Madras High Court
The Principal Secretary To ... vs A.Krishnamoorthy on 28 October, 2022
W.A.No.19 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2022
CORAM
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice D.BHARATHA CHAKRAVARTHY
W.A.No.19 of 2020
1.The Principal Secretary to Government,
Home Department,
Secretariat, Fort St.George,
Chennai – 600 009.
2.The Director General of Police,
Mylapore,
Chennai – 600 004.
3.The Superintendent of Police,
Dindigul,
Dindigul District. .. Appellants
vs
A.Krishnamoorthy .. Respondent
Appeal filed under Clause 15 of Letters Patent against the order
dated 03.01.2019 made in W.P.No.33309 of 2018.
For Appellants : Mr.M.Rajendran
Additional Government Pleader
For Respondent : Mr.Ajmal Khan
Senior Counsel
for M/s.Ajmal Associates
Page 1 of 7
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W.A.No.19 of 2020
JUDGMENT
(Delivered by D.BHARATHA CHAKRAVARTHY.,J)
1. This writ appeal is directed against the order dated
03.01.2019 in W.P.No.33309 of 2018 in and by which the writ petition
filed by the respondent, challenging the order of punishment of
removal from service, dated 11.11.2016, was allowed and the matter
was remitted back to the appellant authorities to consider the case of
the writ petitioner in the light of three deaths in the family during the
year 2009 - 2010 and pass appropriate orders having regard to
empathy, within a period of four weeks from the date of receipt of a
copy of the order.
2. Heard Mr.M.Rajendran, learned Additional Government
Pleader for the appellants and Mr.Ajmal Khan, learned Senior Counsel
for the respondent.
3. Learned Additional Government Pleader by taking this
Court through the orders passed by the appellant authorities would
submit that, in this case, the writ petitioner was unauthorisedly absent
from 04.04.2010. After the expiry of twenty-one days, a notice
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W.A.No.19 of 2020
directing him to report within a period of sixty days was given on
28.04.2010. Since the writ petitioner did not report within a period of
sixty days, he was treated as deserter. Thereafter, when the writ
petitioner reported to duty, a charge memo dated 07.12.2012 was
issued to him and since his action amounted to mis-conduct, the
inquiry proceedings were duly conducted and ultimately punishment of
removal from service was imposed.
4. The learned Single Judge has interfered with the order of
punishment only on the ground that three deaths had happened in the
family of the writ petitioner. All the three deaths happened in the year
2009, very much prior to his unauthorized absence. The writ petitioner
cannot take advantage of the same. He would further submit that, in
any event the same was not the reason stated in his representation
dated 05.09.2012. Therefore, the learned Single Judge ought not to
have interfered with the order of punishment when it has been
appropriately imposed.
5. Per contra, learned Senior Counsel for the respondent
would submit that, in this case, the respondent / writ petitioner had
put in more than sixteen years of service when the alleged
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W.A.No.19 of 2020
unauthorized absence took place. The respondent had reported for
duty on 05.09.2012 in which he had stated that he was physically
unwell and he was mentally stressed out. It is this mental stress which
was further explained by him as there was three deaths in the family.
Therefore, considering the extraordinary circumstances and
considering the fact that the said unauthorised absence has not been
found to be wilful by the disciplinary authority, the learned Single
Judge was correct in interfering with the order of punishment.
6. Learned Senior Counsel would also rely upon the
judgment of the Hon'ble Supreme Court of India in the case of
Krushnakant B.Parmar vs Union of India and another reported in
(2012) 3 SCC 178, more fully relying upon paragraphs 18 and 19 of
the said judgment, in support of the proposition that unless disciplinary
authority finds unauthorised absence as wilful, imposition of
punishment, that too, removal from service is unduly harsh.
7. We have considered the rival submissions made on either
side and perused the material records of the case.
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W.A.No.19 of 2020
8. We find that, the writ petitioner was in service for more
than sixteen years, that is, from the year 1994 and the unauthorised
absence was during April, 2010. There were three deaths in the family
in the month of December 2009. Under these circumstances, in the
month of April, 2010, he had started absenting from duty
unauthorisedly. This apart, when he reported for duty by making a
representation dated 05.09.2012, the appellants have also called for a
report from the concerned police station and by report dated
19.01.2013, it was found that the writ petitioner had not indulged in
any criminal case or any other objectionable conduct during the period
of his absence.
9. The learned Single Judge, taking into consideration the
said report which was on record and the fact that there was three
deaths in the family of the writ petitioner, and that he has stated that
the mental stress as a reason, exercised her discretion to interfere
with the capital punishment of removal from service on the ground
that it was excessive and unduly harsh, since the writ petitioner has
put in sixteen long years of service. The Learned Judge had remitted
the matter back to the appellant authorities themselves to pass
appropriate orders in the matter. As such, there is no error in the
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W.A.No.19 of 2020
exercise of such discretion by the learned Single Judge, warranting
interference by way of this appeal under Clause 15 of Letters Patent.
10. In view of above, we find no merit in this appeal and the
same is dismissed. No costs. Connected C.M.P.No.243 of 2020 is
closed.
(P.U., J) (D.B.C., J)
28.10.2022
Index:Yes
ssm/40
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W.A.No.19 of 2020
PARESH UPADHYAY, J.
and
D.BHARATHA CHAKRAVARTHY, J.
ssm
W.A.No.19 of 2020
28.10.2022
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