Madras High Court
S.Chandrasekaran vs The Director General Of Police on 30 March, 2012
Author: B. Rajendran
Bench: B. Rajendran
In the High Court of Judicature at Madras
Dated :: 30.03.2012
Coram:
The Honourable Mr. Justice B. RAJENDRAN
W.P. No. 23178 of 2007
and
M.P. No. 1 of 2007
S.CHANDRASEKARAN .. Petitioner
Vs
1 THE DIRECTOR GENERAL OF POLICE
CHENNAI-4
2 THE ADDITIONAL DIRECTOR
GENERAL OF POLICE LAW AND ORDER
CHENNAI-4
3 THE COMMISSIONER OF POLICE
SALEM CITY POLICE
SALEM
4 THE DEPUTY COMMISSIONER OF
POLICE LAW AND ORDER
SALEM CITY SALEM .. Respondents
PRAYER: Writ Petition has been filed under section 226 of the Constitution of India to issue a Writ of Certiorari, calling for the records relating to the orders in [1] Pro.Rc.No.487/906670/ AP.2(2)/ 2006 dated 14.10.2006 of the first respondent; [2] Pro.Rc.No.584/ 148755/AP.292)/2005 dated 11.10.2005 of the second respondent; [3] Pro.C.No. Appeal.22/H1/2005 dated 14.6.2005 of the third respondent; and [4] P.R.No.73/H1/2004 dated 4.4.2005 of the fourth respondent quash the same and issue consequential directions to reinstate the petitioner in service with consequential service and monetary benefits.
For petitioner : Mr. M. Ravi
For respondents : Mr. K.V. Dhanapalan, AGP for R1 to R4
O R D E R
This writ petition has been by the petitioner filed seeking to quash the proceedings in [1] Pro.Rc.No.487/906670/ AP.2(2)/ 2006 dated 14.10.2006 of the first respondent; [2] Pro.Rc.No.584/ 148755/AP.292)/2005 dated 11.10.2005 of the second respondent; [3] Pro.C.No. Appeal.22/H1/2005 dated 14.6.2005 of the third respondent; and [4] P.R.No.73/H1/2004 dated 4.4.2005 of the fourth respondent and issue consequential directions to reinstate the petitioner in service with consequential service and monetary benefits.
2. According to the petitioner, he was in police service, proceeded on leave from 05.04.2004 due to family reasons and he overstayed in his native village due to unavoidable circumstances. Therefore, he was declared as 'deserter'. He was absent from 05.04.2004 for more than 21 days. Subsequently, he made a representation on 17.05.2004 along with medical certificate. Therefore, he was allowed to join duty on 19.05.2004. But, thereafter on 05.08.2004, the Deputy Commissioner of Police initiated disciplinary proceedings under rule 3(b) of the Tamil Nadu Police Subordinate Services (D&A) Rules with reference to the alleged act being observed from 05.04.2004. He participated in the enquiry and the enquiry officer held the charges proved and a copy was furnished to him and asking to file further representation. Thereafter, he made a further representation and finally the fourth respondent by his order dated 04.04.2005 imposed the penalty of 'removal from service'. In that order, he has taken into consideration the past records of his absence, according to the petitioner, without notice and which is not the subject matter of the charge memo.
3. As against the said punishment, he preferred an appeal before the appellate authority, as the order violates the principles of natural justice since there was no notice in respect of consideration of the past conduct. The appellate authority without considering the appeal, confirmed the order of the fourth respondent which is in violation of the circular of the Director General of Police dated 30.10.1990, because he cannot be removed from service after taking back to duty. The appeal was rejected on 14.06.2005 and as against the rejection order he preferred a review before the second respondent. The second respondent also had rejected the same on 11.10.2005. As against the same, the petitioner further preferred a mercy petition and that was also rejected by the first respondent on 11.10.2006 but modified the punishment of removal from service to one of compulsory retirement. In this order, the first respondent has taken into consideration the fact that the petitioner having been taken back to duty and his medical certificate produced for the leave concerned. Hence, aggrieved against the final order of compulsory retirement, the petitioner has come forward with this writ petition challenging that the orders, namely from the removal of service to compulsory retirement.
