V. Ramamurthy vs The Superintendent Of Police
2023 Latest Caselaw 1114 Mad

                                                                              W.P.No.32816 of 2016


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 30.01.2023

                                                        CORAM

                                  THE HONOURABLE MR.JUSTICE M.S.RAMESH

                                              W.P.No.32816 of 2016
                                           and W.M.P.No.28370 of 2016
                    V. Ramamurthy                                             ... Petitioner
                                                         Vs.
                    1.The Superintendent of Police,
                      Vellore District.

                    2.The Deputy Inspector General of Police,
                      Vellore Range, Vellore.

                    3.The Director General of Police,
                      Tamil Nadu,
                      Mylapore, Chennai – 600 004.                            ... 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
                    of the first respondent in connection with the impugned order passed by
                    him in C.No.PR.215/H1(2)/2013 u/r 3(b) dated 21.01.2014 and confirmed
                    by the second respondent in C.No.B2/AP.5/2113/2014 dated 18.02.2014
                    and further confirmed by the third respondent in R.Dis.No.052784/AP
                    2(2)/2014 dated 28.08.2015 and quash the same and direct the respondents
                    to reinstate the petitioner into service and grant him all consequential
                    service and monetary benefits.


https://www.mhc.tn.gov.in/judis
                    1/14
                                                                                 W.P.No.32816 of 2016


                                    For Petitioner    : Mr.K. Venkataramani
                                                        Senior Counsel
                                                        for Mr.M. Muthappan

                                    For Respondents : Mr.K.H. Ravikumar
                                                      Government Advocate

                                                        ORDER

For the charge of unauthorised absence for more than 21 days from

31.01.2013, an inquiry was conducted wherein, the charge against the

petitioner was held to be proved. The petitioner herein who was serving as

a Grade-I Police Constable, was proceeded with an inquiry wherein, the

charge against him was held to be proved in the report dated 18.12.2013.

The first respondent herein had imposed the punishment of compulsory

retirement from service through his order dated 21.01.2014. In the appeal

preferred by the petitioner, the second respondent herein had confirmed the

punishment through his order dated 18.02.2014. So also, the review was

rejected by the third respondent through an order dated 28.08.2015.

Challenging the order of punishment, as well as the order passed in the

appeal, the present writ petition has been filed.

2. The original punishment of dismissal from service, as well as the

modified punishment by the second respondent herein into one of the

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

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 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

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

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

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

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

3. Through the orders of dismissal by the first respondent, as well as

the subsequent orders passed by the respondents 2 and 3, confirming the

original punishment of 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 kinds

of circulars would be binding on all the authorities of the Government when

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

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 compulsory retirement, is not only

disproportionate to the levelled charges but also violative of the procedure

contemplated for imposing punishments in the aforesaid circulars.

4. Though the aforesaid circulars direct the Disciplinary Authorities

to refrain from imposing punishment of removal/dismissal from service or

compulsory retirement, they have been instructed to impose a lesser

punishment. Thus, the punishment imposed in the instant case, could be

said to be disproportionate to the levelled charges.

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 of this Court in R.Jayakumar Vs. The

Deputy Commissioner of Police and another in W.P.No.26072 of 2004,

dated 08.08.2008, the High Court had placed reliance on three decisions of

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

the Hon'ble Supreme Court and interfered with the punishment of dismissal

for the period of unauthorized absence of 21 days and directed the

delinquent therein, to be reinstated into services without benefit 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 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 otherhand, 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

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

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.

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

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 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.

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

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 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

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

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 neither the punishment of

'dismissal from services' nor 'Compulsory Retirement' should 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 on by this Court in the aforesaid

decision.

7. However, the charge of unauthorised absence cannot be left

unnoticed, particularly, 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 matter is remitted back to the first respondent

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

herein for modifying the punishment and imposing a lesser one, the same

would be in conformity with the circulars of the Director General of Police

and the ends of justice could thus be secured.

8. In the result, the impugned orders dated 21.01.2014, 18.02.2014

and 28.08.2015 passed by the first, second and third respondents

respectively in C.No.PR.215/H1(2)/2013 u/r 3(b), in

C.No.B2/AP.5/2113/2014 and in R.Dis.No.052784/AP 2(2)/2014

respectively, are hereby quashed and the matter is remitted back to the first

respondent herein, who shall pass appropriate orders, imposing a lesser

punishment that may be proportionate to the charges levelled against the

petitioner, by taking into account his previous punishments. While passing

such orders, the first respondent herein shall also extend all the service and

monetary benefits, but without backwages, for the period of his non-

employment. The first respondent shall endeavor to pass such orders atleast

within a period of four (4) weeks from the date of receipt of a copy of this

order.

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

9. Accordingly, the Writ Petition stands partly allowed. No costs.

Connected miscellaneous petition is closed.

30.01.2023 Speaking/Non-speaking Order Neutral Citation: Yes/No Index: Yes/No Internet: Yes/No

Sni

To

1.The Superintendent of Police, Vellore District.

2.The Deputy Inspector General of Police, Vellore Range, Vellore.

3.The Director General of Police, Tamil Nadu, Mylapore, Chennai – 600 004.

https://www.mhc.tn.gov.in/judis

W.P.No.32816 of 2016

M.S.RAMESH,J.

Sni

W.P.No.32816 of 2016

30.01.2023

https://www.mhc.tn.gov.in/judis