IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.11.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.58 OF 2008 R.Veeramani .. Petitioner vs. 1.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. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein. For petitioner : M/s.Bala & Daisy For respondents : Mr.T.Seenivasan,AGP for R.1 to 4 .. ORDER
The writ petition is directed against the order of the 5th respondent dated 19.3.2002, which was confirmed by the 4th respondent on appeal by order dated 9.8.2002, again confirmed by the third respondent by order dated 19.2.2003, confirmed by the second respondent by order dated 28.4.2004 and further confirmed by the Government, the first respondent herein in G.O.2(D) No.324 Home (Pol.IX) Department, dated 22.5.2006 and for direction to reinstate the petitioner with consequential monetary and other service benefits.
2. The petitioner joined as Grade II Constable on 16.4.1997 and was promoted as Naik. Due to sickness of his mother, it is stated that he availed medical leave on 3.7.2001 and 4.7.2001. Thereafter, since he is stated to have fallen ill, he extended the medical leave till 4.8.2001. Since the family members of the petitioner did not inform the same to the respondents in proper manner, the 5th respondent treated the petitioner as deserter on 26.7.2001.
2(a). According to the petitioner, he was not permitted to join. Charges were framed under Rule 3(b) of the Tamil Nadu Police Subordinate Service Service (Discipline and Appeal) Rules,1955 to the effect that the petitioner has absented from duty without any leave or permission. The Assistant Commandant TSP, Ulundurpet was appointed as Enquiry Officer and the petitioner participated in the oral enquiry by submitting his explanation and the Enquiry Officer in his report dated 5.1.2002 found the charges proved.
2(b). The disciplinary authority viz., the 5th respondent passed the final order on 19.3.2002, imposing the 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 filed before the third respondent was rejected on 19.2.2003 and the further petitions filed to the second and first respondents were also rejected, against which the present writ petition has been filed.
3. The orders are challenged on the ground that the punishment is excessive, unjust and disproportionate and the orders were passed without application of mind and without proper enquiry and the same are against the statutory rules. It is stated that in a similar case, the second respondent modified such kind of punishment into one of stoppage of increment.
4. The first respondent in the counter affidavit has stated that the petitioner was granted casual leave on 3.7.2001 and 4.7.2001 and he was to report for duty on 5.7.2001, which he failed. He remained absent for more than 21 days without any permission and no medical certificate was received and therefore, he was treated as a deserter and a charge memo was issued and he was awarded punishment after conducting enquiry and the appeal and review were rejected apart from the rejection of mercy petitions. It is stated that the petitioner has not submitted any medical leave application or medical certificate at any point of time. The desertion in uniformed service is a serious offence which has to be dealt with under rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules,1955. It is also stated that the punishment is not excessive. It is also stated that within a period of four years, he had deserted twice and the same was taken note of while passing the impugned orders. It is stated that the petitioner remained absent for more than 60 days unauthorisedly.
5. The learned counsel for the petitioner would submit that in a similar circumstance, the second respondent by order dated 22.3.2007 in respect of a former police constable P.Karunanithi, reduced the punishment of dismissal into one of reduction in the time scale of pay by one stage without cumulative effect by reinstating him, whereas in the case of the petitioner a different approach has been made. He would rely upon the judgments in Bhagwan Lal Arya vs. Commissioner of Police, Delhi and another [AIR 2004 SC 2131] and Chairman-cum-Managing Director, Coal India Ltd., and another vs. Mukul Kumar Choudhuri and others [2009 AIR SCW 5596] to contend that the punishment is disproportionate to the charge itself.
6. On the other hand, the learned counsel for the respondents has placed before this Court the entire file and contended that within four years of service, this was the second incident and therefore, the authorities have taken a serious note of it. He would rely upon the judgments in Union of India and others vs. Datta Linga Toshatwad [(2005) 13 SCC 709] and G.Vijayan vs. Presiding Officer, Labour Court, Salem and another [2007 (5) MLJ 1331] to substantiate his contention that the unauthorized absence in the uniformed service cannot be taken lightly.
