IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.07.2011 CORAM: THE HONOURABLE MR. JUSTICE K.N.BASHA W.P.No.30028 of 2010 & M.P.Nos.1 & 2 of 2010 N.Anbalagan .. Petitioner Vs. 1.The Deputy Inspector General of Police, Coimbatore Range, Coimbatore. 2.The Superintendent of Police, Erode District, Erode. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records on the file of the first respondent in connection with the order passed by him in Charge Memo in C.No.J1/PR.36/ER/2010 dated 3.12.2010 and quash the same. For Petitioner : Mr.R.Singaravelan For Respondents : Mr.P.S.Sivashanmugasundaram , Additional Govt. Pleader O R D E R The challenge in this writ petition is to the charge memo in C.No.J1/PR.36/ER/2010 dated 3.12.2010, with a prayer to quash the same. 2. The case of the petitioner is that he was appointed as Sub-Inspector of Police by direct recruitment and joined the service on 28.09.1987. He was promoted to the post of Inspector of Police on 28.11.1998 and till date he is having unblemished record of service. The petitioner was forced to take leave from 15.08.2009 to 08.12.2009 due to serious illness caused because of an accident met with by him in the course of his employment on 19.04.2009 at 10.30 p.m near Mayanur Police Station, Karur District. The bus in which the petitioner travelled in connection with official duty as Inspector of Police, Kodumudi, https://hcservices.ecourts.gov.in/hcservices/ dashed against a sand lorry and three passengers died on the spot and 18 were seriously injured. The petitioner also sustained grievous injuries on the legs and on his head and he is not able to walk freely. 3. The petitioner was admitted in Kodumudi Government Hospital on 20.04.2009 and thereafter, shifted to Government Hospital, Erode on the same day. The petitioner reported to duty with uncured injuries as he has to attend the election duty of MP election of Erode and thereafter, he had gone on medical leave for 15 days and again admitted in the Hospital in the month of June 2009. The petitioner had taken leave due to his health condition from 15.08.2009 to 08.12.2009 and the same was ratified by the Medical Board and recommended for regularization. 4. When the petitioner was on leave, he was transferred by an order dated 04.11.2009 from Kodumudi to Coimbatore Range. The petitioner, on the expiry of the joining time, reported before the Coimbatore Range on 17.12.2009, but he was asked to wait till 09.02.2010. Thereafter, he has received the transfer order dated 21.02.2010, transferring him to Chennai Suburban Range. Accordingly, he has joined Chennai Suburban Range on 23.12.2010 and he was given posting in Ambattur Estate. At that time, the petitioner was issued with a charge memo dated 03.12.2010 under Rule 3(b) of the Tamilnadu Police Subordinate Service (D&A) Rules, 1955 for the alleged dereliction and gross negligence of duty. Even after the Medical Board ratifying the medical leave for the respective periods, the charge memo dated 03.12.2010 was issued. Being aggrieved against the said charge memo, the petitioner has come forward with this petition with the above said prayer. 5. Mr.R.Singaravelan, learned counsel appearing for the petitioner contended that the petitioner has obtained prior permission before going on medical leave. It is further contended that even assuming if not admitting he has not obtained any prior permission, as per the admitted factor by the respondent herein, the said period of medical leave was already ratified by the Medical Board and as such, the petitioner is not liable to be proceeded on the allegation of availing medical leave without obtaining prior permission. The learned counsel for the petitioner also submitted that the petitioner has applied for sanction of prior permission for availing medical leave and got the sanction and on consideration of the said application, the Medical Board ratified the said period of leave and thereby the absence of the petitioner during the relevant period has been regularized. The learned counsel for the petitioner, in support of his contentions, would place reliance on the following decisions: https://hcservices.ecourts.gov.in/hcservices/ (1) State of Punjab and Others v. Bakshish Singh reported in (1998) 8 SCC 222 (2) Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and Others reported in 2004 (2) CTC 301 (3) State of Punjab v. Dr.P.L.Singla reported in (2008) 8 SCC 469 (4)M. Natarajan v. The Managing Director, Chennai Metropolitan Water Supply and Sewerage Board, No.1, Pumping Station Road, Chindadripet, Chennai 600 002 & Another reported in CDJ 2007 MHC 1180 (5)State of Uttar Pradesh and Others v. Madhav Prasad Sharma reported in (2011) 2 SCC 212 6.Mr.P.S.Sivashanmugasundaram, learned Additional Government Pleader submitted that there is no infirmity or illegality in issuing the impugned charge memo against the petitioner herein. It is contended that the petitioner has availed medical leave without prior permission and as such, the impugned charge memo was rightly issued against him. It is further contended that as per the Government circular, it is incumbent on the petitioner to obtain prior permission for availing medical leave. It is submitted that a detailed counter was also filed by the first respondent in this matter. 