R.Sasikumar, v. The Commandant,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 19.07.2018

CORAM

THE HONOURABLE Mr.JUSTICE V.PARTHIBAN W.P.No.1076 of 2015 R.Sasikumar ... Petitioner Vs 1.The Commandant, Tamil Nadu Special Police 111 Battalion, Veerapuram, Chennai-55.

2.The Deputy Inspector General of Police, Armed Police, Chennai-10.

3.The Director General of Police, Tamil Nadu, Dr.Radhakrishnan Salai, Mylapore, Chennai-4.

... Respondents PRAYER : Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records of the respondents in connection with the impugned orders passed by 1st respondent in C.No.A4/PR No.16/2006 dated 29.08.2006 and the 2nd respondent in C.No.C1/12178/2014 dated 21.07.2014 and quash the same and direct the respondents to reinstate the petitioner into service and grant him all consequential service and monetary benefits.

For Petitioner : Mr.K.Venkataramani,Senior Counsel For M/s M.Muthappan For Respondents : Mr.J.Pothiraj, Special Government Pleader

O R D E R

Heard Mr.K.Venkataramani, learned senior counsel for the petitioner and Mr.J.Pothiraj, learned Special Government Pleader appearing for the respondents.

2. The petitioner has approached this Court, seeking the following relief:- "To issue a Writ of Certiorarified Mandamus, to call for the records of the respondents in connection with the impugned orders passed by 1st respondent in C.No.A4/PR No.16/2006 dated 29.08.2006 and the 2nd respondent in C.No.C1/12178/2014 dated 21.07.2014 and quash the same and direct the respondents to reinstate the petitioner into service and grant him all consequential service and monetary benefits."

3. The case of the petitioner is as follows:- The petitioner was directly recruited as Grade II Police Constable on 01.12.2003 by Uniformed Services Recruitment Board. On 07.09.2004, the petitioner was issued with the charge memo under Rule 3(b) of Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules (hereinafter referred to as TNPSS (D&A) Rules) for remaining absent for some time. After an enquiry, he was imposed with the punishment of postponement of increment for a period of two years without cumulative effect on 03.02.2005. Once again, on 14.03.2006, a charge memo was issued for similar absence and he was yet again imposed with the punishment of reduction in pay for two years by one stage with cumulative effect.

4. Since the petitioner did not join duty as per the direction when the above punishment was issued, the petitioner was issued with another charge memo on 23.03.2006, for deserting the Police Force. According to the petitioner, he was suffering from Jaundice and taking continuous treatment. Therefore, he could not report for duty by obeying the earlier orders passed by the authorities. From the enquiry which was conducted into the latest charge memo, it appears that the petitioner had produced medical certificate covering certain period of his absence. The petitioner also pleaded that he would not repeat the same delinquency in future. After his assurance, the petitioner appears to have reported for duty.

5. However, not accepting the explanation of the petitioner, the disciplinary authority imposed the punishment of removal from service by proceedings dated 29.08.2006. As against the order of removal from service, the petitioner preferred a statutory appeal to the Deputy Inspector General of Police, the second respondent herein, on 18.09.2006. However, the appeal came to be rejected by the second respondent on 09.11.2006, the petitioner thereafter preferred a review petition to the third respondent on 22.02.2007 and the same was also rejected on 09.01.2008. A further memorial was submitted to the Government on 03.07.2008, which was also rejected.

6. In the above circumstances, the petitioner challenged the orders of the respondents by approaching this Court in W.P.NO.13359 of 2009. However, this Court dismissed the writ petition by order dated 22.08.2011. The petitioner preferred a writ appeal in W.A.No.2436 of 2013 and the learned Division Bench of this Court by an order dated 03.06.2014, had set aside the order of the appellate authority, the second respondent herein and remanded the matter back to him for fresh consideration in terms of Rule 6(1) of TNPSS (D & A) Rules. The learned Division Bench had set aside the order of the appellate authority on the ground that it was not a speaking order.

