Madras High Court
G. Parthiban vs The Deputy Commissioner Of Police ... on 24 August, 2023
W.P.No.4655 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD
W.P.No.4655 of 2020
and WMP.No.5519 of 2020
G. Parthiban ... Petitioner
Vs.
1. The Deputy Commissioner of Police AR
O/o.Commissioner of Police
Greater Chennai City Police
Vepery, Chennai 600 007.
2. The Commissioner of Police
Greater City Chennai Police
Vepery, Chennai 600 007.
3. The Director General of Police
Tamil Nadu
Mylapore, Chennai 600 004. ... Respondents
PRAYER : Writ Petition filed under Article 226 of Constitution of India,
seeking Writ of Certiorarified Mandamus to call for the records of the 1st
respondent in connection with the impugned order passed by him in PR
NO.862/PR.3(2)/2016 dated 21.06.2017 and confirmed by the 2nd respondent
in his proceedings PR No.862/PR.III(2)/2016 dated 30.12.2017 and further
confirmed by the 3rd respondent in his RC.No.011951/AP.3(2)/2019 dated
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W.P.No.4655 of 2020
28.06.2019 and quash the same and direct the respondents to reinstate the
petitioner into service with all consequential service and monetary benefits and
grant such other further relief.
For Petitioner : Mr.K.Venkataramani
Senior Counsel
Asst.by Mr.M.Vignesh Raj
for Mr.M.Muthappan
For Respondents : Mrs.C.Meera Arumugam
Additional Government Pleader
ORDER
The petitioner has filed the above writ petition praying for a Writ of
Certiorarified Mandamus to call for the records of the 1st respondent in
connection with the impugned order passed by him in PR
NO.862/PR.3(2)/2016 dated 21.06.2017 and confirmed by the 2nd respondent
in his proceedings PR No.862/PR.III(2)/2016 dated 30.12.2017 and further
confirmed by the 3rd respondent in his RC.No.011951/AP.3(2)/2019 dated
28.06.2019 and quash the same and direct the respondents to reinstate the
petitioner into service with all consequential service and monetary benefits and
grant such other further relief.
2. The learned senior counsel appearing for the petitioner submitted
that the petitioner is a graduate in Computer Science and applied for
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W.P.No.4655 of 2020
appointment to the post of Grade – II Police Constable by direct recruitment by
Tamil Nadu Uniformed Services Recruitment Board and the petitioner was
appointed to service on 01.12.2011 and after completion of institutional
training was posted to serve in Chennai City Police. The petitioner was serving
as Grade II Police Constable attached to Chennai City Police, Armed Reserve
(AR) and obtained Medical Leave for 10 days from Police hospital at Egmore
from 30.04.2015 to 09.05.2015 due to ill health on account of road traffic
accident. The petitioner obtained medical leave from 30.04.2016 to 09.05.2016
and visited Royapettah Government Hospital and by mistake instead of taking
his hand bag he took the hand bag of a Dr.Ilayaraja, house surgeon and left the
place. The petitioner after completing the medical leave on 09.05.2016 got 5
more holidays extension of leave and sent the same to the Inspector of Police
(AR), Pudupettai, Chennai but unfortunately the Medical Certificate sent by the
petitioner was not taken into consideration by the Inspector of Police, E Co,
Chennai City Police, AR, Pudupet, Chennai and a report was sent against him
as if he has not reported for duty after 30.04.2016. The petitioner due to ill
health did not report for duty after 10.05.2016 and continued for a period of 21
days hence he was declared as a deserter based on a letter of Inspector of
Police, AR by proceedings of Deputy Commissioner, Headquarters, Chennai in
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W.P.No.4655 of 2020
CPO No.2060/2016 dated 11.06.2016 and he was served with the order of
desertion on 19.06.2016 and he was directed to report for duty before
08.07.2016. But he could not report for duty before 08.07.2016 hence the
desertion order which was passed on 11.06.2016 was confirmed by the
proceedings of Deputy Commissioner of Police, Headquarters, Greater Chennai
City Police dated 09.07.2016.
3. The learned senior counsel appearing for the petitioner submitted
that in regard to the first charge of theft of hand bag containing torch light and
tablets worth Rs.6250/- belonging to Dr.Ilayaraja of Royapettah hospital was
mistakenly taken by the petitioner when he visited the hospital while he was on
medical leave from 30.04.2016 to 09.05.2016. The petitioner after completion
of Medical leave on 09.05.2016 got 5 more holidays extension of leave but the
same was not taken into consideration by the Inspector of Police and the report
was against the petitioner that he has not reported for duty on 30.04.2016. The
petitioner due to ill health did not report for duty on 10.05.2016 and continued
for a period of 21 days hence he was declared as deserter and the order was
confirmed by the proceedings of the first respondent/Deputy Commissioner of
Police Head Quarters by order dated 09.07.2016. When the petitioner visited
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W.P.No.4655 of 2020
his native place then only he found that he has mistakenly taken the hand bag of
Dr.Illayaraja containing torch light and tablets worth Rs.6,250/- and the bag
was given back to Dr.Illayaraja and the Doctor also issued a letter to the
Inspector of Police, Royapettah Police Station withdrawing the complaint.
