IN THE HIGH COURT OF JUDICATE AT MADRAS DATED: 11.11.2011 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN W.P.No.15067 of 2008 K.Sukumaran ... Petitioner vs. 1. The Director General of Police, Chennai 600 004. 2. The Deputy Inspector General of Police, Salem Range, Salem. 3. The Superintendent of Police, District Police Office, Salem. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records relating to the impugned order of punishment passed by the third respondent herein in his proceedings P.R.47/H1/2007 u/r. 3(b) dated 30.05.2007 and confirmed by the second respondent herein in his proceedings Appeal No.21/2007, Rc.No.B1/5347/7948/2007 dated 21.07.2007 and further confirmed by the first respondent herein in his proceedings Rc.No.169038/AP.2(2)/2007 dated 23.10.2007 and quash the same and consequently direct the respondents to reinstate the petitioner into service, together with all consequential service and monetary benefits. For Petitioner : Mr.M.Arjun, for M/s.G.Bala & Daisy For Respondents: Mr.Dig Vijaya Pandian, Addl. Government Pleader O R D E R Challenging the impugned order of punishment passed by the third respondent herein in his proceedings in P.R.47/H1/2007 u/r.3(b) dated 30.05.2007 and confirmed by the second respondent herein in his proceedings vide Rc.No.B1/5347/7948/2007 dated 21.07.2007 and further confirmed by the first respondent herein in his proceedings vide https://hcservices.ecourts.gov.in/hcservices/ Rc.No.169038/AP.2(2)/2007 dated 23.10.2007, seeking to quash the same and for a consequential direction to the respondents to reinstate him into service, together with all consequential service and monetary benefits, the petitioner has filed this writ petition. 2.Facts and circumstances leading to the filing of this writ petition, as stated by the petitioner in his affidavit would run thus : 2.1. The petitioner joined the Police Service as Grade II Police Constable on 25.12.1985 and he was promoted as Grade I Police Constable in the year 1988. He has rendered more than 22 years of loyal service to the Department and is maintaining a good record of service, which was appreciated by many of his superior officers. 2.2. The petitioner fell ill due to acute peptic ulcer and therefore, he availed four days' leave from 20.10.2006 to 23.10.2006. Since the petitioner's health condition had worsened, he was unable to join duty on 24.10.2006. He obtained Medical Certificate and sent it to the Superintendent of Police through Registered Post. But, the Superintendent of Police in his order dated 14.11.2006 declared the petitioner as a deserter and a copy of the same was served on the petitioner on 03.12.2006. 2.3. A charge memo under Rule 3(b) of TNPSS (D & A) Rules, 1955 (hereinafter referred to as 'TNPSS Rules') in P.R.No.47/2007 was framed against the petitioner on 29.01.2007 and served on him on the same day. He submitted his explanation stating that he was not able to report for duty on 24.10.2006 due to his ill health. An Enquiry Officer was appointed and an oral enquiry was conducted by the Deputy Superintendent of Police, Economic Offences Wing II, Salem 2. During the oral enquiry, two official witnesses were examined and the petitioner submitted his further representation. According to the petitioner, he had clearly explained the circumstances of his absence to the Enquiry Officer, but without properly considering his explanation, the Enquiry Officer held the charges as proved on 05.04.2007. On 30.05.2007, the Disciplinary Authority, i.e. the 3rd respondent herein agreeing with the findings of the Enquiry Officer, had imposed a major punishment of Compulsory Retirement from service. 2.4. The petitioner preferred an appeal to the 2nd respondent herein. On 21.07.2007, the 2nd respondent rejected the petitioner's appeal in a cryptic order and in total violation of Rule 6 of TNPSS Rules. The petitioner further submitted a Revision Petition on 06.09.2007 to the 1st respondent. The 1st respondent, without properly considering the facts of the petitioner's case, rejected his claim on https://hcservices.ecourts.gov.in/hcservices/ 23.10.2007 by way of a non-speaking order. It is his grievance that now his entire family has been thrown into the street and he is unable to support his family. 2.5. In identical circumstances, one K.Ponnusamy, H.C.8560 was removed from service for having absented duty for 21 days and on a petition to the Government, which was redirected to the Head of the Department, the above said Ponnusamy was reinstated into service with a modified punishment. However, the petitioner's case has not been considered by the respondent, in a discriminatory manner. In yet another similar circumstance, on 22.03.2008, the respondent passed an order reinstating one P.Karunanithi, Ex.P.C. 1807 of Trichy District, who was dismissed from service on 06.11.1997 for having absented from duty for more than 21 days. According to the petitioner, the punishment of compulsory retirement from service imposed on him is disproportionate to the charge of absence, whereas, in similar circumstances, the respondents have considered the case of the petitioner therein and ordered reinstatement and hence, the petitioner herein prays to set aside the impugned orders. 