7. As regards the nature of enquiry conducted by the 5th respondent, the original authority, who has passed the order of punishment, it is seen that the charge was framed under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules,1955 and an Enquiry Officer was appointed. The charge framed against the petitioner 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;W Kw;gfy; gzpf;F mwpf;fif bra;a ntz;oath; Kd; mDkjpnah. jftnyh. kUj;Jt tpLg;ngh. ntW vt;tpj jftypd;wp bjhlh;e;J 05/07/2001 Kjy; gzpf;F tuhky; jd;dpr;irahf tuhky; ,Ue;J tUk; muR CHpahpd; jtwhd elj;ij g[hpe;jjhf Fw;wk;/”
8. A reference to the statement of the petitioner made in the affidavit shows that the petitioner has not disputed his absence for more than 60 days, but it is his case that after he took leave for two days, there was some ailment to his mother and thereafter to himself and therefore, he sent intimation to the authorities extending the leave. In the affidavit, he has also stated that his family members have not properly forwarded the letter seeking extension of medical leave. A reference to the file produced by the respondents shows that the petitioner having failed to attend duty from 3.7.2001, later reported to the Deputy Commandant-II, Ulundurpet only on 2.1.2002. He has specifically admitted that he was unable to send the leave application on medical ground due to the ignorance of his parents. He has also stated that he would not repeat the same again. In the intimation, he has stated that,
” vdJ bgw;nwhUf;F rhpahd tptuk; bjhpahikahy; kUj;Jt tpLg;g[ vLj;jikia mDg;g ,aytpy;iy/”
Except the said letter, there is no leave letter or medical certificate sent by the petitioner, as it is seen from the file.
9. The petitioner joined duty in April, 1997. The file shows that earlier, he deserted himself for the period from 22.10.2000 to 30.3.2001 and that was treated as LWP. He was imposed the punishment of reduction in time-scale of pay by two stages for one year and the present charge relates to his second time of desertion. In the enquiry before the Enquiry Officer, the petitioner has participated throughout and he has not chosen to cross-examine the witnesses. It was also found by the Enquiry Officer that the petitioner had not even taken steps to inform the nearest police station and even on 11.8.2001 when desertion order was served on him, he could have appeared before the 5th respondent but the petitioner had not done so till the date of enquiry. It was therefore found by the Enquiry Officer that the petitioner did not take steps to join duty.
10. The minutes of the enquiry report was served on the petitioner, as it is seen in the file and the petitioner received the same by putting his signature on 30.1.2002. Thereafter, there were reminders to the petitioner on 16.2.2002 and 5.3.2002 asking him to submit his further explanation for the Enquiry Officers report. However, the petitioner has not responded to the same and ultimately, the 5th respondent passed the order of punishment on 19.3.2002 and the further appeal and representations also came to be rejected. Therefore, the petitioner cannot question the proceedings of the 5th respondent, who has awarded the original punishment on the ground that it is opposed to the principles of natural justice 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 by the petitioner that under similar circumstances, the second respondent considered the mercy petition of some other person leniently and modified the dismissal order to that of reduction in time scale of pay by one stage for one year without cumulative effect has to be considered. A reference to the order of the Director General of Police in Rc.No.AP.IV (1)/235320/2006 dated 22.3.2007 relating to Thiru P.Karunanithi, Ex.P.C.1807 shows that in his career of 12 years, the absence for 21 days was the only delinquency and taking note of the fact that the said person explained that he was granted sick passport on 14.7.1995 and thereafter when he went to his native place, he developed mental disorder, and also that there was a direction from the High Court, the following order came to be passed.