4. The learned senior counsel further submitted that the petitioner
was thereafter issued with a charge memo under Rule 3(b) of TNPSS (D&A)
Rules containing 2 charges, one is committing the theft of hand bag containing
torch light and tablets worth Rs.6250/- belonging to the Dr.Ilayaraja, house
surgeon while on medical leave and during his visit to Royapettah Government
Hospital and the case was also registered in Crime No.436 of 2016 under
Section 380 IPC on the file of the Royapettah Police Station. The 2 nd charge
against the petitioner was that after entering medical leave for a period of 10
days from 30.04.2016 to 09.05.2016 he did not report for duty on 10.05.2016
and continuously absented himself without leave or permission for a period of
21 days, thereby committed the delinquency of desertion by irreprehensible
conduct. Enquiry was conducted and based on the report of the enquiry officer
dated 27.03.2017 held that the charges have been proved and based on the
enquiry officer report the first respondent issued the order dated 21.06.2017
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W.P.No.4655 of 2020
imposing the capital punishment of removal from service on the petitioner, the
petitioner preferred statutory appeal before the 2nd respondent which was
rejected and thereafter a mercy petition to the third respondent on 20.09.2017
and the same was also rejected by an order dated 28.06.2019. In this context,
the learned counsel for the petitioner placed reliance on the judgment of this
Court in W.P.No.11854 of 2016 dated 02.02.2022 and W.P.No.7927 of 2015
dated 21.12.2021. 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. A counter affidavit dated 20.12.2021 has been filed by the first
respondent. The learned Government Advocate appearing for the respondent
submitted that the service of the petitioner was not meritorious as stated and
disciplinary action was taken against the petitioner on 6 occasions and he was
awarded punishments from 2014 onwards. The petitioner while visiting the
Government Royapettah Hospital during his medical leave has committed theft
of hand bag of Dr.Ilayaraja and a case was registered under Section in Crime
No.436 of 2016 dated 05.05.2016 by the Sub Inspector of Police, Crime E.2
Royapettah Police Station Crime Wing. During the course of investigation of
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W.P.No.4655 of 2020
the criminal case, C.C.T.V recordings were verified and found that the
petitioner herein has committed the theft of the hand bag of Dr.Ilayaraja.
During the course of investigation it came to light that the petitioner tried to
sell the torch light to R.M.O., Aravind Eye Hospital, Madurai City and he was
secured and handed over at Madurai City Anna Nagar Police Station and Sub
Inspector of Police, seized the torch light and the petitioner was released on bail
based on the report of his father. Hence the charge memo dated 25.10.2016
was issued to the petitioner containing two charges. Charge No.1 that he has
committed theft of hand bag of Dr.Ilayaraja containing a torch light and Tablets
worth Rs.6,250/- and second charge is that after the medical leave from
30.04.2016 to 09.05.2016 for 10 days the petitioner has not reported for duty on
10.05.2016 and was continuously absented himself for 21 days by which he has
committed desertion. An oral enquiry was conducted into the above
delinquencies by the Assistant Commissioner of Police, Armed Reserve – II,
Greater Chennai Police, Chennai and a report was submitted on 23.07.2017.
The petitioner was asked to give a representation. The Disciplinary Authority
has agreed with the findings of the Enquiry Officer and called for further
representation from the petitioner by a furnishing a copy of the minute of the
enquiry officer in F.R. calling memorandum dated 19.04.2017. The petitioner /
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W.P.No.4655 of 2020
delinquent has submitted his further representation dated 29.04.2017.
6. The learned Additional Government Pleader further submitted that
the Disciplinary Authority i.e., Deputy Commissioner of Police, Armed
Reserve – 1, Greater Chennai Police has carefully gone through the charge,
minute of the enquiry officer and further representation of the petitioner and
connected records. He agreed with the findings of the enquiry officer, the
Disciplinary authority i.e., Deputy Commissioner of Police, Armed Reserve – I
imposed the statutory punishment of “Removal from service” on 21.06.2017
and the slip order was served to the petitioner on 08.07.2017. Aggrieved
against the punishment of removal from service, the petitioner has preferred an
appeal dated 11.11.2017 to the Appellate authority i.e., the Commissioner of
Police, Greater Chennai Police/2nd respondent, and the same was considered
and rejected by the Commissioner of Police, Greater Chennai Police, Chennai
on merit in his proceedings PR.No.862/PR.III (2); 2016 dated 30.12.2017 and
the petitioner preferred a Review Petition dated 29.05.2019 to the Director
General of Police, Tamil Nadu, Chennai – 4 and the same was considered and
rejected by the Director General of Police, Tamil Nadu in
RC.No.011051/AP.3(2)/2019 dated 28.06.2019.
