IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.11.2009 CORAM: THE HONOURABLE MR. JUSTICE R. SUDHAKAR W.P.No.5498 of 2006 Somasundaram ..Petitioner Vs. 1. The Superintendent of Police, Krishnagiri District. 2. The Deputy Inspector General of Police, Salem Range, Salem. 3. The Additional Director General of Police, Law & Order, Chennai.4. 4. The Director General of Police, Radhakrishnan Salai, Chennai.4. ..Respondents Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records of the respondents in connection with the impugned orders passed by the respondents 1,2,3 & 4 C.No.P.R.159/G1/2004, dated 31.1.2005,Rc.No.B2/158/2941/2005, A.P.14/05, dated 5.4.2005 Rc.No.582/146074/AP.2(2)2005, dated 26.8.2005 and Rc.No.827/202801/AP.2(2)/2005, dated 17.12.2005 respectively and quash the same. For Petitioner : Mr. K. Venkataramani Sr. Counsel for Mr.M. Muthappan For Respondents : Mrs.C.K.Vishnupriya Addl. Govt. Pleader ORDER This writ petition is filed by the peltitioner to quash the order of the respondents 1 to 4 awarding compulsory retirement. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner entered the service of the Police Department as Grade-II Police Constable through direct recruitment in the year 1988 and transferred to District Armed Reserve, Coimbatore District in the year 1996. He was thereafter transferred to Category-I, Law and Order in February 2001. Subsequently, transferred to Dharmapuri District on 8.1.2002. The petitioner was on earned leave from 6.5.2004 and due to ill health, he did not report to duty on 10.6.2004. Petitioner further states that due to inter caste marriage, there were serious family discord and his wife left the matrimonial home. In view of the difficult family circumstances, he could not report to duty resulting in the order of desertion dated 13.8.2004. The petitioner submits that citing his shattered family life, he suffered with health problem consequent to the family trouble he requested the authorities to consider his plea for rejoining duty. Such a request was turn down by the authorities. Thereafter, a charge memo was issued under Rule 3 (b) of the Tamil Nadu Police Subordinates Service (Discipline and Appeal) Rules in PR. No.159/G1/2004, dated 30.11.2004. The imputation in the charge is as follows:- " reprehensible conduct in absenting himself for duty from 1.7.2004 continuously for 21 days without informing his superiors and thereby deserted the force which is violation of rule laid down in PSO 95(1) and 95(2)." 3. The petitioner submitted his explanation denying the charges and also explained that he was on medical leave supported by the medical certificate issued by the competent Doctor. An enquiry officer was appointed and enquiry conducted on 23.12.2004. According to the petitioner, he attended the enquiry and submitted that he was on medical leave due to ill-health, which was supported by the medical certificate and pleaded his difficult family circumstances leading to his absence. The enquiry officer, taking into account the desertion order already passed against the petitioner, came to the conclusion that the charges framed against the petitioner/delinquent has been proved and placed the same before the disciplinary authority for appropriate orders. 4. On receipt of the enquiry officer's report, the petitioner submitted an explanation on 11.1.2005. While explaining the reasons for his absence on medical grounds supported by the documents, he submitted that as a sports man, he represented the police department twelve times and has received commendation for his excellence sports activities besides bringing laurels to the department. He was trained in Commando Force and therefore pleaded that he should be shown some leniency in the matter of punishment. 5. The Superintendent of Police/ Punishing authority accepted the finding of the enquiry officer and imposed the following punishment. https://hcservices.ecourts.gov.in/hcservices/ " I fully agree with the Enquiry Officer in holding the charges as proved. Earlier, the delinquent has deserved the force five times in his 17 years of service. This is the sixth time he deserted the force. These desertions show his poor involvement in Police Service. His continuance in the force is a burden and not of any use. Therefore, I have no hesitation in awarding the punishment of 'compulsory retirement' from the date of receipt of this order." 6. The main reason for awarding the punishment of compulsory retirement as set out above is based on the petitioner's alleged conduct relating to desertion of the police force five times earlier. Except this, the disciplinary authority did not rely upon any of the material to impose the punishment based on the enquiry report. The compulsory retirement order is issued on 31.1.2005 in D.O.No.118 of 2005 primarily on the basis of the past conduct and not primarily for the present delinquency. The petitioner filed an appeal to the Deputy Inspector General of Police, who concurred with the finding of the disciplinary authority and while dismissing the appeal held in paragraph-4 as follows:- " I have carefully gone through the appeal petition dated 21.3.2005 of Somasundaram, PC 676 and P.R. File along with the connected records. The delinquent was given ample opportunities to mend his ways in the Government Service. The appellant continued the habit of deserting the force repeatedly. Hence, this appeal is rejected. " 7. In the same manner, the next revisional authority/ Additional Director General of Police took the same view and held that the petitioner's request for setting aside the punishment cannot be acceded in view of his past conduct of desertion. Paragraph 6 of the order in revision is as follows:- " I have gone through his review petition along with connected records carefully. This is his 6th desertion and seventh punishment. Despite sufficient opportunities given, he has not mended his habit. He has not raised any fruitful points to consider in his favour. Hence, his review petition is rejected." 8. The petitioner submitted his mercy petition before the Director General of Police, who also rejected the mercy petition by an order dated 17.12.2005 reiterating the reasons given in the order of the lower authority. In effect the only reason given by the Director General of Police to confirm the punishment imposed is the past conduct of the petitioner relating to his desertion. In paragraph 7 of the order, it is observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ " I have gone through his mercy petition along with connected records and P.R. File carefully. This is his 6th desertion. I fully agree with the findings of the Enquiry Officer, who has held the charge as proved. I do not find any merit in his representation. Hence, his mercy petition is considered and rejected. " Challenging the above proceedings, the present writ petition has been filed. 