4. The respondents have filed a detailed counter, wherein the third respondent would mainly contend that enquiry was conducted on the charge memo, he was given sufficient opportunity and the authorities have passed the orders in accordance with law. According to him, although a medical certificate was produced by the petitioner even at the time of joining, in the certificate it was stated that he was fit to resume duty on 07.05.2004 but he joined duty only on 17.05.2004, there was no explanation on medical evidence for the absence from 07.05.2004 to 16.05.2004. Further, in the affidavit it is stated that there was a dispute in the family and hence overstayed, but no medical ground is given. Whereas he has produced medical certificate. He was allowed to join duty only taking into consideration the fact that he has reported back to duty within 60 days but that does not preclude the department from taking action, when he was a chronic absentee and deserter. Therefore, the order of punishment is rightly passed. The original authority as well as the appellate authority has not given the punishment only on the basis of the previous absenteeism but as his reply was not correct. It is also pertinent to point out that he has not cross examined any of the witnesses and he was given full opportunity and even his further representation was also considered. Therefore, his contention that previous absenteeism should not form part of the charge memo is not correct. In any view of the matter, the mercy petition, though he is not entitled, the authority has leniently considered and reduced the punishment of removal from service to compulsory retirement. He has availed all the emoluments and other benefits and having availed that, he cannot now challenge the same. Therefore, the writ petition is not maintainable and is liable to be dismissed.
5. Heard both parties and perused the materials available on record.
6. By consent of both parties, the main writ petition itself has been taken up for final disposal.
7. The only main ground of attack by the learned counsel for the petitioner is that the petitioner eventhough was a chronic absentee, the charge pertains to only 21 days absence, i.e. from 05.04.2004 to 16.05.2004. It is also his case that on 17.05.2004 he was allowed to rejoin duty. The moment he was asked to rejoin duty, the entire period of leave, unauthorised absence is given a go bye. Therefore, as per the instructions of the Director General of Police, if a person is taken back to duty, no further charge could be levied. He would only contend that the moment he has taken back charge, his wrong doing is being condoned. Further, in this case, according to him he cannot be construed as a deserter. He has reported back to duty within 60 days. Therefore the authority ought not to have granted him the maximum punishment of removal from service. The next important argument was, the authorities both original and the appellate have taken into consideration the earlier absenteeism and desertion of work and therefore they have come to a conclusion that he is liable to be dismissed from service. He would only contend that if they would have to rely upon the earlier desertion or absenteeism, it should have been made part of the charge memo or it should be given as an additional charge or time for explanation should be given in regard to the same. Without the same, the order is per se illegal.
8. At the same time, the respondents would clearly point out that it is not correct to say that the moment a person is taken back for duty after his desertion, automatically all his misdeeds are given a go by. Even as per the impugned order, when we analyse, it is not based on the past desertion. The first authority clearly would state in the order that, the enquiry officer who conducted the enquiry held the charge as proved and he also concur with the findings of the enquiry officer in the minute. Nodoubt while passing the order he only makes reference that the petitioner has deserted for more than six times earlier and now for the 7th time he has deserted. On earlier occasions he has been punished and desertion from the police force is serious in nature. Eventhough he has been given adequate chance he has not changed his attitude and not mended his way. Hence, he has thought it fit to order for, removal from service. Similarly, the appellate authority would also say that the appeal is barred by 3 days delay but condoned and was taken into consideration. Here also, he says that he has gone through all the records and concur with the findings of the enquiry officer. He would only contend that inspite of the opportunities given earlier, he has not put forth any fresh points worthy for consideration in the appeal. Therefore, he has not considered anything in the past records and states that there is no need to interfere with the punishment awarded and hence had rejected the appeal. Time and again this Court has held that elaborate order need not be given by the appellate authority, while giving a concurrent finding. Then, in the review order also the revisional authority would even go one step further, had stated that he has gone through the records and the punishment imposed is appropriate and he has not raised any useful points to consider in his favour. He has not specifically stated anything about the previous desertion.
