Somasundaram v. The Superintendent of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.11.2009CORAM:THE HONOURABLE MR. JUSTICE R. SUDHAKARW.P.No.5498 of 2006Somasundaram ..PetitionerVs.1. The Superintendent of Police, Krishnagiri District.2. The Deputy Inspector General of Police, Salem Range, Salem.3. The Additional Director General of Police, Law & Order, Chennai.4.4. The Director General of Police, Radhakrishnan Salai, Chennai.4. ..RespondentsPrayer: Petition filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorari calling for the records of therespondents in connection with the impugned orders passed by therespondents 1,2,3 & 4 C.No.P.R.159/G1/2004, dated31.1.2005,Rc.No.B2/158/2941/2005, A.P.14/05, dated 5.4.2005Rc.No.582/146074/AP.2(2)2005, dated 26.8.2005 andRc.No.827/202801/AP.2(2)/2005, dated 17.12.2005 respectively andquash the same. For Petitioner : Mr. K. Venkataramani Sr. Counselfor Mr.M. Muthappan For Respondents : Mrs.C.K.Vishnupriya Addl. Govt. PleaderORDERThis writ petition is filed by the peltitioner to quash theorder of the respondents 1 to 4 awarding compulsory retirement. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner entered the service of the PoliceDepartment as Grade-II Police Constable through direct recruitmentin the year 1988 and transferred to District Armed Reserve,Coimbatore District in the year 1996. He was thereafter transferredto Category-I, Law and Order in February 2001. Subsequently,transferred to Dharmapuri District on 8.1.2002. The petitioner wason earned leave from 6.5.2004 and due to ill health, he did notreport to duty on 10.6.2004. Petitioner further states that due tointer caste marriage, there were serious family discord and hiswife left the matrimonial home. In view of the difficult familycircumstances, he could not report to duty resulting in the order ofdesertion dated 13.8.2004. The petitioner submits that citing hisshattered family life, he suffered with health problem consequent tothe family trouble he requested the authorities to consider his pleafor rejoining duty. Such a request was turn down by the authorities.Thereafter, a charge memo was issued under Rule 3 (b) of the TamilNadu Police Subordinates Service (Discipline and Appeal) Rules inPR. No.159/G1/2004, dated 30.11.2004. The imputation in the chargeis as follows:-" reprehensible conduct in absenting himself forduty from 1.7.2004 continuously for 21 days withoutinforming his superiors and thereby deserted the force whichis violation of rule laid down in PSO 95(1) and 95(2)."3. The petitioner submitted his explanation denying thecharges and also explained that he was on medical leave supported bythe medical certificate issued by the competent Doctor. An enquiryofficer was appointed and enquiry conducted on 23.12.2004. Accordingto the petitioner, he attended the enquiry and submitted that he wason medical leave due to ill-health, which was supported by themedical certificate and pleaded his difficult family circumstancesleading to his absence. The enquiry officer, taking into account thedesertion order already passed against the petitioner, came to theconclusion that the charges framed against the petitioner/delinquenthas been proved and placed the same before the disciplinary authorityfor appropriate orders. 4. On receipt of the enquiry officer's report, thepetitioner submitted an explanation on 11.1.2005. While explainingthe reasons for his absence on medical grounds supported by thedocuments, he submitted that as a sports man, he represented thepolice department twelve times and has received commendation for hisexcellence sports activities besides bringing laurels to thedepartment. He was trained in Commando Force and therefore pleadedthat he should be shown some leniency in the matter of punishment.5. The Superintendent of Police/ Punishing authorityaccepted the finding of the enquiry officer and imposed the followingpunishment. https://hcservices.ecourts.gov.in/hcservices/ " I fully agree with the Enquiry Officer inholding the charges as proved. Earlier, the delinquent hasdeserved the force five times in his 17 years of service.This is the sixth time he deserted the force. Thesedesertions show his poor involvement in Police Service. Hiscontinuance in the force is a burden and not of any use.Therefore, I have no hesitation in awarding the punishmentof 'compulsory retirement' from the date of receipt of thisorder."6. The main reason for awarding the punishment ofcompulsory retirement as set out above is based on the petitioner'salleged conduct relating to desertion of the police force five timesearlier. Except this, the disciplinary authority did not rely uponany of the material to impose the punishment based on the enquiryreport. The compulsory retirement order is issued on 31.1.2005 inD.O.No.118 of 2005 primarily on the basis of the past conduct andnot primarily for the present delinquency. The petitioner filed anappeal to the Deputy Inspector General of Police, who concurred withthe finding of the disciplinary authority and while dismissing theappeal held in paragraph-4 as follows:-" I have carefully gone through the appeal petitiondated 21.3.2005 of Somasundaram, PC 676 and P.R. File alongwith the connected records. The delinquent was given ampleopportunities to mend his ways in the Government Service.The appellant continued the habit of deserting the forcerepeatedly. Hence, this appeal is rejected. "7. In the same manner, the next revisional authority/Additional Director General of Police took the same view and heldthat the petitioner's request for setting aside the punishment cannotbe acceded in view of his past conduct of desertion. Paragraph 6 ofthe order in revision is as follows:-" I have gone through his review petition along withconnected records carefully. This is his 6th desertion andseventh punishment. Despite sufficient opportunities given,he has not mended his habit. He has not raised any