K.Annamalai v. Superintendent of Police, District Police Office, Madurai District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.12.2009CORAMTHE HONOURABLE MR.JUSTICE D.HARIPARANTHAMANW.P.No.2347 of 2007(O.A. No.1730 of 2001)K.Annamalai ..Petitionervs.1. Superintendent of Police, District Police Office, Madurai District.2. Deputy Inspector General of Police, Madurai Range, Madurai...RespondentsPrayer: Writ petition filed under Article 226 of the Constitution ofIndia by way of transfer of O.A.No.1730 of 2001 from the file ofTamil Nadu State Administrative Tribunal at Chennai, praying thisCourt to call for the records of the first respondent herein imposingthe punishment of compulsory retirement from service passed in hisproceedings PR 30/F1/2000 dated 16.8.2000 and the consequential orderpassed by the second respondent herein in his ProceedingsC.No.A3/Appeal.50/2000, dated 7.1.2001 confirming the punishment andquash the same and consequentially direct the respondents herein toreinstate the applicant back to service with all consequentialmonetary and service benefits.For Petitioner : M/.Sudha Ravi AssociatesFor Respondents : Mrs.C.K.Vishnu Priya, Addl. Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner was recruited as Grade II Police Constable in theyear 1977. He was promoted as Grade I Police Constable in the year1994. He was further promoted as Head Constable in the year 1999. 2.While so, he was on Medical Leave from 27.07.1999 to15.08.1999 and the same was sanctioned. According to the petitioner,he applied for extension of leave from 16.08.1999 for twenty five (25days). But the first respondent proceeded that the petitioner wasunauthorisedly absent from 16.08.1999. Hence, the first respondentissued an order dated 13.09.1999 declaring the petitioner as deserterfrom 16.08.1999 as he remained unauthorisedly absent for twenty one(21 days) from 16.08.1999 to 06.09.1999. In the said order dated13.09.1999, the petitioner was directed to appear before the firstrespondent within two months with relevant documents to explain hisabsence, otherwise further action would be taken. 3.In these circumstances, the petitioner appeared before thefirst respondent on 07.10.1999 and explained his absence. He wastaken back to duty without prejudice to the departmental action.Accordingly, the petitioner joined duty. 4.The first respondent issued a charge memo dated 02.03.2000 tothe petitioner under Rule 3 (b) of Tamilnadu Police SubordinateService Rules 1955 alleging that he was absented from duty for twentyone (21) days and thereby deserted the post. After enquiry, thepetitioner was imposed with the punishment of compulsory retirementby an order dated 16.08.2000 by the first respondent. The petitionerfiled appeal to the second respondent and the same was rejected bythe second respondent by an order dated 07.01.2001.5.The petitioner filed O.A.No.1730 of 2001 (W.P.No.2347 of 2007)to quash the aforesaid orders of the first and second respondents. 6.Heard Ms.Sudha Ravi for petitioner and Mrs.C.K.Vishnu Priya,Additional Government Pleader for the respondents. The learnedcounsel for the petitioner submits that the order of punishment iscontrary to the Circular in R.C No.243881/AP.I(1)/90 dated 30.10.1990of Inspector General of Police, Law and Order. In the said circular,the guidelines were issued to the Superintendents that if theSubordinate Police officials were taken back to duty, after theybeing declared as deserter on being satisfied with the explanationssubmitted by them, the Superintendents should not impose the https://hcservices.ecourts.gov.in/hcservices/ punishment of removal or dismissal or compulsory retirement, whiledisposing of the disciplinary proceedings. The said circular isextracted hereunder - Rc.No.243881/AP.I(1)/90Director General of Police P.B.No.601, Madras-4. Dated : 30.10.1990 CIRCULAR MEMORANDUMSub: P.R.s in Desertion cases after taking delinquents for duty – Certain instructions – Issued.- - - - - While disposing of appeals/reviews from Head Constablesto Police Constables, I noticed that the Superintendents ofPolice are awarding the maximum penalty of dismissal orremoval from service in desertion cases, after taking themfor duty. This is unfair and cannot be justified.2.When a Head Constable/Police Constable is struck offas a desertor, notice is issued directing the delinquent toappear before the Superintendent of Police within twomonths. When he appears, Superintendent of Police shouldmake up his mind whether the absence is on valid grounds andwhether the period of absence is covered by a valid medicalcertificate. If Superintendent of Police is not satisfied,the delinquent should not be taken for duty. If on theother hand, Superintendent of Police is satisfied, he can betaken on duty. In such cases while disposing of P.R.s,punishment of removal/dismissal from service or compulsoryretirement should not be given. Any other punsishment isacceptable. This guideline may be kept in view, whiledealing with desertion cases.3. Please acknowledge in the proforma enclosed.Sd/- Inspector General of Police (Law and Order) 30.10.90 7.The learned Addl. Government Pleader states that the Circularof the Inspector General of Police is not binding on theSuperintendent of Police. 8.I have considered the submissions made on either side. Whenthe Inspector General of Police is admittedly a higher authority, heis competent to issue circular directing the Superintendent of Police https://hcservices.ecourts.gov.in/hcservices/ not to impose the maximum penalty of removal/dismissal/ compulsoryretirement in the case of deserters if the concerned police officialwho was declared as deserted subsequently reported to duty and theSuperintendent of Police permitted him to join duty accepting theexplanation offered by him. Therefore, the learned counsel for thepetitioner is correct in her submission that the first respondent wasnot justified in imposing the penalty of compulsory retirement andboth the first and second respondent failed to take into account thecircular of Inspector General of Police, who is an higher authorityto both the first and second respondent. Hence, the impugned orderis liable to be interfered with, in view of the categorical directionin the circular of Inspector General of Police referred to above.The petitioner has to be imposed with some other penalty other thancompulsory retirement/dismissal/removal.9.Further, admittedly, the petitioner was absent from 16.08.1999to 06.10.1999, i.e. for 45 days and in fact it is the case of thepetitioner that he sought for extension of leave from 16.08.1999 for25 days. Though the same is denied, the total number of days forwhich he remained absent was 45 days. In these circumstances, takinginto account the circular of Inspector General of Police and theabsence was for only 45 days, the impugned order imposing the penaltyof compulsory retirement is liable to be quashed. Accordingly, theimpugned orders are quashed with a direction to the first respondentto impose some other punishment on the petitioner as per the circulardated 30.10.1990 of the Inspector General of Police. 10.With the above direction, the Writ Petition is allowed. Nocosts.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrgrTo1. The Superintendent of Police, District Police Office, Madurai District.2. The Deputy Inspector General of Police, Madurai Range, Madurai.+ 1 c.c. to M/s. Sudha Ravi Associates. Advocates. S.R.No.69387.+ 1 c.c. to The Government Pleader. S.R.No.69542.W.P.No.2347 of 2007AR (CO)GSK 08.02.2010.