IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.21497 of 2009 R.Malathy .. Petitioner Vs. 1.The Director-General of Police, Tamil Nadu, Chennai-4. 2.The Commissioner of Police, City Police Office, Egmore, Chennai-8. 3.The Joint Commissioner of Police, Central Zone, Egmore, Chennai-8. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the order passed by the third respondent herein in his PR.No.66/PR.II/CZ/06, dated 7.4.2007 and the consequential order passed by the third respondent herein in his C.No.PR.66/PR.II/CZ/06, CZO.113/2007, dated 07.04.2007 imposing a punishment of removal from service with effect from 22.12.2005 and the consequential order passed by the first respondent herein in his RC.No.131857/AP.(3)/2008 dated 16.10.2008 modifying the punishment of removal from service from 22.12.2005 as compulsory retirement from service and quash the same and consequently to direct the respondents herein to reinstate the petitioner in service with all consequential monetary and service benefits. For Petitioner : Ms.Sudha Ravi for M/s.Ravi Shanmugam For Respondents : Mr.V.Subbiah, Spl.G.P. for RR1 to 3 ORDER The petitioner has come forward to challenge an order dated 7.4.2007 made in P.R.No.66 of 2006 and the consequential order passed by the third respondent, dated 7.4.2007, wherein and by which a major penalty of removal was passed, and thereafter it was modified by the first respondent by an order dated 16.10.2008 into one of compulsory retirement from service and she seeks to set https://hcservices.ecourts.gov.in/hcservices/ aside the same and for a consequential direction to reinstate her in service with all consequential benefits. 2.The writ petition was admitted on 22.10.2009. On notice from this court, the third respondent has filed a counter affidavit, dated 18.3.2011 on behalf of all respondents. 3.The facts leading to filing the case are as follows: The petitioner joined the service as a Grade I Woman Police Constable on 1.7.1977. She was promoted as an Head Constable in the year 1986. She was further promoted as a Sub Inspector of Police during 1994. While she was working as a Women Sub Inspector of Police attached to F-1 Chintatripet Police Station, it was claimed that she had absented herself from duty without submitting any leave letter or without permission from the authorities consecutively for more than 21 days from 20.6.2005. Thus, she had violated the Tamil Nadu Police Subordinate Services (Disciplinary and Appeal) Rules. She had submitted a leave letter for grant of medical leave. Since she was on medical leave for more than 60 days from 20.6.2005, she was directed to appear before a Medical Board on 14.10.2005. The Medical Board on examining her had granted 30 days further medical leave from 22.11.2005. But even after the expiry of the said leave, she had failed to join duty on 22.12.2005 and absented herself continuously. 4.The Deputy Commissioner of Police, Triplicane by his proceedings, dated 23.6.2006 had initiated action against the petitioner under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules. Therefore, charges were framed and disciplinary action was initiated in P.R.No.66 of 2006. The Assistant Commissioner of Police, Egmore was appointed as the Enquiry Officer. An oral enquiry was held against the petitioner. In the oral enquiry, two witnesses were examined, i.e., M/s.Venkataraman (Inspector of Police) and Arumugam (Sub Inspector of Police) of the F-1 Chintadripet Police Station. The petitioner did not appear for the enquiry. Therefore, the Enquiry Officer by a report dated 25.1.2007 found the charge levelled against the petitioner was proved. The enquiry report was given to her on 8.3.2007. But she did not submit any representation. 5.The third respondent agreed with the enquiry officer's report and found that the fact that she had not reported for duty showed her unwillingness to continue in service in the police force and deserting the force was a gravest offence which cannot be tolerated. Hence she was ordered to be removed from service. Consequentially an order was passed removing her from service with effect from the date of desertion, i.e. From 22.12.2005. The petitioner without filing any appeal has sent a review petition to the first respondent. The first respondent found that the charges levelled against the petitioner was proved, but considering her 28 years of service and taking lenient view had modified the penalty into one of compulsory retirement. https://hcservices.ecourts.gov.in/hcservices/ 6.Ms.Sudha Ravi, learned counsel for the petitioner submitted that neither the disciplinary authority nor the appellate authority took note of the petitioner's predicament in absenting herself. In her letter dated 18.12.2005 addressed to the Inspector of Police, Chintadripet, she had stated that while her leave was about to end as granted by the medical board, her husband became very ill. Because of her family circumstances, she got her husband treated in an hospital at Vellore. Therefore, she could not come to work. Similarly, she also wrote a letter to the Commissioner of Police, Chennai on 15.6.2006 stating that she can be sent to examination by the medical board for an appropriate consideration. Notwithstanding the same, a charge memo came to be framed against the petitioner on 24.8.2006. Even the Inspector of Police who gave evidence as P.W.1 did not refer to her letter in the enquiry. Yet she was found guilty of the charges. 