Madras High Court
S.Velu vs The Director General Of Police on 7 January, 2022
W.P.No.33011 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2022
CORAM
THE HONOURABLE MR. JUSTICE M.S.RAMESH
W.P.No.33011 of 2018
S.Velu, PC 4784 ...Petitioner
Vs
1. The Director General of Police
No.1, Kamarajar Salai,
Mylapore
Chennai-600 004.
2. The Commandant
Tamil Nadu Special Police,
7th Battalion
Pochampalli
Krishnagiri District.
3. The Assistant Commandant-II,
Tamil Nadu Special Police,
7th Battalion
Pochampalli
Krishnagiri District.
...Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of India to
issue a Writ in the nature of Certiorarified Mandamus after calling for the
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W.P.No.33011 of 2018
concerned records relating to the Order of removal of service imposed on the
petitioner by the 2nd respondent dated 10.06.2016 in
Na.Ka.No.E1/PR:16/2016 u/r 3(a) which was confirmed by the order of the
first respondent dated 26.08.2017 made in Rc.No.135049/AP 3(1)/2016 and
quash the same and consequently direct the respondents to reinstate the
petitioner in service with all consequential, monetary, and other service
benefits.
For Petitioner : Mr.M.Gnanasekar
For Respondents : Mr.C.Selvaraj
Additional Government Pleader
ORDER
The only charge against the petitioner, through a charge memo dated
07.04.2016 was that he, while serving as a Police Constable, had been
absent for more that 21 days from 07.12.2015 onwards and thereby deserted
himself from the service. The charges were held to be proved and through an
order dated 10.05.2016, the Commandant had dismissed the petitioner from
the services. This order of dismissal came to be confirmed by the Director
General of Police in an appellate order dated 26.08.2017.
2. The original punishment of dismissal from service as well as the
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W.P.No.33011 of 2018
appellate order 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.
Ref: Circular Memo in C.No.243881/AP-1(1)/1990,
dated: 30.10.1990.
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W.P.No.33011 of 2018
<<<>>>
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,
notice is to be issued directing the delinquent to appear
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W.P.No.33011 of 2018
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 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 confirming the original
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W.P.No.33011 of 2018
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 the period of
absence.
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W.P.No.33011 of 2018
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.33011 of 2018
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
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W.P.No.33011 of 2018
not interfere. Supreme Court has further held that in
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
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W.P.No.33011 of 2018
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.”
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
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W.P.No.33011 of 2018
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.
18. In the result, the impugned Orders are set aside
and this Writ petition is allowed. Petitioner is ordered
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W.P.No.33011 of 2018
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.”
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. 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
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W.P.No.33011 of 2018
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.
8. In the result, the impugned order passed by the 2nd respondent
dated 10.06.2016 in Na.Ka.No.E1/PR:16/2016 u/r 3(a) which was
confirmed by the order of the first respondent dated 26.08.2017 made in
Rc.No.135049/AP 3(1)/2016 are quashed. Consequently, there shall be a
direction to the 1st respondent herein to pass appropriate orders, reinstating
the petitioner into services from 03.08.2015 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. No costs.
07.01.2022
Index:Yes/No
Internet : Yes/No
gd
To
1. The Director General of Police
No.1, Kamarajar Salai,
Mylapore
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W.P.No.33011 of 2018
Chennai-600 004.
2. The Commandant
Tamil Nadu Special Police,
7th Battalion
Pochampalli
Krishnagiri District.
3. The Assistant Commandant-II,
Tamil Nadu Special Police,
7th Battalion
Pochampalli
Krishnagiri District.
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W.P.No.33011 of 2018
M.S.RAMESH,J.
gd
W.P.No.33011 of 2018
07.01.2022
https://www.mhc.tn.gov.in/judis
