Madras High Court
The Director General Of Police vs S.Velu on 8 June, 2023
W.A.No.1848 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.06.2023
CORAM :
THE HON'BLE MR. JUSTICE R. MAHADEVAN
AND
THE HON'BLE MR. JUSTICE MOHAMMED SHAFFIQ
W.A.No.1848 of 2022
and
C.M.P.No.13496 of 2022
1.The Director General of Police,
No.1, Kamarajar Salai,
Mylapore,
Chennai - 600 004.
2.The Commandant,
Tamil Nadu Special Police,
7th Battalion,
Pochampalli,
Krishnagiri District.
3.The Assistant Commandant-II,
Tamil Nadu Special Police,
7th Battalion,
Pochampalli,
Krishnagiri District. ... Appellants
Vs.
S.Velu ... Respondent
Writ Appeal filed under Clause 15 of the Letters Patent, against the order
dated 07.01.2022 passed by the learned Judge in W.P.No.33011 of 2018.
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W.A.No.1848 of 2022
For Appellants : Mr.P.Kumaresan
Additional Advocate General
assisted by Mr.J.Daniel
Government Advocate
For Respondent : Mr.M.Gnanasekar
JUDGMENT
(Judgment of the Court was delivered by R. MAHADEVAN, J.)
The present appeal has been filed by the Department as against the order
of the learned Judge passed in W.P.No.33011 of 2018 on 07.01.2022. The writ
petitioner is the respondent herein.
2.The short facts, which are necessary to dispose of the present Writ
Appeal, are as follows:
2.1. The respondent was appointed as Grade-II Police Constable on
01.02.2011. While serving in the Tamil Nadu Special Police VII Battalion in
Pochampali, Krishnagiri District, he was absent from duty for more than 21 days
from 07.12.2015. As per PSO-95(1) (Police Standing Order, Volume-I, Edition-
1999), the prolonged absence amounts to desertion from service. By order dated
28.12.2015, the Commandant, TSP VII Battalion, Pochampalli / second appellant
declared the respondent as 'Deserter' and the same was acknowledged by the
respondent on 30.12.2015. Further, in the said order dated 28.12.2015, the
respondent was directed to be present before the Commandant with proper
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W.A.No.1848 of 2022
explanation for his absence within 60 days from the date of absence, however, he
did not do so. Subsequently, the respondent was issued with a charge memo on
15.03.2016, to which he did not submit any explanation within the stipulated
period. Hence, the Assistant Commandant-III, Tamil Nadu Special Police VII
Battalion, Pochampalli / 3rd appellant was nominated as Enquiry Officer and after
conducting enquiry, he submitted his report stating that the charges were held to
be proved. Based on the same, by order dated 10.05.2016, the second appellant
dismissed the respondent from service, which was confirmed by the Deputy
Inspector General of Police, Armed Police, Chennai, by order dated 15.06.2016.
Challenging the same, the respondent preferred a mercy petition, which was also
dismissed by the first appellant vide order dated 26.08.2017. Feeling aggrieved,
the respondent filed W.P.No.33011 of 2018.
2.2. The learned Judge, relying upon the Circular dated 06.12.2007
issued by the Director General of Police, Chennai, wherein, it was stated that in
desertion cases, the punishment of removal/dismissal from service or compulsory
retirement should not be imposed, as well as the decisions of the Hon'ble Apex
Court, has set aside the orders passed by the appellant authorities dated
10.05.2016 and 26.08.2017 and also directed them to reinstate the respondent in
service with effect from 03.08.2015, along with continuity of service and other
consequential benefits, within a period of two weeks, as if he had never been
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dismissed from his services. However, it was clarified by the learned Judge that
the respondent shall not be entitled to backwages during his period of non-
employment.
2.3. Aggrieved by the aforesaid order of the learned Judge, the
appellants have filed this writ appeal.
3.The learned Additional Advocate General appearing for the appellants
would contend that the Circular issued by the Director General of Police on
06.12.2007 applies only to the deserters, who appear before the Superintendent
of Police and furnish a valid explanation for their absence. Whereas, in the
present case, the respondent did not respond to the order dated 28.12.2015
which directed him to appear before the Commandant and submit a proper
explanation for his absence within 60 days, for the purpose of reinstatement.