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7. The learned Additional Government Pleader further submitted that
the petitioner has admitted the occurrence on 30.04.2016 had taken place by
mistake. Hence the enquiry officer has rightly held that the first count of the
charge as proved. In respect of the second count of the charge, the petitioner in
his petition dated 29.04.2017 has admitted his delinquency of absence without
intimation or prior permission due to his ill health and the Enquiry officer has
held the second count of charge as proved. Since the petitioner has admitted the
offence in committing theft of hand bag of a Doctor in Royapettah hospital and
had created a bad name for the department and the activities of the petitioner
will affect the morality of the police force, hence he was imposed with a
statutory punishment in the disciplinary action.
8. Heard both side and perused the materials available on record.
9. In this case two charges were framed against the petitioner vide
charge memo dated 25.10.2016. The first charge is that he has committed the
theft of taking the hand bag of Dr.Ilayaraja containing a torch light and tablets
worth Rs.6250/- and during the enquiry he has accepted that he has committed
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W.P.No.4655 of 2020
the offence on 30.04.2016 and the same had taken place by mistake, hence the
enquiry officer held that the first count of the charge is proved. The second
charge is that the petitioner was granted medical leave from 30.04.2016 to
09.05.2016 for 10 days and thereafter he has not reported for duty on
10.05.2016 and was continuously absented himself for 21 days by which he has
committed desertion and in respect of the second count of the charge, the
petitioner in his petition dated 29.04.2017 has admitted his delinquency of
absence without intimation or prior permission due to his ill health and the
Enquiry officer has held the second count of charge as proved. The Disciplinary
Authority being the first respondent accepted the enquiry officer's report dated
27.03.2017 and awarded the punishment of removal from service by order
dated 21.06.2017. Aggrieved against the punishment of removal from service,
the petitioner has preferred an appeal dated 11.11.2017 to the Appellate
authority i.e., the Commissioner of Police, Greater Chennai Police/2nd
respondent, and the same was considered and rejected by the Commissioner of
Police, Greater Chennai Police, Chennai on merit in his proceedings
PR.No.862/PR.III (2); 2016 dated 30.12.2017 and the petitioner preferred a
Review Petition dated 29.05.2019 to the Director General of Police, Tamil
Nadu, Chennai – 4 and the same was considered and rejected by the Director
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W.P.No.4655 of 2020
General of Police, Tamil Nadu in RC.No.011051/AP.3(2)/2019 dated
28.06.2019.
10. In regard to the first charge, though the petitioner admitted that he
has committed the theft of hand bag containing torch light and tablets worth
Rs.6250/- belonging to Dr.Ilayaraja, Roayapettah Government hospital and he
has stated that only after he reached his native place he found that he had taken
the hand bag mistakenly and subsequently the complaint given by the Doctor
was also withdraw by letter dated 05.05.2016 addressed to the Inspector of
Police, Royapettah Police Station. Hence as of now there is no criminal
case pending against the petitioner, since the complaint has been
withdrawn by the complainant.
11. In regard to the second charge, 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
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W.P.No.4655 of 2020
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.
12. 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.
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
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W.P.No.4655 of 2020
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,
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
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W.P.No.4655 of 2020
13. 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.
14. 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 punishment
imposed on the petitioner is disproportionate to the charge and the order passed
by the 1st respondent in PR No.862.PR.3(2)/2016 dated 21.06.2017, as
confirmed by the 2nd respondent in PR No.862.PR.III(2)/2016 dated
30.12.2017and further confirmed by the 3rd respondent in
RC.No.011951/AP.3(2)/2019 dated 28.06.2019 are quashed and consequently
this Court directs the respondents to pass appropriate orders to reinstate the
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W.P.No.4655 of 2020
petitioner from the date of his original punishment dated 21.06.2017 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.
15. In the result, the writ petition is allowed. No costs. Consequently
connected miscellaneous petition is also closed.
24.08.2023
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
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W.P.No.4655 of 2020
To
1. The Deputy Commissioner of Police AR
O/o.Commissioner of Police
Greater Chennai City Police
Vepery, Chennai 600 007.
2. The Commissioner of Police
Greater City Chennai Police
Vepery, Chennai 600 007.
3. The Director General of Police
Tamil Nadu
Mylapore, Chennai 600 004.
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W.P.No.4655 of 2020
J. SATHYA NARAYANA PRASAD, J.
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W.P.No.4655 of 2020
24.08.2023
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