Madras High Court
V.Vijaya Samundeeswaran vs The Secretary To Government on 18 March, 2010
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.03.2010
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.No.26398 of 2005
and W.P.M.P.No.17890 of 2006
V.Vijaya Samundeeswaran ... Petitioner
Vs.
1.The Secretary to Government,
Home (Pol.IX) Department,
Fort St. George, Chennai - 600 009.
2.The District General of Police,
Chennai - 600 004.
3.The Commandant,
Tamil Nadu Special Police,
II Battalion, Avadi,
Chennai - 600 054. ... Respondents
Petition filed under Article 226 of the Constitution of India praying for issue of a Writ of Certiorari to call for the records in proceedings G.O. (2D) No.477 Home (Pol.IX) Department, dated 18.10.2004 passed by the Secretary to Government confirming the order passed by the Commandant, Tamil Nadu Special Police, II Battalion, Avadi, Chennai-54 in proceedings C.No.PR.38/2001, dated 09.04.2002 of the 3rd respondent herein and quash the same.
For petitioner : Mr.R.Murugesan
For Respondents : Mr.B.Vijay
Government Advocate
ORDER
The Present Writ Petition raises a question whether the petitioner who has deserted the service without any intimation for about 21 days can be awarded the major punishment of removal from service in terms of the Tamil Nadu Police Subordinate Service Rules.
2. The petitioner, V.Vijaya Samundeeswaran was appointed as a Grade II Police Constable in the Tamil Nadu Special Police, XI Battalion, Rajapalayam in the year 1997. Though he failed in paper IV of the indoor examination, his probation period was extended and he was sent for re-examination. After passing the examination, his probation was declared on 20.01.1999. Subsequently, he was serving at Tamil Nadu Special Police, XI Battalion. He went on causal leave for eight days from 14.01.2000. But, unfortunately he did not turn up for duty on 22.01.2000 and deserted the force without any intimation till 27.02.2000.
3. Therefore, the petitioner was dealt with under Rule 3 (b) of Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules 1955 in Punishment Role No.04/2000. Finally, a punishment of reduction in the time scale of pay by two stages for two years without cumulative effect was imposed on the petitioner by order dated 13.04.2000 by the Commandant, Tamil Nadu Special Police, XI Battalion. The petitioner, thereafter, made a request for his transfer to Tamil Nadu Special Police, II Battalion. Accordingly, his request was acceded to by the Department on 10.08.2000 and he was also posted at Tamil Nadu Special Police, II Battalion, on 18.08.2000. The petitioner was in the habit of going on leave frequently and deserting the force without any intimation. During the short tenure of his service from 1997 to 2001, the petitioner remained unauthorizedly absent frequently for 290 days. Thereafter, he once again deserted the force without any intimation on 19.07.2001. Hence, he was dealt with under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Disciplinary Appeal) Rules in Punishment Role No.38/2001 on a charge that he deserted the force without any intimation from 19.07.2001. Another charge relating to gross indisciplinary conduct in having been in the habit of availing all kinds of leave, namely Casual Leave, Earned Leave and Medical Leave including leave without pay for 290 days frequently without any hesitation, was also alleged against the petitioner. The 3rd respondent issued a show cause notice dated 19.02.2002, calling for explanation and after receipt of the explanation and being dissatisfied with the explanation given by the petitioner, an enquiry was held and the Enquiry Officer also held the charges as proved. Agreeing with the findings of the Enquiry Officer, the disciplinary authority, namely, the 3rd respondent herein, the Commandant, Tamil Nadu Special Police, II Battalion, Avadi, Chennai awarded the punishment of removal from service on 09.02.2002. After receiving the above said order, the petitioner preferred an appeal to the Inspector General of Police, Armed Police, belatedly on 30.05.2002, which was forwarded to the appellate authority, i.e. the Deputy Inspector General of Police, Armed Police, Chennai for his consideration and disposal. The Deputy Inspector General of Police, Armed Police, Chennai, rejected the appeal as time barred vide his proceedings in C.No.B2/14401/2002, Appeal 143/2002 dated 06.12.2002.
4. Aggrieved by the said order, the petitioner once again filed a review petition before the Inspector General of Police, Armed Police, Chennai, on 04.02.2003. The Inspector General of Police, while considering the review petition preferred by the petitioner, by affirming the order passed by the Inspector General of Police, rejected the review petition. Again the petitioner preferred a mercy petition to the Director General of Police/the 2nd respondent herein, but it was rejected by the Director General of Police, Chennai, dated 27.08.2003.
5. Finally the petitioner submitted a petition dated 03.03.2004 to the Government requesting to reinstate him in service. The Government also rejected his request stating that the petition is devoid of merits and that the Government finds no reason for reconsideration of the request of the petitioner. Therefore, the petitioner has approached this Court by filing the present Writ Petition to quash the above orders.
6. The 1st respondent has considered two vital aspects of the petitioner's appeal. Firstly, the 1st respondent has taken into account the fact that the petitioner in the petition 5th cited has stated that he entered into an inter-caste-marriage and that due to family circumstances, he took excess leave. He is having two female children and suffering due to starvation as he is out of job. Hence, the petitioner has requested the Government to reinstate him in service. The 1st respondent has carefully and independently examined the case with the connected records. The Petitioner has not submitted any valid reasons for reconsideration of his punishment. Moreover, his contention as to ignorance of procedure and rules of disciplinary proceedings is not acceptable. He was a regular deserter and was a willing absentee for a long time. This clearly shows that he is not having any interest in the Police Force. By considering the above said facts, the Government found no reason for consideration of the request of the petitioner. Accordingly, the Government rejected the request of the petitioner for reinstatement into service.