9. Not stopping with this, the petitioner further made an appeal by way of a mercy petition. In fact, in the mercy petition the Government have thought it fit to take into consideration the fact that the petitioner has reported to duty within the stipulated time of 60 days and he has also been taken for duty. Therefore, they have treated this as unauthorised absence. But at the same time, the petitioner now brings to the notice the circular of the Director General of Police, which would only state that in the event of taking back, the punishment cannot be harsh and hence the punishment of removal from service should not be given. In fact, the Director General of Police in his final order in the mercy petition takes note of this aspect but thought it fit correctly, not to give the punishment of removal from service, because the circular says, 'punishment of removal/ dismissal from service or compulsory retirement should not be given' has been considered. But, when a person of this nature, who has been disregarding the officials for quite long time by getting so many punishments earlier, the Director General of Police has come to a conclusion and awarded the punishment of compulsory retirement. In this regard, the previous punishments of the petitioner also should be taken into consideration.
Sl.
No Nature of delinquency Departmental Action Punishment awarded 1 Absence for 6 days PR 7/96, u/r 3(a) Absence period treated asLWP 2 Desertion from 05.09.98 PR.101/98, u/r 3(b) Postponement of increment for one year with cumulative effect.
3Desertion from 27.02.99 PR.57/99, u/r 3(b) Pay reduction by 2 stages for 2 years with cumulative effect.
4Desertion from 03.08.99 PR.5/2000, u/r 3(b) Pay reduction by 3 stages for 3 years with cumulative effect.
5Desertion from 06.07.01 PR.33/01, u/r 3(b) Pay reduction by 1 stage for 1 years with cumulative effect.
6Desertion from 02.08.01 PR.11/02, u/r 3(b) Pay reduction by 2 stages for 2 years with cumulative effect.
7Desertion from 03.01.02 PR.47/02, u/r 3(b) Postponement of increment for 2 years with cumulative effect.
8Absence from 08.10.03 to 12.10.03 PR.61/04, u/r 3(a) Postponement of increment for one year with cumulative effect.
9Absence from 02.07.03 to 20.07.03 PR.62/04, u/r 3(a) Postponement of increment for one year with cumulative effect.
10Desertion from 19.12.03 PR.40/04, u/r 3(b) Postponement of increment for one year with cumulative effect.
11Absence from 21.05.04 to 11.06.04 PR.76/04, u/r 3(a) Postponement of increment for 3 years with cumulative effect.
12Desertion from 05.04.04 PR.73/04, u/r 3(b) Removed from Service When such being the case, the authorities in fact were lenient, though need not have considered the mercy petition, has modified and allowed in his favour and has reduced the punishment to one of compulsory retirement. The petitioner has accepted the same, he has got all the remedies under the compulsory retirement and now he is challenging the original order. Unfortunately, he cannot do so.
10. In this connection, learned counsel for the petitioner relied upon three judgments, namely The Management of Madras Fertilizers Ltd. vs. The Presiding Officer, I Additional Labour Court, Madras & Ors., reported in 1990 LLJ p. 298, for the preposition, when the Management takes into account the past record of service without giving opportunity to the workman to have his say, the final order is vitiated and nullified. In this case, it was found out that the punishment itself is based on the weight of the past services of the employee. Therefore, the denial of opportunity was there. This Hon'ble Court held that such denial would amount to violation of principles of natural justice. Similarly, he also relied on the case of Engine Valves Ltd., vs. Labour Court, Madras & anr., (1991) 1 LLJ 372 (Mds) for the same preposition because in this case the standing order provides that no order of dismissal shall be made unless the workman is given in writing of the alleged misconduct and is given opportunity to explain circumstances alleged against him. But, in the very same judgment it is also clearly stated that standing order does not contemplate issue of second show cause notice and it is only an enabling provision casting unilateral obligation on concerned authorities to take into account previous record of service with no further duty or corresponding right in favour of employee to insist on the issue of second show cause notice. In fact, in the latest ruling of the First Bench of this Court in Writ Appeal No.58 of 2011 dated 27.01.2011, this Court has held, 'After hearing the learned senior counsel for the appellant and the learned Government Pleader, we are prima facie of the view that the punishment imposed on the appellant is disproportionate to the charge levelled against him and it is in fact, shocking the conscience of this Court. We, therefore, allow this writ appeal, set aside the impugned judgment passed by the learned single Judge and remit back the matter to the disciplinary authority, viz., the second respondent herein, to re-consider the matter with regard to the quantum of punishment imposed on the appellant and to take a decision within six weeks from today. It is made clear that in the event the quantum of punishment imposed on the appellant is reduced, he shall not make any claim with regard to the wages for the period he has not performed his duty, but the continuity in service will not be affected. There shall be no order as to costs. Consequently, M.P. No. 1 of 2010 is closed.' Therefore, this court has felt that the punishment is disproportionate and shocked the conscience. Here also, the First Bench has categorically pointed out that the punishment itself is mainly based on the past records only.