9. The learned Senior Counsel appearing for the petitioner contended that the punishing authority should take into consideration the merits of the charges in the live case, explanation and the finding of the enquiry officer to come to the conclusion regarding the nature of the punishment to be imposed on the petitioner for the delenquency charged. On the contrary, the punishing authority has considered the past conduct of the petitioner alone to impose the punishment. For coming to the conclusion to impose the punishment of compulsory retirement on the basis of the past conduct of the petitioner, the petitioner was not put on notice and no opportunity was granted to refute the department's stand. The petitioner was not granted any opportunity to explain his stand in the past cases, and explain his position in the present case. The authorities, should have decided the punishment on the basis of the delinquency charged as contained in the charge memo and not on the basis of the past conduct of the petitioner with regard to which, the petitioner was not put on notice. He relied upon the decision of the Constitutional Bench of the Apex Court reported in The State of Mysore – Vs. K. Manche Gowda (A.I.R. 1964 S.C. 506) and stated that the Government Servant should be put on notice by the punishing authority when they intended to rely upon the past conduct of the delinquent for the purpose of imposing punishment. 10. In the present case, the petitioner has been issued with a charge memo based on the desertion order. The petitioner has given an explanation based on medical certificate and the difficult family circumstances. Though the submission was not accepted by the enquiry officer, it is incumbent on the authority to go into the merits of the explanation submitted by the petitioner and the finding of the enquiry officer before deciding the appropriate punishment. On the contrary, merely based on the past conduct of the petitioner, the punishing authority has imposed the punishment of compulsory retirement. The petitioner was not put on notice that the disciplinary authority is going to rely upon the past conduct of the petitioner for the purpose of imposing the punishment. Therefore, it is clear that the disciplinary authority has relied upon the extraneous material while awarding the punishment of compulsory retirement. The punishment is not relating to the finding of the enquiry officer in respect of the charges proved in the live case. To this extent, there is an infirmity in the order of the punishment. https://hcservices.ecourts.gov.in/hcservices/ The Appellate Authority and the Revisional Authority and the Director General of Police/ the respondents herein have committed the same error in relying upon the past conduct of the petitioner to reject the appeal and the mercy petition of the petitioner. The delinquent/petitioner if required should be punished based on the proved delinquency and the punishment should commensurate with the charges proved. The punishment imposed in the present case is based purely on the past conduct of the petitioner/delinquent for which he was not put on notice. The petitioner/delinquent was not given a reasonable opportunity to submit his explanation with regard to his previous conduct as well. To that extent, the petitioner is prejudiced and the decision of the disciplinary authority is contrary to the decision of the Apex Court, which has been referred to above and the relevant portion reads as follows:- " (7) Under Art.311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam V. Bimal Kumar Pandit, Civil Appeal No. 832 of 1962, dated 12.2.1963: (AIR 1963 SC 1612). If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew of his past record. This contention misses the real point, namely, that, what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior https://hcservices.ecourts.gov.in/hcservices/ officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to given the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to given an explanation. (8) Before we close, it would be necessary to make one point clear. It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a Government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same." (emphasis supplied). https://hcservices.ecourts.gov.in/hcservices/ 11. The mind of the punishing authority has been prejudiced by the past conduct of the petitioner. But no opportunity was given to put forward his explanation with regard to the past conduct. This apparatus formed the basis for the decision to impose the punishment of compulsory retirement. Hence, the order of the compulsory retirement imposed by the disciplinary authority as confirmed by the appellate authority and the Director General of Police is liable to be set aside and accordingly set aside. The matter is remitted back to the disciplinary authority to reconsider the issue on the basis of the report of the enquiry officer with regard to the punishment that should be imposed on the petitioner after affording him sufficient opportunity. The disciplinary authority shall also keep in mind, the merit record of the petitioner and take the pragmatic view on the family condition of the petitioner consisting of his wife and three young children. The authority may also consider his sports record or any other merit certificates. 12. The wife and children were present in Court and expressed that the delinquent writ petitioner was taking care of them. They explained the family circumstances which was the cause for family discord and separation which lead to absence and the desertion, and the reason for issuance of the charge memo. The petitioner can explain the above to the disciplinary authority for the purpose of deciding his case on merits. The petitioner however stated that in the event of re-instatement in service, he will not seek backwages. It is open to the disciplinary authority to decide the petitioner claim on all aspects of the petitioners claim. In the event of the disciplinary authority concurring with the finding of the enquiry officer on merits, the disciplinary authority may take into consideration the various mitigating circumstances that led to the delinquency and impose punishment as is necessary tempered with mercy. Such exercise shall be done as expeditiously as possible preferably on or before 24.12.2009. The petitioner shall report to the disciplinary authority and submit his memorandum along with the copy of this order for speedy disposal of the issue. This writ petition is allowed to the extent indicated above. No costs. Sd/ Asst.Registrar /true copy/ ra Sub Asst.Registrar To 1. The Superintendent of Police, Krishnagiri District. https://hcservices.ecourts.gov.in/hcservices/ 2. The Deputy Inspector General of Police, Salem Range, Salem. 3. The Additional Director General of Police, Law & Order, Chennai.4. 4. The Director General of Police, Radhakrishnan Salai, Chennai.4. + 1 c.c. to Mr. T. Ayngaraprabhu, Advocate. S.R.No.60360. + 1 c.c. to The Government Pleader. S.R.No.60578. W.P.No.5498 of 2006 GV (CO) GSK 02.12.2009. https://hcservices.ecourts.gov.in/hcservices/