Madras High Court
R.Sudhakar vs The Principal Secretary To ... on 21 December, 2021
W.P.No.7927 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.12.2021
CORAM
THE HONOURABLE MR. JUSTICE M.S.RAMESH
W.P.No.7927 of 2015
and M.P.No.2 of 2015
and W.M.P.No.29533 of 2016
R.Sudhakar ...Petitioner
Vs
1. The Principal Secretary to Government,
Home (Pol-V) Department,
Fort St.George,
Chennai-600 009.
2. The Director General of Police,
Tamil Nadu,
Kamarajar Salai,
Chennai-600 004.
3. The Joint Commissioner of Police,
South Zone,
Chennai Police,
Chennai-600 008.
4. The Deputy Commissioner of Police,
Theyagaraya Nagar District,
Chennai Police, T.Nagar,
Chennai-600 017. ...Respondents
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W.P.No.7927 of 2015
PRAYER: Writ Petition filed under Article 226 of Constitution of India
with the following prayers,
(i) to issue a Writ of Certiorarified Mandamus or any other
appropriate Writ calling for the records relating to
(i) G.O.(2D) No.425, Home (Police.V) Department
dated 8.8.2013 issued by the Principal Secretary
to Government, Home Department, Chennai-9,
the first respondent herein in confirming;
(ii) the proceedings of the Director General of
Police, Tamil Nadu, Chennai-4, the second
respondent herein made in
R.C.No.165362/AP.3(2)/2011 dated 20.7.2012 in
so far as not ordering reinstatement;
(iii) the proceedings of the Joint Commissioner of
Police, South Zone, Chennai Police, Chennai-08,
the third respondent herein made in
RC.No,18/2628/PR.S.(2)/2011 Appeal
No.06/PRS (2)/2011 dated 18.5.2011 in
confirming;
(iv) the proceedings of the Deputy Commissioner of
Police, Theyagarayar District, Chennai-17 the
fourth respondent herein made in
PR.No.11/PR.S-(2)/2010 dated 22.2.11;
quash the same in so far as the same is against the petitioner and
direct the respondents herein to reinstate the petitioner herein as Constable
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W.P.No.7927 of 2015
Gr.II with all consequential service, attendant, monetary benefits with
continuity of service and sanction all other benefits which has been denied
on account of the penalty and disburse all the arrears within a short date.
For Petitioner : Mr.K.Rajkumar
For Respondents : Mr.E.Veda Bagath Singh
Special Government Pleader
ORDER
The only charge against the petitioner, through a charge memo dated
09.03.2010 was that he, while serving as a Constable, had been absent for
more that 21 days from 18.09.2009 onwards and thereby deserted himself
from the service. The charges were held to be proved and through an order
dated 22.02.2011, the Deputy Commissioner of Police had dismissed the
petitioner from the services. This order of dismissal came to be confirmed
by the Joint Commissioner of Police in an appellate order dated 18.05.2011,
as against which, the Director General of Police, in his proceedings dated
20.07.2012, had placed reliance on antecedents of unauthorised absences
by the petitioner and modified the punishment into one of Compulsory
retirement.
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W.P.No.7927 of 2015
2. The original punishment of dismissal from service as well as the
modified punishment by the 2nd respondent herein into one of the
Compulsory Retirement cannot be sustained on the sole ground that the
Director General of Police had earlier issued Circulars dated 13.10.1990 and
06.12.2007, holding that in cases of desertion, the punishment of
removal/dismissal from service or Compulsory Retirement should not be
imposed. In a later circular, dated 06.12.2007, it was reiterated that these
guidelines should be strictly followed, while dealing with dismissal cases
and that any other minor punishment can be imposed. For the sake of
clarity, the circular dated 06.12.2007 is hereby extracted,
Rc.No.235355/AP-IV(2)/2007 Office of the
Director General of
Police,
Chennai-600 004.
Dated:06.12.2007
CIRCULAR MEMORANDUM
Sub: Police - Desertion cases - Head constables and
Police Constables - Taking delinquents on duty - Major
punishment awarded - Instructions issued - Regarding.
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W.P.No.7927 of 2015
Ref: Circular Memo in C.No.243881/AP-1(1)/1990,
dated: 30.10.1990.
<<<>>>
The attention of the Unit Officers is invited to the
Chief Office Circular Memorandum cited.
2) In the above Circular Memorandum, clear
instructions were already issued that while taking Head
Constables and Police Constables for duty in desertion
cases and disposing of P.Rs emanated from the
delinquency of desertion, penalty such as
removal/dismissal from service or Compulsory Retirement
should not be given. Any other punishment can be imposed
and this guideline should be kept in view, while dealing
with desertion cases.
3) While disposing of review/mercy petitions of the
subordinate police personnel, I noticed that scant regard is
shown to the earlier Chief Office instructions and the
Superintendents of Police are still in the habit of awarding
the maximum penalty of dismissal or removal from service
in desertion cases after taking them for duty. This action is
unfair, cannot be justified and consequently cannot be
accepted.
