Madras High Court
S.Shanmugarajan vs The State Of Tamilnadu on 26 February, 2013
Author: N.Paul Vasanthakumar
Bench: R.K.Agrawal, N.Paul Vasanthakumar
In the High Court of Judicature at Madras
Dated: 26.2.2013
Coram:
The Honourable Mr.R.K.AGRAWAL, Acting Chief Justice
and
The Honourable Mr.Justice N.PAUL VASANTHAKUMAR
Writ Appeal No.1608 of 2011
S.Shanmugarajan .. Appellant
-vs-
1. The State of Tamilnadu
rep. By the Director General of Police
Mylapore, Chennai 600 004.
2. The Commandant
Tamilnadu Special Police Special Forece
Veerapuram, Chennai 600 055
3. The Deputy Inspector of Police
Armed Police, Kilpauk
Chennai 600 010.
4. The Inspector General of Police
Armed Police
Trichy 12 .. Respondents
PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the order dated 22.09.2008 in W.P.No.11164/2006 on the file of this Court.
For Petitioner : Mr. K.Venkataramani,Senior Counsel
for Mr.M.Muthuppan
For Respondents : Mr.T.N.Rajagopalan,
Additional Government Pleader
JUDGMENT
[Judgment of the Court was delivered by N.Paul Vasanthakumar J.] This writ appeal is filed by the appellant challenging the order of the learned Single Judge passed in W.P.No.11164/2006 dated 22.09.2008, wherein the learned Single Judge has upheld the order of removal from service of the petitioner from the post of Grade II Police Constable on the ground of desertion. The appeal as well as mercy petition filed before the Department was also rejected.
2. The crux of the charge framed under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, against the appellant is that the appellant availed casual leave from 26.6.2004 to 30.6.2004 and extended the casual leave from 1.7.2004 to 5.7.2004 and thereafter, availed medical leave from 6.7.2004 to 15.7.2004 without joining duty on 6.7.2004, thereby absented for 21 days from 16.7.2004 voluntarily without any permission to leave and thus deserted duty and he did not appear before the commandant within 60 days from desertion and explained the reasons for his absence even after instructions.
3. The defence of the applicant was that he had entered on casual leave from 26.6.2004 to 30.6.2004 and due to ill health he extended the casual leave from 1.7.2004 to 5.7.2004; that as his health still worsened he went to Government Hospital, Tindivanam, and in accordance with the recommendation of the medical officer, he submitted application for medical leave for 10 days from 6.7.2004 to 15.7.2004; that as he did not recover by then, he asked his parents to send application for medical leave and they did not do so as they were ignorant of that procedures; and that, only due to ill health he could not report for duty.
4. The said defence was not accepted and based on the enquiry report, he was removed from service by order dated 1.12.2004. Appeal filed before the Inspector General of Police was rejected by order dated 5.7.2005. Mercy petition filed was also rejected by Director General of Police on 22.10.2005.
5. The appellant's illness during the period is not disputed. Hence his absence cannot be treated as wilful desertion.
6. The issue as to whether on the act of desertion, a person could be dismissed from the service or not was considered by the Honourable Supreme Court in the decision reported in 2004 (4) SCC 560 (SHRI BHAGWAN LALARYA v COMMR. OF POLICE) wherein in paragraphs 11 and 14, it is held thus,
11. The order dated 16.1.1995 passed by the respondents was produced by the respondents themselves in their reply to CWP before the High Court of Delhi that they had sanctioned leave without pay for the period from 7.10.1994 to 15.12.1994, the period of alleged unauthorised absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing sanction for leave for the period in question, the employee's legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered an act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal/ removal from service can be awarded only for acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility or complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/ reasons cannot become the basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires Rules 8(a) and 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of which, not only he but his entire family totally dependent on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/ order of the disciplinary authority is to be set aside.
14. Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated up to the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment."
7. In the decision reported in (2012) 3 SUPREME COURT CASES 178 (KRUSHNAKANT B. PARMAR v. UNION OF INDIA), the Supreme Court held that for punishing a person for unauthorised absence, wilful absence must be proved and if the person has absented due to compelling circumstances, his absence cannot be held to be wilful. The dismissal order confirmed by the Central Administrative Tribunal as well as the High Court was set aside with 50% backwages.
8. In an identical set of fact, the Division Bench of this Court in paragraph 3 of the order in W.A.No.58 of 2011 dated 27.1.2011, R.RAMESH v. THE DEPUTY INSPECTOR GENERAL OF POLICE AND OTHER, held as follows:-
"................ 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 reconsider 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. ..........."
In the said case the appellant who served as Grade II Police Constable deserted the force on three occasions and absented from duty on two occasions. The said order was also implemented by the very same Police Department by its order dated 10.6.2011. The appellant therein was imposed with a punishment of postponement of next increment for two years which shall operate to postpone his future increments. He also joined duty on 28.4.2011.
9. Thus proportionatily of the punishment has to be gone into by the Disciplinary Authority as well as by the Appellate Authority. The said aspect has not been considered in this case by the learned Single Judge. Hence, the order of the learned Single Judge is set aside and the matter is remitted back to the fourth respondent to consider the issue regarding the proportionality of the punishment and pass fresh orders within a period of eight weeks from the date of receipt of copy of this order. It is also made clear that in the event the quantum of punishment is reduced, the appellant shall not claim backwages for the period in which he has not performed his duty.
10. With the above observation, the writ petition is allowed. No costs.
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