7. In pursuance of remanding the matter to the appellate authority by the learned Division Bench of this Court, the petitioner submitted a detailed appeal on 14.07.2014, requesting for consideration of his claim for reinstatement. However, by proceedings dated 21.07.2014, the appeal came to be rejected and therefore, the petitioner is before this Court, challenging the order of removal from service which has been confirmed in the appeal.

8. The learned senior counsel for the petitioner would at the outset submit that the latest order in appeal dated 21.07.2014, failed to appreciate the points raised in the appeal by the petitioner in proper perspective and also failed to address the important issue of quantum of penalty imposed on the petitioner. According to the learned senior counsel, there are number of decisions rendered by this Court consistently holding that for an act of desertion, the punishment of removal or dismissal from service was held to be rather disproportionate and excessive and the Courts have interfered with the quantum of penalty either by quashing or remanding the same to the authority concerned for imposition of any other lesser penalty.

9. The learned senior counsel for the petitioner would submit that even in the case where the police personnel had deserted the Force for four times, the penalty of removal or dismissal from service was interfered with. Therefore, the learned senior counsel would submit that in this case also, this Court may show indulgence and interfere with the quantum of penalty imposed on the petitioner.

10. Upon notice, learned Special Government Pleader appearing for the respondents entered appearance and stoutly resisted the claim of the petitioner on the ground that the absence by the petitioner is for longer duration and on each occasion, the punishment was imposed only after taking into consideration the previous conduct of the petitioner. Such police personnel was unfit to be retained in service, since unauthorised absence by the petitioner had been periodical

almost right from the date when he was appointed to the Police service. The conduct of the petitioner would clearly disclose that he was not interested in serving the Force. The petitioner also did not appreciate that, earlier, the disciplinary authority had taken a lenient view and imposed minor penalty on him. The petitioner therefore does not deserve any consideration of this Court. Therefore, he would pray for dismissal of the writ petition.

11. The learned senior counsel for the petitioner would rely upon the following decisions of this Court which held that the punishment of removal or dismissal from service was harsh and excessive and following the decisions, this Court has also passed a similar orders under similar circumstances. The learned senior counsel would draw the attention of this Court to the order passed by the learned Division Bench of this Court in W.A.No.58 of 2011 dated 27.01.2011, wherein, the learned Division Bench has passed orders in paragraph Nos.2 and 3 as follows:- "2.The appellant/writ petitioner who was serving as Grade-II Police Constable in the Police Department at Kancheepuram, was proceeded against departmentally on the charge that he remained absent from duty for a period of 21 days.

The Enquiry Officer held the charge against the appellant as proved. In view of the finding of the Enquiry Officer, as also the fact that the appellant had earlier deserted the force on three occasions and absented himself from duty on two occasions, the disciplinary authority, viz., the second respondent herein, passed an order of dismissal from service against the appellant. The appellant challenged the same by filing the writ petition, which was dismissed by the learned Single Judge, who held that the appellant, being employed in the Armed Reserve was expected to maintain strict discipline and in view of this past conduct, the punishment of dismissal cannot be termed as excessive or disproportionate.

3.After hearing the learned senior counsel for the appellant and the learned Government Pleader, we are prima facie of the view that the punishment imposed on the appellant is disproportionate to the charge levelled against him and it is in fact, shocking the conscience of this Court. We, therefore, allow this writ appeal, set aside the impugned judgment passed by the learned single Judge and remit back the matter to the disciplinary authority, viz. the second respondent herein, to re-consider the matter with regard to the quantum of punishment imposed on the appellant and to take a decision within

six weeks from today. It is made clear that in the event the quantum of punishment imposed on the appellant is reduced, he shall not make any claim with regard to the wages for the period he has not performed his duty, but the continuity in service will not be affected. There shall be no order as to costs."

12. Following the learned Division Bench order, the learned senior counsel would also draw the attention of this Court to an order passed by the learned Single Judge of this Court as he then was in W.P.No.16415 of 2009 dated 15.06.2011. The operative portion of the order passed by the learned Single Judge as he then was in paragraph No.10 as follows:- "10. Considering the facts and circumstances of this case and the order passed by the Division Bench holding that the order of dismissal from service for desertion is highly disproportionate and a lesser punishment should be imposed and the said order having been implemented by imposing a lesser punishment of postponement of one increment for two years in the case of one R.Ramesh, who was the appellant in W.A.No.58 of 2011 dated 27.01.

