R.Veeramani v. Secretary to Government Home Department & Ors.

For petitioner: M/s.Bala & DaisyFor respondents: Mr.T.Seenivasan,AGP for R.1 to 4 ORDERThe writ petition is directed against the order of the 5threspondent dated 19.3.2002, which was confirmed by the 4threspondent on appeal by order dated 9.8.2002, againconfirmed by the third respondent by order dated 19.2.2003,confirmed by the second respondent by order dated 28.4.2004and further confirmed by the Government, the firstrespondent herein in G.O.2(D) No.324 Home (Pol.IX)Department, dated 22.5.2006 and for direction to reinstatethe petitioner with consequential monetary and otherservice benefits. 2. The petitioner joined as Grade II Constable on16.4.1997 and was promoted as Naik. Due to sickness of hismother, it is stated that he availed medical leave on3.7.2001 and 4.7.2001. Thereafter, since he is stated tohave fallen ill, he extended the medical leave till4.8.2001. Since the family members of the petitioner didnot inform the same to the respondents in proper manner,the 5th respondent treated the petitioner as deserter on26.7.2001. 2(a). According to the petitioner, he was notpermitted to join. Charges were framed under Rule 3(b) ofthe Tamil Nadu Police Subordinate Service Service(Discipline and Appeal) Rules,1955 to the effect that thepetitioner has absented from duty without any leave orpermission. The Assistant Commandant TSP, Ulundurpet wasappointed as Enquiry Officer and the petitionerparticipated in the oral enquiry by submitting hisexplanation and the Enquiry Officer in his report dated5.1.2002 found the charges proved. 2(b). The disciplinary authority viz., the 5threspondent passed the final order on 19.3.2002, imposingthe punishment of removal from service. The 4th respondent,to whom an appeal was filed, rejected the appeal by non-speaking order on 9.8.2002 and the review petition filedbefore the third respondent was rejected on 19.2.2003 andthe further petitions filed to the second and firstrespondents were also rejected, against which the presentwrit petition has been filed. 3. The orders are challenged on the ground that the https://hcservices.ecourts.gov.in/hcservices/ punishment is excessive, unjust and disproportionate andthe orders were passed without application of mind andwithout proper enquiry and the same are against thestatutory rules. It is stated that in a similar case, thesecond respondent modified such kind of punishment into oneof stoppage of increment. 4. The first respondent in the counter affidavit hasstated that the petitioner was granted casual leave on3.7.2001 and 4.7.2001 and he was to report for duty on5.7.2001, which he failed. He remained absent for morethan 21 days without any permission and no medicalcertificate was received and therefore, he was treated as adeserter and a charge memo was issued and he was awardedpunishment after conducting enquiry and the appeal andreview were rejected apart from the rejection of mercypetitions. It is stated that the petitioner has notsubmitted any medical leave application or medicalcertificate at any point of time. The desertion inuniformed service is a serious offence which has to bedealt with under rule 3(b) of the Tamil Nadu PoliceSubordinate Service (Discipline and Appeal) Rules,1955. Itis also stated that the punishment is not excessive. It isalso stated that within a period of four years, he haddeserted twice and the same was taken note of while passingthe impugned orders. It is stated that the petitionerremained absent for more than 60 days unauthorisedly. 5. The learned counsel for the petitioner would submitthat in a similar circumstance, the second respondent byorder dated 22.3.2007 in respect of a former policeconstable P.Karunanithi, reduced the punishment ofdismissal into one of reduction in the time scale of pay byone stage without cumulative effect by reinstating him,whereas in the case of the petitioner a different approachhas been made. He would rely upon the judgments inBhagwan Lal Arya vs. Commissioner of Police, Delhi andanother [AIR 2004 SC 2131] and Chairman-cum-ManagingDirector, Coal India Ltd., and another vs. Mukul KumarChoudhuri and others [2009 AIR SCW 5596] to contend thatthe punishment is disproportionate to the charge itself. 6. On the other hand, the learned counsel for therespondents has placed before this Court the entire fileand contended that within four years of service, this wasthe second incident and therefore, the authorities havetaken a serious note of it. He would rely upon thejudgments in Union of India and others vs. Datta LingaToshatwad [(2005) 13 SCC 709] and G.Vijayan vs. PresidingOfficer, Labour Court, Salem and another [2007 (5) MLJ https://hcservices.ecourts.gov.in/hcservices/ 1331] to substantiate his contention that the unauthorizedabsence in the uniformed service cannot be taken lightly. 