1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.07.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY W.A.(MD).No.666 of 2011 and M.P.No.2 of 2011 1.The Director General of Police, Chennai 5. 2.The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli. 3.The Superintendent of Police, Kanyakumari District, @ Nagarcoil. : Appellants Vs. S.John Bosco : Respondents PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 22.12.2010 made in W.P.(MD).No.6992 of 2009 on the file of this Court. PRAYER : Writ petition is filed under Article 226 of the constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records relating to the order passed by the third respondent against the petitioner in proceedings D.O.No.540/2008 C.No.L1/PR.100/2007, dated 29.05.2008 and the order passed by the second respondent rejecting the petitioner's appeal petition is proceedings C.NO.c4/AP/42/2009, dated 21.03.2009 and the final order passed by the first respondent rejecting the petitioner's review petition in proceedings RC.No.60157/AP2(1)/2009, dated 12.06.2009 and quash the same and consequently direct the respondents to reinstate the petitioner in service with all service and monetary benefits within a time frame to be fixed by this Court, treating his period of absence as leave without pay. For Appellants : Mr.K.Mahendran Special Government Pleader For Respondent : Mrs.J.Nisha Banu JUDGMENT [Judgment of the Court was delivered BY P.JYOTHIMANI, J] The Writ Appeal is directed against the order dated 22.12.2010 made in W.P.(MD).No.6992 of 2009, by which the learned Single Judge of this Court, while setting aside the impugned orders passed by the appellants herein, has directed the appellants to reinstate the Writ Petitioner/respondent in service with continuity of service without back wages, within a period of four weeks from the date of receipt of a copy of the order. https://hcservices.ecourts.gov.in/hcservices/ 2 2. The only ground, on which the present Writ Appeal is filed, is that the Writ Petitioner/respondent, who belongs to disciplinary force, working as a Head Constable, has abandoned the job without obtaining prior leave, and therefore, it was treated as a desertion. Merely because a Medical Certificate has been produced to say that the Writ Petitioner/respondent was admitted as an inpatient taking treatment under a Psychiatrist, that itself cannot be a defence for desertion which is the basis for the filing of the Writ Appeal. The charges framed against the Writ Petitioner/respondent are as follows:- "i) Gross neglect of duty and highly reprehensible conduct in having absented from duty without any leave or permission from 23.03.2007 FN continuously absented for a period of 21 days on 12.04.2007 AN and thereby constituted the offence of desertion as per order No.95 of PSO Vol.I Vide D.O.No.477/07, dt: 13.4.2007 of the Superintendent of Police, Kanniyakumari District. ii) Gross neglect of duty in having failed to submit a representation with intention to join for duty before the Superintendent of Police, Kanniyakumari District within 60 days from the date of desertion i.e 23.3.2007 as per instructions issued in the desertion order in D.O.No.477/07 dt: 13.4.2007 and thereby constituted the offence of confirmed desertion vide D.O.No.632/07 dt:22.5.07 of the Superintendent of Police, Kanniyakumari District. 3. The learned Single Judge has taken note of the fact that under similar circumstances, a Division Bench of this Court in W.A.(MD).No.388 of 2008, by Judgment dated 21.10.2009, has interfered with the order of punishment for unauthorized absence by modifying the same as postponing of increment for two years without cumulative effect and also relied upon a Judgment of the Hon'ble Apex Court in (Chairman cum Managing Director, Coal India Limited and Another vs. Mukul Kumar Choudhuri and others) reported in 2009 8 MLJ 460 (SC), wherein, the Hon'ble Supreme Court by following the earlier Judgment in Ranjit Thakur vs. Union of India reported in AIR 1987 SC 2386 : 1987 (4) SCC 611, held that even though under normal circumstances, by judicial review, the Court cannot substitute its own conclusion regarding penalty imposed, if the punishment imposed by the Disciplinary Authority shocks the conscience of the High Court, it would be possible for the High Court to appropriately mould the relief either by directing the Disciplinary Authority/Appellate Authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 4. It was on the basis of the judicial dictum laid down by the Hon'ble Supreme Court, the learned Single Judge, taking note of the fact that the Writ Petitioner/respondent was admitted as an inpatient at Intensive Care Unit in the Medical College Hospital, Asaripallam, during the relevant period and he was also taking treatment from one Dr.P.Nagarajan, a Senior Psychiatric consultant and a retired Civil Surgeon from 23.03.2007 to 29.01.2009, has set aside the order of dismissal from service with a direction to the appellants to reinstate the Writ Petitioner/respondent in service with continuity of service without back wages. https://hcservices.ecourts.gov.in/hcservices/ 3 5. On the facts and circumstances of the present case, we do see that this is a peculiar circumstance, which can be considered as one of the rarest of rare cases. Therefore, we see no reason to interfere with the order of the learned Single Judge. 6. In the result, the order dated 22.12.2010 made in W.P.(MD).No.6992 of 2009 is confirmed and the Writ Appeal is dismissed. The appellants are directed to implement the order of the learned Single Judge dated 22.12.2010 within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is also dismissed. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To 1.The Director General of Police, Chennai 5. 2.The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli. 3.The Superintendent of Police, Kanyakumari District @ Nagarcoil. +1cc to Special Government Pleader, SR.No.24509 +1cc to M/s.S.Nisha Banu, Advocate, SR.No.24231 NB : GH : 29.07.2011 : 3p/6c JUDGMENT MADE IN W.A.(MD).No.666 of 2011 22.07.2011 https://hcservices.ecourts.gov.in/hcservices/