IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.12.2009 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.2347 of 2007 (O.A. No.1730 of 2001) K.Annamalai ..Petitioner vs. 1. Superintendent of Police, District Police Office, Madurai District. 2. Deputy Inspector General of Police, Madurai Range, Madurai. ..Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India by way of transfer of O.A.No.1730 of 2001 from the file of Tamil Nadu State Administrative Tribunal at Chennai, praying this Court to call for the records of the first respondent herein imposing the punishment of compulsory retirement from service passed in his proceedings PR 30/F1/2000 dated 16.8.2000 and the consequential order passed by the second respondent herein in his Proceedings C.No.A3/Appeal.50/2000, dated 7.1.2001 confirming the punishment and quash the same and consequentially direct the respondents herein to reinstate the applicant back to service with all consequential monetary and service benefits. For Petitioner : M/.Sudha Ravi Associates For Respondents : Mrs.C.K.Vishnu Priya, Addl. Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner was recruited as Grade II Police Constable in the year 1977. He was promoted as Grade I Police Constable in the year 1994. He was further promoted as Head Constable in the year 1999. 2.While so, he was on Medical Leave from 27.07.1999 to 15.08.1999 and the same was sanctioned. According to the petitioner, he applied for extension of leave from 16.08.1999 for twenty five (25 days). But the first respondent proceeded that the petitioner was unauthorisedly absent from 16.08.1999. Hence, the first respondent issued an order dated 13.09.1999 declaring the petitioner as deserter from 16.08.1999 as he remained unauthorisedly absent for twenty one (21 days) from 16.08.1999 to 06.09.1999. In the said order dated 13.09.1999, the petitioner was directed to appear before the first respondent within two months with relevant documents to explain his absence, otherwise further action would be taken. 3.In these circumstances, the petitioner appeared before the first respondent on 07.10.1999 and explained his absence. He was taken back to duty without prejudice to the departmental action. Accordingly, the petitioner joined duty. 4.The first respondent issued a charge memo dated 02.03.2000 to the petitioner under Rule 3 (b) of Tamilnadu Police Subordinate Service Rules 1955 alleging that he was absented from duty for twenty one (21) days and thereby deserted the post. After enquiry, the petitioner was imposed with the punishment of compulsory retirement by an order dated 16.08.2000 by the first respondent. The petitioner filed appeal to the second respondent and the same was rejected by the second respondent by an order dated 07.01.2001. 5.The petitioner filed O.A.No.1730 of 2001 (W.P.No.2347 of 2007) to quash the aforesaid orders of the first and second respondents. 6.Heard Ms.Sudha Ravi for petitioner and Mrs.C.K.Vishnu Priya, Additional Government Pleader for the respondents. The learned counsel for the petitioner submits that the order of punishment is contrary to the Circular in R.C No.243881/AP.I(1)/90 dated 30.10.1990 of Inspector General of Police, Law and Order. In the said circular, the guidelines were issued to the Superintendents that if the Subordinate Police officials were taken back to duty, after they being declared as deserter on being satisfied with the explanations submitted by them, the Superintendents should not impose the https://hcservices.ecourts.gov.in/hcservices/ punishment of removal or dismissal or compulsory retirement, while disposing of the disciplinary proceedings. The said circular is extracted hereunder - Rc.No.243881/AP.I(1)/90 Director General of Police P.B.No.601, Madras-4. Dated : 30.10.1990 CIRCULAR MEMORANDUM Sub: P.R.s in Desertion cases after taking delinquents for duty – Certain instructions – Issued. - - - - - While disposing of appeals/reviews from Head Constables to Police Constables, I noticed that the Superintendents 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 desertor, 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 on duty. In such cases while disposing of P.R.s, punishment of removal/dismissal from service or compulsory retirement should not be given. Any other punsishment is acceptable. This guideline may be kept in view, while dealing with desertion cases. 3. Please acknowledge in the proforma enclosed. Sd/- Inspector General of Police (Law and Order) 30.10.90 7.The learned Addl. Government Pleader states that the Circular of the Inspector General of Police is not binding on the Superintendent of Police. 8.I have considered the submissions made on either side. When the Inspector General of Police is admittedly a higher authority, he is competent to issue circular directing the Superintendent of Police https://hcservices.ecourts.gov.in/hcservices/ not to impose the maximum penalty of removal/dismissal/ compulsory retirement in the case of deserters if the concerned police official who was declared as deserted subsequently reported to duty and the Superintendent of Police permitted him to join duty accepting the explanation offered by him. Therefore, the learned counsel for the petitioner is correct in her submission that the first respondent was not justified in imposing the penalty of compulsory retirement and both the first and second respondent failed to take into account the circular of Inspector General of Police, who is an higher authority to both the first and second respondent. Hence, the impugned order is liable to be interfered with, in view of the categorical direction in the circular of Inspector General of Police referred to above. The petitioner has to be imposed with some other penalty other than compulsory retirement/dismissal/removal. 9.Further, admittedly, the petitioner was absent from 16.08.1999 to 06.10.1999, i.e. for 45 days and in fact it is the case of the petitioner that he sought for extension of leave from 16.08.1999 for 25 days. Though the same is denied, the total number of days for which he remained absent was 45 days. In these circumstances, taking into account the circular of Inspector General of Police and the absence was for only 45 days, the impugned order imposing the penalty of compulsory retirement is liable to be quashed. Accordingly, the impugned orders are quashed with a direction to the first respondent to impose some other punishment on the petitioner as per the circular dated 30.10.1990 of the Inspector General of Police. 10.With the above direction, the Writ Petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rgr To 1. The Superintendent of Police, District Police Office, Madurai District. 2. The Deputy Inspector General of Police, Madurai Range, Madurai. + 1 c.c. to M/s. Sudha Ravi Associates. Advocates. S.R.No.69387. + 1 c.c. to The Government Pleader. S.R.No.69542. W.P.No.2347 of 2007 AR (CO) GSK 08.02.2010. https://hcservices.ecourts.gov.in/hcservices/