7. As regards the nature of enquiry conducted by the 5threspondent, the original authority, who has passed theorder of punishment, it is seen that the charge was framedunder Rule 3(b) of the Tamil Nadu Police SubordinateService (Discipline and Appeal) Rules,1955 and an EnquiryOfficer was appointed. The charge framed against thepetitioner is as follows:"03/07/2001 Kjy; 04/07/2001 tiu 2 ehl;fs; jw;bray;tpLg;gpy; brd;w gpiHahsp tpLg;g[ Koe;J 05/07/2001 md;WKw;gfy; gzpf;F mwpf;fif bra;a ntz;oath; Kd;mDkjpnah. jftnyh. kUj;Jt tpLg;ngh. ntW vt;tpjjftypd;wp bjhlh;e;J 05/07/2001 Kjy; gzpf;F tuhky;jd;dpr;irahf tuhky; ,Ue;J tUk; muR CHpahpd; jtwhdelj;ij g[hpe;jjhf Fw;wk;/" 8. A reference to the statement of the petitioner madein the affidavit shows that the petitioner has not disputedhis absence for more than 60 days, but it is his case thatafter he took leave for two days, there was some ailment tohis mother and thereafter to himself and therefore, he sentintimation to the authorities extending the leave. In theaffidavit, he has also stated that his family members havenot properly forwarded the letter seeking extension ofmedical leave. A reference to the file produced by therespondents shows that the petitioner having failed toattend duty from 3.7.2001, later reported to the DeputyCommandant-II, Ulundurpet only on 2.1.2002. He hasspecifically admitted that he was unable to send the leaveapplication on medical ground due to the ignorance of hisparents. He has also stated that he would not repeat thesame again. In the intimation, he has stated that,"vdJ bgw;nwhUf;F rhpahd tptuk; bjhpahikahy; kUj;JttpLg;g[ vLj;jikia mDg;g ,aytpy;iy/"Except the said letter, there is no leave letter or medicalcertificate sent by the petitioner, as it is seen from thefile. 9. The petitioner joined duty in April, 1997. Thefile shows that earlier, he deserted himself for the periodfrom 22.10.2000 to 30.3.2001 and that was treated as LWP. He was imposed the punishment of reduction in time-scale ofpay by two stages for one year and the present chargerelates to his second time of desertion. In the enquiry https://hcservices.ecourts.gov.in/hcservices/ before the Enquiry Officer, the petitioner has participatedthroughout and he has not chosen to cross-examine thewitnesses. It was also found by the Enquiry Officer thatthe petitioner had not even taken steps to inform thenearest police station and even on 11.8.2001 when desertionorder was served on him, he could have appeared before the5th respondent but the petitioner had not done so till thedate of enquiry. It was therefore found by the EnquiryOfficer that the petitioner did not take steps to joinduty. 10. The minutes of the enquiry report was served onthe petitioner, as it is seen in the file and thepetitioner received the same by putting his signature on30.1.2002. Thereafter, there were reminders to thepetitioner on 16.2.2002 and 5.3.2002 asking him to submithis further explanation for the Enquiry Officer’s report. However, the petitioner has not responded to the same andultimately, the 5th respondent passed the order ofpunishment on 19.3.2002 and the further appeal andrepresentations also came to be rejected. Therefore, thepetitioner cannot question the proceedings of the 5threspondent, who has awarded the original punishment on theground that it is opposed to the principles of naturaljustice denying his right of being heard. 11. On the factual matrix which I have narrated above,before going into the legal aspects, the point raised bythe petitioner that under similar circumstances, the secondrespondent considered the mercy petition of some otherperson leniently and modified the dismissal order to thatof reduction in time scale of pay by one stage for one yearwithout cumulative effect has to be considered. Areference to the order of the Director General of Police inRc.No.AP.IV (1)/235320/2006 dated 22.3.2007 relating toThiru P.Karunanithi, Ex.P.C.1807 shows that in his careerof 12 years, the absence for 21 days was the onlydelinquency and taking note of the fact that the saidperson explained that he was granted sick passport on14.7.1995 and thereafter when he went to his nativeplace, he developed mental disorder, and also that there was a direction from the High Court, the following ordercame to be passed."7. As per orders of the Hon'ble High Court,Madras, the representation of above Ex.PC wasconsidered. I have gone through the mercypetition dated 24.02.2004 and connected recordscarefully. The petitioner has explained that he https://hcservices.ecourts.gov.in/hcservices/ was granted sick passport on 14.07.1995 andthereafter went to his native place where hedeveloped mental disorder. In the meantime, thepetitioner was treated as deserter and dismissedfrom service after holding an exparte enquiry.Considering the fact that this was the onlydelinquency in a career of 12 years and hisdesertion was in continuation of Medical Leave, alenient view is taken and he is reinstated intoservice. The punishment of "Dismissal fromservice" is modified to "reduction in time scaleof pay by one stage for one year withoutcumulative effect". He is reinstated intoservice with immediate effect with the modifiedpunishment."I do not think that the said instance is comparable to thecase of the petitioner herein. 