Madras High Court
Arumugam vs The Superintendent Of Police on 2 February, 2022
Author: M.S.Ramesh
Bench: M.S.Ramesh
W.P.No.11854 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.02.2022
CORAM
THE HONOURABLE MR. JUSTICE M.S.RAMESH
W.P.No.11854 of 2016
Arumugam ...Petitioner
Vs
1.The Superintendent of Police,
Thiruvannamalai District.
2.The Deputy Inspector General
of Police,
Vellore Range, Vellore.
3.The Director General of Police,
Tamil Nadu,
Dr.Radhakrishnan Salai,
Mylapore, Chennai - 600 004. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records of
the 1st respondent in connection with the impugned order passed by him in
PR.No.71/2014 dated 30.03.2014 and confirmed by the 2nd respondent in
C.No.B1/AP39/6788/2015 dated 28.05.2015 and further confirmed by the
3rd respondent in RC.No.017330/AP2(2)/2016 dated 26.01.2017, quash the
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W.P.No.11854 of 2016
same and direct the respondents to reinstate the petitioner into service and
grant him all consequential service and monetary benefits. (prayer amended
vide order dated 13.08.2021 in WMP.No.18045 of 2021 in WP.No.11854
of 2016)
For Petitioner : Mr.K.Venkataramani,
Senior Counsel
for Mr.M.Muthappan
For Respondents : Mr.E.Veda Bagath Singh,
Special Government Pleader
ORDER
With the consent of both the parties, this writ petition is taken up for final disposal.
2. Through the charge memo dated 10.12.2014, the petitioner herein was implicated on two charges of unauthorised absence amounting to desertion and another charge for his involvement in a criminal case in FIR.No.591 of 2012. Pursuant to an enquiry, the petitioner was imposed with a punishment of dismissal from service by the proceedings of the first respondent dated 30.03.2015, which was confirmed by the second respondent on 28.05.2015. In the further appeal to the third respondent herein, the punishment of dismissal was modified into one of compulsory 2/15 https://www.mhc.tn.gov.in/judis W.P.No.11854 of 2016 retirement on 26.01.2017. These orders are put under challenge in the present writ petition.
3. Insofar as the charge of his involvement in the criminal case is concerned, it is brought to the notice of this Court that the petitioner was acquitted, through the judgment of the Criminal Court dated 15.12.2015.
4. Insofar as the punishment of compulsory retirement for the charge of desertion is concerned, this Court had dealt with a similar issue in the case of R.Sudhakar Vs. The Principal Secretary to Government, Home (Pol-V) Department and others passed in W.P.No.7927 of 2015 dated 21.12.2021, wherein it has been held as follows:-
"2. The original punishment of dismissal from service as well as the modified punishment by the 2nd respondent herein into one of the Compulsory Retirement cannot be sustained on the sole ground that the Director General of Police had earlier issued Circulars dated 13.10.1990 and 06.12.2007, holding that in cases of desertion, the punishment of removal/dismissal from service or Compulsory 3/15 https://www.mhc.tn.gov.in/judis W.P.No.11854 of 2016 Retirement should not be imposed. In a later circular, dated 06.12.2007, it was reiterated that these guidelines should be strictly followed, while dealing with dismissal cases and that any other minor punishment can be imposed. For the sake of clarity, the circular dated 06.12.2007 is hereby extracted, Rc.No.235355/AP-IV(2)/2007 Office of the Director General of Police, Chennai-600 004.
Dated:06.12.2007 CIRCULAR MEMORANDUM Sub: Police - Desertion cases - Head constables and Police Constables - Taking delinquents on duty - Major punishment awarded - Instructions issued - Regarding.
Ref: Circular Memo in C.No.243881/AP- 1(1)/1990, dated: 30.10.1990.
<<<>>> The attention of the Unit Officers is invited to the Chief Office Circular Memorandum cited.
2) In the above Circular Memorandum, clear instructions were already issued that while taking Head Constables and Police Constables for duty in desertion cases and disposing of P.Rs emanated from the delinquency of desertion, penalty such as removal/dismissal from service or Compulsory Retirement should not be given. Any 4/15 https://www.mhc.tn.gov.in/judis W.P.No.11854 of 2016 other punishment can be imposed and this guideline should be kept in view, while dealing with desertion cases.