That apart, he did not submit any explanation to the charge memo dated
15.03.2016 within the given period. Continuing further, the learned Additional
Advocate General submitted that the third appellant / Enquiry Officer commenced
the oral inquiry on 01.04.2016 and completed the same on 06.04.2016, during the
course of which, three witnesses were examined, and ultimately, he concluded
that the charges framed against the respondent were proved; and he submitted
his report (proved minute) on 11.04.2016, to which, the respondent submitted his
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representation on 26.04.2016, admitting his guilt. Thereafter, the respondent was
imposed with a punishment of "removal from service" by order dated 10.05.2016.
Pointing out that the respondent had deserted the force on multiple occasions, for
which, he suffered minor punishments in the past, the learned Additional
Advocate General submitted that the respondent's habitual absenteeism and
lackadaisical attitude resulted in he being declared as a 'Deserter', thereby
making him trapped in the clutches of law.
4.It is also submitted by the learned Additional Advocate General
appearing for the appellants that the respondent was absent from duty without
any authorization for a total period of 602 days on several occasions, which is a
clear violation of the discipline and decorum expected from a police officer and
hence, the order of punishment passed against him is perfectly correct. To
substantiate his contention, the learned Additional Advocate General relied upon
a judgment of the Apex Court in Civil Appeal No. 3095 of 2017 dated 03.11.2019,
wherein, an Army Officer was absent without authorization for 302 days, and the
Armed Forces Tribunal held that dismissal was disproportionate. However, in the
appeal filed by the Union of India, the Apex Court set aside the findings of the
Arms Forces Tribunal. The relevant paragraph of the judgment would run thus:
"Insofar as the second submission is concerned, it is evident from
the statement, which was extracted earlier, that the respondent had
admitted his absence for 302 days without leave. The statement
contains a justification for the absence. From the record, it is evident
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that the respondent did not make any effort to apply for extension of his
leave. Absence of 302 days from his duty by a member of the Armed
Force could not be condoned. We are clearly of the view that the Armed
Forces Tribunal was in error in coming to the conclusion that the
punishment which was imposed was harsh. The only basis for the
finding was that the respondent had put in twelve years of service. This
was all the more a reason why any responsible member of the Armed
Force should not have absented from service without permission. The
Tribunal clearly misdirected itself in law in coming to the conclusion that
the punishment of dismissal from service was harsh and
disproportionate. We accordingly allow the appeal and set aside the
impugned judgment and order of the Armed Forces Tribunal dated 21
August 2015. In consequence, OA 483 of 2012 filed by the respondent
shall stand dismissed. However, there shall be no order as to costs."
5.Adding further, the learned Additional Advocate General appearing for
the appellants would submit that the respondent ought to have submitted
documentary evidence and obtained proper permission before taking leave, if he
had a legitimate reason, since Police force is a disciplined force and the police
personnel are expected to maintain decorum and discipline. The Apex Court had
consistently held in several decisions that the Court's jurisdiction to review the
validity of proportionality is limited and that, a well-reasoned order of the
departmental authority cannot be interfered with on the basis of sympathy and
sentiment. Once the procedural formalities have been complied with by the
authorities, the Courts should not typically interfere with the penalty. If it is
interfered, it would give a negative message to the members of the police force,
who are otherwise working hard and maintaining good conduct. Stating so, the
learned Additional Advocate General prayed to allow this appeal by setting aside
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the order passed by the learned Judge.
6.On the other hand, the learned counsel appearing for the respondent
submitted that due to ill-health of his wife and no one was available to take care
of her, the respondent was absent from duty. However, he was imposed with a
punishment of removal from service, which is highly excessive and
disproportionate to the charges framed against him. The learned counsel further
submitted that in similar circumstances, the orders passed by the writ court in
various cases viz. W.P.No.7927 of 2015, W.P.No.11854 of 2016, and
W.P.No.14901 of 2014, have been confirmed by the Appellate court, against
which, no appeals have been filed by the department. Furthermore, the order
passed in W.P.No.7927 of 2015 has also been implemented by the appellant
authorities. On the other hand, in the instant case, the appellants have preferred
this appeal against the order passed by the writ court. Thus, according to the
learned counsel, the learned Judge has taken note of the facts and circumstances
of the case in proper perspective and has passed the impugned order and hence,
the same does not require any interference by this Court.
7.We have considered the submissions of the learned counsel for the
parties and also perused the materials available on record carefully and
meticulously.
