Madras High Court
K.Vemburaj vs The Inspector General Of Police on 21 June, 2022
WP(MD)No.5738 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD)No.5738 of 2019
and W.M.P.(MD)No.4527 of 2019
K.Vemburaj ... Petitioner
/vs./
1.The Inspector General of Police,
Armed Police,
Trichy,
i/c, Deputy Inspector General of Police,
Armed Police,
Trichy.
2.The Principal / Commandant,
Police Training School,
Tamil Nadu Special Police XII Battalion,
Manimuthar,
Tirunelveli District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, calling for the records of the 2 nd
respondent in connection with the impugned order of removal from service
passed by him vide his proceedings in Na.Ka.No.Tha.Ka.Pa.Pa/8555/2017 with
1/12
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WP(MD)No.5738 of 2019
P.R.No.03/2018 dated 01.08.2018 and subsequent impugned order of rejection of
the petitioner's appeal passed by the 1st respondent vide his proceedings in
C.No.A2/Appeal-33/2018 dated 20.11.2018 and quash the both as illegal and
arbitrary and consequently direct the respondents to reinstate me in service with
all service benefits in the light of the order passed by the Hon'ble Division Bench
in a similar case in W.A.No.1608/2011 dated 26.02.2013 as well as in W.P.No.
32317/15 dated 26.07.2018 within the time limit that may be stipulated by this
Court.
For Petitioner : Mr.G.Thalaimutharasu
For Respondents : Mr.R.Ragavendran,
Government Advocate
ORDER
The only charge against the petitioner, through a charge memo dated
05.02.2007 was that he, while serving as a Constable in the training period, had
been absent for more than 21 days from 17.01.2018 onwards and thereby deserted
himself from the service. The charges were held to be proved and through an
order dated 01.08.2018, the Commandant had dismissed the petitioner from the
service. This order of dismissal came to be confirmed by the Inspector General of
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WP(MD)No.5738 of 2019
Police in an appellate order dated 20.11.2018.
2. The original punishment of dismissal from service as confirmed in the
Appeal and Revision 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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WP(MD)No.5738 of 2019
<<<>>>
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 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
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WP(MD)No.5738 of 2019
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 second respondent is in clear
violation of the Circular issued by the Director General of Police. 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 the
original punishment, is not only disproportionate to the impugned charges, but
also violative of the procedure contemplated for imposing punishments in the
aforesaid circulars.
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WP(MD)No.5738 of 2019
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 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.
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.
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WP(MD)No.5738 of 2019
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 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 cases where
punishment shocks the conscience of the High Court or
Tribunal, the High Court or Tribunal can either direct the
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WP(MD)No.5738 of 2019
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 appellate 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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WP(MD)No.5738 of 2019
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 overstaying 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 delinquent 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”. However, the said period shall be taken into account for
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WP(MD)No.5738 of 2019
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 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 of the impugned orders,
i. the proceedings of the Inspector General of Police, Armed Police,
Trichy, the first respondent herein made in C.No.A2/Appeal-33/2018
dated 20.11.2018; and
ii. the proceedings of the Principal / Commandant, Police Training
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WP(MD)No.5738 of 2019
School, Tamil Nadu Special Police – XII Battalion, Manimuthar, the
second respondent herein made in
Na.Ka.No.Tha.Ka.Pa.Pa/8555/2017 with P.R.No.03/2018 dated
01.08.2018.
are quashed. Consequently, there shall be a direction to the first respondent herein
to pass appropriate orders, reinstating the petitioner into services from 01.08.2018
onwards, together with continuity of service and other service benefits, within a
period of two (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 partly allowed, accordingly.
No costs. Consequently, connected miscellaneous petition is closed.
21.06.2022
Index : Yes / No
Internet : Yes / No
vsm
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WP(MD)No.5738 of 2019
M.S.RAMESH, J.
vsm
To:
1.The Inspector General of Police,
Armed Police,
Trichy,
i/c, Deputy Inspector General of Police,
Armed Police,
Trichy.
2.The Principal / Commandant,
Police Training School,
Tamil Nadu Special Police XII Battalion,
Manimuthar,
Tirunelveli District.
Order made in
W.P.(MD)No.5738 of 2019
and W.M.P.(MD)No.4527 of 2019
Dated:
21.06.2022
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