3. The 3rd respondent has filed counter affidavit on his behalf and on behalf of other respondents and has inter alia stated as follows : 3.1. The petitioner was appointed as Grade II Police Constable on 23.12.1985 forenoon and promoted as Grade I Police Constable on 12.06.1998 afternoon. He had earned more punishments during his 23 years of service in the Police Department. The petitioner, while serving in Attur Police Station in Salem District, had deserted the force more than 21 days from 24.10.2006. He was treated as deserter by Superintendent of Police, Salem District in D.O.No.1862/2006, C.No.L1/1235/40993/2006, dated 14.11.2006, as per Rule 95 of Volume-1 in Police Standing Order, with instructions to report before the Superintendent of Police, Salem District within 60 days, i.e. on or before 22.12.2006. The petitioner received the desertion order on 03.12.2006. He did not report before the Superintendent of Police, Salem within the time stipulated. Hence, the desertion of the petitioner was confirmed vide proceedings in D.O.No.1970/2006, C.No.L1/1235/40993/2006, dated 26.12.2006 of the Superintendent of Police, Salem. 3.2. After the process, the petitioner was issued with a Charge Memo under Rule 3(b) of TNPSS Rules in P.R.No.47/H1/2007, for having deserted the force from 24.10.2006 FN. The petitioner received the charge memo on 29.01.2007. The Deputy Superintendent of Police, Economic Offences Wing-II, Salem District was nominated as Enquiry https://hcservices.ecourts.gov.in/hcservices/ Officer in P.R.No.47/H1/2007. Oral enquiry was conducted by the Enquiry Officer before the petitioner with prosecution witness as per TNPSS Rules. The Enquiry Officer had drawn a 'proved minute' in the above Punishment Roll. Based on the proved minute and concurring with the findings of the Enquiry Officer, the Disciplinary Authority viz. the Superintendent of Police, Salem District has imposed the punishment of Compulsory Retirement to the petitioner, after giving due consideration to the past service put in by him. The petitioner received compulsory retirement order on 13.06.2007. 3.3. Thereafter, he submitted his appeal petition dated 03.07.2007 to the 2nd respondent and it was carefully examined and rejected by the 2nd respondent vide Proceedings Rc.No.B1/534/7948/2007 (Appeal No.21/2007), dated 21.07.2007 stating that being a member of the highly disciplined force, he should have adopted the established procedures before absenting himself from duty of his own accord; there is consistency in the pattern of delinquencies and it assumed the character of habitualism beyond correction and rehabilitation. Again, the petitioner submitted his review petition dated 06.09.2007 to the 1st respondent. It was examined and rejected by the 1st respondent in Proceedings Rc.No.169036/AP-2(2)/2007, dated 23.10.2007, stating that the delinquency of desertion was amply proved during the enquiry, the mercy petitioner has earned a total of ten punishments so far in his career, of which three were for deserting the force and five were for availing medical leave without any prior permission of the superior officers and it appears that the delinquent is a habitual absentee and had not shown any interest in his work; absenteeism has become his nature and he has not learnt any lesson from his previous experience. According to the 1st respondent, punishment of Compulsory Retirement is an apt punishment for a person of this nature and attitude and hence, without interfering with the punishment, he rejected the Review Petition. 3.4. Rule 95 of Police Standing Order in Volume – 1 provides as follows : Desertion : (1) Absence without leave for 21 days complete as the offences of desertion, after which the offences shall invariably be struck off from the date of absence (G.O.186 Judicial, 21st January 1984). (2) An application for reinstatement from an Officer who has been struck off as deserter shall not be entertained unless it reaches the Superintendent or an officer of equal rank under whom the Subordinate Officer was serving within two months from the date of commencement of the absence without leave. The Superintendent or the corresponding officer of equal rank, as the case may be, shall not reinstate a https://hcservices.ecourts.gov.in/hcservices/ deserter (a) until the deserter attends in person which he should do not later than the date prescribed by the Officer dealing with the case, and has given his explanation for his absence without leave and (b) unless the Superintendent of an Officer of equal rank, as the case may be, is satisfied after such enquiry as may be necessary that the case deserves consideration. At the end of two months, if no application for reinstatement is received and if the whereabouts of the deserter are not known, the Officer dealing with the case will record in writing the reason for his being satisfied that it is not reasonably practicable to give the deserter an opportunity of showing cause against his dismissal and confirm the dismissal. In other cases, a charge should be framed and the procedure prescribed in order No.80 complied with, before confirming the dismissal or reinstating the deserter with or without punishment. 