K.Ravikumar... v. The Deputy Commissioner of Police, Washermanpet Police District, Chennai City

IN THE HIGH COURT OF JUDICATE AT MADRASDATED: 19.09.2011CORAM:THE HONOURABLE MR. JUSTICE V. DHANAPALANW.P.No.30621 of 2008K.Ravikumar... Petitionervs.1.The Deputy Commissioner of Police,Washermanpet Police District,Chennai City.2.The Joint Commissioner of Police,North Zone,Perambur, Chennai 11.3.The Director General of Police,Tamil Nadu,Chennai 600 004.... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamuscalling for the records of the respondents in connection with theimpugned orders passed by the respondents 1, 2 and 3 in PR No.54/PR(N)/(2)/2006 dated 24.07.2007, RC No.PRN(2)/appeal/54/2006 dated25.09.2007 and RC No.175782/AP3(3)/2007 dated 12.05.2008respectively and quash the same and further direct the respondentsto reinstate the petitioner into service with all consequentialservice and monetary benefits. For Petitioner:Mr.K.Venkataramani,Senior Counselfor Mr.T.AyngaraprabhuFor Respondents:Ms.V.M.VelumaniSpecial Government PleaderO R D E RHeard Mr.K.Venkataramani, learned Senior Counsel appearing forMr.T.Ayngaraprabhu, learned counsel for the petitioner andMs.V.M.Velumani, learned Special Government Pleader appearing forrespondents 1 to 3.2.Challenging the impugned orders passed by the respondents1, 2 and 3 in PR No.54/PR(N)/(2)/2006 dated 24.07.2007, RC No.PRN(2)/appeal/54/2006 dated 25.09.2007 and RC No.175782/AP3(3)/2007 https://hcservices.ecourts.gov.in/hcservices/ dated 12.05.2008, respectively, seeking to quash the same and for adirection to the respondents to reinstate him into service with allconsequential service and monetary benefits, the petitioner hasfiled this writ petition.3.The petitioner would submit that he entered the serviceas a directly recruited Grade-II Police Constable in the ChennaiCity Armed Reserve in the year 1979 and after serving there fornumber of years, he was transferred to Law & Order. Thereafter, hewas promoted as Grade-I Police Constable in the year 2004. Whileserving as Grade-I PC at H4, Korukkupet Police Station, Law &Order, Chennai City from 06.06.2004, on 21.01.2006, he was given aPassport to serve in the City Armed Reserve. He was assigned thejob of performing Guard duty in the Punjab National Bank, MintBranch along with two other police constables. 3a.According to the petitioner, he is an Asthma patient,undergoing treatment for the last several years. On 25.01.2006,the petitioner was unable to attend work, as he was suffering fromAsthma, due to the rough weather that prevailed in Chennai duringJanuary 2006, and he went to Maraimalai Nagar, where his motherwas residing, for undergoing Ayurvedic treatment. The ailment wasso severe that he was unable to breathe for sometime and with theassistance of the Medical Officer and Ayurvedic Doctors, herecovered slowly. In the meanwhile, as the petitioner was absentfrom duty from 25.01.2006, after completion of 21 days, his absencewas duly reported to the Office of the 1st respondent, who in turn,issued an order declaring the petitioner as a Deserter in NorthZone DO No.84/2006 dated 20.02.2006 and directed the petitionerto report for duty and explain the reason for his absence within 60days from the date of receipt of a copy of this order. Thepetitioner, on receiving the order of desertion, reported for dutyon 21.04.2006 before the Deputy Commissioner of Police,Washermanpet Division and explained the reasons for his absence.The Deputy Commissioner of Police, Washermanpet Division, who wassatisfied with the explanation given by the petitioner along withthe documents, accepted his explanation and took him back for dutyas per proceedings in North Divisional DO No.128/2006, dated09.03.2006 and he was posted in the same station. But,unfortunately, the 1st respondent, who accepted the explanation andought to have proceeded against the petitioner under Rule 3(a) asper the directions of the DGP, has chosen to issue a charge memo inPR No.54/2006 Rule 3(b) of TNPSS (D & A) Rules, stating that thepetitioner did not report for duty on 25.01.2006 and continued tobe absent for more than 21 days and thereby deserted the force. 3b.The petitioner, after receiving the charge memo,submitted an explanation. The Assistant Commissioner of Police,Washermanpet Division, Chennai 21, was appointed as the EnquiryOfficer to conduct an oral enquiry against the petitioner in theDisciplinary Proceedings. The Enquiry Officer conducted the oral https://hcservices.ecourts.gov.in/hcservices/ enquiry by examining four witnesses on the side of the prosecutionand marked six documents. As the petitioner has already submittedhis explanation for his absence due to ill health, he could notreport for duty and hence, he should have been proceeded under Rule3(a) instead of 3(b) of TNPSS (D&A) Rules. The Enquiry Officer,instead of going into the explanation submitted by the petitioneron record about the truthfulness of the statement, has chosen tohold that the petitioner has committed the delinquency of desertionbased on the statement given by him and held that the charges havebeen proved and submitted a proven minute to the disciplinaryauthority on 13.10.2006. 