IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :21.10.2011 CORAM THE HONOURABLE Mr. JUSTICE D. HARIPARANTHAMAN W.P. No.7095 of 2007 (O.A.No.2364 of 2004) M.Gunasekaran Ex.P.C.1295 (Since Compulsorily Retired) Kadampathur Police Station Kancheepuram District ..Petitioner /vs/ 1.The Secretary to Government Home (Pol.V)Department Fort St.George, Chennai 600 009 2.The Director of General of Police Chennai 600 004 3.The Inspector General of Police (I&O), Chennai 600 004 4.The Deputy Inspector General of Police Chengalpattu Range Chennai 600 018 5.The Superintendent of Police Kancheepuram District Kancheepuram ..Respondents PRAYER: This Writ petition came to be numbered under Article 226 of Constitution of India by way of transfer of O.A.No.2364 of 2004 from the file of the Tamil Nadu Administrative Tribunal, Chennai praying for issuance of a Writ of Certiorarified Mandamus to call for the records relating to the order dated 06.03.2002 in ref.No.G.O.Ms.No.181 passed by first respondent confirming the order dated 24.3.2000 made in R.C.No.42922/API(2)/2000 passed by the Director General of Police, Chennai the second respondent herein confirming the order in Ref.No.R.C.No.200775/AP.I(2)/99 dated 19.9.1999 passed by the third respondent confirming the order dated C.N.A3/AP.34/98 dated 4.6.1988 passed by the fourth respondent confirming the order ref.No.P.R.No.48/96 dated 24.10.1996 passed by the Superintendent of Police, Kancheepuram (West)District, Kancheepuram, the fourth respondent herein and https://hcservices.ecourts.gov.in/hcservices/ quash the same and consequently direct the respondents to reinstate the petitioner with all monetary and service benefits. For Petitioner : Mr.M.T.Arunan For Respondents : Mr.Rm.Mutthukumar Government Advocate ORDER The petitioner joined as Police Constable in the Police Department in the year 1975. He rendered 22 years of service. He was serving in Kadambathur Police Station as Grade II Police Constable from 29.03.1994. On 13.10.1995, he was pass ported for Pennalur E.B. Guard duty. He was discharging the said duties from 13.10.1995 onwards. 2. While so, on 16.10.1995 at about 2.00 p.m. when the petitioner was on his way for reporting duty, he fell sick due to high blood pressure. The petitioner was already a diabetic patient. He developed hydrocele, as a result of which, he could not attend duty from 16.10.1995 onwards. He was taking treatment from 16.10.1995 to 6.11.1995 at the Government Hospital. He could not be able to inform the authorities and he did not apply for leave, as he was not well. 3. According to the petitioner on 07.11.1995 he sent a telegram informing the Sub Inspector of Kadambathur Police Station that he had been taking treatment for the above said sickness of hydrocele in the hospital from 16.10.1995. 4. The petitioner took treatment from 07.11.1995 to 31.12.1995 under Dr.Sahadevan, M.B.B.S., of D.P. Government Hospital and thereafter from 1.1.1996 to 31.1.1996, he was taking treatment under Dr.Ramanujam, at E.S.I. Hospital, Ayanavaram, Chennai. He produced fitness certificate to join duty, however he was not permitted to join duty. On the other hand, the fifth respondent issued desertion order dated 15.11.1995 declaring that the petitioner was absent from duty with effect from 18.10.1995 without obtaining any permission or sick passport from the superiors and he completed 21 days of absent as on 07.11.1995. Hence, he was treated as a deserter. He was directed to report before the Superintendent of Police, on or before 16.12.1995. It is further stated therein that if he fails to report, disciplinary action will be initiated against him. 5. In the said circumstances, the petitioner sent a letter dated 1.2.1996 stating the aforesaid facts, particularly about the telegram sent on 07.11.1995 informing his sickness and also https://hcservices.ecourts.gov.in/hcservices/ treatment taken under Dr.Sagadevan and Dr.Ramanujam. However, the fifth respondent issued a charge memo dated 02.09.1996 under Rule 3(b) of Tamil Nadu Police Subordinate Services(Discipline and Appeal)Rules alleging that the petitioner absented himself from duty without leave or permission from 18.10.1995 and continued to be absent for more than 21 days. An enquiry was conducted by the Deputy Superintendent of Police, Thiruvallur and the enquiry officer gave his report holding that the charges were proved. Based on the report of enquiry officer holding that the charges were proved, the fifth respondent passed an order dated 24.10.1996 imposing the punishment of compulsory retirement. 6. Against the punishment order, the petitioner filed an appeal before the fourth respondent. The fourth respondent rejected the appeal, by an order dated 04.06.1998. Thereafter, the petitioner filed a review petition before the third respondent. The third respondent rejected the review petition, by an order dated 19.09.1999. The petitioner filed a mercy petition before the second respondent. The same was dismissed by the second respondent by an order dated 24.03.2000. The petitioner approached the Government by way of mercy petition and the first respondent rejected the mercy petition in G.O.Ms.No.181, Home (Pol.V) Department, dated 06.03.2002. The petitioner filed O.A.No.2364 of 2004 to quash the aforesaid orders passed by the respondents. 7. The respondents have not filed counter affidavit. 8. Heard both the sides. The learned Government Advocate has produced the entire file regarding to the disciplinary action. 9. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.7095 of 2007. 10. The learned counsel for the petitioner submits that the petitioner has sent a telegram on 07.11.1995 and also produced the receipts for the same. He has also submitted that the fact of sending telegram was written in various letters to the respondents. It is also submitted that he took treatment for hydrocele from 16.10.1995 onwards and thereafter he took treatment for peptic ulcer. He has produced the medical certificates. 