” 7. As per orders of the Hon’ble High Court, Madras, the representation of above Ex.PC was considered. I have gone through the mercy petition dated 24.02.2004 and connected records carefully. The petitioner has explained that he was granted sick passport on 14.07.1995 and thereafter went to his native place where he developed mental disorder. In the meantime, the petitioner was treated as deserter and dismissed from service after holding an exparte enquiry. Considering the fact that this was the only delinquency in a career of 12 years and his desertion was in continuation of Medical Leave, a lenient view is taken and he is reinstated into service. The punishment of “Dismissal from service” is modified to “reduction in time scale of pay by one stage for one year without cumulative effect”. He is reinstated into service with immediate effect with the modified punishment.”
I do not think that the said instance is comparable to the case of the petitioner herein.
12. Again, another instance was brought to the notice of this Court, wherein the Director General of Police passed a similar order modifying the order of dismissal into one of reduction of pay by one stage for one year in Rc.No.APIV(1)/119406/2006 dated 6.9.2007 in respect of one Thiru D.Balaji, Ex.P.C.1284. There also the circumstances leading to the passing of the order were discussed as follows:
“8. As per orders of the Hon’ble High Court, Madras, the representation of above EX PC was considered. I have gone through the representation of the writ petitioner dated 24.1.2006 and connected records carefully. The delinquent had obtained Medical Leave and Medical passport for 30 days as he was unwell. In the meantime his father became critically ill and very soon passed away. His father’s death was followed by squabbles among the family members over sharing of family properties. Under these circumstances, the delinquent did not extend his Medical Leave and was declared a deserter. The delinquent had been maintaining a clean record of service but for this default. His name declared a deserter though technically correct, in view of the circumstances under which the order of desertion was passed and the fact that in a similar case in respect of Thiru P.Karunanithi PC 1807 of Trichy District, a lenient view was taken and an order of reinstatement modifying the punishment of dismissal from service was ordered, I take a lenient view and modify the punishment of “Dismissal from service” into “reduction of pay by one stage for one year” which shall not operate to postpone his future increment. He is reinstated into service with immediate effect.”
Therefore, that order also cannot be comparable to the facts 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 the learned counsel for the petitioner, the Supreme Court was referring 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 dismissal or removal from service shall be awarded for the fact of grave misconduct rendering him unfit for police service.”
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” Rule 10. Maintenance of discipline.- The previous record of an officer, against whom charges have been proved, if shows continued misconduct indicating incorrigibility and complete unfitness for police service, the punishment awarded shall ordinarily be dismissal from service. When complete unfitness for police service is not established, but unfitness for a particular rank is proved, the punishment shall normally be reduction in rank.”
14. That was also a case where leave was sanctioned for the period from 7.10.1994 to 14.12.1994 without pay as per the order of the police authorities dated 16.1.1995. In that context, it was held that the absence for two months 8 days and 17 hours on medical ground cannot be held as a grave misconduct or continued misconduct rendering him unfit for police service. It was accordingly held that the dismissal from service was disproportionate and the relevant portion of the judgment is as follows:
” 10. In the instant case, the appellant had absented himself for 2 months, 8 days and 17 hours on medical grounds. The above two Rules 8, 10 provide that penalty of removal can be imposed only in cases, if grave misconduct and continued misconduct indicating incorrigibility and complete unfitness for police service. The absence of the appellant on medical grounds with application for leave as well as sanction of leave can under no circumstances, in our opinion, be termed as grave misconduct or continued misconduct rendering him unfit for police service.
11. The order dated 16.1.1995 passed by the respondents was produced by the respondents themselves in their reply to C.W.P. Before the High Court of Delhi that they had sanctioned leave without pay for the period from 7.10.1994 to 15.12.1994, the period of alleged unauthorised absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing sanction for leave for the period in question, the employee’s legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal/removal from service can be awarded only for the act of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty or removal from service is ultra vires of Rules 8(a) and 10 of the Delhi Police (Punishment and Appeals Rules,1980) and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of not only he but his entire family totally dependent on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside.”