3c.The petitioner was served with a copy of the enquiryofficer's report and directed to submit his further representationon 03.11.2006. The petitioner took time to submit his furtherrepresentation for the sole reason that his mother was unwell.But, the disciplinary authority, namely, the 1st respondent agreedwith the findings of the enquiry officer's report and held that thepetitioner is a habitual absentee and chronicle deserter havingdeserted the force for more than nine occasions earlier and furtherheld that the charges against him were proved and for the provencharges, was imposed a punishment of removal from service by anorder dated 24.07.2007. The petitioner, after receiving the same,preferred an appeal to the 2nd respondent on 07.08.2007 along withthe reason for the delay. The 2nd respondent, without going intothe merits of the charges, in line has rejected the same by anorder dated 25.09.2007 not only on the ground of delay but also onmerits. The petitioner preferred a Mercy Petition to the 3rdrespondent on 20.08.2007 and the 3rd respondent, without goinginto the merits of the case has issued a non-speaking orderrejecting his request by an order dated 12.05.2008. 3d.The order of removal issued by the 1st respondent andconfirmed by respondents 2 and 3 is unjust, illegal andunsustainable in law. It is submitted that the issuance of thecharge memo by the 1st respondent under Rule 3(b) of TNPSS (D&A)Rules is in violation of the Circular issued by the DGP in respectof desertion. The petitioner ought to have been proceeded underRule 3(a) imposing a minor punishment. The Disciplinary Authorityhas relied upon the previous punishment sustained by the petitionerfor the same delinquency of desertion on nine occasions and hascome to the conclusion that the petitioner is a habitual absenteeand chronic deserter and held that the charges have been proved andimposed a major punishment. It is submitted that the previouspunishment has influenced the disciplinary authority to arrive at aconclusion to impose a major punishment on the petitioner. Theexplanation of the petitioner for his absence, though accepted bythe 1st respondent initially, the same has been subsequentlyrejected and he has imposed a major punishment. Hence, having noother alternative, the petitioner has approached this court. https://hcservices.ecourts.gov.in/hcservices/

4.Respondents have filed counter affidavit and has statedas follows:(i)The petitioner was enlisted as Grade II Police Constableon 11.06.1979. He worked as Grade I Police Constable (Law andOrder) 3282 at H4 Korukkupet Police Station from 06.08.2004 to24.01.2006. On 21.01.2006, he was deputed for Armed Reserve Guardduty and given duty passport for the same. Accordingly, he workedas Guard at Punjab National Bank at Mint from 21.01.2006. On25.01.2006 at 13.45 hours, he should have come for guard dutythere. But, he was continuously absent for duty for more than 21days from 25.01.2006 without any leave or permission or anyintimation to his superior officers at Korukkupet Police Station.Hence, he was treated as deserter with effect from 25.01.2006 asPer North Zone Office Order No.84/2006 dated 20.02.2006 in C.No.3(N)/256/3281/06 by the Deputy Commissioner of Police, WashermanpetDistrict. In the desertion order, it was directed to report beforethe Deputy Commissioner of Police, Washermanpet District, within 60days from the date of desertion, if he desires to be taken for dutyand explain the reasons for his desertion. The petitioner receivedthe desertion order on 24.02.2006. He appeared before the DeputyCommissioner of Police, Washermanpet District and represented totake him back for duty. He was taken back for duty on 16.03.2006as per the orders of Deputy Commissioner of Police, WashermanpetDistrict in North Zone Office Order No.128/2006 (C.No.3(N)/256/3281/06) dated 09.03.2006 and dealt with a charge memo dated16.05.2006 under Rule 3(b) of TNPSS (D&A) Rules, 1955 for his in-disciplined conduct and neglect of duty by desertion w.e.f.25.01.2006. An oral enquiry as laid down in P.S.O. 80 was heldagainst him by the Assistant Commissioner of Police, Washermanpet.During the oral enquiry, two Prosecution witnesses were examinedand 6 Prosecution Exhibits were filed. The Enquiry Officer drew aproved minute on 13.10.2006. Based on this, the DeputyCommissioner of Police, Washermanpet District, who was thepunishing authority, awarded the punishment of "Removal fromService" in P.R.No.54/PRN(2)/2006 on 13.03.2007. The petitioner'sappeal was rejected by the Joint Commissioner of Police, NorthZone, Chennai Police in C.No.N(2)/Appeal/54/06 dated 25.09.2007 andhis Mercy Petition to the Director General of Police, Tamil Nadu,Chennai – 4, dated 20.08.2007 was rejected in ProceedingsC.No.175782/AP 3(3)/2007 dated 12.05.2008. (ii)According to the respondents, the contention of thepetitioner that he should have been dealt with under Rule 3(a)instead of 3(b) of TNPSS (D&A) Rules is not correct. Desertion isa serious offence and major delinquency and hence he was dealt withon a charge memo under Rule 3(b) of TNPSS (D&A) Rules. The EnquiryOfficer drew a proved minute on 13.10.2006 after carefullyanalyzing charges, evidences on prosecution and defence side,explanation of the delinquent officer, i.e. the petitioner. Basedon it, the Deputy Commissioner of Police, Washermanpet District, https://hcservices.ecourts.gov.in/hcservices/ who was the punishing authority, awarded the punishment of "Removalfrom Service" in PR.No.54/PRN(2)/2006 on 13.03.2007. Thepetitioner's appeal was rejected by the Joint Commissioner ofPolice, North Zone, Chennai Police in C.No.N(2)/Appeal 54-06 dated25.09.2007 and his Mercy Petition to the Director General ofPolice, Tamil Nadu, Chennai – 4, dated 20.08.2007 was rejected inProceedings C.No.175782/AP 3(3)/2007 dated 12.05.2008. There is noprocedural irregularity or deviation of any rules in processing anddisposing of the punishment roll against the petitioner. (iii)According to the respondents, the petitionerabsented for duty from 25.01.2006 on his own accord. Though he hasstated that he had been to Maraimalai Nagar where his mother wasresiding, to undergo treatment for respiratory problem, nothingprevented him to inform his superior officers in Korukkupet PoliceStation about his alleged illness, get sick passport, appear beforea Medical Officer in a nearby Government Hospital, get leaveCertificate and get leave passport from his superiors as prescribedin PSO 272 (3) & (4). Hence, after giving him reasonableopportunities in an oral enquiry to defend himself, by adoptingdepartmental procedures correctly, he was awarded the punishment ofremoval from service by the punishing authority. His appeal andmercy petition were rejected on merits. Hence, the plea of thepetitioner to quash the punishment did not deserve any merit. 5.Learned counsel appearing for the petitioner even thoughraised several grounds, ultimately urged to quash the order ofdismissal on the ground of proportionality. He would furthersubmit that this court has also interfered with the punishment ofdismissal, if an order was passed merely on the ground of desertionfor the first time due to some reason or other and several of theorders of this court were also implemented by the respondents andin some cases, lesser punishments were imposed.5a.He has also relied upon judgment of a Division Bench ofthis court made in W.A.No.58 of 2011, dated 27.01.2011 andcontended that the Division Bench considered the disproportionatenature of punishment of dismissal for desertion and set aside theorder of the learned single Judge upholding the order oftermination and remitted the matter to the Department to reconsiderthe matter with regard to the quantum of punishment and to take adecision in six weeks. The learned counsel also produced the orderpassed by the learned Single Judge which was reversed in the writappeal, wherein the learned Single Judge refused to interfere withthe order of punishment on the ground that the writ petitionertherein absented from duty thrice. The learned counsel furthersubmitted that in spite of desertion thrice, the Division Benchthought that the punishment of dismissal from service on the soleground of desertion is highly disproportionate. https://hcservices.ecourts.gov.in/hcservices/ 5b.After perusing the counter affidavit filed by therespondents, learned counsel for the petitioner would submit thatthe impugned order may be set aside and the matter may be remittedto the respondents to consider the petitioner's case in the lightof the Division Bench Judgment and a fresh order may be directed tobe passed. 