7. However, the learned counsel for the petitioner submits that the petitioner's case has been rejected by the 1st Appellate Authority without even assigning any single reason and passing a theoretical order dismissing the 1st Appeal preferred by the petitioner and, subsequently, the matter was taken in review. The reviewing authority also, without properly considering the matter, rejected the case of the petitioner, without assigning any reason and finally the 1st respondent passed the final order.
8. Further, the learned counsel appearing for the petitioner submits that in view of the fact that the petitioner is having two female children and due to the family circumstances, unfortunately he had remained absent from duty and, therefore, as a last chance, he may be considered for reinstatement even without backwages also.
9. This Court also has considered the various Judgments of the Hon'ble Supreme Court and this Court cited by the learned counsel appearing for the petitioner reported in 2004 (2) CTC 301 (Shri Bhagwan Lal Arya Vs. Commissioner of Police and others), (2010) 1 MLJ 714 (V.P.Chellappa Vs. The Superintending Engineer and others), (2006) 4 MLJ 1382 (K.Kandasamy Vs. The Deputy Inspector-General of Police and another), (2006) 4 MLJ 1008 (J.Patrick Vs. The Government of Tamil Nadu and others), (2006) 1 MLJ 48 (RM.Palaniappan Vs. The Transport Commissioner and others) and 2005 (4) CTC 390 (Tamil Nadu State Transport Corporation (Madurai) Limited Vs. The Presiding Officer and another).
10. In reply, the learned Government Advocate appearing for the respondents by refuting all the submissions made by the learned counsel for the petitioner stoutly denies all the points raised by the learned counsel appearing for the petitioner. Firstly he submits that the petitioner was a regular absentee from duty. He, being in the police force, which is considered as a disciplined force cannot afford to have members of the police force to remain absent from duty even for a single day. But, in the present case, the petitioner absented from duty for about 290 days, for which the learned counsel appearing for the petitioner has pleaded intervention from the Government by taking into account that he had two daughters and sought some leniency.
11. Though the case of the petitioner under Section 3 (b) of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules having reached the conclusion, holding that the petitioner had deserted the force, he was given the benefit of leniency by passing an order of reduction of time scale of pay by showing leniency to the petitioner. But the petitioner has not used the leniency shown by the Department and unfortunately, he remained absent from duty from 19.07.2001 till 30.09.2001. Therefore, it was the 2nd occasion when the petitioner was charged for the same misconduct of desertion from duty. The respondent was compelled to invoke Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules in Punishment Role No.38/2001 on charges which reads as follows:-
"(i) Reprehensible indisciplinary conduct in having deserted the force without any intimation from 19.07.2001.
(ii) Gross indisciplinary conduct in having had the habit of availing all kinds of leave viz Causal Leave, Earned Leave and Medical Leave including leave without pay for 290 days frequently without any hesitation."
12. The Department has given him a chance by issuing a show cause notice and it was only after considering his explanation, an enquiry was held and the enquiry officer after holding an enquiry submitted his report holding the charges framed against the petitioner as proved. Though the petitioner pleaded for some leniency, but the same was rejected and order of removal from service was passed.
13. Aggrieved by the said order, the petitioner preferred an appeal. Though the appellate authority has not passed a reasoned order, the 1st respondent has considered the entire matter on merits. Therefore, having heard the arguments of the learned counsel appearing for the petitioner, the 1st appellate authority which did not pass a reasoned order cannot be found fault with. As rightly contended by the learned Government Advocate for the respondents, the 1st respondent while considering the case of the petitioner, has relied on under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules. The records also show that the petitioner was a regular chronic deserter because he was already proceeded against under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules in punishment Role No.04/2000, though he was leniently dealt with by imposing the punishment of reduction of time scale of pay. But once again the petitioner repeated the same misconduct of desertion from duty. Therefore, the respondents found it very difficult to once again award the same benefit of leniency.
14. This Court also has considered the various Judgments of the Hon'ble Supreme Court cited by the learned counsel appearing for the respondents reported in (2008) 1 SCC 224 (L & T Komastu Ltd., Vs. N.Udayakumar), 2006 (3) SCJ 30 (The Chairman & others Vs. T.K.Raju), (2003) 3 SCC 309 (Mithilesh Singh Vs. Union of India & others) and (2008) 5 SCC 569 (Chairman & Managing Director, V.S.P. & Others Vs. Goparaju Sri Prabhakara Hari Babu). This Court is not inclined to interfere with the order of removal from service passed by the respondents. Useful reference can be made to the Judgment of the Hon'ble Supreme Court reported in 2008 (5) SCC 569 wherein it was held that the jurisdiction of the High Court in cases where punishment has been awarded is very limited.
It is a well settled principle that Courts would normally not interfere with disciplinary matters under Article 226 of the Constitution of India and set aside any order passed by an employer on the basis of sympathy and sentiment. If the decision of employer is found to be within the legal parameters, the jurisdiction would not ordinarily be invoked. It is needless to mention that the petitioner has been given frequent opportunity by the Department before holding him guilty for the misconduct of desertion. Though he was to be punished strictly for the misconduct of desertion on the 1st occasion, by order dated 30.04.2000 only a lenient punishment of reduction of time scale of pay has been imposed. But, unfortunately the petitioner did not make use of the leniency shown for his misconduct and repeated the same misconduct of desertion once again in 2001 also. Therefore, the removal order passed by the respondents does not warrant any interference. The present Writ Petition is dismissed. Accordingly, the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
smn To
1.The Secretary to Government, Home (Pol.IX) Department, Fort St. George, Chennai - 600 009.
2.The District General of Police, Chennai - 600 004.
3.The Commandant, Tamil Nadu Special Police, II Battalion, Avadi, Chennai 600 054