Madras High Court
M.Sonai Muthu vs The Secretary To Government on 30 August, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.No.9421 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 30.08.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.9421 of 2015
and
W.M.P.No.34347 of 2016
M.Sonai Muthu ... Petitioner
Vs.
1.The Secretary to Government
Home Police (II) Department
Fort St.George, Chennai 9.
2.The Director General of Police
Dr. Radhakrishnan Salai
Mylapore, Chennai 4.
3.The Deputy Inspector General of Police
Armed Police
Chennai 10.
4.The Commandant
TN Special Police VII Battalion
Pochampalli. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
of the respondents in connection with the impugned order passed by the 4 th
respondent in Na.Ka.No.E1/PR.20/2010 dated 14.09.2010 and
Na.Ka.No.E1/PR.20/2010 dated 23.06.2014 and confirm by the 2nd
respondent in Na.Ka.No.107563/Me.Mu.3(1)/2014 dated 24.08.2014 and
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W.P.No.9421 of 2015
quash the same and consequently direct the respondents to reinstate the
petitioner with continuity of service.
For Petitioner : Mr.T.Dharani
For Respondents : Mr.M.Bindran
[R1 to R4] Additional Government Pleader
ORDER
The order of removal from service issued by the Commandant dated 14.09.2010 and confirmed by the Appellate Authority on 23.06.2014 and the Mercy Petition was rejected in proceedings dated 24.08.2014 are under challenge in the present writ petition.
2. The petitioner was recruited as Grade-II Police Constable and appointed on 28.02.2009. The petitioner went on Casual Leave for two days on 21.11.2009 and 22.11.2009, since his mother died suddenly due to heart attack. He also fell ill and admitted in a private nursing home. Thus, the petitioner could not able to report for duty or inform the fact to the higher officials. Thus, he remained absent and consequently, he was declared as deserter and issued with an order of desertion on 14.12.2009. thereafter, the departmental disciplinary proceedings were initiated in PR.No.20/2009 by the Commandant, TSP VII Battalion, Pochampalli dated 18.05.2009.
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3. A charge memo was issued and an enquiry was conducted. However, the petitioner has not participated in the enquiry proceedings and the same ended with an ex-parte enquiry. The charges were held proved and the petitioner states that he has not received the copy of the enquiry report. Without obtaining further explanation, the punishment of removal from service was issued in order dated 14.09.2010. The petitioner states that the order of punishment was served on him on 16.09.2010 and he preferred an appeal to the 3rd respondent / Deputy Inspector General of Police, Chennai, on 21.04.2014. But the Appellate Authority held that the appeal was time barred and without considering the grounds on merits, the appeal was rejected on 23.06.2014. Thereafter, he preferred a Mercy Petition before the Director General of Police on 07.07.2014, which was also rejected on 24.08.2014, without considering the grounds raised by the writ petitioner.
4. The learned counsel for the petitioner mainly contended that based on the ex-parte, the petitioner was removed from the service. Thus, the principles of natural justice has not been followed. https://www.mhc.tn.gov.in/judis Page 3 of 15 W.P.No.9421 of 2015
5. That apart, the punishment of dismissal from service for unauthorised absence / desertion is disproportionate to the gravity of the allegations and therefore, the order of removal is liable to be set aside. The petitioner has relied on the judgment of the Hon'ble Division Bench in W.A.No.58 of 2011 dated 27.01.2011 and contended that the Division Bench has taken a view that punishment of removal from service for unauthorised absence is disproportionate to the gravity and the matter is remitted back to reconsider the matter regarding quantum of punishment. Thus, the said proposition is to be complied in the present case.
6. The respondents filed a counter affidavit stating that the petitioner was enlisted as Police Constable on 28.02.2009 at Temporary Police Recruits School, Tamil Nadu Special Police IX Battalion, Manimuthar. He underwent basic training. After completion of training on 04.08.2009, he was serving in the Battalion. He had deserted the Force from 23.11.2009, after availing two days Casual Leave. Hence, the desertion order was issued in the Battalion Order: 945/2009 dated 14.12.2009. The same was unacknowledged by the petitioner on 20.12.2009. In the desertion order, the petitioner was granted 60 days time to appear before the Commandant for taking him back for duty. If he fails to appear before the Commandant, the desertion will be confirmed. The https://www.mhc.tn.gov.in/judis Page 4 of 15 W.P.No.9421 of 2015 delinquent did not appear before the Commandant within 60 days. Thus, the desertion was confirmed vide Battalion Order: 96/2010 dated 23.02.2010. However, the confirmation order was acknowledged by the petitioner on 02.03.2010 and consequently, he was dealt with under the Discipline and Appeal Rules and a charge under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 in PR:20/2010 was issued.