11. I have considered the submissions made on either side. 12. The petitioner has categorically stated in para 6(d) of the writ petition that on 07.11.1995, he sent a telegram informing the authorities that he had been taking treatment for hydrocele sickness in the hospital from 16.10.1995. The petitioner has submitted an explanation dated 10.07.1996. The same is found in https://hcservices.ecourts.gov.in/hcservices/ the file produced by the learned Government Advocate. The said explanation states about the telegram sent by him on 07.11.1995 informing the Kadambathur Police Station about his illness. He also stated in the explanation that he took treatment in Government Hospitals and thereafter he reported to duty on 1.2.1996. 13. The enquiry file also contains the receipt for sending telegram on 07.11.1995. The same also contains fitness certificate. The petitioner also sent another letter dated 01.02.1996 on the same lines of 10.07.1996. He stated therein that he has already produced the medical certificate as well as the receipts for having sent a telegram. The said letter was received by the fifth respondent on 03.09.1996. 14. But the fifth respondent did not consider the aforesaid relevant materials before passing the impugned order dated 24.10.1996 imposing the punishment of compulsory retirement. In the said order imposing the punishment, the fifth respondent stated that if the petitioner was really sick, he could have obtained sick passport and thereafter, he should proceed on leave. The fifth respondent did not dispute about the illness and the certificate produced by the petitioner. It is a different matter if the petitioner did not send telegram informing about his illness and he did not produce the medical certificates and thereafter the fitness certificate. Had the fifth respondent taken note of the relevant facts namely, sending of telegram on 07.11.1995 and the medical certificates, he could not have imposed the punishment of compulsory retirement. The petitioner filed appeal before the fourth respondent and the appeal was rejected by the fourth respondent stating that the petitioner was not suffering from heart attack or paralytic attack and that the peptic ulcer was not a serious one which warrants absent from duty. The fourth respondent/appellate authority also did not dispute about the illness. According to the fourth respondent only in the case of heart attack and paralytic attack, he could avail leave and not in the case of peptic ulcer. Infact, the petitioner sent a representation that initially he was taking treatment for hydrocele. The medical certificate dated 18.10.1995 that is found in the enquiry file also states that he was suffering from hydrocele and he was treated by the Chief Medical Officer, Government Hospital, Thiruvallur and that he required leave for 20 days from 18.10.1995. Ofcourse, the other certificates issued by the Dr.Sagadevan and Dr.Ramanujam states that he was suffering from peptic ulcer and he required leave for subsequent periods. Therefore, there is a medical certificate that he suffered hudrocele and he took treatment. The same was not taken note of by the appellate authority. The appellate authority also did not take note of the telegram sent by him on 07.11.1995. https://hcservices.ecourts.gov.in/hcservices/ 15. The third respondent and second respondent did not consider the medical certificates as well as the telegram referred to above. Ultimately, he approached the first respondent, Government. The first respondent issued G.O.Ms.No.181, Home (Pol.V)Department, dated 06.03.2002 refusing to interfere in the matter of punishment. Para 6 of the G.O states that the petitioner furnished the medical certificates along with his explanation. Medical certificate dated 18.10.1995 recommended medical leave for hydrocele from 18.10.1995 for 20 days. It is stated in para 6 of the G.O. that the petitioner admitted that he was absent from 18.10.1995 to 7.11.1995. It is true that he was absent from duty from 18.10.1995 to 07.11.1995. But the fact is that he took treatment for hydrocele. The same is supported by the medical certificate. 16. In these circumstances, the respondents are not correct in imposing the punishment of compulsory retirement. Therefore, I am of the view that the impugned orders are liable to be quashed. In the normal course, I would have remitted the matter back to fifth respondent to impose appropriate punishment. However, the petitioner reached age of superannuation on 31.08.2011. Hence, I am not remitting the matter back to the fifth respondent. While I set aside the impugned order imposing the compulsory retirement as the punishment for his absence from 08.10.1995. I am inclined to deprive the petitioner the wages for the period of non-employment. However, the petitioner is entitled to notional fixation of pay for the period of non-employment, that is, from the date of compulsory retirement to the date of retirement. 17. The writ petition is disposed of with the above terms. No costs. ari Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary to Government Home (Pol.V)Department Fort St.George, Chennai 600 009 https://hcservices.ecourts.gov.in/hcservices/ 2.The Director of General of Police Chennai 600 004 3.The Inspector General of Police (I&O), Chennai 600 004 4.The Deputy Inspector General of Police Chengalpattu Range Chennai 600 018 5.The Superintendent of Police Kancheepuram District Kancheepuram + 1 cc to Mr. M.T. Arunan, Advocate SR No.64942 + 1 cc to Government Pleader, SR No.65059 CK(CO) SR/16.11.2011 W.P. No.7095 of 2007 (O.A.No.2364 of 2004) https://hcservices.ecourts.gov.in/hcservices/