7. I have carefully considered the rival contentions put forward by either side and thoroughly scrutinized the entire materials available on record and perused the impugned charge memo. 8. The fact remains that the impugned charge memo revolving around the allegation of unauthorized absence of the petitioner during the periods from 15.08.2009 to 08.12.2009, 09.12.2009, 17.12.2009 to 09.02.2010 and 17.02.2010 to 22.02.2010. The crux of the allegation as per the charge memo is to the effect that the petitioner has taken medical leave without obtaining prior permission. It is pertinent to note that the annexure enclosed to the impugned charge memo reveals that prior permission should be obtained as per Chief Office circular memo in C.No.134041/PBA.II(3)/1994 dated 02.08.1995, before proceeding on medical leave. This Court is constrained to state that such a circular may not have any statutory force. It is the categorical stand of the petitioner that he has preferred application for obtaining prior permission before going on medical leave and the petitioner also produced the said prescribed application submitted by him before the authorities concerned, seeking for the relief of prior permission for going on medical leave. https://hcservices.ecourts.gov.in/hcservices/ Therefore, this Court is of the considered view that though the said circular memo stipulates the condition of obtaining prior permission before going on medical leave may not have statutory force, the petitioner has rightly sought for the relief of prior permission and as such, it cannot be stated that he has wilfully violated the said circular memo. However, the learned Additional Government Pleader disputed about submitting the application for seeking the relief of prior permission for going on medical leave. 9. Be that as it may, the undisputed fact remains that the medical leave availed by the petitioner was subsequently ratified and regularized by the respondents. It is pertinent to note that in the counter filed by the first respondent herein, it is specifically stated at Paras 13, 14 and 15 as hereunder: “13. It is submitted that the petitioner was on medical leave from 15.08.2009 to 08.12.2009 and referred to medical board to ascertain the genuineness of the leave availed by him. It is true that the medial board ratified the leave availed by him. 14. As regard the para '13' it is submitted that it is true that the Senior Civil Surgeon, Coimbatore Medical College Hospital, Coimbatore had recommended 15 days medical leave for the petitioner from 18.11.2009. 15. As regard the averments in para '14' it is submitted that it is true that the medical Board had ratified the leave availed by the petitioner from 15.08.2009 to 08.12.2009 and a report has been sent to the first respondent. The charge against the petitioner is for availing the medical leave on his own accord without prior information to his immediate superiors, violating the instructions in circular memo No.134041/PBA.II(3)/1994 dated 02.08.1995 of the Director General of Police, Chennai and for four other counts.” The above admitted factors make it crystal clear that the periods during which the petitioner has proceeded on medical leave have already been ratified and regularized by the respondents herein and such being the position, the question of issuing the impugned charge memo does not arise. It is seen that even the said charge memo was issued after a lapse of one year. 10. The learned counsel for the petitioner also rightly placed reliance on the decisions of the Hon'ble Apex Court and the Division Bench decision of this Court on the preposition that once the period of medical leave taken by the delinquent officer have been ratified and regularized by the department, it cannot https://hcservices.ecourts.gov.in/hcservices/ be stated that the delinquent officer has committed any misconduct, warranting the issuance of the charge memo. At this juncture, it is worthwhile to refer the following decisions: 10.1. The Hon'ble Apex Court in State of Punjab v. Bakshish Singh reported in (1998) 8 SCC 222, has held hereunder: “4.It will thus be seen that the trial Court as also the lower appellate Court had both recorded the findings that the period of absence from duty having been regularised and converted into leave without pay, the charge of absence from duty did not survive. Once it was found as a fact that the charge of unauthorised absence from duty did not survive, we fail to understand how the lower appellate Court could remand the matter back to the punishing authority for passing a fresh order of punishment. In the fact of these findings, specially the finding of the trial Court that proper opportunity of hearing was not given and the signatures of the respondent were obtained under duress during departmental proceedings which have not been set aside by the lower appellate Court, we are of the view that there was no occasion to remand the case to the punishing authority merely for passing a fresh order of punishment.” 