6.Learned Special Government Pleader appearing for therespondents, on the other hand, submitted that Police StandingOrder provides for dismissal of police personnel, whereby, if hedeserts the service for more than 21 days, then the order passed bythe respondents are legal and valid.7.I have given careful consideration to the submissionsmade by the learned counsel on either side.8.A close scrutiny of the case would reveal that thepetitioner was directly recruited as Grade – II Police Constable inthe Chennai City Armed Reserve in the year 1979 and promoted asGrade – I Police Constable in the year 2004. While so, he wastransferred to Chennai City from 06.06.2004 and from 21.01.2006,he was sent to serve in City Armed Reserved Police and whileperforming the job of Guard duty in the Punjab National Bank, MintBranch, because of his health condition, he absented himself andclaimed that due to breathlessness for some time, he was absentfrom duty from 25.01.2006. For the said unauthorised absence,departmental action was initiated against the petitioner on theground of desertion. However, he reported to duty by explainingthe reasons for his absence. The Deputy Commissioner of Police,Washermanpet Division, who was satisfied with the explanation givenby the petitioner along with the documents, accepted hisexplanation and took him back for duty as per his proceedings dated09.03.2006 and he was posted in the same station. However, thevery same respondent chose to issue a charge memo to the petitionerand thereafter, the petitioner submitted an explanation to the sameand an Enquiry Officer was appointed and he conducted the oralenquiry. Based on the Enquiry Officer's report, the petitioner wasimposed with the punishment of removal from service by an orderdated 24.07.2007. Analyzing the entire facts and circumstances,and in view of the specific plea made by the counsel for thepetitioner, this court is inclined to consider the question ofproportionality alone in respect of the quantum of punishment. 9.The Supreme Court, in a judgment reported in (2004) 4 SCC560 : AIR 2004 SC 2131 (Bhagwan Lal Arya vs. Commissioner ofPolice, Delhi), has considered the issue of quantum of punishmentin the case of unauthorised absence on medical grounds. Relevantparagraphs of the said judgment would read thus :"11.... It is not the case of the respondentsthat the appellant is a habitual absentee. He had to https://hcservices.ecourts.gov.in/hcservices/ proceed on leave under compulsion because of his gravecondition of health and, therefore, the punishment ofremoval from service is excessive anddisproportionate. We are of the view that thepunishment of dismissal/removal from service can beawarded only for acts of grave nature or as cumulativeeffect of continued misconduct proving incorrigibilityor complete unfitness for police service. Merely oneincidence of absence and that too because of badhealth and valid and justified grounds/reasons cannotbecome the basis for awarding such a punishment. Weare, therefore, of the opinion that the decision ofthe disciplinary authority inflicting a penalty ofremoval from service is ultra vires Rules 8(a) and 10of the Delhi Police (Punishment and Appeal) Rules,1980 and is liable to be set aside. The appellantalso does not have any other source of income and willnot get any other job at this age and the stigmaattached to him on account of the impugned punishment.As a result of which, not only he but his entirefamily totally dependent on him will be forced tostarve. These are the mitigating circumstances whichwarrant that the punishment/order of the disciplinaryauthority is to be set aside.14.Thus, the present one is a case wherein weare satisfied that the punishment of removal fromservice imposed on the appellant is not only highlyexcessive and disproportionate but is also one whichwas not permissible to be imposed as per the ServiceRules. Ordinarily we would have set aside thepunishment and sent the matter back to thedisciplinary authority for passing the order ofpunishment afresh in accordance with law andconsistently with the principles laid down in thejudgment. However, that would further lengthen thelife of litigation. In view of the time already lost,we deem it proper to set aside the punishment ofremoval from service and instead direct the appellantto be reinstated in service subject to the conditionthat the period during which the appellant remainedabsent from duty and the period calculated up to thedate on which the appellant reports back to dutypursuant to this judgment shall not be counted as aperiod spent on duty. The appellant shall not beentitled to any service benefits for this period.Looking at the nature of partial relief allowed herebyto the appellant, it is now not necessary to pass anyorder of punishment in the departmental proceedings inlieu of the punishment of removal from service whichhas been set aside. The appellant must report on duty https://hcservices.ecourts.gov.in/hcservices/ within a period of six weeks from today to takebenefit of this judgment. "(Emphasis supplied)9a.In the said judgment, the Supreme Court instead ofremanding the matter to the department, following the earlierdecision reported in (1995) 6 SCC 749 : AIR 1996 SC 484(B.C.Chaturvedi vs. Union of India) imposed punishment by itself,wherein, it is held thus:"18.A review of the above legal position wouldestablish that the disciplinary