IN THE HIGH COURT OF JUDICATAURE AT MADRAS DATED 12.10.2011 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.No.7570 of 2007 M.Abdul Razak .. Petitioner Vs. 1.The Commandant, Tamil Nadu Special Police, Madurai. 2.The Deputy Inspector General of Police, A.P.(M&W) Trichy. 3.The Inspector General of Police, A.P. Trichy. 4.The Director General of Police, Chennai. 5.The Secretary to Government, Home Police IX Department, Fort St. George, Chennai 9. .. Respondents The original application No.4569 of 2002 has been filed before the Tamil Nadu Administrative Tribunal and after abolition of the Tribunal, the same was transferred to this Court and renumbered as Writ petition seeking relief to call for the records of the respondents 1 to 5 in connection with the impugned orders passed in P.R.No.78/94 dated 6.3.1995, Proc.No.A2/Appeal/5/95 dated 11.7.1995, Proc.No.A2/IG/13068/95 dated 3.1.1996 RC No.API(1) 296/61935/96 dated 3.6.1997 and GO RT No.998/Home Police IX Department dated 19.5.2000 respectively and quash the same and direct the respondents to reinstate the petitioner into service and grant him all consequential service and monetary benefits. For Petitioner : Mr.K.Venkatramani Senior Counsel for Mr.Muthappan For Respondents : Mr.V.Subbiah Special Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R The writ petition is filed to call for the records of respondents 1 to 5 in connection with the impugned orders passed in P.R.No.78/94 dated 6.3.1995, Proc.No.A2/Appeal/5/95 dated 11.7.1995, Proc. No.A2/IG/13068/95 dated 3.1.1996 RC No.API(1) 296/61935/96 dated 3.6.1997 and GO RT No.998/Home Police IX Department dated 19.5.208 respectively and quash the same and direct the respondents to reinstate the petitioner into service and grant him all consequential service and monetary benefits. 2.It is the case of the petitioner that on 30.4.1989, the petitioner was appointed as Grade II Police Constable in Tamil Nadu Special Police VI battalion, Madurai and he was promoted as Havildar (Head Constable) in the year 1993. The petitioner was on medical leave from 20.5.1994 to 16.6.1994. He failed to report duty on 17.6.1994. Hence, the first respondent issued an order dated 19.7.1994 declaring the petitioner as deserter. 3.While so, the petitioner was issued a Charge Memo in PR.No.78/94 dated 18.8.1994 by the first respondent under Rule 3(b) of Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules alleging that the petitioner was unauthorisedly absent from 17.6.1994. Based on the Charge Memo dated 18.8.1994, enquiry was conducted and the Enquiry Officer by his report dated 25.1.1995 held that the charges were proved. The first respondent, agreed with the findings of the Enquiry Officer and passed an order dated 06.03.1995 imposing the punishment of removal from service. Hence, the petitioner filed an appeal before the appellate authority, the second respondent herein. The appellate authority dismissed the appeal by an order dated 11.07.1995. 4.Thereafter, the petitioner filed review before the third respondent and the same was dismissed by an order dated 03.01.1996. Then the petitioner filed a mercy petition before the fourth respondent, the head of the department. The fourth respondent, the head of the department by an order dated 3.6.1997 modified the punishment as reduction by 2 stages for a period of two years in the scale of pay without cumulative effect in future increments. However, the petitioner did not report duty after the order dated 3.6.1997 passed by the fourth respondent. 5.According to the petitioner, he met with an accident on 5.7.1997 and sustained grievous injuries on his right hand. The first respondent directed the petitioner to appear before him and to report duty. But the petitioner expressed his inability to report duty due to the injuries sustained by him. The petitioner requested the first respondent that he could be permitted to report duty, after he was fully recovered from the injuries. The first respondent reported the same to the fourth respondent, but the fourth respondent directed the first respondent to take action against the petitioner according to the rules. The first respondent did not permit the petitioner to join duty and he did not pass any https://hcservices.ecourts.gov.in/hcservices/ order against the petitioner. In such circumstances, the petitioner requested the fifth respondent to direct the respondents to permit him to join duty. The fifth respondent passed the impugned G.O.RT.No.998 Home (Police 9) Department dated 19.05.2000 stating that there is no ground to reconsider the request of the petitioner for reinstating into service and the request of the petitioner for reinstatement of the service was rejected. 6.The petitioner filed O.A.No.4569 of 2002 (W.P.No.7570 of 2007) to quash the orders passed in P.R.No.78/94 dated 6.3.1995 by the first respondent, Proc.No.A2/Appeal/5/95 dated 11.7.1995 by the second respondent, Proc. No.A2/IG/13068/95 dated 3.1.1996 by the third respondent, RC No.API(1)296/61935/96 dated 3.6.1997 by the fourth respondent and GO RT No.998/Home Police IX Department dated 19.5.2000 by the fifth respondent and sought direction to the respondents to reinstate the petitioner in service with all consequential benefits. 