Madras High Court
M.Sampath vs The Director General Of Police on 5 January, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
W.P.No.4343 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :05.01.2024
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P.No.4343 of 2017 &
W.M.P.No.4527 of 2017
M.Sampath ..... Petitioners
-Vs-
1. The Director General of Police
Tamilnadu, Chennai – 600 004
2. The Commissioner of Police,
Vepery, Chennai
3. The Deputy Commissioner of Police,
Armed force, Pudupet, Chennai – 15.
4. The Assistant Commissioner of Police
Armed Reserved Police-I,
Pudupet, Chennai – 2 ..... Respondents
Writ Petition filed under Article 226 of Constitution of India for
issuance of a Writ of Certiorarified Mandamus to call for the records relating
to R.C.No.30881/AP.3(2)/2015 dated 16.12.2016 passed by the 1st
respondent in converting compulsory dismissal from service into
compulsory retirement and quash the same and consequently direct the 1st
respondent to reinstate the petitioner with all attendant benefits from
1/15
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W.P.No.4343 of 2017
22.02.2008.
For Petitioner : Mr.R.Karunagaran
For Respondents : Mr.L.S.M.Hasan Fizal
Additional Government Pleader
ORDER
The present Writ Petition is filed for issuance of a Writ of
Certiorarified Mandamus to call for the records relating to
R.C.No.30881/AP.3(2)/2015 dated 16.12.2016 passed by the 1st
respondent in converting compulsory dismissal from service into
compulsory retirement and quash the same and consequently direct the 1st
respondent to reinstate the petitioner with all attendant benefits from
22.02.2008.
2. The brief facts of the case is as follows:-
(i) The petitioner had joined the Police Services as Grade-II
Constable on 28.02.1995 and till the year 2007, the petitioner had
performed service without blemish whatsoever. Further, in P.R. 28/2008,
the petitioner was imposed with a punishment of reduction in time scale of
pay by 2 stages for 2 years without cumulative effect by the Deputy
Commissioner of Police, Armed Reserve Chennai - 8 for petitioner's
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absence on 22.02.2008 at 6.45 A.M. for petitioner's non-presence without
leave or permission and on 08.12.2008 the petitioner was directed to rejoin
duty. The petitioner had a major operation in his stomach for appendicitis
and therefore, he was unable to rejoin duty on the said date. The petitioner
was neither issued a memo treating the petitioner as a deserter from
08.12.2008 nor the petitioner was placed under suspension by the Deputy
Commissioner of Police, Armed Reserve, Chennai. The procedure
contemplated under Police Standing Orders was not followed by the Deputy
Commissioner of Police, Armed Reserve, Chennai – 8.
(ii) Further, the petitioner was issued with a charge memo in
PR.191/PR2(2)/2010 on 01.07.2010 for an allegation that the petitioner had
absented from duty without leave or permission from 08.12.2008, thereby
treated as a deserter. The Assistant Commissioner of Police conducted an
oral enquiry and on 12.08.2010, held the charge as proved without giving a
copy of the enquiry report and calling for further explanation, on 29.09.2010,
the Deputy Commissioner had dismissed the petitioner from service with
retrospective effect from 27.11.2008. Hence the punishment of dismissal
of service is contrary to principles of natural Justice. Further, on
27.10.2010, the 3rd respondent passed a non-speaking order dismissing
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the petitioner from service retrospectively from 27.11.2008. Against which,
the petitioner has preferred Revision on 20.12.2013 to the 1st respondent
citing Judgements passed by this Court reported in 2013 (3) MLJ Page
228. That apart, as per Tamil Nadu Police Subordinate Service (DBA)
Rules, 1955, the Deputy Commissioner of Police, Armed Reserve, Chennai
has no power to order dismissal from service retrospectively and without
supplying the copy of the enquiry report and calling for the petitioner's
explanation, a major punishment cannot be imposed against him.
(iii) Moreoever, the Director General of Police in R.C.
54642/APII(2)/95 dated 04.01.1996, had reinstated Ex. P.C. No 2456
Rathinam of Salem District, who deserted the force after 15 years on a
review petition. Further, the Memorandum from the Office of the Director
General of Police was addressed to all Superintendent of Police and
Commandants with R.C. No.243881/AP.I(1)/90 dated 30.10.1990 stating
that if the Superintendent of Police is not satisfied with the medical
certificate produced by delinquent, he should not be taken for duty. On the
other hand, if the Superintendent of Police is satisfied, the delinquent can
be taken for duty. In such cases, while disposing of P.Rs punishment of
remove / dismissal from service or compulsory retirement should not be
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given. Any other punishment is acceptable.
(iv) This Court, in several petitions as well as appeals had quashed
the major punishments imposed on the charge of desertion as excessive in
cases of Police Constable, who had deserted the force on more than three
occasions, however, the 1st respondent had passed an impugned order.