3.5. Desertion in Police department is viewed as a serious delinquency. If the cases of deserters are viewed leniently, discipline as well as morality of the Police personnel will be deteriorated. In the case of the petitioner, he was given many opportunities to cultivate good habit instead of absenting for duty. But, he has not reformed himself and continued the habit of regular absence or desertion in the force. The petitioner in his whole service had deserted the force for three times i.e. on 28.01.2005, 16.08.2005 and on 24.10.2006. Finally, by considering the future of the family members of the petitioner, lenient view was taken and punishment of compulsory retirement was awarded to the petitioner which is justified. 3.6. As regards the averments made by the petitioner, it is stated by the respondents that the contention of the petitioner that he joined in Police Department on 25.12.1985, promoted as Grade I Police Constable on 12.06.1998 and rendered more than 22 years of service are correct. However, the contention of the petitioner that he rendered loyal service in the Department is not correct, as he earned ten punishments in his total service. The details of punishments awarded to the petitioner are as under: S.No. Delinquency Punishment awarded Punishment Roll No. awarded by whom and date 1 Medical leave without sick passport for 40 days from 11.11.1996 Black Mark P.R.No.200/H4/97 u/r 3(a). By DSP, AR, Salem, dated 2.10.1997 https://hcservices.ecourts.gov.in/hcservices/ S.No. Delinquency Punishment awarded Punishment Roll No. awarded by whom and date 2 Medical leave without sick passport for 27 days from 17.03.1997 Black Mark P.R.No.208/H4/97 u/r 3(a). By DSP, AR, Salem, dated 02.10.1997 3 Allowed the prisoner to collect rowdy mamool on 28.08.1997 at Shastri Nagar, Chennai Reduction in time scale of pay by one stage for one year without cumulative effect. P.R.No.311/M2/97 u/r 3(b). By Deputy Commr. of Police, North, Salem City, dated 24.03.1998 4 Availed medical leave without sick passport from 30.06.2001 to 18.07.2001 Postponement of next increment for two years without cumulative effect P.R.No.35/H4/2001 u/r 3(a). By SP, Salem, dated 23.10.2001 5 Availed medical leave without sick passport from 24.10.2003 to 3.11.2003 Black Mark P.R.No.224/H2/2005 u/r 3(a). By DSP, Salem Rural, dated 29.08.2005 6 Deserted the force from 28.01.2005 F.N. Reduction in time scale of pay by one stage for one year with cumulative effect P.R.No.88/H3/2005 u/r 3(b). By SP, Salem Dt. Dated 15.05.2006 7 Absent for duty from 23.02.2006 and sent medical leave certificate on 15.03.2006 Black Mark P.R.No.59/H2/2006 u/r 3(a). By DSP, Attur, Salem Dt. Dated 30.08.2006 8 Absent for duty from 05.02.2006 and reported for duty on 13.02.2006 AN Black Mark P.R.No.82/H2/2006 u/r 3(a). By DSP, AR, Salem, dated 30.08.2006 9 Deserted the force from 16.08.2005 FN Pay reduction by two stages for two years with cumulative effect P.R.No.24/H3/2006 u/r 3(b) By SP, Salem District dated 18.01.2007 10 Deserted the force from 24.10.2006 FN Compulsory retirement P.R.No.47/H1/2007 u/r 3(b). By SP, Salem District, dated 30.05.2007. 3.7. Respondents would submit that the petitioner is a chronic absentee in his duty for many times. The medical leave certificate for 30 days from 24.10.2006 along with his petition was received in District Police Office, Salem on 21.11.2006, after the issuance of desertion order in D.O.1862/06, dated 14.11.2006. The desertion order was served on the petitioner on 03.12.2006, because the whereabouts were not known till then. Hence, the contention of the petitioner is not an acceptable one and the reasons stated by the https://hcservices.ecourts.gov.in/hcservices/ petitioner in his explanation dated 03.04.2007 for the desertion were not convincing. It shows the lethargic attitude of the petitioner. The Enquiry Officer, viz. the Deputy Superintendent of Police, Economic Offences Wing-II, Salem District had conducted oral enquiry and held the charge against the petitioner as proved. 3.8. Before passing final orders in P.R.No.47/H1/2007, the entire P.R. File, explanation dated 03.04.2007, further representation dated 07.05.2007, previous service records, family of the petitioner, etc. were considered sympathetically and final orders were passed. The punishment of Compulsory Retirement ordered to the petitioner is just. The petitioner was given three chances to cultivate his habit instead of absenting for duty, but everything ended in vain. Since the petitioner had already committed the delinquency of desertion three times in his whole career, it appears that he is a chronic absentee and has not learnt any lesson from his past behaviour and the punishment given is not an excessive one. 3.9. Rule 6 of TNPSS (D&A) Rules, 1955 is as follows ; 6(1) In the case of an appeal