3) While disposing of review/mercy petitions of the subordinate police personnel, I noticed that scant regard is shown to the earlier Chief Office instructions and the Superintendents of Police are still in the habit of awarding the maximum penalty of dismissal or removal from service in desertion cases after taking them for duty. This action is unfair, cannot be justified and consequently cannot be accepted.
4) Hence, it is reiterated that when a Head Constable/Police Constable is struck off as a deserter, notice is to be issued directing the delinquent to appear before the Superintendent of Police within two months. When he appears, Superintendent of Police should make up his mind whether the absence is on valid grounds and whether the period of absence is covered by a valid medical certificate. If Superintendent of Police is not satisfied, the delinquent should not be taken for duty. If on the other hand, Superintendent of Police is satisfied, he can be taken for duty. In such cases while disposing of P.Rs punishment of removal/dismissal from service or Compulsory Retirement should not be given. Any other punishment can be imposed and these guidelines should be strictly followed while dealing with desertion cases.
5) The above instructions should be scrupulously followed and there should not be any violation. If any deviation is found it will be viewed adversely.
6) The receipt of the Chief Office Memo should be acknowledged forthwith.5/15
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3. The original order of dismissal by the 3rd respondent, as well as the order of the Director General of Police modifying the punishment into one of the Compulsory Retirement, is in clear violation of the Circular issued by the Director General of Police. Likewise, the Director General of Police himself had violated his own proceedings by modifying the original punishment into one of the Compulsory Retirement. These kind of Circulars would be binding on all the authorities of the Government when it is issued from the highest authority of the department. As such, the very original punishment itself cannot be sustained. Consequently, it requires to be held that both the original punishment, as well as the modified punishment, are not only disproportionate to the impugned charges, but also violative of the procedure contemplated for imposing punishments in the aforesaid circulars."
5. On the issue of disproportionality of a punishment is concerned, the same has been dealt in various decisions of this Court, as well as the Hon'ble 6/15 https://www.mhc.tn.gov.in/judis W.P.No.11854 of 2016 Supreme Court, to the effect that the ultimate punishment requires to be in confirmity with the gravity of the charges. In one such decision of a learned Single Judge of this Court, in the case of R.Jayakumar Vs. The Deputy Commissioner of Police and another passed in W.P.No.26072 of 2004, dated 08.08.2008, the High Court had placed reliance on three decisions of the Hon'ble Supreme Court and interfered with the punishment of dismissal for the period of unauthorised absence of 21 days and directed the delinquent therein to be reinstated into services without the benefits of pay for the period of absence. The relevant portion of the order reads as follows:-
“11. Next point to be considered is proportionality of punishment. For the absence of 21 days, Petitioner was awarded punishment of dismissal from service. Placing reliance upon AIR 1994 SC 215 (Union of India and others v. Giriraj Sharma); (1996) 7 SCC 634 (Malkiat Singh v. State of Punjab and others); (1999) 9 SCC 86 (Syed Zaheer Hussain v. Union of India and others) and (2006) 4 MLJ 1008 (J.Patric v. Government of Tamil Nadu, rep. by its Secretary, Home (Pol.VI) Department, Chennai and others), learned counsel for the Petitioner contended that in cases where the punishment imposed is 7/15 https://www.mhc.tn.gov.in/judis W.P.No.11854 of 2016 disproportionate to the charge, court can set aside the same or modify the punishment based on the facts and circumstances of the case.
12.On the other hand, learned Government Advocate would submit that as far as the Petitioner is concerned, it was not an isolated case of desertion for 21 days. But he was in the habit of deserting habitually and therefore, punishment of dismissal from service came to be passed.
13. According to the Petitioner, he was unwell and hospitalised and his family members could not inform the higher officials about his ill-ness and his absence was not deliberate. Charges framed for absence for 21 days.