11. Per contra, learned Additional Government Pleader relied upon the judgment of the Supreme Court in Union of India v. Bishamber Das Dogra, (2009) 13 SCC 102, in respect of the punishing authorities, taking into consideration the past records, the Supreme Court has categorically held, in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authorities may take into consideration past conduct/ service record. When there is no explanation of such repeated misconduct as intolerable, the punishment imposed by the statutory authority was held to be correct. The Supreme Court has held as follows :
'22. This Court in State of Assam v. Bimal Kumar Pandit considered the issue as to whether while imposing the punishment it is permissible to take into consideration the past conduct of an employee if it is not so mentioned in the second show-cause notice.
23. The Court in Bimal Kumar Pandit case observed that while issuing second show-cause notice, the disciplinary authority naturally has to come to a tentative or provisional conclusion about the guilt of the charged employee as well as about the punishment which would meet the requirement of justice in his case, and it is only after reaching conclusions in both these matters provisionally that the disciplinary authority issues the second notice. The delinquent employee is entitled to show cause not only against the action proposed to be taken against him but also against the validity or correctness of the findings recorded by the enquiry officer and provisionally accepted by the disciplinary authority. Thus, it enables the delinquent to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that if he fails in substantiating his innocence, the action proposed to be taken against him is either unduly severe or not called for.
30. In view of the above, it is evident that it is desirable that the delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.
31. It is settled legal proposition that habitual absenteeism means gross violation of discipline.
33. Admittedly, the respondent employee has not completed the service of six years and had been imposed punishment three times for remaining absent from duty. On the fourth occasion when he remained absent for ten days without leave, the disciplinary proceedings were initiated against him. The show-cause notice could not be served upon him for the reason that he again deserted the LINE and returned back after fifty days. Therefore the disciplinary proceedings could not be concluded expeditiously. The respondent submitted the reply to the show-cause notice and the material on record reveal that during the pendency of the enquiry he further deserted the LINE for ten days. There is nothing on record to show any explanation for such repeated misconduct or absenteeism. The court/tribunal must keep in mind that such indiscipline is intolerable so far as the disciplined force is concerned.
34. The respondent was a guard in CISF. No attempt had ever been made at any stage by the respondent employee to explain as to what prejudice has been caused to him by non-furnishing of the enquiry report. Nor had he ever submitted that such a course has resulted in failure of justice. More so, the respondent employee had never denied at any stage that he had not been punished three times before initiation of the disciplinary proceedings and deserted the LINE twice even after issuance of the show-cause notice in the instant case. No explanation could be furnished by the respondent employee as under what circumstances he has not even considered it proper to submit the application for leave. Rather, the respondent thought that he had a right to desert the LINE at his sweet will. It was a case of gross violation of discipline. Appeal filed by the respondent employee was decided by the statutory appellate authority giving cogent reasons.