4) Hence, it is reiterated that when a Head
Constable/Police Constable is struck off as a deserter,
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W.P.No.7927 of 2015
notice is to be issued directing the delinquent to appear
before the Superintendent of Police within two months.
When he appears, Superintendent of Police should make up
his mind whether the absence is on valid grounds and
whether the period of absence is covered by a valid
medical certificate. If Superintendent of Police is not
satisfied, the delinquent should not be taken for duty. If on
the other hand, Superintendent of Police is satisfied, he can
be taken for duty. In such cases while disposing of P.Rs
punishment of removal/dismissal from service or
Compulsory Retirement should not be given. Any other
punishment can be imposed and these guidelines should be
strictly followed while dealing with desertion cases.
5) The above instructions should be scrupulously
followed and there should not be any violation. If any
deviation is found it will be viewed adversely.
6) The receipt of the Chief Office Memo should be
acknowledged forthwith.
Sd/-P.Rajendran
Director General of Police
3. The original order of dismissal by the 3rd respondent, as well as the
order of the Director General of Police modifying the punishment into one
of the Compulsory Retirement, is in clear violation of the Circular issued by
the Director General of Police. Likewise, the Director General of Police
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W.P.No.7927 of 2015
himself had violated his own proceedings by modifying the original
punishment into one of the Compulsory Retirement. These kind of Circulars
would be binding on all the authorities of the Government when it is issued
from the highest authority of the department. As such, the very original
punishment itself cannot be sustained. Consequently, it requires to be held
that both the original punishment, as well as the modified punishment, are
not only disproportionate to the impugned charges, but also violative of the
procedure contemplated for imposing punishments in the aforesaid circulars.
4. On the issue of disproportionality of a punishment is concerned,
the same has been dealt in various decisions of this Court, as well as the
Hon'ble Supreme Court to the effect that the ultimate punishment requires to
be in confirmity with the gravity of the charges. In one such decision of a
learned Single Judge of this Court of this Court in R.Jayakumar Vs. The
Deputy Commissioner of Police and another in W.P.No.26072 of 2004,
dated 08.08.2008, the High Court had placed reliance on three decisions of
the Hon'ble Supreme Court and interfered with the punishment of dismissal
for the period of unauthorised absence of 21 days and directed the
delinquent therein to be reinstated into services without benefit of pay for
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W.P.No.7927 of 2015
the period of absence.
5. The relevant portion of the order reads as follows:-
“11. Next point to be considered is proportionality of
punishment. For the absence of 21 days, Petitioner
was awarded punishment of dismissal from service.
Placing reliance upon AIR 1994 SC 215 (Union of
India and others v. Giriraj Sharma); (1996) 7 SCC
634 (Malkiat Singh v. State of Punjab and others);
(1999) 9 SCC 86 (Syed Zaheer Hussain v. Union of
India and others) and (2006) 4 MLJ 1008 (J.Patric v.
Government of Tamil Nadu, rep. by its Secretary,
Home (Pol.VI) Department, Chennai and others),
learned counsel for the Petitioner contended that in
cases where the punishment imposed is
disproportionate to the charge, court can set aside the
same or modify the punishment based on the facts and
circumstances of the case.
12.On the otherhand, learned Government Advocate
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W.P.No.7927 of 2015
would submit that as far as the Petitioner is
concerned, it was not an isolated case of desertion for
21 days. But he was in the habit of deserting habitually
and therefore, punishment of dismissal from service
came to be passed.
13. According to the Petitioner, he was unwell and
hospitalised and his family members could not inform
the higher officials about his ill-ness and his absence
was not deliberate. Charges framed for absence for 21
days.
14. In AIR 1996 SC 484:1995 (6) SCC 634
(B.C.Chaturvedi v. Union of India and others), the
Hon'ble Supreme Court has decided the question as to
whether Tribunal was justified in interfering with the
punishment imposed by the disciplinary authority by
referring to various Judgments to the effect that it is
for the disciplinary authority who has to imposed
penalty and normally Tribunal or High Court should
not interfere. Supreme Court has further held that in
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W.P.No.7927 of 2015
cases where punishment shocks the conscience of the
High Court or Tribunal, the High Court or Tribunal
can either direct the disciplinary authority to
reconsider the penalty or to shorten the litigation in
exceptional cases and in rare cases imposed an
appropriate punishment.
15. In this aspect, Hon'ble Supreme Court has laid
down the law as follows:-
“..... A review of the above legal position would
establish that the disciplinary authority, and on
appeal the appeallate authority, being fact-
finding authorities have exclusive power to
consider the evidence with a view to maintain
discipline. They are invested with the discretion
to impose appropriate punishment keeping in
view the magnitude or gravity of the misconduct.
