Madras High Court
C.Nagarajan (Deceased) vs The State Of Tamilnadu on 3 March, 2022
W.P.No.11306 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.03.2022
CORAM
THE HONOURABLE MR. JUSTICE M.S.RAMESH
W.P.No.11306 of 2012
and
M.P.No.1 of 2012
1.C.Nagarajan (Deceased)
2.Bagyam
3.Vetrivelan
4.Chitra ...Petitioners
(P2 to P4 substituted as LRs of
deceased sole petitioner vide order
dated 31.01.2022 in WMP.No.29983
of 2021 in WP.No.11306 of 2012)
Vs
1.The State of Tamilnadu,
Rep. by its Secretary to Government,
Home Police (VI) Department,
Secretariat, Chennai - 600 009.
2.The Director General of Police,
Mylapore, Chennai - 600 004.
3.The Inspector General of Police (L&O),
Chennai - 600 004.
4.The Superintendent of Police,
District Police Office,
Salem.
1/15
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W.P.No.11306 of 2016
5.The Superintendent of Police,
Namakkal District,
Namakkal. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records
relating to the 4th respondent in P.R.No.39/96 dated 27.11.1996 and
R.C.No.196445/AP.2(2)/98 dated 01.03.1999 passed by the 3rd respondent
and G.O.(D).No.827, Home (Police VI) Department dated 12.09.2000 and
Letter No.14744/Pol.VI/2007-10 dated 15.04.2008 passed by the 1st
respondent, quash the same and consequently direct the respondents to
reinstate the petitioner into service with all benefits.
For Petitioner : Mr.J.Muthukumaran
For Respondents : Mr.E.Veda Bagath Singh,
Special Government Pleader
ORDER
With the consent of both the parties, this writ petition is taken up for
final disposal.
2. Through the charge memo dated 25.03.1996, the original
petitioner, namely, C.Nagarajan, Ex.PC.653, was implicated on the charge
of unauthorised absence amounting to desertion. Pursuant to an enquiry, he
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W.P.No.11306 of 2016
was imposed with a punishment of removal from service by the proceedings
of the fourth respondent dated 27.11.1996. The appeal and mercy petitions
filed by late C.Nagarajan were also rejected. These orders are put under
challenge in the present writ petition.
3. The learned counsel for the petitioner submitted that, pending the
writ petition, Thiru.C.Nagarajan expired and his legal heirs have been
substituted as petitioners 2 to 4 herein.
4. Insofar as the punishment of removal from service for the charge of
desertion is concerned, this Court had dealt with a similar issue 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,
wherein it has been held 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
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W.P.No.11306 of 2016
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.
<<<>>>
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
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W.P.No.11306 of 2016
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 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
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W.P.No.11306 of 2016
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 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."
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W.P.No.11306 of 2016
5. 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 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 service 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
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W.P.No.11306 of 2016
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
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W.P.No.11306 of 2016
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 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
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W.P.No.11306 of 2016
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 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
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W.P.No.11306 of 2016
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 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 the punishment of
'dismissal/removal from service' 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.
7. However, the charge of unauthorised absence cannot be left
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W.P.No.11306 of 2016
unnoticed, particularly, when it is brought to the notice of this Court that the
late employee had earlier indulged in instances of unauthorised absence. As
held above, the punishment of termination cannot be sustained, in view of
the circular of the Director General of Police. However, since the punishment
is disproportionate to the proven charges, the same requires to be reduced to
a lower punishment. By taking into account the ratio laid down in the
aforesaid decision, this Court is of the view that if the late employee'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.
8. In the light of the above observations, the impugned orders dated
27.11.1996, 01.03.1999, 12.09.2000 and 15.04.2008 are quashed.
Consequently, there shall be a direction to the first and second respondents
herein to pass appropriate orders, by treating the employee's period of
absence from 15.06.1995 till his date of death or date of superannuation,
whichever is earlier, as "leave on loss of pay", together with continuity of
service and other service benefits. However, he shall not be entitled for the
back wages during his period of non-employment. The first and second
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W.P.No.11306 of 2016
respondents shall pass such orders, for the purpose of disbursing the death-
cum-retirement gratuity benefits of late C.Nagarajan to his legal heirs, who
are the petitioners 2 to 4 herein, within a period of six weeks from the date
of receipt of a copy of this order.
9. The Writ Petition stands allowed, accordingly. No costs.
Consequently, connected miscellaneous petition is closed.
03.03.2022
Index:Yes/No
Internet:Yes/No
Speaking order/Non-speaking order
hvk
To
1.The Secretary to Government,
Home Police (VI) Department,
Secretariat, Chennai - 600 009.
2.The Director General of Police,
Mylapore, Chennai - 600 004.
3.The Inspector General of Police (L&O),
Chennai - 600 004.
4.The Superintendent of Police,
District Police Office,
Salem.
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W.P.No.11306 of 2016
5.The Superintendent of Police,
Namakkal District,
Namakkal.
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W.P.No.11306 of 2016
M.S.RAMESH,J.
hvk
W.P.No.11306 of 2012
03.03.2022
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