against an order imposing any penalty specified in Rule 2, the appellate authority shall consider (a) whether the facts on which the order was passed have been established; (b) whether the facts established afford sufficient ground for taking action; and (c) whether the penalty is excessive, adequate or inadequate; and after such consideration shall pass such orders as it thinks proper. (2) Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if such authority considers, for reasons to be recorded in writing, that the error or defect was not material and has neither caused injustice to the person concerned nor affected the decision of the case. 3.10. In the case of the petitioner, Rule 6 of TNPSS Rules was followed properly by the appellate authority viz. the 2nd respondent and he rejected the petitioner's appeal vide order dated 21.07.2007. Further, the review petition of the petitioner was properly considered by the 1st respondent and rejected with speaking order as follows : https://hcservices.ecourts.gov.in/hcservices/ "The mercy petitioner was compulsorily retired from service for the desertion committed by him in the year 2006. I have gone through this PR file thoroughly. The delinquency of desertion was amply proved during the enquiry. The petitioner has earned a total of ten punishments so far in his career of which three were for deserting the force and six were for availing medical leave without any prior permission of the superior officers. It appears that the delinquent is a habitual absentee and has not shown any interest in his work. Absenteeism has become his nature and he has not learnt any lesson from his previous experience. In my view, punishment of compulsory retirement is an apt punishment for a person of this nature and attitude. Hence, I do not want to interfere with the punishment and the review petition is rejected." Hence, the respondents pray for dismissal of the writ petition. 4. Mr.M.Arjun, learned counsel for the petitioner would strenuously contend that the punishment imposed on the petitioner is disproportionate to the charges and that the appellate authority has not passed a speaking order. He would further contend that in case of other two persons namely, K.Ponnusamy and P.Karunanidhi, reinstatement of service has been ordered and there is discrimination in the case of the petitioner. 5. Per contra, Mr.Dig Vijaya Pandian, learned Additional Government Pleader would submit that the punishment imposed on the petitioner is proportionate to the charges and his entire track of records involve several black marks, postponement of next increment, reduction in time scale of pay for one year with and without cumulative effect, pay reduction by two stages for two years with cumulative effect and compulsory retirement. Therefore, the petitioner deserves the punishment of compulsory retirement, as he is a habitual absentee. It is his further contention that the cases of K.Ponnusamy and P.Karunanidhi are not applicable to the case of the petitioner, as in both cases, though the subject of desertion is the same, there is no mention as to how many times they deserted the force. Hence, the case of the petitioner is entirely different and deserves no consideration. 6. Heard the learned counsel for the parties, perused the entire records and given careful consideration to the submissions made on either side. https://hcservices.ecourts.gov.in/hcservices/ 7. Admittedly, the petitioner joined the Police Service as Grade II Police Constable on 25.12.1985, promoted as Grade I Police Constable in the year 1988 and has rendered more than 22 years of service. While so, he was issued a charge memo under rule 3(b) of TNPSS Rules in P.R.No.47/2007 on 29.01.2007 on the ground that he has deserted the service. The petitioner submitted an explanation that he was not able to report for duty on 24.10.2006 due to his ill- health. An Enquiry Officer was appointed and an oral enquiry was conducted by the Deputy Superintendent of Police, Economic Offences Wing II, Salem-2 and a proved minute was submitted, which states that the Disciplinary authority has imposed the punishment of Compulsory Retirement on the petitioner, only after following the procedures. 8. As against the punishment of Compulsory retirement, the petitioner preferred an appeal to the 2nd respondent in Appeal No.21 of 2007 and the said appeal was rejected by the appellate authority on 21.07.2007 stating that being a member of the highly disciplined Force, he should have adopted the established procedures before absenting himself from duty of his own accord and as there is consistency in the pattern of delinquencies, it assumed the character of habitualism beyond correction and rehabilitation. Against the said order, the petitioner preferred a Review Petition on 06.09.2007 to the 1st respondent and the same was considered by the 1st respondent and rejected vide proceedings dated 23.10.2007 stating that the delinquency of desertion was amply proved during the enquiry; the mercy petitioner has earned a total of ten punishments so far in his career of which three were for deserting the force and five were for availing medical leave without any prior permission of the superior officers and it appears that the delinquent is a habitual absentee and had not shown any interest in his work and absenteeism has become his nature and he has not learnt any lesson from his previous experience. 