7.The crux of the averments made in the counter affidavit is that the petitioner failed to join duty after the modification of the punishment made by the fourth respondent by order dated 3.6.1997 and hence, the fifth respondent has correctly passed the impugned GO RT No.998/Home Police IX Department dated 19.5.2000. Hence, the request of the petitioner could not be considered and the petitioner has to blame himself for his conduct. 8.Heard both sides. 9.The first respondent passed the order in P.R.No.78/94, dated 6.3.1995 removing the petitioner from service alleging that he was unauthorisedly absent from 7.6.1994. Ultimately, the said order was modified by the order of the fourth respondent dated 3.6.1997 in RC No.API(1)296/61935/96. According to the petitioner, he met with an accident on 5.7.1997 and sustained grievous injuries and therefore, he could not report duty. After 12 and 1/2 months, he requested reinstatement into service stating that he recovered from injuries. But his request for reinstatement was rejected. He approached the fifth respondent to pass an order directing the respondents to reinstate him in service. In the said circumstances, the fifth respondent held that the request for reinstatement cannot be considered. 10.The petitioner stated that he was not able to join duty pursuant to the order of the fourth respondent in RC No.API(1) 296/61935/96 dated 3.6.1997 only due to the grievous injuries sustained by him in the accident. The matter was also communicated to the first respondent. Since there was a delay in joining duty, the first respondent reported the matter to the fourth respondent. The fourth respondent passed the order dated 19.2.1999 that since the petitioner did not avail the opportunity to join duty, the first respondent could take action in accordance with rules. The first respondent did not permit him to join duty, however, the first respondent did not pass any order. After the order passed by https://hcservices.ecourts.gov.in/hcservices/ the fourth respondent in RC No.API(1)296/61935/96 dated 03.06.1997, the petitioner did not join duty and hence, sufficient cause of action arose. Hence, the first respondent ought to have issued a Charge Memo under Rule 3(b) of Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules in PR.No.No.78/94, dated 18.8.1994 and held enquiry before refusing the reinstatement of the petitioner in service. 11.The respondents have not disputed the fact that the petitioner met with the accident and sustained grievous injuries. The impugned proceedings in GO RT No.998/Home Police IX Department, dated 19.5.2000 passed by the fifth respondent reveals that the petitioner produced the medical certificate after 12 and ½ months. The impugned G.O also records the version of the petitioner that the petitioner met with accident on 5.7.1997 and his left hand was damaged. The following passage from the impugned G.O is extracted hereunder: "He has not reported for duty. But he has reported that due to an accident on 05.07.1997 his left hand was damaged and he would report on 27.1.1997. But he did not join on that date also. Again he submitted a petition to the Commandant, for reinstatement into service on 13.07.1978. On this petition the Commandant has sought orders of the Director General of Police for his reinstatement into service endorsing the medical certificate produced by the individual, after 12 and ½ months. The Director General of Police did not accept his petition and requested the Commandant, Tamil Nadu Special Police VI Battalion, Madurai to take action accordingly. Now the individual has given a petition to Government for reinstatement into service. In his petition he has not adduced any fresh grounds." 12.The aforesaid passage makes it clear that the petitioner did not join duty only due to the accident. Later, he produced the medical certificate. In such circumstances, particularly when the fourth respondent modified the punishment imposed on the petitioner by his order dated 3.6.1997, the petitioner should have been reinstated into service, when he reported to duty after recovery from illness. In such circumstances, I am of the view that the impugned proceedings in GO RT No.998/Home Police IX Department, dated 19.5.2000 passed by the fifth respondent is not a legal one. Accordingly, the impugned proceedings in GO RT No.998/Home Police IX Department dated 19.5.2000 is quashed. Except the order dated 3.6.1997 passed by the fourth respondent modifying the punishment, all other orders that are impugned in this writ petition are quashed. Accordingly, the respondents are directed to re-instate the petitioner with continuity of service without back wages. The petitioner shall under go the modified punishment ordered by the fourth respondent in RC No.API(1)296/61935/96, dated 3.6.1997. The respondents are directed to reinstate the petitioner in service https://hcservices.ecourts.gov.in/hcservices/ with continuity of service without back wages, and also with notional pay fixation within a period of four weeks from the date of receipt of a copy of this order. 13.The writ petition stands disposed of accordingly. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar cla To 1.The Commandant, Tamil Nadu Special Police, Madurai. 2.The Deputy Inspector General of Police, A.P.(M&W) Trichy. 3.The Inspector General of Police, A.P. Trichy. 4.The Director General of Police, Chennai. 5.The Secretary to Government, Home Police IX Department, Fort St. George, Chennai 9. +1 CC to Mr.M.Muthappan, Advocate Sr.62606 +1 CC to the Government Pleader Sr.62788 W.P.No.7570 of 2007 DM(CO) DRL : 09/11/2011 https://hcservices.ecourts.gov.in/hcservices/