7. The charge against the petitioner was that he deserted the Force from 23.11.2009, after availing two days Casual Leave. The charge memorandum was served to him on 24.05.2010. An Enquiry Officer was appointed, who in turn conducted an enquiry on 14.06.2010. Three chances viz. 01.07.2010, 05.07.2010 and 26.07.2010 were given to the petitioner to attend the oral enquiry and to cross-examine the prosecution witnesses. The delinquent did not attend the oral enquiry. On cross examining the oral prosecution witnesses, the Enquiry Officer had sent the proved minute holding the charges proved on 02.08.2010. Based on the proved minute, further representation was called for from the delinquent on 10.08.2010. The petitioner acknowledged the said calling memo and minute on 15.08.2010. He did not submitted his further representation within the stipulated time. He was given a reminder memo on 02.09.2010, https://www.mhc.tn.gov.in/judis Page 5 of 15 W.P.No.9421 of 2015 the same was acknowledged by him on 05.09.2010. He submitted his further representation on 05.09.2010. After going through the minute file, his further representation and other records, the petitioner was awarded with a punishment of removal from service by the then Commandant on 14.09.2010. The petitioner acknowledged the final order and slip order on 25.09.2010. The appeal and mercy petition submitted by the petitioner was also rejected.
8. The learned Additional Government Pleader appearing on behalf of the respondents mainly contended that the petitioner was afforded with an opportunity to defend his case. He was fully aware of the charge memorandum and the subsequent enquiry proceedings. He had intentionally stayed away from attending oral enquiry before the Enquiry Officer and thus, the respondents have not violated principles of natural justice. The petitioner received the charge memorandum and thereafter, received the enquiry officers' report and remainder memo was also issued subsequently. He submitted his representation on the Enquiry Officers' report and considering all the materials available on record, the punishment of removal from service was imposed and thus, there is no irregularity.
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9. The learned Additional Government Pleader appearing on behalf of the respondents reiterated that the petitioner has just completed his training in August 2009 and posted to Tamil Nadu Special Police VII Battalion on 05.08.2009. Within a period of three months, the petitioner went on Casual Leave for two days and thereafter, remained unauthorisedly absent. Sufficient opportunities were granted to him to join duty, but he had not availed any of the opportunity and therefore, the petitioner is not entitled for any leniency in the matter of punishment.
10. Considering the arguments, this Court is of the considered opinion that in the event of unauthorised absence, more specifically, on first occasion, if an employee could not able to establish the genuinity of the absence, then the authorities are expected to take a lenient view. For example, if an employee on leave, who is going to native and if he met with an accident or suddenly fell ill or due to any unavoidable family circumstances, he could not able to report for duty, then it is for the employee to establish the genuinity of his absence. Once the genuinity of the unauthorised absence is established and such absence is not a habitual one, then the Disciplinary Authority has to take a lenient view and impose any of the penalties other than the major penalty of removal from service. Thus, unauthorised absent per se cannot be construed as grave https://www.mhc.tn.gov.in/judis Page 7 of 15 W.P.No.9421 of 2015 misconduct. Unauthorised absence become a grave misconduct, only if it is committed intentionally by an employee concerned. Once an employee commits the misconduct of unauthorised absence intentionally and willingly and thereafter not participated in the enquiry proceedings, knowing the fact that the enquiry is in progress, then the leniency would result in causing demorale in the uniformed services. Thus, blanketly leniency or misplaced sympathy is not desirable and Courts are not expected to show misplaced sympathy in the matter of disciplinary proceedings unless an opinion if formed that the punishment is disproportionate to the gravity of the charges or the principles of natural justice has been violated.
11. In the present case, the facts reveals that the petitioner joined as Police Constable on 28.02.2009 and sent for training. He completed his training on 04.08.2009 and posted on 05.08.2009. Within a period of three months, he availed two days leave and thereafter, not reported for duty. The petitioner was declared as deserter on 14.12.2009 and thereafter, 60 days time was granted to him to report for duty. Even within that 60 days, the petitioner had not reported for duty. Thereafter, a charge memorandum was issued. Enquiry Officer was appointed and date of enquiry was also intimated to the petitioner. However, he had not participated in the enquiry https://www.mhc.tn.gov.in/judis Page 8 of 15 W.P.No.9421 of 2015 proceedings willingly and allowed the enquiry proceedings to go on ex- party. The enquiry proceedings were communicated to the writ petitioner and finally, he submitted a representation and the said representation was considered by the Disciplinary Authority.