14. In AIR 1996 SC 484:1995 (6) SCC 634 (B.C.Chaturvedi v. Union of India and others), the Hon'ble Supreme Court has decided the question as to whether Tribunal was justified in interfering with the punishment imposed by the disciplinary authority by referring to various Judgments to the effect that it is for the disciplinary authority who has to imposed penalty and normally Tribunal or High Court should not interfere. Supreme Court has further held that in cases where punishment shocks the conscience of the 8/15 https://www.mhc.tn.gov.in/judis W.P.No.11854 of 2016 High Court or Tribunal, the High Court or Tribunal can either direct the disciplinary authority to reconsider the penalty or to shorten the litigation in exceptional cases and in rare cases imposed an appropriate punishment.
15. In this aspect, Hon'ble Supreme Court has laid down the law as follows:-
“..... A review of the above legal position would establish that the disciplinary authority, and on appeal the appeallate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.”
16. In AIR 1994 SC 215 (Union of India and others v. Giriraj Sharma), Government Servant over-
9/15https://www.mhc.tn.gov.in/judis W.P.No.11854 of 2016 stayed the leave period subsequent to the order of rejection of application for explanation of leave. Observing that there was no wilful intention to flout the order that the punishment of dismissal merely on the ground of over-staying leave period was held to be harsh and disproportionate and the Supreme Court has ordered reinstatement with all monetary and service benefits granted with liberty to visit minor punishment.
17. In (1999) 9 SCC 86 (Syed Zaheer Hussain v. Union of India and others) the deliquent Government servant was dismissed from service on the ground of unauthorised absence for 7 days. Observing that dismissal was too harsh, Supreme Court directed the Appellant to reinstate with continuity in service with all other benefits but limiting the back wages to 50% only for the period between dismissal to the date of passing of the order by the Court. In the present case, Petitioner was absent for 21 days. It is one of the clear instance where the punishment of dismissal from service is disproportionate to the charge.
18. In the result, the impugned Orders are set aside and this Writ petition is allowed. Petitioner is ordered to be reinstated into service within a period 10/15 https://www.mhc.tn.gov.in/judis W.P.No.11854 of 2016 of eight weeks from the date of receipt of copy of this order. Absence period and the period after dismissal are directed to be taken as “leave on loss of pay”. However, the said period shall be taken into account for continuity of service and other benefits.”
6. The aforesaid extract is self-explanatory. When the circular of the Director General of Police clearly indicates that the punishment of 'dismissal/removal from service' nor 'compulsory retirement' should not be imposed on a delinquent for charges of desertion, the punishment imposed itself is deemed to be disproportionate to the charges, as held by the Hon'ble Supreme Court and which was relied upon by this Court in the aforesaid decision.
7. However, the charge of unauthorised absence cannot be left unnoticed, particularly, when it is brought to the notice of this Court that the petitioner had earlier indulged in instances of unauthorised absence. By taking into account the ratio laid down in the aforesaid decision, this Court is of the view that if the petitioner's wages for the period of his absence is withheld, without affecting the continuity of his service, as well as other service benefits, the ends of justice could be secured.
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8. In the light of the above observations, the order of dismissal passed by the first respondent dated 30.03.2015, the order of confirmation of dismissal passed by the second respondent dated 28.05.2015 and the modification order passed by the third respondent dated 26.01.2017, are quashed. Consequently, there shall be a direction to the respondents herein to pass appropriate orders, reinstating the petitioner back into service from 30.03.2015 onwards, as if the petitioner was never dismissed from his services, together with continuity of service and other service benefits, within a period of two weeks from the date of receipt of a copy of this order.
However, the petitioner shall not be entitled for the back wages during his period of non-employment.
9. The Writ Petition stands allowed, accordingly. No costs.
02.02.2022 Index:Yes/No Internet:Yes/No Speaking order/Non-speaking order hvk 12/15 https://www.mhc.tn.gov.in/judis W.P.No.11854 of 2016 13/15 https://www.mhc.tn.gov.in/judis W.P.No.11854 of 2016 To
1.The Superintendent of Police, Thiruvannamalai District.
2.The Deputy Inspector General of Police, Vellore Range, Vellore.
3.The Director General of Police, Tamil Nadu, Dr.Radhakrishnan Salai, Mylapore, Chennai - 600 004.
14/15https://www.mhc.tn.gov.in/judis W.P.No.11854 of 2016 M.S.RAMESH,J.
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