IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2011 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.41670 of 2006 (O.A.No.8455 of 2000) N.K.Mani ...Petitioner Vs 1.Additional Director General of Police cum Commissioner of Police, Chennai -8. 2.Deputy Commissioner of Police, Traffic South, Chennai -7. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the records in connection with the proceedings issued in PR.No.22/PR Tr (S)/2000 F.Order PR.No.22/PR TR(S)/Tr/2000 u/r 3(b) dated 24.8.2000 by the Deputy Commissioner of police, Traffic South, Chennai-7 and quash the same. For Petitioner : Mr.S.Ilamvaludhi For Respondents : Mr.R.Murali, G.A. O R D E R The petitioner was working as Police Constable attached to the Traffic Police Station at Kodambakkam. He filed O.A.No.8455 of 2000 before the Tamil Nadu Administrative Tribunal, challenging the order dated dated 24.8.2000 passed by the second respondent Deputy Commissioner of police, Traffic South, Chennai-7. By the impugned order, the petitioner was awarded the punishment of removal from service. 2. The Original Application was admitted on 20.11.2000. Pending the Original Application, the Tribunal did not grant any such relief though a prayer was made to that effect. 3. On notice from the Tribunal, the respondents have filed a reply affidavit dated 28.11.2001. https://hcservices.ecourts.gov.in/hcservices/ 4. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.41670 of 2006. 5. The case of the petitioner was that he joined the service as Police Constable in the year 1986. He was having blood pressure and he was also affected by jaundice during August and September 1999. He was a native of Utthukottai and therefore, he took country medicine at Utthukottai. His mother, who was also similarly sick had to be taken care of by him and ultimately, she died on 21.07.2000. Mr.S.Ilamvaludhi, learned counsel for the petitioner also produced a death certificate to that effect. 6. The petitioner was given a memo on 29.11.1999 stating that he is a deserter having deserted his office with effect from 01.11.1999 and as per the Police Standing Order 88(1)(a), he was liable to be punished. The petitioner was also informed that if he wants to rejoin duty, he should report before the Deputy Commissioner, Traffic South on or before 30.12.1999. The petitioner appeared before the second respondent on 07.01.2000. Since he did not report for duty on the notified date, the petitioner was informed that after the pending charge memo under Rule 3(b) of Tamil Nadu Police Subordinate Service, his restoration will be considered. The petitioner was given a charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Service (D & A) rules on 29.01.2000. The charge against the petitioner was that with effect from 01.11.1999, he did not report for duty and he had not applied for any leave and without prior permission, he has been continuously absent for more than 21 days. Though he was declared as a deserter and asked to report for duty, he did not do so. 7. The petitioner gave his explanation on 13.03.2000. The Assistant Commissioner of Police, Traffic Enforcement, T.Nagar Sub- Division, Chennai, was appointed as Enquiry Officer. The petitioner appeared before the Enquiry Officer. In the departmental enquiry, 2 witnesses were examined. The first witness was the Sub-Inspector of Police, Rajeev Prince Aaron and the second witness was the Junior Assistant, P.K.Ramasamy. On the side of the Department, 5 documents were filed and the witnesses were examined in the presence of the petitioner. The petitioner neither examined himself nor examined any other witness on his side. The only ground taken by the petitioner was that he was having lack of appetite and suffering from gas problem. He also stated that he was suffering from jaundice and that his mother was also not well. Even when he reported for duty before the Deputy Commissioner, he was not taken back duty. The Enquiry Officer held that the explanation given by the petitioner was not valid. Even after declaration as a deserter and after affording an opportunity, he did not report before the Deputy Commissioner and reported only after 8 days. Therefore, it is a clear case of desertion. Accepting the said findings, the second respondent passed the order of removal from service. The https://hcservices.ecourts.gov.in/hcservices/ petitioner did not file any appeal to the higher authorities. 8. Mr.S.Ilamvaludhi, learned counsel for the petitioner contended that the punishment of removal was excessive. As per the circular of the Director General of Police dated 30.10.1990, if a constable is struck off as a deserter, even then his explanation should be considered and in such cases, the removal should not be given as a punishment and any other punishment other than removal should be given. Therefore, it is contended that the petitioner has been unjustly given the penalty. 9. In the reply affidavit, it was contended that the petitioner was given sufficient opportunity and even thereafter, he did not report for work and he had left to his native place without any intimation. 10. Mr.S.Ilamvaludhi, learned counsel for the petitioner submitted that considering the fact that the petitioner had put in 15 years of service, leniency may be shown to him atleast on the question of penalty. Instead of the punishment being removal from service, the petitioner can be given any other punishment other than removal. 11. However, this Court is unable to consider the request of the petitioner though his department could have dealt with him in a different manner. The petitioner despite opportunities could not prove the reason for his absence. In this context it is necessary to refer to the judgment of Supreme Court in State of Rajasthan and another v. Mohd.Ayub Naz reported in (2006) 1 SCC 589. The Supreme Court in that judgment took exception to the subordinate Courts from converting the quantum of punishment. In paragraphs 9 and 18, it was observed as follows:- "9. Absenteeism from office for a prolonged period of time without prior permission by government servants has become a principle cause of indiscipline which has greatly affected various government services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, the Government of Rajasthan inserted Rule 86(3) in the Rajasthan Service Rules which contemplated that if a government servant remains wilfully absent for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. In the instance case, opportunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the https://hcservices.ecourts.gov.in/hcservices/ admitted fact of absence was borne out from the record and that the respondent himself had admitted that he was absent for about 3 years. After holding so, the learned Single Judge committed a grave error that the respondent can be deemed to have retired after rendering of service of 20 years with all retiral benefits which may be available to him. In our opinion, the impugned order of removal from service is the only proper punishment to be awarded to the respondent herein who was wilfully absent for 3 years without intimation to the Government. The facts and circumstances and the admission made by the respondent would clearly go to show that Rule 86(3) of the Rajasthan Service Rules is proved against him, and therefore, he may be removed from service. 18. For the foregoing reasons, we are of the opinion that a government servant who has wilfully been absent for a period of about 3 years and which fact is not disputed even by the learned Single Judge of the High Court has no right to receive the monetary/retiral benefits during the period in question. The High Court has given all retiral benefits which shall mean that a lump sum money of lakhs of rupees shall have to be given to the respondent. In our opinion, considering the totality of the circumstances, and the admission made by the respondent himself that he was wilfully absent for 3 years, the punishment of removal imposed on him is absolutely correct and not disproportionate as alleged by the respondent. The orders passed by the learned Single Judge in SB Civil Writ Petition No.2239 of 1991 dated 24.08.2001 and of the order passed by the Division Bench in LPA No.1073 of 2001 dated 13.12.2001 are set aside and the punishment imposed by the disciplinary authority is restored." 12. In the light of the above, the writ petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki https://hcservices.ecourts.gov.in/hcservices/ To 1.Additional Director General of Police cum Commissioner of Police, Chennai -8. 2.Deputy Commissioner of Police, Traffic South, Chennai -7. 1 cc To The Government Pleader, SR.11684 1 cc To Mr.S.Ilamvaludhi, Advocate, SR.4586 W.P.No.41670 of 2006 (O.A.No.8455 of 2000) RB(CO) PMK.4.3.2011 https://hcservices.ecourts.gov.in/hcservices/