12. Again, another instance was brought to the noticeof this Court, wherein the Director General of Policepassed a similar order modifying the order of dismissalinto one of reduction of pay by one stage for one year inRc.No.APIV(1)/119406/2006 dated 6.9.2007 in respect of oneThiru D.Balaji, Ex.P.C.1284. There also the circumstancesleading to the passing of the order were discussed asfollows:"8. As per orders of the Hon'ble HighCourt, Madras, the representation of aboveEX PC was considered. I have gone throughthe representation of the writ petitionerdated 24.1.2006 and connected recordscarefully. The delinquent had obtainedMedical Leave and Medical passport for 30days as he was unwell. In the meantime hisfather became critically ill and very soonpassed away. His father's death wasfollowed by squabbles among the familymembers over sharing of family properties.Under these circumstances, the delinquentdid not extend his Medical Leave and wasdeclared a deserter. The delinquent hadbeen maintaining a clean record of servicebut for this default. His name declared adeserter though technically correct, in viewof the circumstances under which the orderof desertion was passed and the fact that in https://hcservices.ecourts.gov.in/hcservices/ a similar case in respect ofThiru P.Karunanithi PC 1807 of TrichyDistrict, a lenient view was taken and anorder of reinstatement modifying thepunishment of dismissal from service wasordered, I take a lenient view and modifythe punishment of "Dismissal from service"into "reduction of pay by one stage for oneyear" which shall not operate to postponehis future increment. He is reinstated intoservice with immediate effect."Therefore, that order also cannot be comparable to thefacts and circumstances of the present case. 13. In Bhagwan Lal Arya vs. Commissioner of Police,Delhi and another (AIR 2004 SC 2131) relied on by thelearned counsel for the petitioner, the Supreme Court wasreferring the Rules 8 and 10 of the Delhi Police(Punishment and Appeal) Rules, 1980 which are as follows: "Rule 8. Principles for inflicting penalties-(1)Dismissal/Removal – punishment of dismissalor removal from service shall be awarded for thefact of grave misconduct rendering him unfit forpolice service."Xxxxxxx"Rule 10. Maintenance of discipline.- Theprevious record of an officer, against whomcharges have been proved, if shows continuedmisconduct indicating incorrigibility andcomplete unfitness for police service, thepunishment awarded shall ordinarily be dismissalfrom service. When complete unfitness for policeservice is not established, but unfitness for aparticular rank is proved, the punishment shallnormally be reduction in rank."14. That was also a case where leave was sanctionedfor the period from 7.10.1994 to 14.12.1994 without pay asper the order of the police authorities dated 16.1.1995. In that context, it was held that the absence for twomonths 8 days and 17 hours on medical ground cannot be heldas a grave misconduct or continued misconduct rendering himunfit for police service. It was accordingly held that thedismissal from service was disproportionate and therelevant portion of the judgment is as follows: https://hcservices.ecourts.gov.in/hcservices/ "10. In the instant case, the appellanthad absented himself for 2 months, 8 daysand 17 hours on medical grounds. The abovetwo Rules 8, 10 provide that penalty ofremoval can be imposed only in cases, ifgrave misconduct and continued misconductindicating incorrigibility and completeunfitness for police service. The absenceof the appellant on medical grounds withapplication for leave as well as sanction ofleave can under no circumstances, in ouropinion, be termed as grave misconduct orcontinued misconduct rendering him unfit forpolice service.11. The order dated 16.1.1995 passed bythe respondents was produced by therespondents themselves in their reply toC.W.P. Before the High Court of Delhi thatthey had sanctioned leave without pay for theperiod from 7.10.1994 to 15.12.1994, theperiod of alleged unauthorised absence. TheHigh Court has failed to appreciate andevaluate this aspect of the matter. The HighCourt also did not appreciate that afterissuing sanction for leave for the period inquestion, the employee's legitimateexpectation would be that no stern actionwould be taken against him with respect tothe alleged act of misconduct which by nostretch of imagination can be considered actof gross misconduct or continued