fruitfulpoints to consider in his favour. Hence, his reviewpetition is rejected."8. The petitioner submitted his mercy petition before theDirector General of Police, who also rejected the mercy petition byan order dated 17.12.2005 reiterating the reasons given in the orderof the lower authority. In effect the only reason given by theDirector General of Police to confirm the punishment imposed is thepast conduct of the petitioner relating to his desertion. Inparagraph 7 of the order, it is observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ " I have gone through his mercy petition alongwith connected records and P.R. File carefully. This is his6th desertion. I fully agree with the findings of theEnquiry Officer, who has held the charge as proved. I donot find any merit in his representation. Hence, his mercypetition is considered and rejected. "Challenging the above proceedings, the present writ petition has beenfiled. 9. The learned Senior Counsel appearing for the petitionercontended that the punishing authority should take into considerationthe merits of the charges in the live case, explanation and thefinding of the enquiry officer to come to the conclusion regardingthe nature of the punishment to be imposed on the petitioner for thedelenquency charged. On the contrary, the punishing authority hasconsidered the past conduct of the petitioner alone to impose thepunishment. For coming to the conclusion to impose the punishmentof compulsory retirement on the basis of the past conduct of thepetitioner, the petitioner was not put on notice and no opportunitywas granted to refute the department's stand. The petitioner was notgranted any opportunity to explain his stand in the past cases, andexplain his position in the present case. The authorities, shouldhave decided the punishment on the basis of the delinquency chargedas contained in the charge memo and not on the basis of the pastconduct of the petitioner with regard to which, the petitioner wasnot put on notice. He relied upon the decision of the ConstitutionalBench of the Apex Court reported in The State of Mysore – Vs. K.Manche Gowda (A.I.R. 1964 S.C. 506) and stated that the GovernmentServant should be put on notice by the punishing authority when theyintended to rely upon the past conduct of the delinquent for thepurpose of imposing punishment. 10. In the present case, the petitioner has been issuedwith a charge memo based on the desertion order. The petitioner hasgiven an explanation based on medical certificate and the difficultfamily circumstances. Though the submission was not accepted by theenquiry officer, it is incumbent on the authority to go into themerits of the explanation submitted by the petitioner and the findingof the enquiry officer before deciding the appropriate punishment.On the contrary, merely based on the past conduct of the petitioner,the punishing authority has imposed the punishment of compulsoryretirement. The petitioner was not put on notice that thedisciplinary authority is going to rely upon the past conduct of thepetitioner for the purpose of imposing the punishment. Therefore, itis clear that the disciplinary authority has relied upon theextraneous material while awarding the punishment of compulsoryretirement. The punishment is not relating to the finding of theenquiry officer in respect of the charges proved in the live case.To this extent, there is an infirmity in the order of the punishment. https://hcservices.ecourts.gov.in/hcservices/ The Appellate Authority and the Revisional Authority and the DirectorGeneral of Police/ the respondents herein have committed the sameerror in relying upon the past conduct of the petitioner to rejectthe appeal and the mercy petition of the petitioner. Thedelinquent/petitioner if required should be punished based on theproved delinquency and the punishment should commensurate with thecharges proved. The punishment imposed in the present case is basedpurely on the past conduct of the petitioner/delinquent for which hewas not put on notice. The petitioner/delinquent was not given areasonable opportunity to submit his explanation with regard to hisprevious conduct as well. To that extent, the petitioner isprejudiced and the decision of the disciplinary authority is contraryto the decision of the Apex Court, which has been referred to aboveand the relevant portion reads as follows:-" (7) Under Art.311(2) of the Constitution, asinterpreted by this Court, a Government servant must have areasonable opportunity not only to prove that he is notguilty of the charges levelled against him, but also toestablish that the punishment proposed to be imposed iseither not called for or excessive. The said opportunity isto be a reasonable opportunity and, therefore, it isnecessary that the Government servant must be told of thegrounds on which it is proposed to take such action: see thedecision of this Court in the State of Assam V. Bimal KumarPandit, Civil Appeal No. 832 of 1962, dated 12.2.1963: (AIR1963 SC 1612). If the grounds are not given in the notice,it would be well nigh impossible for him to predicate whatis operating on the mind of the authority concerned inproposing a particular punishment: he would not be in aposition to explain why he does not deserve any punishmentat all or that the punishment proposed is excessive. If theproposed punishment was mainly based upon the previousrecord of a Government servant and that was not disclosed inthe notice, it would mean that the main reason for theproposed punishment was withheld from the knowledge of theGovernment servant. It would be no answer to suggest thatevery Government servant must have had knowledge of the factthat his past record would necessarily be taken intoconsideration by the Government in inflicting punishment onhim; nor would it be an adequate answer to say that he knewof his past record. This contention misses the real point,namely, that, what the