Aggrieved by the order of the first respondent, the petitioner has come up
with the present petition.
3. The learned counsel for the petitioner would submit that the order
converting the compulsory dismissal from service of the petitioner into
Compulsory Retirement from the date, viz., 22.02.2008 retrospectively
without considering the ill health and his surgery by the 1st respondent is
highly illegal unjust and arbitrary. Further, the respondents ought to have
appreciated the fact that the petitioner have undergone treatment for his
stomach ache and undergone surgery from 22.02.2008 till 27.04.2009 and
hence he could not join the duty.
4. The learned counsel for the petitioner also submitted that the
respondents again issued a charge memo without furnishing the enquiry
report and calling for petitioner's explanation on 29.09.2010 and dismissed
him from service with retrospective effect from 27.11.2008 amounts to
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excessive punishment and double jeopardy. The respondents ought to have
appreciated that as per Tamil Nadu Police Subordinate Service (D&A)
Rules, 1955, the Deputy Commissioner of Police, Armed Reserve, Chennai
has no power to order dismissal from service retrospectively and without
supplying the copy of the enquiry report and calling for the petitioner's
explanation, a major punishment cannot be imposed against him, thereby
pleaded to allow the present petition.
5. Per contra a detailed counter affidavit has been filed by the
respondents refuting the submissions of the petitioner, wherein it is stated
that the petitioner was dealt with on a charge under Rule 3(b) of
T.N.P.S.S.(D&A) Rules, 1955 in punishment Roll No.313/PR.II (2)/2008 for
the following delinqueny:-
"Deserter from the force by absenting himself without leave or Prior
permission from superior officers for more than 21 days From 22.02.2008
and declared as deserter."
An oral enquiry was conducted by the Asst. Commissioner of Police,
Control Room, Egmore, Chennai. The Petitioner herein was given
reasonable opportunity to defend his case in the oral enquiry. The Enquiry
officer has held the charge against the Petitioner herein as Proved and
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submitted Minutes dated 20.10.2008. The Disciplinary authority, the
Deputy Commissioner of Police, Motor Transport in charge of Armed
Reserve, Greater Chennai Police, Chennai, has carefully gone through the
charge, the Minute of the Enquiry Officer and further representation of the
Petitioner and thereafter, he has agreed with the finding of the enquiry
Officer and awarded the punishment of "Pay reduction by two stages for a
period of 2 years without cumulative effect” on 27.11.2008. The petitioner
herein was directed to report for duty at once. On receipt of the order on
08.12.2008, the petitioner herein has not reported for duty.
6. The learned Additional Government Pleader appearing for the
respondents submitted that though, the petitioner was instructed to report
duty on 08.12.2008, he failed to report for duty. Hence, the petitioner was
again treated as deserter from 08.12.2008 and dealt with another charge
u/r. 3(b) of T.N.P.S.S. (D&A) Rules, 1955 in Punishment Roll No. 191/PR.2
(2)/2010, as per the procedure contemplated. The Asst. Commissioner of
Police, Home Guards, Chindathiripet, Chennai has conducted oral enquiry
in the above Punishment Roll. The Enquiry Officer has held the charge as
Proved.
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7. That apart, the learned Additional Government Pleader appearing
for the respondents submitted that the further representation calling Memo
dated 19.08.2010 along with a copy of the Minute of the Enquiry Officer was
issued to the petitioner herein and he has acknowledged the same. But, he
has not submitted his further explanation as called for. The disciplinary
authority has arrived to the conclusion that non-submission of further
explanation shows that the petitioner herein/ delinquent is not interested in
reporting for duty and as an disciplined police personnel, he failed to
observe the decorum and morale of the force and therefore, he may not be
given further chance to perform duty once again. In the speaking order, the
Disciplinary authority has awarded the punishment of Dismissal from
service from the date of absent for duty with effect from 27.11.2008. The
Deputy Commissioner of Police in Chennal City Police are the Appointing
authorities for Police Constables and Head Constables of the respective
unit and they are also the disciplinary authority for them. The Deputy
Commissioner of Police, Armed Reserve, Chennai City Police has rightly
exercised his powers and passed order in the Punishment Roll against the
Petitioner berein.
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8. Besides the above, it is represented by the learned Additional
Government Pleader appearing for the respondents that with regard to the
case of reinstatement of Ex. P.C. 2456, Rathinam of Salem District is a
different one, the facts and circumstances the said case is not applicable to
the case of the petitioner. Further, it is submitted that as per the instructions
of the Director General of Police, Tamilnadu the imposition of punishments,
were carefully taken note while passing orders in the Punishment Roll
against the Petitioner herein and for the first Punishment Roll No. 313/PR.2
(21/2008,viz., for desertion from 27.11.2008), lenient view was taken and
the disciplinary authority has awarded lenient punishment with instructions
to report for duty. But after receiving the order dated 08.12.2008, the
petitioner has not reported for duty and again willfully deserted the service
and therefore, once again disciplinary action was initiated against him. The
petitioner has not utilized the opportunities given to him to defend his case,
hence, the disciplinary authority has come to conclusion that the petitioner
has no interest to join the duty and therefore, he has awarded the
punishment of "dismissal from service”. Since the petitioner has deserted
his service continuously for the second time, the cases referred by the
petitioner in Paragraph No.8 of the affidavit will not be applicable.