misconductindicating incorrigibility and completeunfitness for police service. It is not thecase of the respondents that the appellant isa habitual absentee. He had to proceed onleave under compulsion because of his gravecondition of health and, therefore, thepunishment of removal from service isexcessive and disproportionate. We are ofthe view that the punishment ofdismissal/removal from service can be awardedonly for the act of grave nature or ascumulative effect of continued misconductproving incorrigibility of complete unfitnessfor police service. Merely one incident ofabsence and that too because of bad healthand valid and justified grounds/reasonscannot become basis for awarding such apunishment. We are, therefore, of the https://hcservices.ecourts.gov.in/hcservices/ opinion that the decision of the disciplinaryauthority inflicting a penalty or removalfrom service is ultra vires of Rules 8(a) and10 of the Delhi Police (Punishment andAppeals Rules,1980) and is liable to be setaside. The appellant also does not have anyother source of income and will not get anyother job at this age and the stigma attachedto him on account of the impugned punishment.As a result of not only he but his entirefamily totally dependent on him will beforced to starve. These are the mitigatingcircumstances which warrant that thepunishment/order of the disciplinaryauthority is to be set aside."In fact, the Supreme Court has relied upon the earlierjudgment in B.C.Chaturvedi vs. Union of India (AIR 1996 SC484) wherein it was held that normally the High Court orTribunal in exercise of its judicial powers cannotsubstitute its own penalty except in cases where thedecision of the appellate authority shocks the conscienceof the High Court or Tribunal in which case the relief canbe moulded properly and such powers can be exercised onlyin exceptional cases. 15. Again, the decision rendered in Chairman-cum-Managing Director, Coal India Ltd., and another vs. MukulKumar Choudhuri and others (2009 AIR SCW 5596), whereinthe Supreme Court while dealing with the Coal IndiaExecutives (Conduct, Discipline and Appeal) Rules, 1978relating to misconduct of one person who (i) absentedhimself without leave; (ii) overstayed the sanctioned leavefor more than four consecutive days; and (iii) deserted thejob and failed to maintain integrity and devotion to duty,and after taking note of the fact that the delinquentappeared and admitted the charge and gave personal reasonsfor disobeying the order of the higher authority which wasnot intentional, held that in such circumstances, themisconduct cannot be said to be not proved. But, whileconsidering the proportionality of the punishment ofdismissal for unauthorized absence for six months, theSupreme Court, after explaining the doctrine ofproportionality, held as follows:"26. The doctrine of proportionalityis, thus, well recognised concept ofjudicial review in our jurisprudence.What is otherwise within thediscretionary domain and sole power of https://hcservices.ecourts.gov.in/hcservices/ the decision maker to quantifypunishment once the charge of misconductstands proved, such discretionary poweris exposed to judicial intervention ifexercised in a manner which is out ofproportion to the fault. Award ofpunishment which is grossly in access tothe allegations cannot claim immunityand remains open for interference underlimited scope of judicial review. Oneof the tests to be applied while dealingwith the question of quantum ofpunishment would be: would anyreasonable employer have imposed suchpunishment in like circumstances?Obviously, a reasonable employer isexpected to take into considerationmeasure, magnitude and degree ofmisconduct and all other relevantcircumstances and exclude irrelevantmatters before imposing punishment. Ina case like the present one where themisconduct of the delinquent wasunauthorised absence from duty for sixmonths but upon being charged of suchmisconduct, he fairly admitted his guiltand explained the reasons for hisabsence by stating that he did not haveany intention nor desired to disobey theorder of higher authority or violate anyof the Company's Rules and Regulationsbut the reason was purely personal andbeyond his control and, as a matter offact, he sent his resignation which wasnot accepted, the order of removalcannot be held to be justified, since inour judgment, no reasonable employerwould have imposed extreme punishment ofremoval in like circumstances. Thepunishment is not only unduly harsh butgrossly in excess to the allegations.Ordinarily, we would have sent thematter back to the appropriate authorityfor reconsideration on the question ofpunishment but in the facts andcircumstances of the present case, thisexercise may not be proper. In ourview, the demand of justice would be metif the Respondent No.1 is denied backwages for the entire period by way of https://hcservices.ecourts.gov.in/hcservices/ punishment for the proved misconduct ofunauthorised absence for six months." 