Madras High Court
G.Jeevanandam … vs Government Of Tamil Nadu on 7 September, 2021
Author: Anita Sumanth
Bench: Anita Sumanth
W.P.No.24221 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.No.24221 of 2008
G.Jeevanandam … Petitioner
Vs
1.Government of Tamil Nadu
rep. by Secretary to Government,
Home (Polie) Department,
Fort St. George,
Chennai – 600 009.
2.The Director General of Police,
Chennai – 600 004.
3.The Additional Director General of Police,
Law and Order,
Chennai – 600 004.
4.The Commissioner of Police,
Salem City, Salem.
5.The Deputy Commissioner of Police,
Law and Order,
Salem City, Salem. … Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of Writ of Certiorarified Mandamus, calling for the
records in (1) G.O.(2D).No.296, Home (Police.VI) Department, dated
1/12
https://www.mhc.tn.gov.in/judis/
W.P.No.24221 of 2008
12.5.2008 of the first Respondent; (2) Pro.Rc.No.709/192028/AP.2(2)/2005
dated 25.11.2005 of the second Respondent;
(3)Pro.Rc.No.98/34420/AP.2(2)/2005 dated 29.4.2005 of the third Respondent;
(4) Pro.C.No.H1/Appeal/74/2004 dated 9.10.2004 of the fourth Respondent;
and (5) Pro.P.R.No.119/H1/2003 dated 5.10.2004 of the fifth Respondent,
quash the same and issue consequential directions to the Respondents to
reinstate the Petitioner in service with consequential benefits of continuity of
service, back pay etc.
For Petitioner : Mr.Balakrishnan
For Respondents : Mr.C.Selvaraj
Government Advocate
ORDER
This writ petition has been filed challenging order dated 05.10.2004 imposing the punishment upon the petitioner of removal from service. The order records that the petitioner had absented himself from duty for more than 21 days from 04.09.2003 and enquiry had been initiated in regard to the unsanctioned absence. The petitioner has not placed on record any explanation for his disappearance for the aforesaid period.
2.The following charges were framed:
g/vz;/119-vr;1-2003/ Jiz Mizahsh; mYtyfk;
(Fw;wk; kw;Wk; nghf;Ftuj;J) nryk; khefuk;/ 2/12 https://www.mhc.tn.gov.in/judis/ W.P.No.24221 of 2008 ehs; 9?12?2003/ Fw;w mwpf;if fPnH xg;gkpl;Ls;sth;. JpU $Pthde;jk;. fhtyh; 1053. K:d;whk; gphpt[. nryk; khefuk; vd;gtUf;F vjpuhf jkpH;ehL fhty; rhh;epiy gzp (xG';F kw;Wk; nky;KiwaPL) tpjpfs; 1955 gphpt[ 3 (M) ?tpd; fPH; tprhuiz elj;j cj;njrpj;Js;shh;/ FiwTwy;fspd; rhuk; mjhtJ jtwhd elj;ij my;yJ bewp jtwp ele;J bfhs;sy; gw;wp Rkj;jg;gl;Ls;s Fw;w';fspd; kPJ elj;gb ; gwf; fUjpa[s;s tprhuiziag; gw;wp gpd; ,izg;g[ 1?y; milt[ bra;J jug;gl;Ls;sJ/ FiwTwy;fspd; ml;ltid xd;W mjhtJ jtwhf ele;j my;yJ bewp jtwp ele;J bfhs;sy; gw;wp Rkj;jg;gl;Ls;s Fw;w';fSf;F Mjhukhd xt;bthU Fw;wr;rhl;Lk; gpd; ,izg;g[ 2?y; ,izf;fg;gl;Ls;sJ/ fUjg;gl;Ls;s Fw;wr;rhl;Lfs; tYthdit vdf; fUJtjw;Fwpa Mtz';fspd; gl;oay; xd;Wk; Kiwna gpd; ,izg;g[ Mfpatw;wpy; ,izf;fg;gl;Ls;sJ/ njitbad fz;lwpag;gLk; ntbwe;j Mtz';fs; rhd;Wiu"h;fSk; tprhuiz eilbgWk; nghJ Muha;t[ bra;ag; bgWth;/ (2) ,f;Fwpg;ghid fpilf;fg;bgw;w 15 ehl;fSf;Fs;