7.It is also brought to the notice by the learned counsel that her husband despite medical treatment died on 21.2.2006. Therefore, when she submitted a review petition before the first respondent, she brought to the notice of the first respondent about the death of her husband due to heart ailment. As she belonged to the brahmin community, she had to perform certain customary rituals after the death of her husband. Thus she had to confine herself to lead a solitary life in her home without any connection with the outside world. 8.The statement made by the petitioner in her revision petition really makes a sad commentary on the status of widowhood and the curse made against them even in the 21st century. For several centuries, the widows among the Hindus were isolated from the mainstream and they were despised and any deviant behavior from the traditional codes were frowned upon. The Manusmiriti codifies the dos and donts for a widow and it spells out a deviation to result in drastic punishment in a rebirth. It will be interesting to note down the Laws of Manu on the observance of abstinence by a widow. The following are the passages found in the Laws of Manu published by Penguin Classics (1991 Edition) translated by Wendy Doniger with Brian K.Smith. [See Chapter 5 – pages 115 and 116] : [156]A virtuous wife should never do anything displeasing to the husband who took her hand in marriage, when he is alive or dead, if she longs for her husband's world (after death). [157] When her husband is dead she may fast as much as she likes, (living) on auspicious flowers, roots, and fruits, but she should not even mention the name of another man. [158]She should be long-suffering until death, self- restrained, and chaste, striving (to fulfil) the unsurpassed duty of women who have one husband. [164]A woman who is unfaithful to her husband is an object of reproach in this world; (then) she is reborn in the womb of a jackal and is tormented by the https://hcservices.ecourts.gov.in/hcservices/ diseases born of her evil. [166]The women who restrains her mind-and-heart, speech, and body through this behaviour wins the foremost renown here on earth and her husband's world in the hereafter. 9.Tarabai Shinde (c.1850-1910), a young Marathi housewife, wrote Stri-purusha-tulana (“A Comparision Between Women and Men”). She wrote: “So is it true that only women's bodies are home to all the different kinds of recklessness and vice? Or have men got just the same faults as we find in women?” As for widows: “Once a woman's husband has died, not even a dog would swallow what she's got to.” Further she wrote that cry for equality went unheeded in a world where reformers wanted to help women, not accord them equal status. [See : Rosalind O'Hanlon, “Issues of Widowhood : Gender and Resistance in Colonial Western India,” Contesting Power: Resistance and Everyday Social Relations in South Asia, ed. Douglas Haynes and Gyan Prakash (Delhi, Oxford University Press, 1991) pp.62-108, quotes from p.93 and p.96.] 10.But this pernicious practice of isolating a woman on her becoming a widow was valiantly fought by many social reformers including Pandit Iswar Chandra Vidyasagar, from Bengali; Virasalingam Pantulu, a speaker from Madras Presidency and Justice Mahadev Govind Ranade from Bombay in the later half of 19th century. In northern India, Dayananda Saraswati (1824-83), launched a vigorous campaign against popular Hinduism including the brahmin priesthood, rituals, and pilgrimages, and customary prohibitions on widow remarriage and female education. 11.Thanks to the reformist movements, slowly such prejudice are getting disappeared. The Constitution of India in Article 39-A had assured for all the Indian citizens both men and women equally the right to have an adequate means of livelihood. Not satisfied with such guarantee for employment in the Chapter on Fundamental Duties introduced by the 42nd Amendment, under Article 51A, it shall be one of the fundamental duty of every citizen of India “to renounce the practice of derogatory to the dignity of women” [Art.51A(e)]. The predicament of the petitioner will have to be seen in the above context of long history of imposed isolation of the widow from the society and the customary duties to observe certain mandatory rituals. 