IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.11.2010
CORAM:
THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.No.43417 of 2006
N.Mani Sekaran ... Petitioner
Versus
1. Deputy Commissioner of Police
Annanagar, Chennai 40.
2. Additional Director General of Police
cum Commissioner of Police,
Chennai City. ... Respondents
PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.5457 of 2000 from the file of Tamil Nadu Administrative Tribunal with a prayer, to call for the records in connection with the files related to the petitioner regarding the proceedings issued in 19/PR(C)1/99 Tha.Ka.No.19/Tha.Pi.(Ma)/1/99 u/r 3(b) Delinquent Gr.I.PC.9364, Manisekaran dated 17.08.1999 by the Deputy Commissioner of Police, Annanagar District and subsequently the proceedings issued in Rc.No.P.R.No.19/PR.(C)/99 C.P.O.No.448/99 dated 08.09.1999 by the Deputy Commissioner of Police, Annanagar and subsequently the proceedings issued in Appeal No.11/Tha.Pi.(Ma)/1/2000 Na.Ka.order No.157/2000 dated 29.03.2000 by the Additional Director General of Police cum Commissioner of Police and set-aside the same.
For Petitioner : Mr.S.Ilamvaludhi
For Respondents : Mrs.Lita Srinivasan
Government Advocate
O R D E R
The petitioner was working as Grade-I Police Constable at Rajamangalam Police Station, Chennai, at the relevant point of time. His father died on 29.11.1998. He applied for casual leave on 30.11.1998 and 01.12.1998. Since the petitioner was not well, he was admitted as inpatient in the Government Hospital at Uthukkottai on 02.12.1998. He was treated as inpatient upto 03.12.1998. He reported duty on 04.12.1998 and again he was not well on 08.12.1998. He requested for medical leave. But, the Inspector, Rajamangalam Police Station, refused to give leave. Since the petitioner was in a very bad condition, he was not able to attend duty on 08.12.1998. He sent a telegram immediately about his health condition to the Inspector. He sent a letter immediately through registered post, enclosing the Medical Certificate requesting to grant 15 days leave. The Inspector refused to receive the said letter sent through the Registered Post. The said letter was returned. He did not recover from illness.
2. While so, the first respondent issued a notice dated 11.01.1999 declaring that the petitioner deserted his job as he unauthorizedly absent from 08.12.1998 for more than 21 days and that unless he reported to duty before 06.02.1999, it could be presumed that he was not interested in employment. On receipt of the aforesaid order of the first respondent, he immediately reported to duty on 23.01.1999. He was given posting on 01.02.1999 and he joined duty immediately.
3. However, the first respondent issued a charge memo dated 01.05.1999 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, alleging that the petitioner was unauthorizedly absent from 08.12.1998. The Assistant Commissioner of Police, Law and Order, Thirumangalam Circle was appointed as Enquiry Officer. The Enquiry Officer recorded a finding that the charges were proved. Based on the finding of the Enquiry Officer, the first respondent issued an order dated 08.09.1999, imposing the punishment of reduction in time-scale of pay for two stages for two years with cumulative effect. The petitioner preferred an appeal on 19.10.1999 to the second respondent. The appeal was rejected by the second respondent by an order dated 29.03.2000.
4. The petitioner has filed the Original Application in O.A.No.5457 of 2000 (W.P.No.43417 of 2006) to quash the order dated 08.09.1999 of the first respondent and the order dated 29.03.2000 of the second respondent.
5. The respondents filed reply affidavit refuting the allegations made by the petitioner.
6. Heard Mr.S.Ilamvaludhi, learned counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents.
7. The petitioner was issued with a charge memo dated 01.05.1999 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, alleging that he was unauthorizedly absent from 08.12.1998. The father of the petitioner died on 29.11.1998. It is not disputed. He applied for casual leave on 30.11.1998 and 01.12.1998 and it is also not disputed. He fell sick and he was admitted as an inpatient in the Government Hospital at Uthukkottai on 02.12.1998 and he was treated therein upto 03.12.1998. He joined duty on 04.12.1998. According to the petitioner, he was not well on 08.12.1998 and he applied for medical leave. In fact, this was accepted by the Inspector of Police, who was examined as first witness in the enquiry. The Inspector gave the following evidence during the enquiry:-
VERNACULAR (TAMIL) PORTION DELETED
However, the inspector did not grant leave to the petitioner. According to the petitioner, since his health condition was bad, he did not attend duties and he took treatment. According to the petitioner, he sent a telegram informing his health condition. The receipt of telegram is not disputed. Thereafter, the petitioner wrote a letter, enclosing a Medical Certificate, seeking 15 days leave. The said letter was sent through Registered Post and the same was refused to be received. It is also accepted by PW-4, Mr.Kumar, Grade-I Police Constable. PW-4 deposed that the registered letter was returned on the instructions of the Inspector. When PW-1 admitted that the petitioner sought leave on medical grounds on 08.12.1998 and thereafter, he sent telegram informing the Inspector about his illness, the respondents were not justified in stating that the petitioner was unauthorizedly absent from 08.12.1998. Furthermore, the letter seeking medical leave for 15 days along with Medical Certificate sent through registered post was returned by PW-4, Mr.Kumar, Grade-I Police Constable on instructions from the inspector. Thus, I am of the considered view that the petitioner was unauthorizedly absent from 08.12.1998. Bu the Enquiry Officer recorded a finding that the charges were proved. The findings of the Enquiry Officer is extracted here-under:-
VERNACULAR (TAMIL) PORTION DELETED
The Enquiry Officer nowhere considered the aforesaid evidence of the Inspector, PW-1, that the petitioner informed him that he was not well on 08.12.1998. Likewise, the Enquiry Officer failed to consider the fact that the petitioner sent a letter informing his illness through RPAD and the same was returned by PW-4, Mr.Kumar, Grade-I Police Constable, on instructions from the Inspector. These relevant aspects of the matter were not taken note of by the Enquiry Officer while recording his finding. His finding is nothing but ipse dixit without containing any reason for its conclusion.
8. Furthermore, it is admitted that the petitioner reported to duty on 23.01.1999, on receipt of the order dated 11.01.1999 from the first respondent declaring that he was a deserter and that he should report duty before 06.02.1999. The petitioner reported to duty on 23.01.1999. But he was given posting only on 01.02.1999. Therefore, the petitioner should not be blamed for absence from 22.01.1999 to 01.02.1999. But the charge proceeds that the petitioner was unauthorizedly absent from 08.12.1998 to 01.02.1999.
9. All these facts were not considered by the Enquiry Officer and therefore the findings of the Enquiry Officer are to be characterized as perverse. The impugned punishment is based on the perverse finding of the Enquiry Officer. The second respondent also failed to take into account the aforesaid aspects of the matter.
10. Hence, the impugned orders dated 08.09.1999 and 29.03.2000 of the first respondent and the second respondent respectively, are liable to be quashed and the same are quashed. Accordingly, the writ petition is allowed. No costs.
r n s
To
1. Deputy Commissioner of Police
Annanagar, Chennai 40.
2. Additional Director General of Police
cum Commissioner of Police,
Chennai City