Government servant is entitled to isnot the knowledge of certain facts but the fact that thosefacts will be taken into consideration by the Government ininflicting punishment on him. It is not possible for himto know what period of his past record or what acts oromissions of his in a particular period would be considered.If that fact was brought to his notice, he might explainthat he had no knowledge of the remarks of his superior https://hcservices.ecourts.gov.in/hcservices/ officers, that he had adequate explanation to offer for thealleged remarks or that his conduct subsequent to theremarks had been exemplary or at any rate approved by thesuperior officers. Even if the authority concerned tookinto consideration only the facts for which he was punished,it would be open to him to put forward before the saidauthority many mitigating circumstances or some otherexplanation why those punishments were given to him or thatsubsequent to the punishments he had served to thesatisfaction of the authorities concerned till the time ofthe present enquiry. He may have many other explanations.The point is not whether his explanation would beacceptable, but whether he has been given an opportunity togive his explanation. We cannot accept the doctrine of"presumptive knowledge" or that of "purposeless enquiry", astheir acceptance will be subversive of the principle of"reasonable opportunity". We, therefore, hold that it isincumbent upon the authority to given the Government servantat the second stage reasonable opportunity to show causeagainst the proposed punishment and if the proposedpunishment is also based on his previous punishments or hisprevious bad record, this should be included in the secondnotice so that he may be able to given an explanation. (8) Before we close, it would be necessary to makeone point clear. It is suggested that the past record of aGovernment servant, if it is intended to be relied upon forimposing a punishment, should be made specific charge in thefirst stage of the enquiry itself and if it is not so done,it cannot be relied upon after the enquiry is closed and thereport is submitted to the authority entitled to impose thepunishment. An enquiry against a Government servant is onecontinuous process, though for convenience it is done in twostages. The report submitted by the Enquiry Officer is onlyrecommendatory in nature and the final authority whichscrutinizes it and imposes punishment is the authorityempowered to impose the same. Whether a particular personhas a reasonable opportunity or not depends, to some extent,upon the nature of the subject matter of the enquiry. Butit is not necessary in this case to decide whether suchprevious record can be made the subject matter of charge atthe first stage of the enquiry. But, nothing in lawprevents the punishing authority from taking that fact intoconsideration during the second stage of the enquiry, foressentially it relates more to the domain of punishmentrather than to that of guilt. But what is essential is thatthe Government servant shall be given a reasonableopportunity to know that fact and meet the same." (emphasis supplied). https://hcservices.ecourts.gov.in/hcservices/

11. The mind of the punishing authority has beenprejudiced by the past conduct of the petitioner. But noopportunity was given to put forward his explanation with regard tothe past conduct. This apparatus formed the basis for thedecision to impose the punishment of compulsory retirement. Hence,the order of the compulsory retirement imposed by the disciplinaryauthority as confirmed by the appellate authority and the DirectorGeneral of Police is liable to be set aside and accordingly setaside. The matter is remitted back to the disciplinary authority toreconsider the issue on the basis of the report of the enquiryofficer with regard to the punishment that should be imposed on thepetitioner after affording him sufficient opportunity. Thedisciplinary authority shall also keep in mind, the merit record ofthe petitioner and take the pragmatic view on the family condition ofthe petitioner consisting of his wife and three young children. Theauthority may also consider his sports record or any other meritcertificates. 12. The wife and children were present in Court and expressedthat the delinquent writ petitioner was taking care of them. Theyexplained the family circumstances which was the cause for familydiscord and separation which lead to absence and the desertion, andthe reason for issuance of the charge memo. The petitioner canexplain the above to the disciplinary authority for the purpose ofdeciding his case on merits. The petitioner however stated that inthe event of re-instatement in service, he will not seek backwages.It is open to the disciplinary authority to decide the petitionerclaim on all aspects of the petitioners claim. In the event of thedisciplinary authority concurring with the finding of the enquiryofficer on merits, the disciplinary authority may take intoconsideration the various mitigating circumstances that led to thedelinquency and impose punishment as is necessary tempered withmercy. Such exercise shall be done as expeditiously as possiblepreferably on or before 24.12.2009. The petitioner shall report tothe disciplinary authority and submit his memorandum along with thecopy of this order for speedy disposal of the issue. This writpetition is allowed to the extent indicated above. No costs. Sd/Asst.Registrar/true copy/raSub Asst.RegistrarTo1. The Superintendent of Police, Krishnagiri District. https://hcservices.ecourts.gov.in/hcservices/

2. The Deputy Inspector General of Police, Salem Range, Salem.3. The Additional Director General of Police, Law & Order, Chennai.4.4. The Director General of Police, Radhakrishnan Salai, Chennai.4. + 1 c.c. to Mr. T. Ayngaraprabhu, Advocate. S.R.No.60360.+ 1 c.c. to The Government Pleader. S.R.No.60578. W.P.No.5498 of 2006GV (CO)GSK 02.12.2009.