12.The petitioner also submitted that for that reason only, she could not appear in the enquiry held against her from 3.10.2006 to 3.12.2006. She also could not appear subsequently and submit her explanation. She had put in 30 years of service and recognized as one of the best officer in the force. Hence, she ought not to have been punished. The first respondent had accepted the review petition and did not go into the cause for absence by the petitioner. He merely stated that she had deserted herself from 22.12.2005. Therefore, the charge against her was proved. But taking a lenient view, he had modified the punishment into one of compulsory retirement. https://hcservices.ecourts.gov.in/hcservices/ 13.It must be noted that both removal from service and compulsory retirement are major penalties under the relevant service rules. The revisional authority, i.e., the first respondent did not take note of all relevant considerations in deciding the case of the petitioner and this Court must interfere on the question of the penalty as it was grossly disproportionate. The learned counsel for the petitioner also placed reliance upon a judgment of the Supreme Court in Chairman-cum-Managing Director, Coal India Limited v. Mukul Kumar Choudhuri reported in (2009) 15 SCC 620 and referred to the following passages found in paragraphs 19 to 22 which reads as follows: "19*.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 excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 20.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. 21.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. 22.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 Respondent 1 is denied back wages for the entire period by way of punishment for the proved https://hcservices.ecourts.gov.in/hcservices/ misconduct of unauthorised absence for six months." (Emphasis added) Hence, the learned counsel for the petitioner pleaded for modification of the penalty. 14.It must be noted that even in cases of absence by policemen, the Supreme Court had interfered in certain cases when it was a case of disproportionate punishment. In this context, it is necessary to refer to the judgment of the Supreme Court in Union of India Vs. Giriraj Sharma reported in 1994 Supp (3) SCC 755. In paragraph 2, it was observed as follows: "2.Mr.Jain, the learned counsel for the appellant- Union of India contended that the interpretation placed on Section 11(1) of the Central Reserve Police Force Act, 1949 (hereinafter called 'the Act') is not correct and it is on account of this erroneous understanding of the provision that the High Court quashed the order of dismissal. In support of his contention he invited our attention to a decision of the Rajasthan High Court reported in Shyamsingh V. Dy. Inspector General of Police, C.R.P. He also relied on certain other decisions but it is sufficient to state that according to him the learned Judges of the High Court had committed an error in interpreting the said sub-section. In our opinion it is not necessary for us to construe sub-section (1) of Section 11 of the Act in the backdrop of the facts of the present case. Assuming Mr.Jain is right, we are of the opinion that so far as the present case is concerned the allegation is in regard to the incumbent having overstayed the period of leave by 12 days. The incumbent while admitting the fact that he had overstayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. We are of the opinion that the punishment of dismissal for overstaying the period of 12 days in the said circumstances which have not been controverted in the counter is harsh since the circumstances show that it was not his intention to wilfully flout the order, but the circumstances forced him to do so. In that view of the matter the learned counsel for the respondent has fairly conceded that it was open to the authorities to visit him with a minor penalty, if they so desired, but a major penalty of dismissal from service was not called for. We agree with this submission." (Emphasis added) 15.Subsequently, the Supreme Court in Malkiat Singh Vs. State of Punjab reported in (1996) 7 SCC 634, in paragraph 3, held as follows: "3.The appellant was appointed on 20.4.1990 and was discharged from service on 22.7.1992 on the ground that he remained absent from duty for more than 1 month 9 days. Another ground was that he was https://hcservices.ecourts.gov.in/hcservices/ irregular in attending to the duty. So he could not prove himself to be an efficient constable. We had sent for the records which disclose that he was absent on three occasions. On the first occasion, when he was called upon to report for duty at 12 noon, he reported on 10.9.1990 and was late by six hours. In the second occasion, he was absent, on 30.6.1991, from night duty. The third occasion was on 24.4.1995. The explanation offered for the absence on the third occasion was that since in his wife's delivery certain complication had arisen, he had to attend to his wife and so he could not be present. The medical certificate in that behalf was produced. In view of the medical certificate, it cannot be said that he had deliberately absented himself from duty. On