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9. Lastly, the learned Additional Government Pleader appearing for
the respondents in support of his contention has relied on the following
judgments:-
(i) Judgment passed by the Hon'ble Division Bench of this Court in
W.A.No.668 of 2017 dated 19.09.2007.
(ii) Order passed by this Court in W.P.No.93 of 2008 dated
02.07.2012, thereby pleaded to dismiss the petition.
10. Heard the learned counsels on either side and perused the
documents placed on record carefully.
11. On going through the documents, it is seen that the petitioner
was joined in the police services as Grade II Constable on 28.02.1995.
Further, the petitioner was dealt with a charge for his failure to report for
duty even after receiving the order of taking him back for duty in
P.R.No.313/PR(2)/2008 on 08.12.2008 from desertion and treated him as
deserter with effect from 08.12.2008. By holding the charges as proved,
the petitioner was imposed on the punishment of dismissal from service by
the Disciplinary Authority and he has not preferred any appeal before the
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appeallate authority within the time frame. The petitioner has chosen to
prefer a petition dated 03.11.2014, after a lapse of four years stating that
due to the treatment undergone by him, he could not report for duty and
contended that the punishment of dismissal from service imposed on him is
not correct, as he was already taken back for duty. The 1st respondent has
clearly stated that though the petitioner received orders on 08.12.2008, he
failed to report duty and taking note of the fact that the petitioner has failed
to obey the orders of the superiors in not reporting for duty and the reasons
furnished by petitioner for not reporting for duty were also not convincing,
the 1st respondent has passed an impugned order by modifying the
punishment into that of 'compulsory retirement' taking note of the family of
the petitioner.
12. It is pertinent to point out that earlier, the reason relied on by the
writ petitioner for his unauthorized absence was on account of ill-health
suffered by this mother and thereafter, his ill-health. It is no doubt true that
the Courts have held that if at all the employee concerned was suffering
from serious ill-health or met with an accident or hospitalized, then such
unauthorized absence due to unforeseen circumstances are to be
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considered and a lenient view is to be taken. However, in the present case,
the petitioner defended the allegation of unauthorized absence by stating
that his mother was not well and thereafter, he was not well. Even in such
circumstances, the employee has to establish the emergency
circumstances and the continuous unauthorized absence cannot be
countenanced in such circumstances. Further, the petitioner in his reply
dated 06.08.2009 has stated that he was on ill-health and was not even able
to walk and was taking treatment from 22.02.2008 to 27.04.2009 and
thereafter he was admitted in Sri Gokulam Hospital, Salem treated as
inpatient from 24.04.2009 to 10.05.2009. The petitioner received the order
for reporting to duty on 08.12.2008 according to the petitioner, he is not well
at that time itself, while so, the petitioner could have informed the authorities
and taken leave, however, the petitioner had failed to do so, only after a
lapse of five years, the petitioner has submitted a representation. Hence it is
clear that though the respondents, in the present case, during the earlier
occasion had taken a lenient view and provided an opportunity to the writ
petitioner, the said opportunity was not utilized by the writ petitioner for
reporting duty.
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13. It is relevant to note that the continuous misconduct of the writ
petitioner indicates complete unfitness for police services. Further, the
Courts are bound to consider the facts and circumstances independently,
as the facts and circumstances in the present case reveals that the
petitioner was continuously remained absent and he was declared as
deserter and even after ordering the petitioner to join duty, he also failed to
report duty for several days. Thus, the disciplinary proceedings were
initiated and based on the proved charges, he was removed from service
and thereafter, considering the family of the petitioner, it was modified to
that of compulsory retirement.
In view of the above said facts and circumstances of the present
case, this Court is of the view that the petitioner is not entitled for any relief
and accordingly, the writ petition stands dismissed. Consequently,
connected miscellaneous petition is closed. No costs.
05.01.2024
Index : Yes/No;
Internet : Yes/No
Speaking /Non-Speaking Order
ssd
To
1. The Director General of Police
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Tamilnadu, Chennai – 600 004
2. The Commissioner of Police,
Vepery, Chennai
3. The Deputy Commissioner of Police,
Armed force,
Pudupet, Chennai – 15.
4. The Assistant Commissioner of Police
Armed Reserved Police-I,
Pudupet, Chennai – 2
V.BHAVANI SUBBAROYAN, J.,
ssd
https://www.mhc.tn.gov.in/judis
05.01.2024
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