Madras High Court
S. Sellappan vs The State Of Tamil Nadu on 16 August, 2023
W.P.No.582 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD
W.P.No.582 of 2020
and MP.No.681 of 2020
S. Sellappan ... Petitioner
Vs.
1. The State of Tamil Nadu
Rep.by the Additional Chief Secretary
Home (Police) Department
Fort St.George, Chennai 600 009.
2. The Director General of Police
Mylapore,
Chennai 600 004.
3. The Deputy Inspector General of Police
Railways, Egmore,
Chennai 600 003.
4. The Superintendent of Police
Railways, Egmore,
Chennai 600 008. ... Respondents
PRAYER : Writ Petition filed under Article 226 of Constitution of
India, to issue Writ of Certiorarified Mandamus to call for the records of the 4 th
respondent made in PR No.35/2014 dated 16.04.2015 as confirmed by the third
respondent in Rc.No.A2/2069/2015 dated 12.06.2015 and that of the second
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W.P.No.582 of 2020
respondent's order made in Rc.No.120444/AP IV(2)/2015 dated 14.10.2015
and as confirmed by the first respondent vide its order made in G.O.(D)No.724
Home (Police IV) Department dated 04.07.2019 to quash the same and
consequently direct the respondents to reinstate the petitioner with all
consequential benefits, inclusive of back-wages and service benefits thereto etc.,
and to pass orders.
For Petitioner : Mr.L.Chandrakumar
For Respondents : Mrs.C.Meera Arumugam
Additional Government Pleader
ORDER
This writ petition has been filed to call for the records of the 4 th
respondent made in PR No.35/2014 dated 16.04.2015 as confirmed by the third
respondent in Rc.No.A2/2069/2015 dated 12.06.2015 and that of the second
respondent's order made in Rc.No.120444/AP IV(2)/2015 dated 14.10.2015
and as confirmed by the first respondent vide its order made in G.O.(D)No.724
Home (Police IV) Department dated 04.07.2019 to quash the same and
consequently direct the respondents to reinstate the petitioner with all
consequential benefits, inclusive of back-wages and service benefits thereto etc.
2. The facts of the case in a nutshell:-
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2.1. The petitioner was enlisted as Grade-II Police Constable on
01.11.1997. After being initially imparted training in the Armed Reserve and
posted therein, he was transferred to Battalion, thereafter to Chennai City Police
and then to the Railway Police, wherein, he was promoted as Grade-I Police
Constable in which post he had been discharging duties.
2.2. While working at Egmore Railway Police, he was transferred to
Korrukupet and due to ill-health, he was unable to attend office. Therefore,
without recourse to any of the Rules and Regulations alleging absenting from
duty for 21 days, he was declared as deserter on 13.08.2014, vide proceedings
PO No.401/2014 dated 02.09.2014 and thereafter, for no fault of the petitioner
in spite of his willingness to report for duty, in and by proceedings dated
17.11.2014, he was declared as a confirmed deserter. This was followed by
initiation of disciplinary proceedings under Rule 3(b) of Tamil Nadu Police
Subordinate Services (Discipline & Appeal) Rules in PR.No.35/2014 by
issuance of a charge memo dated 19.12.2014 wherein the sole charge was that
he had reported for duty at 21:00 hrs on 13.08.2014 and remained absent un-
authorisedly for over a period of 21 days and thereby with reference to the said
charge, enquiry was initiated and the enquiry officer held the charge as proved
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W.P.No.582 of 2020
based on which a final order was passed by the 4 th respondent in
PR.No.35/2014 dated 16.04.2015 imposing a penalty of removal from service.
Aggrieved by that, he preferred a statutory appeal dated 24.04.2015 which was
rejected by the 3rd respondent confirming the order of the Disciplinary
Authority. Thereafter he filed a Mercy Petition which was also rejected by the
1st respondent by order made in G.O.(D).No.724 Home (Police-V) Department
dated 04.07.2019. Being aggrieved by the above orders, the petitioner has come
forward with the present writ petition.
3. The learned counsel for the petitioner submitted that the only
allegation against the petitioner is that of unauthorised absence and that too for
a period of 21 days. By treating him as a deserter and thereafter, despite
willingness to report for duty within the time stipulated prescribed, the officials
did not allow him to join. In regard to passing of impugned orders by various
authorities, the learned counsel contended they have miserably failed to note
that the punishment as imposed would run shockingly disproportionate to the
alleged offence namely unauthorised absence which is common in the
Disciplined Force due to various situations persistently prevalent in the place of
work and that was the reason why the authorities themselves have chosen to
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W.P.No.582 of 2020
issue a circular that these types of delinquencies would not call for imposition of
major penalty. Failure to consider the above in its proper perspective has
resulted in grave injustice to the petitioner.
4. The learned counsel further submitted that the enquiry came to be
held in a manner not known to law though the enquiry findings would state that
the petitioner had submitted the reasons for his unauthorised absence being due
to the then prevailing family conditions. But there was no opportunity
whatsoever to examine and cross examine by establishing through evidence,
much less documentary evidence that the said absence was unauthorised
because when the respondents had chosen to grant and extend time for
reporting for duty by proceedings dated 02.09.2014 to report on or before
11.10.2014 and that the petitioner having appeared himself for reporting duty,
the authorities not considering and permitting him to rejoin and the order
terminating the petitioner as confirmed and thereafter proceeding with the
departmental inquiry, exhibits arbitrariness. The learned counsel for the
petitioner placed reliance on the judgment of this Court in W.P.No.7927 of
2015 dated 21.12.2021 in which this Court had placed reliance on the judgment
of the Hon'ble Supreme Court of India in the case of B.C.Chaturvedi Vs. Union
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W.P.No.582 of 2020
of India and others reported in AIR 1996 SC 484:1995 (6) SCC 634 and the
relevant paragraphs are extracted hereunder:-
“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:-
“..... 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
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W.P.No.582 of 2020
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.”