j';fspd; vGj;J K:ykhd kWg;gi [ uia mspg;gJld;
tha;bkhHp tprhuizia my;yJ neuoahf nfl;lwpag;gLjiy my;yJ nkw;Fwpj;j ,U tHpKiwfisa[k; mth; tpUk;gf [ pwhuh vd;gija[k; bjhptpf;FkhW jpU/$Pthde;jk;. fhtyh; 1053. K:d;whk; gphpt[. Khefu Ma[jg;gil. nryk; khefuk; mth;fs; gzpf;fg;gLfpwhh;/ vjph; thjj;jpw;Fwpa vGj;J K:ykhd kWg;gwpf;ifahdJ eph;zapf;fg;gl;l fhyj;jpw;Fs; fpilf;fg; bgwtpy;iybadpy;. mth; mspg;gjw;Fhpa kWg;g[iu VJkpy;iybadf; fUjp nkw;bfhz;L eltof;if bjhlug;gLk;/ (3) mtuhy; Vw;Wf;bfhs;sglhj mj;jifa Fw;wr; rhl;Lfs; bjhlh;gpy; tha;bkhHpahd tprhuizbahd;W eilbgWbkd;Wk; tha;bkhHpahd rhd;W gfh;tJ kl;Lk; nfl;lwpag;gLbkd;Wk; mth; mwptpf;fg;bgWfpwhh;/ Mifapdhy; mth; xt;bthU Fw;wr;rhl;ila[k; Fwpg;ghf Vw;Wf;bfhs;s my;yJ kWf;f ntz;Lk;/ (4) nkYk; vGj;J K:ykhd mthpd; kWg;gwpf;ifia nkny 2tJ gj;jpapy; Fwpg;gplg;bgw;w ehspnyh my;yJ mjw;F Kd;dnuh mspf;fg;bgwhtpoy; my;yJ tprhuiz bra;a[k; mjpfhhpapd; Kd; nehpy; tUif juhtpoy; my;yJ gpw tifapy; jtwpd; my;yJ jkpH;ehL rhh;epiy gzp - xG';F kw;Wk; nky;KiwaPL1955 gphpt[ 3(M) tpjpapd; tHptiffSf;F my;yJ nkw;Twpa tpjpia gpd;gw;wp btspaplg;bgw;w MizfSf;F my;yJ fl;lisfSf;F 3/12 https://www.mhc.tn.gov.in/judis/ W.P.No.24221 of 2008 ,d';f kWg;gpd; tprhuiz mjpfhhp mtUf;bfjpuhd xU rhh;ghd tprhuizia nkw;bfhs;thbud jpU/$Pthde;jk;. fhtyh; 1053. K:d;whk; gphpt[. Khefu Ma[jg;gil. nryk; khefuk; mth;fSf;F mwptpf;fg;gLfpwJ/ (5) 1964 ?k; Mz;L jkpH;ehL fhty; rhh;epiyg; gzpahsh; ed;dlj;ij tpjp 22?f;F jpU/$Pthde;jk;. fhtyh; 1053. K:d;whk; gphpt[. Khefu Ma[jg;gil. nryk; khefuk; mth;fspd; ftdk; <h;ff ; g;gLfpwJ/ ,t;tpjpapd; fPH; muR gzpahsh; vtUk; murpd; fPH; muR gzp bjhlh;gpyhd bghUz;ikfs; Fwpj;J gad;bgWfpd;w tifapy; ahuhtnjhU cah; mjpfhhpaplk; murpay; my;yJ btsp bry;thf;F vija[k; rhh;e;jjhf bfhz;Ltuntth my;yJ bfhz;L tu Kaw;rpf;fnth TlhJ/ ,e;j eltof;iffspy; ngdg;gLk; VnjDbkhU bghUs; bjhlh;ghf mth; bghUl;L mth; xUthplk; ,Ue;J rhh;ghd KiwaPL VjhtJ bgwg;god; mj;jifabjhU rhh;g[ KiwaPL Fwpj;J jpU/$Pthde;jk;. fhtyh; 1053. K:d;whk; gphpt[. khefu Ma[jg;gil. nryk; khefuk; mth;fs; mwpthh; vd;Wk; mth; jk; Kaw;rpapnyna mJ mDg;gg;gl;Ls;sJ vd;Wk; Cfpf;fg;gl;L 1964?k; Mz;L jkpH;ehL fhty; rhh;epiy gzpahsh; ed;dlj;ij tpjpfspy; cs;s 22?k; tpjpia kPwpaikf;fhf mtUf;bfjpuhd eltof;if vLf;fg;gLk;/ (6) ,f;Fwpg;ghiz fpilf;fg;bgw;wikf;F ,jd; kW ehspy; xg;gi [ f mspf;ft[k;/ Jiz Mizahsh;
(Fw;wk; kw;Wk; nghf;Ftuj;J) nryk; khefuk;/'
3.The petitioner was called upon to submit an explanation that culminated in an enquiry report adverse to him. At this juncture, the petitioner would submit that the enquiry report has not been communicated to him and he was thus, not in a position to submit any further explanation. However, the fact that no explanation has been tendered even at the first instance is telling specifically and since the petitioner has cited medical reason for his absence in 4/12 https://www.mhc.tn.gov.in/judis/ W.P.No.24221 of 2008 the writ affidavit. It is relevant to note that the explanation filed before the authority is silent on this aspect.
