Madras High Court
L.Maria Amirthakani vs The Director General Of Police on 16 September, 2022
W.P.No.7087 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.09.2022
CORAM
THE HONOURABLE MR. JUSTICE M.S.RAMESH
W.P.No.7087 of 2015
and
M.P.Nos.1 & 2 of 2015
L.Maria Amirthakani ...Petitioner
Vs
1.The Director General of Police,
O/o the Director General of Police,
Chennai.
2.The Commissioner of Police,
Chennai City,
O/o the Commissioner of Police,
Veperry, Chennai.
3.The Superintendent of Police,
Erode District, Erode.
4.The Deputy Commissioner of Police,
Armed Reserve,
Greater Chennai Police,
Chennai - 220.
5.The Deputy Commissioner of Police,
Egmore, Chennai - 220. ...Respondents
1/13
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W.P.No.7087 of 2015
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the entire
records connected with the proceedings of the 4th respondent in
PR.No.152/PR-III(2)/2011 dated 27.06.2012, quash the same and
consequently direct the respondents to reinstate the petitioner as Women
Police Constable in the respondents Police Department.
For Petitioner : Ms.M.Muthu Yazhini
for Mr.K.Thilageswaran
For Respondents : Mrs.C.Sangamithirai,
Special Government Pleader
ORDER
Heard Ms.M.Muthu Yazhini, learned counsel appearing on behalf of
the petitioner and Mrs.C.Sangamithirai, learned Special Government Pleader
appearing for the respondents.
2. The petitioner herein, while serving as Women Police Constable,
has been served with a charge memo, wherein he was deserted from the
service for absenting himself from duty for more than 21 days from
25.08.2011 onwards. The charge was held to be proved and through the
impugned order dated 27.06.2012, the fourth respondent herein imposed the
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W.P.No.7087 of 2015
punishment of removal from service against the petitioner. Thereafter, the
petitioner preferred appeals before the first and second respondent, which
came to be rejected. Aggrieved against the same, the present Writ Petition
has been filed.
3. The punishment of dismissal from service cannot be sustained on
the sole ground that the Director General of Police had earlier issued a
Circular dated 30.10.1990, holding that in cases of desertion, the
punishment of removal from service or Compulsory Retirement should not
be imposed. For the sake of clarity, the circular dated 30.10.1990 is hereby
extracted:-
"CIRCULAR MEMORANDUM
Rc.No.243881/AP.I(1)/90
Director General of Police,
P.B.No.601, Madras-4.
Dated: 30.10.1990
Sub: P.R.s in Desertion cases after taking
delinquents for duty - Certain Instructions - Issued.
-----
While disposing of appeals/reviews from Head
Constables to Police Constables, I noticed that the
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W.P.No.7087 of 2015
Superintendents of Police are awarding the
maximum penalty of dismissal or removal from
service in desertion cases, after taking them for duty.
This is unfair and cannot be justified.
2. When a Head Constable/Police Constable is
struck off as a deserter, notice is 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 is acceptable. This guideline may be kept
in view, while dealing with desertion cases.
3. Please acknowledge in the proforma
enclosed.
Sd/- Inspector General of Police
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W.P.No.7087 of 2015
(Law and Order)
30.10.90"
4. The order of removal from service passed by the fourth respondent,
as well as the appeal orders of the first and second respondents, 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 punishment of removal from service is not only
disproportionate to the impugned charge, but also violative of the procedure
contemplated for imposing punishments in the aforesaid Circular.
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, this Court had placed reliance on three decisions of the
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W.P.No.7087 of 2015
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 thus:-
“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 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
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W.P.No.7087 of 2015
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 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:-
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W.P.No.7087 of 2015
“..... 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.”
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
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W.P.No.7087 of 2015
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 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
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W.P.No.7087 of 2015
Director General of Police clearly indicates that the punishment of 'removal
from service' should not be imposed on a delinquent for a charge 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
unnoticed, particularly, when it is brought to the notice of this Court that 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 her absence is
withheld, without affecting the continuity of her service, as well as other
service benefits, the ends of justice could be secured.
8. In the light of the above observations, the impugned order of
removal passed by the fourth respondent dated 27.06.2012 is quashed.
Consequently, there shall be a direction to the respondents herein to pass
appropriate orders, reinstating the petitioner back into service from
25.08.2011 onwards, as if the petitioner was never dismissed from her
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W.P.No.7087 of 2015
services, together with continuity of service and other service benefits, within
a period of four weeks from the date of receipt of a copy of this order.
However, the petitioner shall not be entitled for the back wages during her
period of non-employment.
9. Accordingly, the Writ Petition stands partly allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
16.09.2022
Index:Yes/No
Internet:Yes/No
Speaking order/Non-speaking order
hvk
To
1.The Director General of Police,
O/o the Director General of Police,
Chennai.
2.The Commissioner of Police,
Chennai City,
O/o the Commissioner of Police,
Veperry, Chennai.
3.The Superintendent of Police,
Erode District, Erode.
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W.P.No.7087 of 2015
4.The Deputy Commissioner of Police,
Armed Reserve,
Greater Chennai Police,
Chennai - 220.
5.The Deputy Commissioner of Police,
Egmore, Chennai - 220.
https://www.mhc.tn.gov.in/judis
W.P.No.7087 of 2015
M.S.RAMESH,J.
hvk
W.P.No.7087 of 2015
16.09.2022
https://www.mhc.tn.gov.in/judis
