1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.7465 of 2011 And M.P.(MD).No. 1 of 2011 M.Karthikeyan ... Petitioner -Vs- 1. The Deputy Inspector General of Police Tiruchirapalli Range, Tiruchirapalli 2. The Superintendent of Police Trichy District, Trichy ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari calling for the records relating to the impugned order passed by the first respondent in his proceedings C.No.B1/App. 26/2010 dated 08.03.2011 confirming the order passed by the second respondent in his proceedings P.R.No. 30/H1/2010 dated 13.09.2010 and quash the same as illegal. For Petitioner : Mr.M.Ajmal Khan For Respondents: Mr.T.S.Mohamed Mohideen, Additional Government Pleader O R D E R Seeking to quash the order dated 13.09.2010, of the Superintendent of Police, Trichy, dismissing the petitioner from service and the order, dated 08.03.2011, of the Deputy Inspector General of Police, Tiruchirapalli, confirming the punishment, the present Writ Petition has been filed. 2. Assailing the correctness of the above said impugned orders and on the averments made in supporting affidavit, Mr.M.Ajmal Khan, learned counsel appearing for the petitioner submitted that when the petitioner worked as a Police Constable in Duraiyur Police Station, he was transferred to Government Hospital, Out Police Station, Trichy. He was relieved on 18.01.2010 at 09.00 a.m and was directed to join duty. Before joining duty, he went to his house to meet his aged parents who were residing at Srirengam. There, he came to understand that his father suffered severe fracture and hospitalised and that the petitioner was the only person to make arrangement for treatment, therefore, he was not able to obtain the leave from the Superior Officer. The Superintendent of Police, Trichy, the second respondent herein, issued a proceeding dated 10.02.2010 stating that the petitioner was absent from 18.01.2010 continuously for more than 21 days without any intimation and therefore, declared as a deserter on and his explanation was sought for. 3. The explanation sought for was submitted on 08.03.2010. However, not satisfied with the same, the Superintendent of Police, Trichy, the https://hcservices.ecourts.gov.in/hcservices/ 2 second respondent herein, initiated disciplinary proceedings under Rule 3 (b) of TNPSS (D & A) and that further explanation dated 21.02.2010 was submitted. An enquiry officer was appointed, who gave an adverse finding against the petitioner. Accepting the same, the second respondent, vide order dated 17.09.2010 dismissed the petitioner from service. The appeal to the Deputy Inspector General of Police, Tiruchirapalli, the first respondent herein, dated 13.09.2010 was rejected on 08.03.2011 on the ground that the petitioner has obtained 10 punishments in 15 years of service, in which seven times for desertion. 4. On the above said pleadings, Mr.M.Ajmal Khan, learned counsel appearing for the petitioner submitted that before passing the dismissal order, the respondents have not furnished a copy of the enquiry officer's report or issued a second show cause notice to the petitioner, which violates the principles of natural justice. It is his further submission that the absence of the petitioner was only due to the above said bona fide reason and not willful. He also added that the punishment awarded is disproportionate to the charge of desertion. 5. Material on record shows that the disciplinary proceedings were initiated in PR No. 30 of 2010 under Rule 3 (b) of TNPSS (D & A) Rules 1955, for which, the petitioner has given an explanation. Not satisfied with the same, an Enquiry officer has been appointed and that after considering the evidence, he has held charge as proved. The absence of the petitioner without prior permission from the competent authority has been admitted by the Writ petitioner, on the ground of ill-health of his parents. 6. The contention of the learned counsel appearing for the petitioner that a copy of the enquiry officer's report has not been furnished to him, so as to enable him to put forth his defence, on the findings recorded by the enquiry officer cannot be countenanced, for the reason that a perusal of the order, dated 30.09.2010 of the Superintendent of Police, Trichy, the second respondent herein, makes it abundantly clear that the same has been furnished to the charged official on 18.10.2010 with a further direction to submit his further representation on the findings. Accordingly, on receipt of the minute, the petitioner has also submitted a further representation, dated 24.08.2010, reiterating the explanation already offered. Therefore, there is no violation of the principles of natural justice, as alleged by the petitioner. 