9. While perusing the details of punishments awarded to the petitioner, it is seen that in the first occasion, the petitioner was awarded Black Mark, as he availed Medical Leave without sick passport for 40 days from 11.11.1996. Even on the second occasion, he was awarded Black Mark for availing Medical Leave without sick passport for 27 days from 17.03.1997. By proceedings dated 24.03.1998, he was awarded reduction in time scale of pay by one stage for one year without cumulative effect for allowing a prisoner to collect rowdy mamool on 28.08.1997 at Shastri Nagar, Chennai. Thereafter, he was awarded postponement of next increment for two years without cumulative effect by proceedings dated 23.10.2001 as he availed medical leave without sick passport from 30.06.2001 to 18.07.2001. Again for the third time, he was awarded black mark by proceedings dated 29.08.2005 for availing medical leave without sick passport from 24.10.2003 to 03.11.2003. Thereafter, he was awarded reduction in time scale of pay by one stage for one year with cumulative https://hcservices.ecourts.gov.in/hcservices/ effect, by proceedings dated 15.05.2006 for having deserted the force from 28.01.2005 F.N. As the petitioner was absent for duty from 05.02.2006 and reported for duty on 13.02.2006 A.N. and as he was again absent for duty from 23.02.2006 and sent Medical Certificate on 15.03.2006, he was awarded two Black Marks, vide separate proceedings dated 30.08.2006. Again, he was awarded Pay Reduction by two stages for two years with cumulative effect, by proceedings dated 18.01.2007 for having deserted the force from 16.08.2005 F.N. As the petitioner deserted the force for the third time from 24.10.2006 F.N., by proceedings of the 3rd respondent, dated 30.05.2007, he was awarded Compulsory Retirement. 10. On a perusal of the entire orders of the respondents and the nature of punishments awarded, the petitioner has raised a question that the punishment imposed on him is disproportionate to the charges and it has to be examined in the circumstances as he has absented from duty on 24.10.2006 for more than 21 days; therefore, he was treated as deserter. As per Rule 95 of Police Standing Order in Volume-1, the petitioner was instructed to report before the Superintendent of Police, Salem District within 60 days on or before 22.12.2006. The petitioner received the desertion order on 03.12.2006. He did not report before the Superintendent of Police, Salem within the stipulated time. Hence, the desertion of the petitioner was confirmed vide Office proceedings dated 26.12.2006. 11. A circumspection of the above punishments would reveal that the petitioner is a habitual absentee and has not reformed himself even after repeated opportunities. Unmindful of the fact that he is serving in the Disciplined Force, the petitioner has continued the habit of absenting himself frequently by availing medical leave without sick passport and by deserting the force. In the case of the petitioner, respondents have taken a lenient view of imposing compulsory retirement by considering the future of his family members and 23 years of his service. Whereas, in cases similar to that of the petitioner, respondents have imposed the punishment of dismissal or removal from service. Since the petitioner had already committed the delinquency of desertion three times in his whole career, it appears that he is a chronic absentee and has not learnt any lesson from the past behaviour and therefore, the punishment given is not an excessive one. 12. One more question raised by the petitioner is that the appellate authority has passed a non-speaking order. But, it is seen that the appellate authority has given due consideration to the petitioner's appeal and passed a reasoned order stating that delinquency of desertion was amply proved during the enquiry; the petitioner has earned a total of ten punishments so far in his career of which three were for deserting the force and six were for availing https://hcservices.ecourts.gov.in/hcservices/ medical leave without any prior permission from the superior officers. Being a member of the highly disciplined Force, the petitioner ought to have adopted the established procedures before absenting himself from duty of his own accord. There is consistency in the pattern of delinquencies and it assumed the character of habitualism beyond correction and rehabilitation. Therefore, both the appellate authority as well as the revisional authority have applied their mind and after due consideration, rejected the appeal and review petition, respectively. 13. For the foregoing reasons and discussions and considering the case of the petitioner in a proper perspective, this court is of the view that there is no legal infirmity with the