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”.
Further in support of his contention, he placed reliance on the circular
memorandum dated 16.12.2007 issued by the Director General of Police, which
will be adverted to later.
5. The learned Additional Government Pleader filed a counter
affidavit on behalf of the respondents dated 09.09.2020 and submitted that in
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W.P.No.582 of 2020
the order passed by the 2nd respondent dated 14.10.2015, it was specifically
mentioned that perusal of the file shows that the delinquent has not given any
cogent explanation for his unauthorised absence for duty. From this, it is seen
that the delinquent had deserted the force on three more occasions earlier. He
was also dealt with on a charge for unauthorised absence from duty in an earlier
occasion. All these prove that the delinquent is an indisciplined policeman
having no regard to rules and regulations of the force. Subsequently, the
petitioner had submitted a petition to the first respondent and that was also
considered in detail and rejected by the first respondent in G.O.(D).No.724
Home (Pol.V) Department dated 04.07.2019.
6. The learned Additional Government Pleader further submitted that
the petitioner is a confirmed deserter from 13.08.2014 and his service history
shows that he had three previous desertions to his credit and one unauthorised
absence earlier. As per Police Standing Order 95(1), he was declared as a
deserter for long absence without leave, permission or intimation to superiors.
Consequently, as per procedure, a charge under Rule 3(b) of the Tamil Nadu
Police Subordinate Services (Discipline and Appeal) Rules, 1955 was framed
against him, an enquiry was conducted and the delinquency was found proved
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W.P.No.582 of 2020
and imposition of major penalty is the result of such a charge.
7. Heard both side and perused the materials available on record.
8. The only allegation against the petitioner is that he was on
unauthorised absence for 21 days while working at Korukkupet Railway Police
Station, Chennai district from 13.08.2014 night without any prior intimation,
permission and without giving leave letter. Hence, he was declared as a deserter
in D.O No.401/2014 dated 03.09.2014 and in that order, instructions were also
issued that if he was willing to be taken to duty, he should report before the
Superintendent of Police, Railways and explain the circumstances for his
absence. As he did not comply with the said instructions within 60 days, his
desertion was confirmed as per D.O.519/14 dated 17.11.2014. For the offence
of desertion, he was dealt with on a charge u/r 3(b) of the Tamil Nadu Police
Sub-ordinate Services (Discipline and Appeal) Rules, 1955 in PR No.35/2014
for desertion and he was declared as a deserter. The appeal to the first
respondent was rejected on 12.06.2015 and his Mercy petition to the second
respondent was rejected on 14.10.2015 and his Revision petition before the
1st respondent was also rejected on 04.07.2019.
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W.P.No.582 of 2020
9. At this juncture, it is pertinent to mention that there is a circular
memorandum issued by the office of the Director General of Police, dated
06.12.2007 in Rc.No.235355/AP-IV(2)/2007 by which instructions were issued
informing the unit officers 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.
10. The above circular was also mentioned in the order passed by this
Court in W.P.No.7927 of 2015 dated 21.12.2021 and the same is extracted for
ease of reference.
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W.P.No.582 of 2020
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 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,
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W.P.No.582 of 2020
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
11. The aforesaid circular memorandum is self-explanatory. When the
circular memorandum of the Director General of Police clearly indicates that the
punishment of 'dismissal/removal from service' or 'compulsory retirement'
should not be imposed on a delinquent for charges of desertion and the
punishment imposed itself is disproportionate to the charge, as held by the
Hon'ble Supreme Court and which was relied upon by this Court in the
aforesaid decision. 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.
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W.P.No.582 of 2020
12. By taking into account the ratio laid down by the Hon'ble
Supreme Court of India, by this Court and the Circular Memorandum of the
second respondent this Court is of the considered view that the order of
dismissal passed by the 4th respondent made in PR No.35/2014 dated
16.04.2015, as confirmed by the third respondent in Rc.No.A2/2069/2015
dated 12.06.2015 and that of the second respondent's order made in
Rc.No.120444/AP IV(2)/2015 dated 14.10.2015 and as confirmed by the first
respondent vide its order made in G.O.(D)No.724 Home (Police IV)
Department dated 04.07.2019 are quashed and consequently this Court directs
the respondents to pass appropriate orders to reinstate the petitioner from the
date of his original punishment dated 17.11.2014 onwards as if he was never
dismissed from service, together with continuity of service and other attendant
service benefits, inclusive of back-wages and service benefits thereto, within a
period of six weeks from the date of receipt of a copy of this order. However, it
is made clear that the petitioner shall not be entitled to back wages during the
non employment period.
13. In the result, the writ petition is allowed. No costs. Consequently
connected miscellaneous petition is also closed.
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W.P.No.582 of 2020
16.08.2023
dpq
Index : Yes /No
Speaking/Non speaking order
J. SATHYA NARAYANA PRASAD, J.
dpq
To
1. The State of Tamil Nadu
Rep.by the Additional Chief Secretary
Home (Police) Department
Fort St.George, Chennai 600 009.
2. The Director General of Police
Mylapore,
Chennai 600 004.
3. The Deputy Inspector General of Police
Railways, Egmore,
Chennai 600 003.
4. The Superintendent of Police
Railways, Egmore,
Chennai 600 008.
W.P.No.582 of 2020
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W.P.No.582 of 2020
16.08.2023
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