8.Before we proceed to consider the rival submissions, it would be relevant
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to look into the reasons given by the writ court for allowing the writ petition filed
by the respondent, which read as under:
"3. The original order of dismissal by the 3rd respondent, as
well as the order of the Director General of Police 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 confirming the original punishment into one of
the Compulsory Retirement. 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 both the original punishment, as well as the
modified punishment, are not only disproportionate to the
impugned charges, but also violative of the procedure contemplated
for imposing punishments in the aforesaid circulars.
4. 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 the 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 benefit of
pay for the period of absence.
5. 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 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.A.No.1848 of 2022
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
illness 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:-
"..... 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 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
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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 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. 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 his absence is withheld, without affecting
the continuity of his service, as well as other service benefits, the
ends of the justice would be secured.
8. In the result, the impugned order passed by the 2nd
respondent dated 10.06.2016 in Na.Ka.No.E1/PR:16/2016 u/r 3(a)
which was confirmed by the order of the first respondent dated
26.08.2017 made in Rc.No.135049/AP 3(1)/2016 are quashed.
Consequently, there shall be a direction to the 1st respondent
herein to pass appropriate orders, reinstating the petitioner into
services from 03.08.2015 onwards, together with continuity of
service and other service benefits, within a period of 2 weeks, as if
the petitioner was never dismissed from his services. However, the
petitioner shall not be entitled for the backwages during his period
of Non-employment. This Writ Petition is allowed, accordingly. No
costs."
From the above, it is clear that the learned Judge has set aside the orders passed
by the appellants 1 and 2 placing reliance on the circular dated 06.12.2007 issued
by the Director General of Police, Chennai, to the effect that in desertion cases,
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the punishment of removal/dismissal from service or compulsory retirement
should not be imposed, and also the decisions of the Hon'ble Apex Court,
wherein, it was categorically held that 'the punishment of dismissal merely on the
ground of over-staying leave period, was harsh and disproportionate'.
9.According to the appellants, the Circular issued by the Director General
of Police on 06.12.2007 applies only to deserters, who appear before the
Superintendent of Police and provide a valid explanation for their absence, but
the respondent herein, did not make any representation and hence, the said
Circular will not apply to his case. At this juncture, it would be useful to refer to
the circular dated 06.12.2007:
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
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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."
10. It is also pointed out on the side of the appellants that the respondent
was absent on multiple occasions, while serving as Police Constable in TSP VII
Battalion, Pochampalli, and was subjected to punishment on several times. In
support of the same, the appellants produced the defaulter sheet pertaining to
the respondent, the contents of which are reproduced below for ready reference:
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Sl. Brief Description of the No. P.R.No. & By whom ordered & date of
No. offence of Date of order order
days
1 Desertion from force w.e.f 42 PR:16/2014, "Postponment of next
20.11.2013 to 30.12.2013 days u/r 3(b) increment for one year
PSO 95(1) Dt;14.05.2014 without cumulative effect"
by the Commandant, TSP
VII Bn., Pochampalli.
2 Absent duty from 17.02.2014 9 PR: 35/2014, "Black Mark" by the
to 25.02.2014 PSO 95(1) days u/r 3(a) Assistant Commandant-II,
Dt:02.08.2014 TSP VII Bn., Pochampalli.
3 Absent duty from 26.03.2014 11 PR:36/2014, "Black Mark" by the
to 06.04.2014 PSO 95 (1) days u/r 3(a) Assistant Commandant,
Dt:02.08.2014 TSPVII Bn., Pochampalli.
4 Absent duty from 14.04.2014 10 PR:37/2014, "Black Mark" by the
to 23.04.2014 PSO 95(1) days u/r3(a) Assistant Commandant-II,
Dt:02.08.2014 TSPVII Bn., Pochampalli.
5 Desertion form force w.e.f. 151 PR:65/2014, "Postpoinment of next
07.06.2014 to 04.11.2014, days u/r 3(b) increment for one year with
PSO 95(2) Dt:07.06.2014 cumulative effect" and
taken back for duty by the
Commandant, TSP VII Bn.,
Pochampalli.
6 Desertion form force w.e.f. 43 PR:12/2015, "Postponment of next
08.12.2014 to 19.01.2015. days u/4 3(b) increment for two years
PSO 95(1) Dt:15.05.2015 with cumulative effect" by
the Commandant, TSP VII
Bn., Pochampalli.
