Madras High Court
Kamalakannan vs The Deputy Commissioner Of Police on 7 April, 2022
W.P.No.14901 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2022
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.No.14901 of 2014
Kamalakannan ... Petitioner
Vs.
1.The Deputy Commissioner of Police,
Greater Chennai, In-charge A.R.
Chennai City Police, Chennai – 8.
2.The Commissioner of Police,
Greater Chennai,
Egmore, Chennai – 8.
3.The Director General of Police,
Chennai – 4.
4.The Secretary to Government,
Home (POL.V) Department,
Fort St.George, Chennai – 9. ...
Respondents
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
of the respondents in connection with the impugned orders passed by 4 th
respondent in G.O.(2D) No.98, Home (POL.V) Department, dated
01.04.2014 and quash the same and direct the respondents to reinstate the
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W.P.No.14901 of 2014
petitioner into service and grant him all consequential service and monetary
benefits.
For Petitioner : Mr.K.Venkataramani,
Senior Cousel
for Mr.M.Muthappan
For Respondents : Mr.T.Chezhiyan,
Additional Government Pleader
ORDER
When on the basis of proven charges that the petitioner had deserted
his service, he was imposed with a punishment of removal from service on
26.03.1999 by the first respondent, which came to be modified by the third
respondent on 13.07.2004 into one of compulsory retirement, the petitioner
had challenged the punishment before this Court in W.P.No.886 of 2007,
by an order dated 10.04.2012, this Court had relied upon the decisions of
the Hon'ble Supreme Court in the case of 'Bhagwan Lal Arya Vs.
Commissioner of Police, Delhi reported in '(2004) 4 SCC 560' and
'B.C.Chaturvedi Vs. Union of India' reported in '(1995) 6 SCC 749' and
on an established view that the punishment of compulsory retirement was
not in conformity with the proven charges, had remitted back the matter to
the Disciplinary Authority, to reconsider the proportionality of the
punishment alone. In this background, the fourth respondent herein, had
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passed the impugned order dated 01.04.2014, imposing the punishment of
compulsory retirement once again. This order is under challenge in the
present Writ Petition.
2. The impugned order of punishment cannot be sustained on two
substantial grounds. Firstly, when this Court had remitted back the matter
through its order dated 10.04.2012 in WP.No.886 of 2007, the very
purpose for such remission was to reduce the original punishment of
compulsory retirement. The order came to be passed on, by relying upon
the decisions of the Hon'ble Supreme Court, in which it was held that in
cases of unauthorised absence, the punishment of removal from service
would be excessive and therefore, the High Courts require to remit back the
matter to the Disciplinary Authority for re-consideration of the punishments
on the ground of disproportionality. While that being so, the only option
available to the respondents is to impose a lesser punishment. However, in
total disregard to the purpose for which the matter was remanded back to
the Disciplinary Authority, the original punishment has been reiterated in
the present impugned order. On this ground, the punishment cannot be
sustained.
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W.P.No.14901 of 2014
3. Secondly, the Director General of Police, in Circulars dated
30.10.1990 and 06.12.2007, had ordered to the Disciplinary Authorities
that while dealing with dismissal cases, in cases of desertion, the
punishment of removal/dismissal or compulsory retirement, should not be
imposed.
4. In the case of 'R.Sudhakar Vs. The Principal Secretary to
Government, Home (Pol-V) Department and others', passed in
W.P.No.7927 of 2015 dated 21.12.2021, I had an occasion to deal with
these Circulars and thereby, had reduced the punishment of dismissal. The
relevant portion of the order reads as follows:-
“"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
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W.P.No.14901 of 2014
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.
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
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W.P.No.14901 of 2014
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, 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.
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W.P.No.14901 of 2014
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
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."
5. On the issue of disproportionality of a punishment is
concerned, the same has been dealt in various decisions of
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W.P.No.14901 of 2014
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, in the case of R.Jayakumar Vs.
The Deputy Commissioner of Police and another passed 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 the benefits of pay for the period of absence.
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
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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 other hand, learned Government
Advocate 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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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
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.”
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W.P.No.14901 of 2014
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 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.
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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”.
However, the said period shall be taken into account
for continuity of service and other benefits.”
5. The aforesaid extract is self-explanatory. When the circular of the
Director General of Police clearly indicates that the punishment of
'dismissal/removal from service' nor 'compulsory retirement' should not 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 upon by this Court in the aforesaid
decision. Hence, on this ground also, the impugned order of punishment
cannot be sustained.
6. However, the charge of unauthorised absence cannot be left
unnoticed, particularly, when it is brought to the notice of this Court that
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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 justice could be secured.
7. In normal circumstances, this Court would remit back the matter
to the Disciplinary Authority for passing fresh orders to reduce punishment.
However, in the instant case, when such an option was extended by this
Court and directed the fourth respondent to impose a lesser punishment, the
same was disobeyed and the original modified punishment of compulsory
retirement was reiterated, in total disregard to the order of this Court. In
these circumstances, this Court is of the view that remanding the matter
back to the fourth respondent for imposing a lesser punishment, would be a
futile exercise and hence, this Court would be justified in ordering for a
lesser punishment by invoking its powers under Article 226 of the
Constitution of India.
8. In the light of the above observations, the impugned order of
punishment dated 01.04.2014, imposing compulsory retirement on
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petitioner, is quashed. Consequently, there shall be a direction to the
respondents herein, to pass appropriate orders, reinstating the petitioner
back into service from the date of the original punishment i.e. from
26.03.1999 onwards, as if the petitioner was never dismissed from his
services, together with continuity of service and other attendant service
benefits, within a period of two weeks from the date of receipt of a copy of
this order. However, the petitioner shall not be entitled for the back wages
during his period of non-employment.
M.S.RAMESH,J.
Sni
9. With the above directions, this Writ Petition stands allowed. No
costs.
07.04.2022
Index:Yes/No
Internet:Yes/No
Sni
To
1.The Deputy Commissioner of Police,
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W.P.No.14901 of 2014
Greater Chennai, In-charge A.R.
Chennai City Police, Chennai – 8.
2.The Commissioner of Police,
Greater Chennai,
Egmore, Chennai – 8.
3.The Director General of Police,
Chennai – 4.
4.The Secretary to Government,
Home (POL.V) Department,
Fort St.George, Chennai – 9.
W.P.No.14901 of 2014
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