7. The next contention of the learned counsel appearing for the petitioner that the petitioner has not furnished with a second show cause notice is untenable, in view to the 42nd amendment of the Constitution of India, where the requirement of the second show cause notice has already taken away. As there is no need to issue the second show cause notice on the penalty, the contention is also liable to be rejected. As regards the contention that the disproportionate is to the charge of desertion, perusal of the impugned orders and particularly, the appellate authority's order shows that out of 15 years of service, the petitioner has deserted and punished for nearly 7 times and that he has corrected himself, though leniency has been shown. 8. Desertion from service is a serious misconduct warranting dismissal from service. Useful reference can be made to few decisions of https://hcservices.ecourts.gov.in/hcservices/ 3 the Apex Court. In The Govt. of A.P. and Ors. Vs. Mohd. Taher Ali reported in 2007 (8) SCC 656, where a Police Constable, detailed for election duty, was charged for unauthorised absence without leave or permission and for the offence of desertion. The enquiry officer held the charge as proved and further recorded that it was not a solitary incident. The policeman was also found guilty on couple of occasions and therefore, the Superintendent of Police issued orders for compulsory retirement with immediate effect. The Tribunal which tested the correctness of the order, did not interfere with the findings of the Enquiry officer, but remitted the matter back to the Disciplinary Authority for re-consideration on the question of punishment. The appeal filed by the State was dismissed. At Paragraph 4, the Supreme Court has observed as follows: "4. ..........We fail to understand the reason for the Administrative Tribunal or for the High Court to have remitted the matter back to the disciplinary authority for reconsideration of the punishment of compulsory retirement imposed on the respondent." While considering the submission of the respondent-policeman, based on the judgment in K.Manche Gowda's case that the disciplinary authority ought not to have taken into consideration the past conduct, ie.., earlier absence of the delinquent from duty, the Supreme Court, at Paragraph 6, observed that, "but in the present case we are satisfied that in fact the respondent deliberately absented himself from duty and did not offer any explanation for his absence from election duty. It is not the respondent's first absence. He also absented himself from duty on earlier occasions also. In our opinion there can be no hard and fast rule that merely because the earlier misconduct has not been mentioned in the chargesheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee then there is no reason to ignore this fact at the time of imposing penalty. Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a member of a disciplined force is sufficient to justify his compulsory retirement." (emphasis supplied) Habitual absenteeism is a gross violation of discipline, as held in Burn & Co. Ltd. and Ors. Vs. Their Employees reported in AIR 1959 SC 529. In the said case, an employee, who absented without leave or permission, was dismissed from service, following a domestic enquiry. The Industrial Tribunal directed re-instatement. When the matter was adjudicated before the Supreme Court, it was held that absence of a workman without permission and without any leave application for the same, amounts to gross violation of discipline, entailing dismissal from service. The Supreme Court further held that if such a workman is dismissed by his employer, https://hcservices.ecourts.gov.in/hcservices/ 4 Industrial Tribunal should not order for reinstatement. The Apex Court held that, "Where a workman is almost in the habit of loitering outside his place of work without the permission of his departmental head and does not desist from doing so even though warned, his services can be dispensed with. In such a case it cannot be said that the employer was actuated by any improper motive to victimise him for his Union activities." In L and T Komatsu Ltd. Vs. N. Udayakumar reported in 2008 (1) SCC 224, the Supreme Court, reiterating the views expressed in Burn's case and having regard to the past record of the respondent therein, who was found guilty of unauthorised absence for several times, held that the Industrial Tribunal/High Court ought not to have interfered with the order of dismissal from service treating it to be harsh. 9. In view of the above said reasons, this Court is not inclined to interfere with the impugned order and the contention of the petitioner regarding proportionately is rejected. The petitioner has not made out a case on any one of pointed raised. Orders impugned are sustained. The Writ Petition is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. No costs. SD ASST REGISTRAR ( CO ) /TRUE COPY/ SUB ASST REGISTRAR vsg To 1.The Deputy Inspector General of Police Tiruchirapalli Range, Tiruchirapalli 2.The Superintendent of Police Trichy District,Trichy 1CC TO THE SPL. GOVT PLEADER SR: 21987: DM::2011:JULY::11:: W.P.(MD).No.7465 of 2011 And M.P.(MD).No. 1 of 2011 06.07.2011 4P:4C: https://hcservices.ecourts.gov.in/hcservices/