authority, and onappeal the appellate authority, being fact findingauthorities have exclusive power to consider theevidence with a view to maintain discipline. They areinvested with the discretion to impose appropriatepunishment keeping in view the magnitude or gravity ofthe misconduct. The High Court/Tribunal, whileexercising the power of judicial review, cannotnormally substitute its own conclusion on penalty andimpose some other penalty. If the punishment imposedby the disciplinary authority or the appellateauthority shocks the conscience of the HighCourt/Tribunal, it would appropriately mould therelief, either directing the disciplinary/appellateauthority to reconsider the penalty imposed, or toshorten the litigation, it may itself, in exceptionaland rare cases, impose appropriate punishment withcogent reasons in support thereof."(Emphasis supplied)9b.The same is the view taken by the Supreme Court indecisions reported in (2005) 7 SCC 338 (V.Ramana vs. A.P.SRTC) andAIR 2009 SC 2458 (Jagdish Singh vs. Punjab Engineering College).In a latest ruling reported in (2009) 7 SCC 248 in the case ofRamanuj Pandey vs. State of Madhya Pradesh and others, the SupremeCourt looked into the question of proportionality of the quantum ofpunishment and interfered with the quantum of punishment holdingthat 'the punishment of the appellant of dismissal from service asimposed by the disciplinary authority is substituted to one of thecompulsory retirement from the date of his dismissal from service."10.Though several grounds have been raised by the petitionerto assail the impugned order of removal from service, he hasultimately urged this court to look in to the question ofproportionality. It is contended that normally in a case ofdesertion, the respondents ought to see the circumstances underwhich the delinquent has absented himself and give dueconsideration to the explanation submitted by him, so thatappropriate punishment would be inflicted upon. In the instantcase, the 1st respondent has initially accepted the explanation ofthe petitioner and allowed the petitioner to report for duty. https://hcservices.ecourts.gov.in/hcservices/ However, later on, he decided to proceed against him departmentallyand for the unauthorised absence on the charge of desertion, thepunishment of removal from service imposed on him is excessive andharsh. It is also the contention of the petitioner that theSupreme Court as well as this court in several rulings pertainingto cases of 'unauthorised absence', have held that a lesserpunishment could have been imposed upon on the delinquent. But,the authorities in the case on hand have viewed the case of thepetitioner seriously and imposed a harsh punishment of 'removalfrom service'.11.The High Court, while exercising the power of judicialreview, cannot normally substitute its own conclusion on penaltyand impose some other penalty. If the punishment imposed by thedisciplinary authority or the appellate authority shocks theconscience of this court, it would appropriately mould the relief,either directing the disciplinary/appellate authority to re-consider the penalty imposed or to shorten the litigation, it mayitself, in exceptional and rare cases impose appropriate punishmentwith cogent reasons in support thereof. This aspect has beenexamined and legal principles are settled in respect of'interference in the quantum of punishment' to say that it isalways open for the disciplinary authority or the appellateauthority to decide the quantum of punishment in a case ofmisconduct and the role of the court is only secondary. As such,this court, while considering the above legal principles, decisionsrendered by the Supreme Court as well as this court and thecircumstances under which the authorities have proceeded to imposethe punishment on the petitioner, is of the view that the quantumof punishment imposed on the petitioner is shockinglydisproportionate and requires interference. 12.Therefore, I am of the view that interest of justicewould be met by setting aside the order of the respondents andaccordingly, the order of the respondents 1, 2 and 3, dated24.07.2007, 25.09.2007 and 12.05.2008, respectively, are set asideand the matter is remitted to the 3rd respondent to consider thesaid issue of proportionality of the punishment and pass freshorders within a period of eight (8) weeks from the date of receiptof a copy of this order. The writ petition is disposed of accordingly. No costs. abeSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To :1.The Deputy Commissioner of Police,Washermanpet Police District,Chennai City.2.The Joint Commissioner of Police,North Zone,Perambur, Chennai 11.3.The Director General of Police,Tamil Nadu,Chennai 600 004.+ 1 cc to Government Pleader, SR No.58405KSK(CO)SR/21.9.2011 order in W.P.No.30621 of 2008