IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.02.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.40859 OF 2006 (O.A.NO.8759 OF 2000) K.Perumal .. Petitioner Vs. 1.The Commissioner of Police, Egmore, Chennai-600 008. 2.The Deputy Commissioner of Police, Headquarters, Egmore, Chennai-600 008. 3.The Deputy Commissioner of Police, (Armed Reserve), City Police Office, Egmore, Chennai-600 008. .. Respondents O.A.No.8759 of 2000 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.40859 of 2006 praying for the issue of a writ of certiorarified mandamus to call for the entire records connected with the impugned order of dismissal bearing No.P.R.103/P.R.II(2)/ 2000, dated 04.10.2000 passed by the third respondent and to quash the same and to direct the respondents to reinstate the applicant in service with backwages and continuity of service and all other attendant benefits. For Petitioner : Mr.S.N.Ravichandran For Respondents : Mr.R.Murali, GA - - - - ORDER The petitioner who was employed as a Police Constable in the Armed Reserve attached to 12th Platoon, Chennai City Police, has filed O.A.No.8759 of 2000. He challenged an order, dated 4.10.2000 wherein and by which he was imposed with a penalty of dismissal from service from the date of his desertion. The Tribunal admitted the O.A. on 5.12.2000. In view of the abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.40859 of 2006. Till date the respondents have not filed any counter affidavit disputing the averments made by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2.The facts leading to the filing of the petition are as follows: The petitioner joined the service of the respondent on 17.11.1988. Thereafter, during September, 1998, he was transferred to the Armed Reserve unit at Pudupet. On 8.1.2000, his wife Sarala met with an accident. He was forced to take her to the Christian Medical Hospital at Vellore. On 9.1.2000, the petitioner informed these facts to the Reserve Inspector and had requested for grant of leave. But leave was refused. On 9.1.2000, as his wife had undergone a brain surgery, the petitioner informed the same to the third respondent. He reported for duty on 11.1.2000. The petitioner's wife was discharged from the hospital only on 12.1.2000. She was asked to take rest and report back on 16.1.2000. The petitioner on 15.2.2000 took her to the hospital for further treatment. On 16.2.2000, he reported for duty before the Armed Reserve Inspector. But, he was not allowed to resume duty despite intimating reasons for his absence on 15.2.2000. On 21.3.2000, he made a representation with medical certificate. However, he was given an order, dated 17.3.2000 declaring him as a deserter with effect from 15.2.2000. He was also asked to show cause by appearing before the Assistant Commissioner (AR) on 14.4.2000. On 30.3.2000, the petitioner appeared before the second respondent and made a representation to allow him for reporting for duty. He was informed that his request will be considered after the finalisation of the charges against him. Thereafter, a charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules was framed against him. He was asked to appear for an enquiry by the Assistant Commissioner (AR). He gave his explanation in 1.8.2000 intimating reasons for his absence and also told them about the accident met by his wife, who subsequently underwent a brain surgery. After the enquiry officer gave his report, a show cause notice, dated 25.8.2000 was given for which the petitioner gave his explanation on 4.9.2000. Without considering his explanation, the impugned order of punishment came to be passed by the second respondent. Challenging the same, the OA came to be filed. 3.In the order of dismissing the petitioner from service, it was claimed that the petitioner has not substantiated the further treatment for his wife and his deserting the force from 15.2.2000 was not explained. In his explanation, he had not denied his desertion and his making allegation against the then Reserve Inspector was not valid. In the enquiry held against the petitioner, the Sub Inspector Arumugam was examined as P.W.1 and one Thamizharasan, Junior Assistant in the office of the Chenni City Police was examined as P.W.2. P.W.1 had marked the order of desertion. P.W.2 had produced the correspondence leading to declaration of desertion. With reference to explanation submitted by the petitioner, the respondents were not able to impeach the statement regarding illness of his wife and her undergoing treatment at CMC Hospital, Vellore. It was stated that his attempt to take leave without informing the officers was highly indiscipline. Therefore, the charges were proved. https://hcservices.ecourts.gov.in/hcservices/ 4.In his further explanation, the petitioner had stated that he met the Deputy Commissioner, Headquarters and told the reasons for his absence. Even these facts were not considered in the final order. In the final order passed by the third respondent, it was only relied that the charges levelled against the Reserve Inspector Valsalam was taken exception to. But, however the said person was not examined. While the petitioner's explanations, dated 1.8.2000 and 5.9.2000 were referred to, it was once again repeated that desertion with effect from 15.2.2000 was not disputed by the petitioner. 5.It is rather unfortunate that the respondents did not consider the plight of the petitioner whose wife was ill and was undergoing brain surgery and also the statement that he had met the Reserve Inspector as well as the Deputy Commissioner to inform them orally about the same. Mere recording the petitioner as a deserter by itself will not enable them to dismiss the petitioner. If the petitioner has valid explanation, than that should have been considered by the respondents. 6.The Supreme Court in Jagdish Singh Vs. Punjab Engineering College and others reported in 2009 (7) SCC 301, dealt with the case of absenteeism and had accepted the worker's explanation that he had to sort out the family problem and that let him off with the punishment of stoppage of two increments. The following passage found in paragraph 8 may be usefully extracted below: "8.The instant case is not a case of habitual absenteeism. The appellant seems to have a good track record from the date he joined service as a sweeper. In his long career of service, he remained absent for fifteen days on four occasions in the months of February and March 2004. This was primarily to sort out the problem of his daughter with her in-laws. The filial bondage and the emotional attachment might have come in his way to apply and obtain leave from the employer. The misconduct that is alleged, in our view, would definitely amount to violation of discipline that is expected of an employee to maintain in the establishment, but may not fit into the category of gross violation of discipline. We hasten to add, if it were to be habitual absenteeism, we would not have ventured to entertain this appeal." 7.Similarly, the Supreme Court in Chairman-cum-Managing Director, Coal India Limited and another Vs. Mukul Kumar Choudhuri and others reported in 2009 (15) SCC 620 found that in case of misconduct of absenteeism, the petitioner had admitted his guilt and explained the reasons for his absence. In such circumstances, the Supreme Court in paragraphs 19 to 21 had observed 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 quantity punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a https://hcservices.ecourts.gov.in/hcservices/ 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." 8.In view of the above, this court is inclined to set aside the order. Accordingly, the impugned order is set aside. The writ petition will stand allowed. The petitioner is directed to be reinstated in service. But however for the interregnum period, he will not be eligible for any wages, but it will be considered as service for all practicable purposes including for pay fixation, annual increment and for future terminal benefits. This exercise shall be carried out by the respondents within a period of eight weeks from the date of receipt of copy of this order. However, there will be no order as to costs. vvk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Commissioner of Police, Egmore, Chennai-600 008. 2.The Deputy Commissioner of Police, Headquarters, Egmore, Chennai-600 008. 3.The Deputy Commissioner of Police, (Armed Reserve), City Police Office, Egmore, Chennai-600 008. + 1 cc to Government Pleader, SR No.8106/11 RB(CO) SR/3.3.2011 W.P.NO.40859 of 2006 https://hcservices.ecourts.gov.in/hcservices/