10.2. In Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi reported in 2004(2) CTC 301, the Hon'ble Apex Court has held hereunder: “10.In the instant case, the appellant had absented himself for two months, 8 days and 17 hours on medical grounds. The above two rules provide that penalty of removal can be imposed only in cases, if grave misconduct and continued misconduct indicating incorrigibility and complete unfitness for police service. The absence of the appellant on medical grounds with application for leave as well as sanction of leave can under no circumstances, in our opinion, be termed as grave misconduct or continued misconduct rendering him unfit for police service. 11.The order dated 16.1.1995 by the respondents was produced by the respondents themselves in their reply to C.W.P.before the High Court of Delhi that they had sanctioned leave without pay for the period from 7.10.1994 to 15.12.1994, the period of alleged unauthorised absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing sanction for leave for the period in question, the https://hcservices.ecourts.gov.in/hcservices/ employees' legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health, and therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal / removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. Merely one incident of absence of that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires of Rule 8(a) and 10 of the Delhi Police (Punishment & Appeal) Rules, 1980 and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of not only he but his entire family totally dependant on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside. 10.3. In State of Punjab v. Dr.P.L.Singla reported in (2008) 8 SCC 469, the Hon'ble Apex Court held as under: “12.An employee who remains unauthorisedly absent for some period (or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorised absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient \cause or jurisdiction for the unauthorised absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leaves is so sanctioned and the unauthorised absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take https://hcservices.ecourts.gov.in/hcservices/ disciplinary action in regard to the act of indiscipline.” 10.4. A Division Bench of this Court in M.Natarajan Versus The Managing Director, Chennai Metropolitan Water Supply and Sewerage Board, Chennai reported in CDJ 2007 MHC 1180, has held hereunder: “9.In the light of the above undisputed factual position, it is to be seen whether the charge framed against the appellant for his unauthorised absence for the above said periods is sustainable and the proceedings initiated pursuant tot he said charges are valid or not. 10.One of us (P.Sathasivam, J.) considered a similar issue with regard to imposing of punishment on the ground of unauthorized absence after the leave is regulated, in the decision reported in 2000 WLR 848 (K.Orlanto v. Managing Director, Tamilnadu Rubber Corporation Ltd. & Anr..), wherein it is held that the charge itself is not maintainable after the leave is regularised. The said judgment was rendered following the decision of Andhra Pradesh High Court decision reported in AIR 1996 AP 75 (G.Papaiah v. Assistant Director, Medical Services). In the said decision paragraph 16 reads thus, “16..... In that case, charge No.2 relates to absence of the petitioner therein from duty for the period commencing from 16.05.1973 and ending with 25.5.1973, the Major Officer Commanding in his order dated 18.06.1973, granted ten days EOL from 16.05.1973 to 25.05.1973 (both days inclusive) to the petitioner to regularise his intentional absence for the period. An argument was made on behalf of the employer that notwithstanding the grant of extraordinary leave to the petitioner therein, he can be proceeded against for his absence from duty for that period. Rejecting the said contention learned Single Judge has concluded as follows: I am unable to agree with the learned counsel for the respondent that notwithstanding the grant of the extraordinary leave to the petitioner, he can be proceeded against for his absence from duty for that period. Whether it is an extraordinary leave, ordinary leave, leave on pay, leave on half pay, medical leave, or casual leave, nonetheless it is a leave. The kind of nature of leave is not material but the substance of the matter is that the petitioner was granted https://hcservices.ecourts.gov.in/hcservices/ leave. When once leave is granted to a public servant, in respect of a particular period, it must be considered that he is permitted to absence himself from duty for that period. In such a case, it is not permissible or open to the employer or any other authority to proceed against the public servant for absenting from duty for the same period and punish him. The employer, either private or public cannot blow