12. When the petitioner has not even served for three months in the Tamil Nadu Special Police Battalion and thereafter, he remained unauthorisedly absent, this Court is of an opinion that he is not entitled for any leniency. He has no intention to continue in the service. He has just completed five months training period and joined duty only on 05.08.2009 and within a period of three months, he left the job. His services were not even confirmed. Even under those circumstances, the authorities competent framed charges and provided the petitioner with ample opportunity. After declaring him as deserter, he would have been reported for duty within 60 days, which he had failed to do so. Thus, it is apparent that the petitioner had not intended to report for duty and allowed the enquiry to held ex-parte and now, he cannot turn around and say that the principles of natural justice has been violated. https://www.mhc.tn.gov.in/judis Page 9 of 15 W.P.No.9421 of 2015
13. Regarding the principles of natural justice in the matter of ex- parte enquiry, this Court considered the principles in W.P.No.21872 of 2014 dated 25.08.2022, which reads as follows:
“21. In this context, let us consider the principles settled by the Hon’ble Supreme Court of India in the case of Board of Directors, Himachal Pradesh Transport Corporation and Another Vs. K.C. Rahi reported in [(2008) 11 SCC 502], held as follows:
“In the instant case we have been taken through various documents and also from representation dated 19.10.1993 filed by the respondent himself it would clearly show that he knew that a departmental enquiry was initiated against him yet he chose not to participate in the enquiry proceedings at his own risk. In such event plea of principle of natural justice is deemed to have been waived and he is estopped from raising the question of non-
compliance of principle of natural justice. In the representation submitted by him on 19.10.1993 the subject itself reads "DEPARTMENTAL ENQUIRES". It is stated at the Bar that the respondent is a law graduate, therefore, he cannot take a plea of ignorance of law. Ignorance of law is of no excuse much less by a person who is a law graduate himself.”
22. The Delhi High Court in the case of Sukhi Devi and Others Vs. The Delhi Vidyut Board and Others https://www.mhc.tn.gov.in/judis Page 10 of 15 W.P.No.9421 of 2015 reported in [Manu/DE/0677/2000], held that “The respondents were supposed to send communication at the last known address. When no whereabouts of Petitioner were known and he was not responding to any of the communications sent to him and even left the last known address, the opinion of the disciplinary authority that he was satisfied that it was not reasonably practicable to give further opportunity to petitioner is valid and proper”. A perusal of the order shows that it is sent to petitioner at his local address at Delhi as well as his native place at UP. Therefore, as far as respondents are concerned they complied with the requirement of issuing and dispatching his dismissal order at the addresses known to the respondents and taking all possible steps in this respect. Therefore, there is deemed service of the dismissal order.
23. The Madras High Court in the case of Madura Coats Ltd. Vs. Presiding Officer, Labour Court and Others reported in [(2001) 3 LLJ 1194], held that “The service of notice, in the present case has to be taken as a valid service as the petitioners were expected to reside in their place of residence and whenever they change their place of residence, even temporarily they are expected to intimate their present address so that the management could communicate the proceedings…..”, It may that proceedings may be ex-parte, but on that scope it cannot be said that the procedure adopted in violation of the https://www.mhc.tn.gov.in/judis Page 11 of 15 W.P.No.9421 of 2015 principles of natural justice. The ex-parte procedure is also provided for and it is a valid procedure and such an ex- parte proceedings the management had been complied to resolve by the very conduct of the workman.
25. The Constitutional Bench of the Hon’ble Supreme Court of India in the case of State Bank of Patiala Vs. S.K.Sharma reported in [(1996) 3 SCC 364], reiterated that “It would not be correct, in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a Rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Karunakar [(1993) 4 SCC 727] should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural Rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid.”
14. Considering the principles laid down in the cases cited supra, this Court has no hesitation in arriving a conclusion that no prejudice was caused to the writ petitioner as he was very much aware of the nature of the charges at the first instance. Thus, the intention of the writ petitioner https://www.mhc.tn.gov.in/judis Page 12 of 15 W.P.No.9421 of 2015 not to participate in the enquiry proceedings is explicit.
15. In view of the fact that the petitioner had not even served for three months in the Battalion after his appointment and left the Police Forces and not reported for duty even after granting 60 days time to report for duty, this Court is of an opinion that the petitioner is not entitled for the relief and the punishment of removal from service cannot be held as disproportionate with reference to the facts and circumstances of the present case and consequently, the Writ Petition stands dismissed. No costs. Connected miscellaneous petition is closed.
30.08.2022 Jeni/Kak Index : Yes Speaking order : Yes To
1.The Secretary to Government Home Police (II) Department Fort St.George, Chennai 9.
2.The Director General of Police Dr. Radhakrishnan Salai Mylapore, Chennai 4.
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3.The Deputy Inspector General of Police Armed Police Chennai 10.
4.The Commandant TN Special Police VII Battalion Pochampalli.
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Jeni/Kak W.P.No.9421 of 2015 30.08.2022 https://www.mhc.tn.gov.in/judis Page 15 of 15