IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.01.2010 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.35231 of 2006 Jayaraman .. Petitioner .Vs. The Superintendent of Police, Karur. .. Respondent PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.7712 of 1998 from the file of the Tamil Nadu Administrative Tribunal to quash the impugned order of compulsory retirement from service passed by the first respondent herein in his proceedings in F1/P.R.4/98 dated 18.08.1998 and direct the respondents to reinstate the applicant in service with all consequential, service and monetary benefits and pass such further orders. For Petitioner : Mrs.Nirmala Daisy For Respondent : Mr.S.Shiva Shanmugam, Government Advocate. O R D E R The Original Application in O.A.No.7712 of 1998 before the Tamil Nadu Administrative Tribunal is the present writ petition. 2. The petitioner joined in service as Grade II Police Constable on 15.12.1979. He was promoted as Grade I Police Constable in the year 1995. He absented from duty without permission or leave from 04.11.1997 for 21 days and therefore, he was treated as deserter by the office proceedings with effect from 5.11.97 and the same was served on 9.12.97. He sent a medical certificate on 24.11.97 by post, which was received by the respondent on 26.11.97. However, he appeared before the respondent on 30.01.98. He was permitted to join duty by the respondent. But, a charge memo dated 28.02.98 was issued alleging that he absented from duty from 4.11.97 to 25.11.97. Based https://hcservices.ecourts.gov.in/hcservices/ on enquiry, he was imposed with the punishment of compulsory retirement by the impugned order dated 18.8.98. 3. The petitioner filed O.A.No.7712/98 to quash the impugned order dated 18.8.98 and for consequential direction to reinstate with all benefits. The respondent filed a reply affidavit refuting all the allegations. It is stated that the petitioner remained absent for 21 days and therefore, disciplinary action was taken, which resulted in the imposing of punishment of compulsory retirement. 4. Heard Mrs.Nirmnala Daisy, learned Senior Counsel for the petitioner and Mr.S.Shiva Shanmugam, learned Government Advocate for the respondent. 5. Learned counsel for the petitioner states that even as per the reply affidavit, the medical certificate was sent on 24.11.97 and the same was received by the office on 26.11.97. Since the certificate was sent within 21 days, this could not be termed as desertion. 6. The learned counsel further submits that the Inspector General of Police issued a circular dated 30.10.90 to the subordinate officials instructing them not to impose punishment of removal/dismissal from the service or compulsory retirement in the case of desertion, if he was permitted by Superintendent of Police to join duty, when the concerned Police Constable reported to the Superintendent of Police. Learned counsel for petitioner also relies upon a judgement dated 21.4.2009 in W.P.No.38563/2006 in this regard. 7. I have considered the submissions made on either side. As rightly contended by the learned counsel for petitioner, the petitioner sent a medical certificate on 24.11.97 by post, which was received by the respondent on 26.11.97. In this regard, para 3 of the reply affidavit is extracted hereunder;- "3. It is submitted that the applicant Gr.I.PC 590 Jayaraman of Karur District absented himself for duty without permission or leave from 4.11.97 and he has completed 21 days as on 24.11.97.A.N. And he was treated as a deserted vide this office D.O.672/97 in C.No.F3/2626/16169/97, and the same was served on the applicant Gr.I.PC 590 Jayaraman on 9.12.97. He has sent a medical certificate on 24.11.97 by post, which was directly obtained from medical officer without proper passport received in this office on 26.11.97 i.e. On completion of 22 days." https://hcservices.ecourts.gov.in/hcservices/ Further, as rightly contended by the learned counsel for petitioner, the Inspector General of Police categorically issued a circular dated 30.10.90 instructing not to impose punishment of removal/dismissal from the service or compulsory retirement in the case of desertion, if the concerned Police Constable reported to the Superintendent of Police and he was permitted to join duty. The circular dated 30.10.90 of the Inspector General of Police is extracted hereunder:- "3. While disposing of appeals/reviews from Head Constables of Police Constables, I noticed that the Superintendent of Police are awarding the maximum penalty of dismissal or removal from service in desertion cases, after taking them for duty. This is unfair and cannot be justified. 2. When a Head Constable/Police Constable is struck off as a deserter, notice is issued directing the delinquent to appear before the Superintendent of Police within two months. When he appears, Superintendent of Police should make up his mind whether the absence is on valid grounds and whether the period of absence is covered by a valid medical certificate. If Superintendent of Police is not satisfied, the delinquent should not be taken for duty. If on the other hand, Superintendent of Police is satisfied, he can be taken for duty. In such cases while disposing of P.RS. Punishment of removal/dismissal from service or compulsory retirement should not be given. Any other punishment is acceptable. This guideline may be kept in view, while dealing with desertion cases." Hence, the impugned order of compulsory retirement is bad in view of the said circular of the Inspector General of Police. 8. Further, I have perused the judgement dated 21.4.2009 in W.P.No.38563/2006 and para 7 and 8 of the said judgement are extracted hereunder; "7. The petitioner was dealt with for the desertion, during the time, the said circular dated 30.10.90 was in operation. The said circular deals with only desertion and nothing is stated about the desertion of more than one time. The second respondent also satisfied with the petitioner's explanation i.e., his illness for absence and permitted him to report back for duty on 17.1.97. https://hcservices.ecourts.gov.in/hcservices/ 8. In the light of the above circular issued by the Director General of Police which is binding on the respondents while passing the orders on the disciplinary proceedings, the impugned order of punishment of compulsory retirement imposed on the petitioner, cannot be sustained. The matter is remitted back to the second respondent to apply the circular issued by the Director General of Police dated 30.10.1990 and pass fresh orders i.e., for imposing any other punishment other than removal or dismissal or compulsory retirement. Necessary order is directed to be passed by the second respondent within a period of four weeks from the date of receipt of a cop of the order. No Costs." Learned counsel also produced an order dated 9.6.2009 implementing the order dated 21.4.09 in W.P.No.38563/2006, imposing the punishment of "Reduction in time scale of pay by three stages for three years which shall operate to postpone future increments". 9. For the reasons stated above, the impugned order is quashed and the matter is remanded back to the respondent to pass fresh order in the light of the circular dated 30.10.90 of the Inspector General of Police for imposing punishment other than removal/dismissal/compulsory retirement. The respondent is directed to pass appropriate order within eight weeks from the date of receipt of a copy of this order. 10. With the aforesaid direction, the writ petition is allowed. No Costs. rkm Sd/- Asst.Registrar /True Copy/ Sub Asst.Registrar To The Superintendent of Police, Karur. + 1 cc The Goverment Pleader High Court, Madras SR.1489 + 1 cc M/s. G. Bala & Daioy, Advocate SR.1305 W.P.No.35231 of 2006 JSV(CO) EU 25.01.2010 https://hcservices.ecourts.gov.in/hcservices/