hot and cold. The authorities should have refused to grant leave of any kind to the petitioner and then proceeded to punish him after due and proper enquiry and after affording reasonable opportunity to him. When once leave has been granted, it cannot be said that the petitioner had absented himself from duty and thereby made himself liable to be punished. Hence, the second charge relating to the absence of the petitioner from duty from 16th May, 1973 to 25th May, 1973, both days inclusive, is not sustainable. I may add that the very order granting extraordinary leaves states that such leave has been granted to regularise the petitioner's intentional absence for the period. The very purpose of granting the leave being to regularise the petitioner's intentional absence, it is not open to the respondent to initiate any proceedings against the petitioner for his absence from duty for that period. Judged from any angle, the second charge must be quashed and it is not sustainable.” The order passed by this Court in 2000 WLR 848 (cited supra) was challenged in W.A.No.473 of 2000 and the same was dismissed by a Division Bench of this Court on 22.03.2000 stating the following reasons. “....The counsel for the appellant contended that the respondent was unauthorisedly absent for a long period and therefore the disciplinary authority was justified in dismissing the appellant from service. But it is relevant to note that the respondent herein had submitted application for leave and this application for leave was granted and it was specifically stated that the pervious absence was regularised. The counsel for the appellant contended that the regularisation was given only for the purpose of straightening the service records of the respondent and the appellants never treated the absence as authorised. We find no force in the said contention as the leave was applied by the respondent was granted by the appellants- Corporation and the absence was regularised by the concerned authority. The learned single Judge has extracted the order passed by the authority in the https://hcservices.ecourts.gov.in/hcservices/ impugned judgment. In view of the said circumstances, we do not find any force in the contention now advanced by the appellant. Writ appeal is dismissed.” The above judgment was followed by one of us (N.PAUL VASANTHAKUMAR, J.) in the decision reported in (2006) 2 MLJ 686 (Dr.G.Rajendran v. Secretary to Government, Health and Family Welfare Department), wherein it as found that after the leave period was regularised, the issuance of charge memo, conduct of disciplinary proceeding, imposition of punishment for the authorised absence are all unsutainable and the writ petition was allowed. 11.In view of the above cited decisions, we are of the view that the respondents having regularised the period of absence from 12.05.1997 to 27.07.1997 and the subsequent period till joining duty by the appellant, the charge framed against the appellant are not maintainable. Therefore, the consequential enquiry and the subsequent imposition of punishment of compulsory retirement are also unsustainable. The learned single Judge has not adverted to this aspect of the matter in this impugned order dated 18.12.2000.” 11. The learned counsel for the petitioner also brought to the notice of this Court a latest decision of the Hon'ble Apex Court in State of U.P. And Others v. Madhav Prasad Sharma reported in (2011) 2 SCC 212. In the said decision, the Hon'ble Apex Court has also referred to the decision of State of Punjab v. Bakshish Singh reported in (1998) 8 SCC 222, on different context and the said decision was rendered in respect of ratification of the period of medical leave after awarding the punishment in the disciplinary proceedings. Therefore, it is contended that the said decision is not applicable to the facts of the instant case. 12. The principles laid down by the Hon'ble Apex Court and the Division Bench of this Court in the decisions cited supra are squarely applicable to the facts of the instant case, as in this case also the undisputed fact remains that the period of medical leave taken by the delinquent officer namely the petitioner herein had already been ratified and regularized even before issuing the impugned charge memo. In view of the aforesaid reasons, the impugned charge memo is liable to be set aside. 13. Accordingly, the impugned charge memo passed by the first respondent in C.No.J1/PR.36/ER/2010 dated 3.12.2010 is https://hcservices.ecourts.gov.in/hcservices/ hereby set aside. It is open to the petitioner to seek all service benefits which have been withheld because of the impugned charge memo. 14. With this direction, the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. jvm To 1.The Deputy Inspector General of Police, Coimbatore Range, Coimbatore. 2.The Superintendent of Police, Erode District, Erode. 1 cc to Government Pleader, Sr. 41359 1 cc to Mr.R. Singaravelan, Advocate, Sr. 4106 W.P.No.30028 of 2010 & M.P.Nos.1 & 2 of 2010 SJ (CO) kk 20/7 https://hcservices.ecourts.gov.in/hcservices/