35. The facts of the present case did not present special features warranting any interference by the Court in limited exercise of its powers of judicial review. In such a fact situation, we are of the view that the High Court should not have interfered with the punishment order passed by the disciplinary authority on such technicalities.' This is a case, wherein the person of a disciplined force due to his chronic absenteeism, the Supreme Court has categorically held that a second show cause notice is not necessary and mainly the past records also should not be taken as that of a violation. As stated supra, in our case the past records alone is not considered for punishment in fact in the mercy petition, the punishment is altered from removal from service to that of compulsory retirement. They also relied upon State of Punjab v. Sukhwinder Singh, (2007) 10 SCC 511. Here also, the Supreme Court has categorically held that, '5. The High Court was right in noting that the respondent was a member of a disciplined force and that absence from duty was unbecoming of a member of such force. It was in that light that the High Court should have looked at the repeated acts of the respondent's absence from duty. The fact that the respondent is a member of the Scheduled Castes is neither here nor there for the purposes of considering whether or not he is guilty of misconduct and breach of discipline, nor the fact that he had gone to give his pay to his mother and was detained on account of her illness. It is necessary that members of the police forces should attend the duties which they have been allocated and not absent themselves. This is a paramount public interest that must overweigh private considerations. The High Court was, therefore, in patent error in looking benignly at the numerous acts of absence of the respondent.
6. That the order of dismissal did not use the mantra of gravest act of misconduct is not determinative. The substance of that conclusion is to be found in that order. When a policeman is repeatedly absent from duty, it cannot but be reasonably concluded that there is incorrigibility in his continued misconduct.' As held above, when he was dismissed from service, as he was in earlier occasions a deserter, he cannot become a good employee and he is not fit for the department. It is clearly stated that when a policeman is repeatedly absent from duty, it cannot but be reasonably concluded that there is incorrigibility in his continued misconduct and in fact they went to the extent of saying, 'the gravest act of misconduct'. The conclusion in the impugned order would substantiate the same. In fact this case is identical to the above cases. The petitioner has availed much of leave and deserted duty, which we find in the above paragraphs. It is also brought to the notice of this Court the judgment in B. Govindaswamy v. Inspector General of Police & Ors., (2009) 8 MLJ 1530, wherein it is stated that, even in the absence of any statutory rule, it is open to the Disciplinary Authority to take into consideration the past record of service of the delinquent for imposing the penalty. It is not necessary for the disciplinary authority to include the delinquent's past record of service in the charge memo or in any notice, before imposing the penalty.
'12. As regards the contention as to whether past record should form part in the charge memo or in the notice calling for further representation on the enquiry report, it would be appropriate to consider the case in Govt. of A.P. and Others v. Mohd. Taker Ali (2007) 8 SCC 656, where a Police Constable, detailed for election duty, was charged for unauthorised absence without leave or permission and for the offence of desertion. The Enquiry Officer held the charge as proved and further recorded that it was not a solitary incident. The police man was also found guilty on couple of occasions and therefore, the Superintendent of Police issued orders for compulsory retirement with immediate effect. The Tribunal which tested the correctness of the order, did not interfere with the findings of the Enquiry Officer, but remitted the matter back to the Disciplinary Authority for reconsideration on the question of punishment. The appeal filed by the State was dismissed. At paragraph 4, the Supreme Court has observed as follows :
"4...We fail to understand the reason for the Administrative Tribunal or for the High Court to have remitted the matter back to the Disciplinary Authority for reconsideration of the punishment of compulsory retirement imposed on the respondent."
13. While considering the submission of the respondent-policeman, based on the judgment in State of Mysore v. K. Manche Gowda (supra) case that a Disciplinary Authority ought not to have taken into consideration the past conduct, i.e., earlier absence of the delinquent from duty, the Supreme Court, at Paragraph 6, observed that,-
"but in the present case we are satisfied that in fact the respondent deliberately absented himself from duty and did not offer any explanation for his absence from election duty. It is not the respondent's first absence. He also absented himself from duty on earlier occasions also. In our opinion, there can be no hard and fast rule that merely because the earlier misconduct has not been mentioned in the charge sheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee then there is no reason to ignore this fact at the time of imposing penalty. Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a member of a disciplined force is sufficient to justify his compulsory retirement."