2011, I am of the view that the interest of justice would be met by setting aside the order of the respondents and remitting the matter to the second respondent to consider the said issue of proportionality of the punishment alone in the light of the additional affidavit filed by R3, dated 10.06.2011 and pass fresh orders, within a period of eight weeks from the date of receipt of a copy of this order."

13. Following these decisions, this Court vide its order rendered in W.P.No.6873 of 2013 dated 19.09.2017, has ruled in paragraph Nos.6 and 7 as follows:- "6. This Court, after considering the rival submissions of the learned counsel for the parties and upon perusing the relevant materials and pleadings placed on record, is of the considered view that as rightly held by the learned single Judge of this Court, as he then was, in the aforesaid writ petition, a punishment imposed on the petitioner, namely, the removal from service, is grossly disproportionate to the gravity of misconduct (Desertion) alleged against the petitioner. There cannot be two opinions that for solitary act of misconduct, punishment of removal from service is too excessive, particularly, considering the age of the petitioner, who was only 32 years at that point of time. Having concluded so, this Court has to see as to what punishment should be imposed on the

petitioner instead of removal from service. Considering the evidence in the enquiry proceedings and the order passed by the disciplinary authority, this Court is of the view in the fitness of things, that the petitioner having been removed from service as early as in 2007 and has been out of employment for over 10 years, the punishment of removal from service imposed on the petitioner is modified to the extent that the petitioner is directed to be reinstated in service without any backwages for the period from the date of his removal from service till the date of his reinstatement. Denial of backwages for a long period of 10 years is a sufficient punishment to be imposed on the petitioner in the facts and circumstances of the case.

7. In the light of the above, the respondents are directed to pass orders of reinstatement of the petitioner in service without back wages within a period of two months from the date of receipt of a copy of this order. On being reinstated, the petitioner is entitled to all other attendant benefits."

14. The learned senior counsel for the petitioner would draw the attention of this Court to the order on the same issue, this Court passed in similar circumstances on 08.12.2017 in W.P.No.24162 of 2012 and the findings rendered in paragraph Nos.16 to 18, are reproduced below:- "16.Learned counsel for the respondents would submit that the petitioner was in the habit of frequently absenting without informing to the department. In any event, the following order is passed for giving a last opportunity to the petitioner to correct himself in future. In case, the petitioner is going to continue with this attitude of absentism without proper reasons and without getting permission from the department, it is always open to the respondents to proceed against him, as they may be advised in future.

17.For all the above reasons, the petitioner is entitled to succeed. However, in view of the fact that the petitioner was absent without giving proper reasons, continuously for several weeks and such conduct will not sufficiently satisfy the respondents to pay him the backwages, the petitioner has to be imposed with punishment of forfeifure of backwages as a method of corrective measure so that in future, he does not absent or commit any misconduct during his service.

18.In the above said circumstances, this Court is of the considered view that the writ petition is allowed and the impugned orders passed by respondents 1 and 2 in Na.Ka.No.G1/PR No.26/2010, dated 05.05.2011 and RC No.A2/3436/2011 dated 22.12.2011, are set aside and the respondents herein are directed to reinstate the petitioner in service with all other attendant benefits etc., However, the petitioner is not entitled to the backwages from the date of compulsory retirement till the date of reinstatement into service. The denial of backwages for the period of punishment is sufficient penalty to be imposed on the petitioner in the facts and circumstances of the case. The respondents are directed to pass the consequential order within a period of eight weeks from the date of receipt of a copy of this order. No costs."

15. Lastly, this Court passed yet another order in respect of similar issue in W.P.No.22611 of 2011 dated 23.03.2018, paragraph Nos.13 to 15, are reproduced below:- 13.In all the cases, referred by the learned senior counsel this Court has consistently interfered with the quantum of the penalty imposed by the disciplinary authority for the act of desertion. In such circumstances, this Court does not think it is right to take any different view since the petitioner herein is also alleged to have deserted the police force for more than 21 days. In fact, the petitioner has some kind of valid explanation for remaining absent during the relevant period. That being the case, this Court finds that the action of the disciplinary authority in imposing the severe penalty of removal from service is without any justification. 14.