In fact, the Supreme Court has relied upon the earlier judgment in B.C.Chaturvedi vs. Union of India (AIR 1996 SC 484) wherein it was held that normally the High Court or Tribunal in exercise of its judicial powers cannot substitute its own penalty except in cases where the decision of the appellate authority shocks the conscience of the High Court or Tribunal in which case the relief can be moulded properly and such powers can be exercised only in exceptional cases.
15. Again, the decision rendered in Chairman-cum-Managing Director, Coal India Ltd., and another vs. Mukul Kumar Choudhuri and others (2009 AIR SCW 5596), wherein the Supreme Court while dealing with the Coal India Executives (Conduct, Discipline and Appeal) Rules, 1978 relating to misconduct of one person who (i) absented himself without leave; (ii) overstayed the sanctioned leave for more than four consecutive days; and (iii) deserted the job and failed to maintain integrity and devotion to duty, and after taking note of the fact that the delinquent appeared and admitted the charge and gave personal reasons for disobeying the order of the higher authority which was not intentional, held that in such circumstances, the misconduct cannot be said to be not proved. But, while considering the proportionality of the punishment of dismissal for unauthorized absence for six months, the Supreme Court, after explaining the doctrine of proportionality, held as follows:
” 26. The doctrine of proportionality is, thus, well recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company’s Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No.1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorised absence for six months.”
16. In Union of India v. Datta Linga Toshatwad [(2005) 13 SCC 709], the Supreme Court while dealing with the concept of desertion in the light of the principle of proportionality relating to the members of uniformed service, has held as follows:
” 8. The present case is not a case of constable merely overstaying his leave by 12 days. The respondent took leave from 16.6.1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner of described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in different terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged.”
The Supreme Court has therefore deprecated the practice of unauthorized absence and desertion in the uniformed forces and held that the order of dismissal is justified.
17. Following the earlier decision of the Supreme Court in State of Rajasthan and Another v.Mohd. Ayub Naz [AIR 2006 SC 856: (2006) 1 SCC 589: 2006-I-LLJ 742], the First Bench of this Court to which I was a party, in G.Vijayan v. Presiding Officer, Labour Court, Salem and another [2007(5) MLJ 1313] while dealing with the absenteeism, held as follows:
” 10. It is also relevant to point out that the Supreme Court in a recent case reported in State of Rajasthan and another v. Mohd.Ayub Naz AIR 2006 SC 856 : (2006) 1 SCC 589: 2006 I LLJ 742 held that, an employee who was absented himself for a prolonged period without prior permission, the decision of the employer to dismiss him on disciplinary enquiry cannot be interfered. Further, the Supreme Court has observed at p.745 of LLJ:
“9. Absenteeism from the office for a prolonged period of time without prior permission by Government servants has become a principal cause of indiscipline which has greatly affected various Government services …..
Therefore, by applying the said consistent judicial pronouncements of the Apex Court, we have no hesitation to come to the conclusion that the award of the Labour Court in ordering reinstatement of the appellant with service benefits, however, without backwages is not on proper and sound reasoning as found by the learned single Judge. In view of the same, the writ appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.”
Of course, that is a case where decision was taken under the Industrial Disputes Act after taking note of the frequent absence from duty by the worker therein who was terminated on disciplinary proceedings, but raised an industrial dispute under section 2(A) of the Industrial Disputes Act.
18. Therefore, by applying the principle of proportionality of punishment as it has been laid down by various judgments of the Apex Court, to the facts and circumstances of the present case, I am of the view that the petitioner has deserted twice within four years of service and that he has not taken any steps to inform his higher officials or even to the nearest police station about his personal disability as alleged by him and therefore, it is not a fit case for interference. Accordingly, the writ petition fails and the same is dismissed. No costs.
Index:Yes/No Internet:Yes/No kh 06.11.2009 To 1.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. P.JYOTHIMANI,J. P.D.Order in W.P.No.58 of 2008 Dated:06.11.2009