(emphasis supplied)
14. In the case on hand, earlier the petitioner had been inflicted with a penalty of dismissal from service, reduction of pay and black mark during the Training period of the years 1976, 1993 in P.R.Nos. 84 of 1976, 52 of 1993 and 132 of 1993 respectively. He was also found absent from duty on many occasions. The Disciplinary Officer has observed that his indisciplinary conduct would pave way to the other recruits of the disciplined force to follow his bad principle. He has further observed that in spite of heavy punishments already awarded, he has not mended his ways, but continued to repeat his delinquency of desertion.
15. Habitual absenteeism is a gross violation of discipline, as held in Burn & Co.Ltd. and Others v. Their Employees, AIR 1959 SC 529: 1959-I-LLJ-450. In the said case, an employee, who absented without leave or permission, was dismissed from service, following a domestic enquiry. The Industrial Tribunal directed reinstatement. When the matter was adjudicated before the Supreme Court, it was held that absence of a workman without permission and without any leave application for the same, amounts to gross violation of discipline, entailing dismissal from service. The Supreme Court further held that if such a workman is dismissed by his employer, Industrial Tribunal should not order for reinstatement. The Apex Court held that,--
"Where a workman is almost in the habit of loitering outside his place of work without the permission of his departmental head and does not desist from doing so even though warned, his services can be dispensed with. In such a case it cannot be said that the employer was actuated by any improper motive to victimise him for his Union activities."
....
18. While furnishing a copy of the Enquiry Officer's report, the delinquent is given an opportunity to make his further representation, not only on the findings recorded by the Enquiry Officer, but he can also point out the procedural flaw, violating the Principles of Natural Justice. The 42nd Constitutional amendment has taken way the right of a delinquent to put forth his plea on the proposed penalty and therefore, he cannot insist that at the time of calling for further representation, if the Disciplinary Authority had proposed to consider his past misconduct and record of service, he should indicate his mind in the said notice. Therefore, while imposing the punishment, it is permissible to take into consideration the past record of a delinquent, even if it is not mentioned in the notice, calling for further representation or in the punishment order. The consideration of past record is only to reinforce the opinion of the Disciplinary Authority on the quantum of penalty. It is also not necessary for the Disciplinary Authority to include the past record of service in the charge memo or in any notice, before inflicting the penalty.
19. Even in the absence of any statutory rule, still it is open to the Disciplinary Authority to take into consideration the past record of service for inflicting the penalty, which only adds weightage to his decision. If the charge entails a major penalty independently, even without reference to the past record, then the Disciplinary Authority can always impose such penalty, commensurate with the misconduct for which the subsequent disciplinary proceedings are taken. When the right of the delinquent to make his further representation on the penalty has been taken away by the Constitutional Amendment, even if the Disciplinary Authority has taken into consideration the past record of the delinquent, that would not vitiate either the disciplinary proceedings or the penalty imposed on him and there is no violation of Principles of Natural Justice. '
12. In the light of the Supreme Court judgments and in the light of the submissions of the authorities concerned that the case was considered on merits and not only on the basis of the past records and also taking into consideration his explanation, when the punishment has been reduced to one of compulsory retirement from that of removal from service, the petitioner cannot say that the impugned order is passed in violation of principles of natural justice.
13. Accordingly, the Writ Petition is dismissed. Consequently, the connected M.P. is closed. No costs.
avr 30 .03.2012
Index: Yes/No
Internet : Yes/No
To
1 THE DIRECTOR GENERAL OF POLICE
CHENNAI-4
2 THE ADDITIONAL DIRECTOR
GENERAL OF POLICE LAW AND ORDER
CHENNAI-4
3 THE COMMISSIONER OF POLICE
SALEM CITY POLICE
SALEM
4 THE DEPUTY COMMISSIONER OF
POLICE LAW AND ORDER
SALEM CITY SALEM
B. RAJENDRAN J.,
avr
W.P. No. 23178 of 2007
and
M.P. No. 1 of 2007
30.03.2012