The High Court/Tribunal, while exercising the
power of judicial review, cannot normally
substitute its own conclusion on penalty and
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W.P.No.7927 of 2015
impose some other penalty. If the punishment
imposed by the disciplinary authority or the
appellate authority shocks the conscience of the
High court/Tribunal, it would appropriately
mould the relief, either directing the
disciplinary/appellate authority to reconsider
the penalty imposed, or to shorten the litigation,
it may itself, in exceptional and rare cases,
impose appropriate punishment with cogent
reasons in support thereof.”
16. In AIR 1994 SC 215 (Union of India and others v.
Giriraj Sharma), Government Servant over-stayed the
leave period subsequent to the order of rejection of
application for explanation of leave. Observing that
there was no wilful intention to flout the order that the
punishment of dismissal merely on the ground of over-
staying leave period was held to be harsh and
disproportionate and the Supreme Court has ordered
reinstatement with all monetary and service benefits
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W.P.No.7927 of 2015
granted with liberty to visit minor punishment.
17. In (1999) 9 SCC 86 (Syed Zaheer Hussain v. Union
of India and others) the deliquent Government servant
was dismissed from service on the ground of
unauthorised absence for 7 days. Observing that
dismissal was too harsh, Supreme Court directed the
Appellant to reinstate with continuity in service with
all other benefits but limiting the back wages to 50%
only for the period between dismissal to the date of
passing of the order by the Court. In the present case,
Petitioner was absent for 21 days. It is one of the clear
instance where the punishment of dismissal from
service is disproportionate to the charge.
18. In the result, the impugned Orders are set aside
and this Writ petition is allowed. Petitioner is ordered
to be reinstated into service within a period of eight
weeks from the date of receipt of copy of this order.
Absence period and the period after dismissal are
directed to be taken as “leave on loss of pay”.
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W.P.No.7927 of 2015
However, the said period shall be taken into account
for continuity of service and other benefits.”
6. The aforesaid extract is self-explanatory. When the circular of the
Director General of Police clearly indicates that neither the punishment of
'dismissal from services' nor 'Compulsory Retirement' should be imposed on
a delinquent for charges of desertion, the punishment imposed itself is
deemed to be disproportionate to the charges, as held by the Hon'ble
Supreme Court and which was relied on by this Court in the aforesaid
decision.
7. However, the charge of unauthorised absence cannot be left
unnoticed, particularly it is brought to the notice of this Court that the
petitioner had earlier indulged in instances of unauthorised absence. By
taking into account, the ratio laid down in the aforesaid decision, this Court
is of the view that if the petitioner's wages for the period of his absence is
withheld, without affecting the continuity of his service, as well as other
service benefits, the ends of the justice would be secured.
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W.P.No.7927 of 2015
8. In the result of the impugned orders,
(i)G.O.(2D) No.425, Home (Police.V) Department
dated 8.8.2013 issued by the Principal Secretary to
Government, Home Department, Chennai-9, the first
respondent herein in confirming;
(ii) the proceedings of the Director General of
Police, Tamil Nadu, Chennai-4, the second
respondent herein made in
R.C.No.165362/AP.3(2)/2011 dated 20.7.2012 in so
far as not ordering reinstatement;
(iii) the proceedings of the Joint Commissioner of
Police, South Zone, Chennai Police, Chennai-08, the
third respondent herein made in
RC.No,18/2628/PR.S.(2)/2011 Appeal No.06/PRS
(2)/2011 dated 18.5.2011 in confirming;
(iv) the proceedings of the Deputy Commissioner of
Police, Theyagarayar District, Chennai-17 the fourth
respondent herein made in PR.No.11/PR.S-(2)/2010
dated 22.2.11;
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W.P.No.7927 of 2015
are quashed. Consequently, there shall be a direction to the 2nd respondent
herein to pass appropriate orders, reinstating the petitioner into services
from 22.2.2011 onwards, together with continuity of service and other
service benefits, within a period of 2 weeks, as if the petitioner was never
dismissed from his services. However, the petitioner shall not be entitled for
the backwages during his period of Non-employment. This Writ Petition is
allowed, accordingly. The connected miscellaneous petitions are closed. No
costs.
21.12.2021
Index:Yes/No
Internet : Yes/No
gd
To
1. The Principal Secretary to Government,
Home (Pol-V) Department,
Fort St.George,
Chennai-600 009.
2. The Director General of Police,
Tamil Nadu,
Kamarajar Salai,
Chennai-600 004.
3. The Joint Commissioner of Police,
South Zone,
Chennai Police,
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W.P.No.7927 of 2015
Chennai-600 008.
4. The Deputy Commissioner of Police,
Theyagaraya Nagar District,
Chennai Police, T.Nagar,
Chennai-600 017.
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W.P.No.7927 of 2015
M.S.RAMESH,J.
gd
W.P.No.7927 of 2015
21.12.2021
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