate the petitioner forthwith. The
respondents are directed to pass appropriate orders by regularising the
period of non-employment from the date of dismissal till the date of
reinstatement and the petitioner is not entitled to the salary and
allowances payable for the entire period of non-employment which
would be treated as a punishment.
24. The authorities concerned are directed to pass appropriate
orders in this regard within a period of four weeks from th date of receipt
of a copy of this order.
25. Accordingly, the Writ Petition is allowed. No costs.
08.12.2021
Index : Yes/No
Speaking order : Yes/No
vsi
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W.P.No.23251 of 2019
To
1. The Additional Chief Secretary to Government,
Home (Police V) Department,
Secretariat, Chennai - 9
2. The Director General of Police,
Santhome High Road,
Mylapore, Chennai - 4.
3. The Commissioner of Police,
Salem City.
4. The Deputy Commissioner of Police,
Crime and Traffic,
i/c Law and Order,
Salem City.
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W.P.No.23251 of 2019
V.PARTHIBAN, J.
vsi
W.P.No.23251 of 2019
08.12.2021
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