4. Though the aforesaid submissions are a part of the affidavit filed in support of the writ petition, duly supported by a medical certificate, there is no whisper of the medical explanation in the contemporaneous documents filed before authorities.
5.The affidavit filed in support of the writ petition states in this regard, that on 04.09.2003, the petitioner had undergone siddha treatment from Dr.S.Ramesh, Rural Medical Officer, Rural Dispensary, K.Morur, Kadayampatty Village, Salem District and had been advised rest and further treatment for a period of 30 days from 04.09.2003 to 03.10.2003.
6.The petitioner has neither put forth an explanation for his absence before the enquiry officer nor before the Officers passing the impugned orders, especially that the reasons are medical. In light of the same, I am not inclined to accept the medical reasons put forth now by the petitioner as I am of the view that the same are an afterthought.
7.That apart, the counter filed by the respondents in September 2009 also indicates that the petitioner has been a defaulter on several prior occasions as well. The instances of desertion are as follows: 5/12
https://www.mhc.tn.gov.in/judis/ W.P.No.24221 of 2008 S.No. Nature of delinquency Punishment Roll No. Punishment
1. Went on Medical Leave for Erode District Black Mark by Deputy 42 days without getting any Punishment Roll Superintendent of prior permission from his No.46/1999 under Police/ Armed Reserve/ superiors for the period rule 3(a) Erode dated 2.11.99 from 20.5.99 to 30.6.99.
2. Absent for 31 days for the Salem City Postponement of period from 30.07.2000 to Punishment Roll increment for one year 16.08.2000 No.67/H1/2000 under without cumulative effect rule 3(b) by Deputy Commissioner of Police, Salem City on 17.5.01.
3. Desertion for 21 days from Salem City Pay reduction by one 19.10.2000 at 15.00 hours Punishment Roll stage for 1 year without No.16/II1/2001 under cumulative effect by rule 3(b) Deputy Commissioner (Crime and Traffic) Salem City on 16.3.02.
4. Desertion for 52 days from Salem City Postponement of 4.6.2001 at 07.00 hours to Punishment Roll increment for a period of 25.07.2001 at 19.00 hours. No.27/H1/2001 under 1 year without rule 3(b) cumulative effect by Assistant Commissioner, Armed Reserve/Salem City dated 27.9.01
5. Absented for 21 days Salem City Pay reduction by two continuously and deserted Punishment Roll stages for 2 years the force from 19.01.01. No.22/H1/2001 without cumulative effect by Deputy Commissioner (Crime and Traffic) Salem City, dated 16.9.02.
6. Absented for 21 days from Salem City Pay reduction by 2 27.7.01. Punishment Roll stages for 3 years No.51/H1/2001 under without cumulative effect rule 3(b) by Deputy Commissioner (Crime and Traffic) Salem City, dated 16.3.02.6/12
https://www.mhc.tn.gov.in/judis/ W.P.No.24221 of 2008 S.No. Nature of delinquency Punishment Roll No. Punishment
7. Absented for 21 days from Salem City Postponement of 3.6.02 Punishment Roll increment for 1 year No.82/H1/2002 under without cumulative effect rule 3(b) by Deputy Commissioner (Crime and Traffic) Salem City, dated 9.7.03
8. Absented for 21 days from Salem City Removed from service by 4.9.03 at 07.00 hours. Punishment Roll Deputy Commissioner No.119/H1/2003 (Crime and Traffic) under rule 3(b) Salem City, dated 07.10.04.