7 Desertion from force w.e.f 180 PR:66/2015, "Removal from service" by
09.04.2015 to 05.10.2015 days u/r 3(b) the Commandant, TSP VII
PSO 95(2) Dt.27.07.2015 Bn., Pochampalli.
On his appeal petition, the
DIG, AP, CNI-10, in his
proceedings in
C.No.C1/16426/2015, dated
29.09.2015 modified the
above punishment into that
of "Postponment of next
increment for two years
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Sl. Brief Description of the No. P.R.No. & By whom ordered & date of
No. offence of Date of order order
days
with cumulative effect" and
taken back for duty.
8 Desertion from force w.e.f 156 PR:16/2016, "Removal from service" by
07.12.2015 to 10.05.2016, days u/r 3(b) the Commandant, TSP VII
PSO 95 (2) Dt:10.05.2016 Bn., Pochampalli.
Total No. of days absent for duty 602 days
It is further alleged by the appellants that the respondent neither made any
representation to the Commandant as against the directions issued on 28.12.2015
for explaining his unauthorized absence nor submitted any explanation to the
charge memo dated 15.03.2016, within the time stipulated and therefore, he was
inflicted with the punishment of removal from service. However, the learned
Judge has erroneously passed the order impugned in this appeal by setting aside
the orders passed by the appellant authorities and directing them to reinstate the
respondent in service with consequential benefits.
11.Concededly, it is a case of desertion. A reading of the circular as
referred to above, particularly, clause 4, would make it clear that in desertion
cases, when the delinquent appears, the 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; and if the Superintendent of
Police is satisfied, he can be taken for duty. It is also categorically stated in the
said circular that in such cases, while disposing of P.Rs punishment of removal/
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dismissal from service or compulsory retirement should not be given and any
other punishment can be imposed and these guidelines should be strictly
followed, while dealing with desertion cases. Thus, powers have been delegated
to the Superintendent of Police to take a decision in the desertion cases, upon his
satisfaction. Admittedly, the respondent herein, who was said to have been
declared as 'Deserter', did not appear before the Superintendent of Police and
submit any representation along with documentary evidence for his absence. It
may be true that the respondent had already been inflicted with the punishment
for the same offence of desertion from force and he had not given any
explanation to the charge memo dated 15.03.2016 issued against him. That itself
would not preclude him from availing the benefit provided in the aforesaid
circular. At the same time, without submitting any explanation for his
unauthorised absence, the respondent cannot be ordered to be reinstated in
service, based on the aforesaid circular issued by the authority concerned, as
done by the learned Judge. At this juncture, it is brought to the notice of this
court by the learned counsel for the appellant that the appellant filed an
undertaking affidavit dated 06.01.2023 to the effect that “he will not repeat the
acts of unauthorised absence in future and he may be granted one chance to
serve the police department”.
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12.Therefore, taking note of the benefit provided in the circular and the
same has not been availed by the respondent, before slapping the punishment of
removal from service, and also considering the undertaking affidavit filed by the
respondent, this court is inclined to grant an opportunity to the respondent to
defend his case with documentary evidence before the authority concerned.
Accordingly, the order passed by the learned Judge, which is impugned herein, is
modified in the following terms:
“The orders impugned in the writ petition are set aside and
the respondent is directed to appear before the Superintendent of
Police and submit his representation along with documentary
evidence, explaining the reasons for his unauthorised absence from
duty, within a period of two weeks from the date of receipt of a copy
of this judgment. On such appearance, the Superintendent of Police,
shall consider the same independently and pass appropriate orders,
within a period of eight weeks therefrom. While so, the undertaking
affidavit filed by the respondent shall also be taken into
consideration.”
13. The writ appeal is disposed of accordingly. No costs. Consequently,
connected miscellaneous petition is closed.
[R.M.D,J.] [M.S.Q, J.]
08.06.2023
rns
Speaking Order / Non-speaking order
Internet : Yes
Index : Yes /No
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W.A.No.1848 of 2022
To
1.The Director General of Police,
No.1, Kamarajar Salai,
Mylapore,
Chennai - 600 004.
2.The Commandant,
Tamil Nadu Special Police,
7th Battalion,
Pochampalli,
Krishnagiri District.
3.The Assistant Commandant-II,
Tamil Nadu Special Police,
7th Battalion,
Pochampalli,
Krishnagiri District.
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W.A.No.1848 of 2022
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
rns
W.A.No.1848 of 2022 &
C.M.P.No.13496 of 2022
08.06.2023
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