In fact, in two of such cases, the learned single Judge of this Court has imposed penalty of denial of backwages for the period of non employment and ordered reinstatement of the petitioner therein. In this case also, it is found that the petitioner was dismissed from service on 10.11.2009 and it is nearly 8 years, the petitioner is out of employment from the date of removal from service. Therefore, this Court is of the considered view that instead of remanding the matter back to the authority for consideration for imposition of lesser punishment, this Court on the facts and circumstances of the case, imposes penalty of denial of backwages, as done in respect of two other similarly placed Writ Petitioners, as aforesaid.

removal from service was imposed as early as 18.02.2009.

15.In view of the above, this Court is of the considered view that the writ petition is allowed and impugned proceedings passed by the 1st respondent in PR No.48/F4/2008 dated 18.02.2009 and confirmed by the 3rd respondent in RC No.160692/API(1)/2009, dated 10.11.2009 are hereby set aside and the respondents are directed reinstate the petitioner in service with all other attendant benefits and the petitioner is not entitled to backwages from the date of removal from service (ie) 18.02.2009 until the date of his reinstatement. The denial of backwages for the period of non-employment is a sufficient penalty to be imposed on the petitioner in the facts and circumstances of the cases. The respondents are directed to pass consequential orders within a period of eight weeks from the date of receipt of copy of this order.

The learned senior counsel would therefore submit that these decisions are squarely applicable to the facts of the present case. Therefore, the petitioner may be granted similar relief as given in other cases.

16. This Court considered the factual and legal submissions of the learned senior counsel for the petitioner as well as the learned Special Government Pleader appearing for the respondents and perused the materials and authorities cited on behalf of the petitioner. In fact, this Court at least in three such similar cases, has interfered with the quantum of penalty and ordered reinstatement of the police personnels who were sent out of service for desertion, by denying them the back wages for the period of non-employment holding that such denial would be a sufficient penalty.

17. In fact, the learned Division Bench of this Court as cited supra has clearly held that for an act of desertion, the punishment of removal or dismissal from service was excessive and harsh and following that, this Court has consistently held that the act of desertion cannot entail extreme punishment of removal or dismissal from service. This position was also held good even in the case where there were more than one instance of desertion.

18. In the said circumstances, this Court is bound by the ruling of the learned Division Bench and also bound by the orders passed by this Court in respect of similar writ petitions. Although the conduct of the petitioner for deserting the Police Force is not condonable, nevertheless, the fact of the matter is that the Courts have consistently held that the

punishment of removal or dismissal from service was excessive and harsh for an act of desertion. Therefore, for the sake of rendering uniform justice, this Court cannot take a different view in the present matter alone.

19. For the above said reasons, the impugned orders in C.No.A4/PR No.16/2006 dated 29.08.2006 and C.No.C1/12178/2014 dated 21.07.2014, are set aside and the respondents are directed to reinstate the petitioner with all other attendant benefits. However, the petitioner is not entitled to back wages from the date of his removal from service i.e., from 29.08.2006 until the date of reinstatement. The denial of the back wages for the period of non-employment is a sufficient penalty to be imposed on the petitioner in the facts and circumstances of the case. It is also made clear that the petitioner shall not repeat such an act of desertion in future and in case, such misconduct is repeated, it is always open to the respondents to take severe action against the petitioner. The respondents are directed to comply with the direction, within a period of eight weeks from the date of receipt of a copy of this order.

20. With the above direction, the writ petition stands allowed. No costs.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar gsk To 1.The Commandant, Tamil Nadu Special Police 111 Battalion, Veerapuram, Chennai-55.

2.The Deputy Inspector General of Police, Armed Police, Chennai-10.

3.The Director General of Police, Tamil Nadu, Dr.Radhakrishnan Salai, Mylapore, Chennai-4.

+1cc to Mr.M.Muthappan, Advocate, S.R.No.48279 +1cc to the Government Pleader, S.R.No.48529 W.P.No.1076 of 2015 TM (CO) BM 03/08/2018