16. In Union of India v. Datta Linga Toshatwad[(2005) 13 SCC 709], the Supreme Court while dealing withthe concept of desertion in the light of the principle ofproportionality relating to the members of uniformedservice, has held as follows:"8. The present case is not a case ofconstable merely overstaying his leave by 12days. The respondent took leave from16.6.1997 and never reported for dutythereafter. Instead he filed a writ petitionbefore the High Court in which the impugnedorder has been passed. Members of theuniformed forces cannot absent themselves onfrivolous pleas, having regard to the natureof the duties enjoined on these forces. Suchindiscipline, if it goes unpunished, willgreatly affect the discipline of the forces.In such forces desertion is a serious matter.Cases of this nature, in whatever manner ofdescribed, are cases of desertionparticularly when there is apprehension ofthe member of the force being called upon toperform onerous duties in different terrainsor an order of deputation which he findsinconvenient, is passed. We cannot take suchmatters lightly, particularly when it relatesto uniformed forces of this country. Amember of a uniformed force who overstays hisleave by a few days must be able to give asatisfactory explanation. However, a memberof the force who goes on leave and neverreports for duties thereafter, cannot be saidto be one merely overstaying his leave. Hemust be treated as a deserter. He appears onthe scene for the first time when he files awrit petition before the High Court, ratherthan reporting to his Commanding Officer. Weare satisfied that in cases of this nature,dismissal from the force is a justifieddisciplinary action and cannot be describedas disproportionate to the misconductalleged."The Supreme Court has therefore deprecated the practice ofunauthorized absence and desertion in the uniformed forces https://hcservices.ecourts.gov.in/hcservices/ and held that the order of dismissal is justified. 17. Following the earlier decision of the SupremeCourt in State of Rajasthan and Another v.Mohd. Ayub Naz[AIR 2006 SC 856: (2006) 1 SCC 589: 2006-I-LLJ 742], theFirst Bench of this Court to which I was a party, in G.Vijayan v. Presiding Officer, Labour Court, Salem andanother [2007(5) MLJ 1313] while dealing with theabsenteeism, held as follows:"10. It is also relevant to point out thatthe Supreme Court in a recent case reported inState of Rajasthan and another v. Mohd.Ayub NazAIR 2006 SC 856 : (2006) 1 SCC 589: 2006 I LLJ742 held that, an employee who was absentedhimself for a prolonged period without priorpermission, the decision of the employer todismiss him on disciplinary enquiry cannot beinterfered. Further, the Supreme Court hasobserved at p.745 of LLJ:"9. Absenteeism from the office for aprolonged period of time without prior permissionby Government servants has become a principalcause of indiscipline which has greatly affectedvarious Government services .....Therefore, by applying the said consistentjudicial pronouncements of the Apex Court, wehave no hesitation to come to the conclusion thatthe award of the Labour Court in orderingreinstatement of the appellant with servicebenefits, however, without backwages is not onproper and sound reasoning as found by thelearned single Judge. In view of the same, thewrit appeal fails and the same is dismissed. Nocosts. Consequently, connected miscellaneouspetition is closed."Of course, that is a case where decision was taken underthe Industrial Disputes Act after taking note of thefrequent absence from duty by the worker therein who wasterminated on disciplinary proceedings, but raised anindustrial dispute under section 2(A) of the IndustrialDisputes Act. 18. Therefore, by applying the principle ofproportionality of punishment as it has been laid down byvarious judgments of the Apex Court, to the facts and https://hcservices.ecourts.gov.in/hcservices/ circumstances of the present case, I am of the view thatthe petitioner has deserted twice within four years ofservice and that he has not taken any steps to inform hishigher officials or even to the nearest police stationabout his personal disability as alleged by him andtherefore, it is not a fit case for interference. Accordingly, the writ petition fails and the same isdismissed. No costs.kh Sd/ Asst.Registrar /true copy/ Sub Asst.RegistrarTo1.The Secretary to Government Home Department Fort St.George Chennai 600 009.2.Director General of Police Chennai 600 004.3.Inspector General of Police Armed Police, Trichy.4.Deputy Inspector General of Police Armed Police, Chennai 600 010.5.The Commandant TSP X Battalion Ulundurpet.+ 1 CC to M/s.Bala & Daisy SR.No.59323+ 1 CC to the Government Pleader SR.No.59761. Order in W.P.No.58 of 2008KSK(CO)VC(16.11.2009)