the previous two occasions, the absence for one day and in another year for one night cannot be considered to be regular absence so as to reach the conclusion that he had not proved his efficiency. It is true that discipline is required t be maintained. However, absence may sometimes be inevitable. In the facts and circumstances of this cases, an opportunity may be given to the appellant to work efficiently to prove his excellence. The order of discharge is set aside. The respondents are directed to take the appellant into service forthwith. If the appellant absents himself again for two consecutive days within one year without prior permission, appropriate action may be taken by dismissing him from service. The appellant, however, is not entitled to backwages." (Emphasis added) 16.In the present case, the relevant consideration, i.e., the petitioner's husband's prolonged illness who was to be attended by the petitioner alone and after his death, the need for the petitioner to be confined to her home for customary rituals was not taken note of. Incident of this nature must be well within the knowledge of the officers of the department, yet they have not shown any concern on the plight of the petitioner. A widowhood brings greatest suffering to a women in our society. That the explanation offered by the petitioner cannot be brushed aside by the authorities. If the first respondent wanted to really show leniency, then he should have looked into the cause for her absence and cannot pass a mechanical order. 17.In the present case, the petitioner instead of filing an appeal before an appellate authority filed a revision before the first respondent. But the first respondent by a two sentenced order dealt with the revision. He did not realize that even while exercising revisional power, he has the power to deal with the same as an appellate authority. The question whether the revisional powers is akin to an appellate power came to be considered by a Supreme Court vide its judgment in Narinder Mohan Arya v. United India Insurance Co. Ltd., reported in (2006) 4 SCC 713. In paragraph 47, it was observed as follows: https://hcservices.ecourts.gov.in/hcservices/ 47.A revisional jurisdiction as is well known involves exercise of appellate jurisdiction. (See Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat20 and Nalakath Sainuddin v. Koorikadan Sulaiman21.) 18.The Supreme Court while dealing with the powers of the appellate and revisional authorities held that even when the authorities concur with the views of the disciplinary authority, their orders must give some reasons and it should not be a mechanical endorsement. In this context, it is necessary to refer to a judgment of the Supreme Court in Divisional Forest Officer, Kothagudem v. Madhusudhan Rao reported in (2008) 3 SCC 469. The following passages found in paragraphs 19 and 20 may be usefully reproduced below: “19....No doubt, the Divisional Forest Officer dealt with the matter in detail, but it was also the duty of the appellate authority to give at least some reasons for rejecting the appeal preferred by the respondent. A similar duty was cast on the revisional authority being the highest authority in the Department of Forests in the State. Unfortunately, even the revisional authority has merely indicated that the decision of the Divisional Forest Officer had been examined by the Conservator of Forests, Khammam wherein the charge of misappropriation was clearly proved. He too did not consider the defence case as made out by the respondent herein and simply endorsed the punishment of dismissal though reducing it to removal from service. 20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.” Such an exercise was not undertaking by the first respondent. 19.In the light of the above, this court is obliged to interfere with the impugned order of compulsory retirement imposed on the petitioner. Hence the orders removing her from service modified as compulsory retirement are hereby set aside. The respondents are hereby directed to reinstate the petitioner with continuity of service with all consequential benefits. But with reference to backwages as held by the Supreme Court in Coal India Limited's case (cited supra), she will not be eligible for any backwages for the period of her absence till the date of her https://hcservices.ecourts.gov.in/hcservices/ restoration to service. But, the interregnum period shall be treated as duty for all other purposes. Accordingly, the writ petition will stand allowed. However, there will be no order as to costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. vvk To 1.The Director-General of Police, Tamil Nadu, Chennai-4. 2.The Commissioner of Police, City Police Office, Egmore, Chennai-8. 3.The Joint Commissioner of Police, Central Zone, Egmore, Chennai-8. 1 cc to The Govt. Pleader, SR 60207 1 cc To Mr.Ravi Shanmugam, Advocate Sr 59612 W.P.NO.21497 of 2009 ug[co] gp/28.9. https://hcservices.ecourts.gov.in/hcservices/