8.The persistent and regular instances of desertion have had their consequence with the passing of the impugned orders imposing punishment of removal from service. The instances of desertion are admitted by the petitioner and in my considered view, there is no perversity in the punishment imposed.
9. Learned counsel for the petitioner emphasises that the petitioner was permitted to report for duty on 25.09.2003. Having so permitted him to rejoin duty, the authorities ought not to have initiated disciplinary action thereafter. This submission is not in sync with applicable rules and regulations, which provides for departmental authorities to permit the person in question to rejoin duty without prejudice to their pursuing disciplinary charges in future. In the 7/12 https://www.mhc.tn.gov.in/judis/ W.P.No.24221 of 2008 present case, the charge memo has been issued thereafter on 09.12.2003 and I thus see no irregularity in the procedure that has been followed.
10.Learned counsel for the petitioner would rely on three decisions of this Court which I find to be entirely distinguishable on facts. The first decision is S.Shanmugarajan vs. State of Tamil Nadu and three others (WA.No.1608 of 2011, dated 26.02.2013). The petitioner in that case had also challenged charges framed under Rule 3(b) of the Rules, upon his removal from service on the ground of desertion. He had availed sanctioned casual leave from 26.06.2004 to 30.06.2004, extending the same from 01.07.2004 to 05.07.2004. He thereafter availed medical leave from 06.07.2004 to 15.07.2004, absenting himself, in all for 21 days and thereafter absented himself for 21 days from 16.07.2004 onwards, unsanctioned. The defence was of ill-health for which he had availed medical assistance in the Government Hospital, Tindivanam.
11.In line with the recommendation of the medical officer, he had submitted an application for medical leave from 06.07.2004 to 15.07.2004. Since recovery was not satisfactory, he had asked his parents to forward an application for extension of medical leave which they had omitted to do as they had been ignorant of the procedures in that regard. Supporting documents were 8/12 https://www.mhc.tn.gov.in/judis/ W.P.No.24221 of 2008 produced by that Officer before the original and appellate authorities that had not persuaded the Officers in their adjudication of the matter.
12.In the aforesaid circumstances, a Division Bench of this Court held that the employee had established sufficient medical reasons for availing unsanctioned leave and thus the punishment imposed was excessive and disproportionate. A finding had been rendered by the Division Bench that the employee was not a habitual absentee and it had not been the case of the authorities that he was continuously absenting himself from service.
13.In the present case, there is not a scrap of evidence that was placed before the authorities in support of the petitioner's case that he was unwell. It is also not the case of the petitioner that the medical certificate of the siddha doctor has been placed before the authorities. Moreover and in contra distinction to the facts of the case decided by the Division Bench, the petitioner is a habitual absentee and instances of his prior absenteeism have been placed on record.
14.In the case of T.Rajasekar vs. Inspector General of Police (WP(MD)No.5147 of 2011 dated 02.02.2017) also dealing with a similar set of facts, a learned Single Judge of this Court has recorded that medical certificates were produced before the authorities who have not disputed the genuineness of 9/12 https://www.mhc.tn.gov.in/judis/ W.P.No.24221 of 2008 the same. He was thus of the view that the punishment imposed was disproportionate. The case of A.Jothisankar v. Inspector General of Police (WP.No.39115 of 2006 dated 27.06.2008) is also distinguishable on facts.
15. At the close of dictation of this order, learned counsel for the respondents states that the petitioner has passed away on 03.02.2010 and places a copy of the death certificate on record.
16.In the light of the discussion as above, this writ petition is dismissed. No costs.
07.09.2021 Index : Yes/ Speaking Order vs To
1.Government of Tamil Nadu rep. by Secretary to Government, Home (Polie) Department, Fort St. George, Chennai – 600 009.
2.The Director General of Police, Chennai – 600 004.
3.The Additional Director General of Police, Law and Order, Chennai – 600 004.
4.The Commissioner of Police, Salem City, Salem.
10/12 https://www.mhc.tn.gov.in/judis/ W.P.No.24221 of 2008
5.The Deputy Commissioner of Police, Law and Order, Salem City, Salem.
Dr.ANITA SUMANTH,J.
11/12 https://www.mhc.tn.gov.in/judis/ W.P.No.24221 of 2008 vs W.P.No.24221 of 2008 07.09.2021 12/12 https://www.mhc.tn.gov.in/judis/