IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.6.2008 CORAM THE HON'BLE MR. JUSTICE S.MANIKUMAR W.P.No. 39115 of 2006 (OA No.500/99) A.Jothisankar, P.C.1098, Armed Reserve, Thanjavur. ... Petitioner vs 1.Inspector General of Police, Law & Order, Chennai-600 004. 2.Deputy Inspector General of Police, Thanjavur Range, Thanjavur-613 001. 3.Superintendent of Police, District Police Office, Thanjavur 613 001. ... Respondents This petition came to be numbered by transfer of O.A.No.500 of 1999 on the file of the Tamil Nadu Administrative Tribunal praying for the issuance of a Writ of Certiorari to quash the impugned order of compulsory retirement from service passed by the third respondent herein in his proceedings in P.R.103/97 dated 23.7.1997 and confirmed by the second respondent in his proceedings in Appeal.67/D1/97 dated 24.9.1997 and further confirmed by the first respondent in his proceedings R.C.No.AP.III(2)/173194/98 dated 15.9.1998 and direct the respondents to reinstate the petitioner into service with all consequential monetary and service benefits. For Petitioner ... Mr.N.Nithyanantham For Respondents ... Mr.C.Ramesh Additional Government Pleader ORDER Aggrieved by the order of compulsory retirement passed by the Superintendent of Police, District Police Office, Thanjavur, the 3rd respondent herein, dated 23.7.1997, confirmed on an appeal No.67/D1/97 dated 24.9.97 and further confirmed in the proceedings RC No.AP.III/(2)/173194/98 dated 15.9.1998 of the first respondent, the petitioner has filed the original application, before the Tamil Nadu Administrative Tribunal and sought for a direction to reinstate him in service with all consequential monetary and service benefits. 2.The facts of the case are as follows: The petitioner joined as Grade-II Police Constable on 26.12.1995. He was served with a charge memo in P.R.103/97 dated 14.5.1997 under Rule 3(b) of the Tamil Nadu Police Subordinate Service Rules alleging that he was absent from 22.12.1996 for 21 days without prior permission. Though seven days time was given for submission of explanation, even without waiting for the said period, an enquiry officer was appointed to conduct the oral enquiry. The petitioner reported before the disciplinary authority on 17.2.1997 and explained the reasons for his absence. 3. Satisfied with the explanation of the petitioner, he was reinstated in service on 6.3.1997 and accordingly he joined duty on 6.3.1997. He was allowed to work till the date of receipt of the impugned order. 4. The petitioner has further submitted during the oral enquiry, he has deposed that due to his ill-health and family problem, he was unable to report for duty. The enquiry officer without appreciating the explanation of the petitioner, in proper perspective, submitted his findings holding that the charge as proved. The further representation of the petitioner to the disciplinary authority was not given due consideration. The third respondent, accepting the enquiry report, imposed a penalty of compulsory retirement from service. The appeal preferred by the petitioner to the second respondent on 25.7.1997 and the review petition filed on 17.11.1997 to the first respondent were negatived and hence the petitioner, finding no other alternative has preferred Original Application before the Tamil Nadu Administrative Tribunal, Madras which has been transferred to this Court and renumbered as W.P.No.39115 of 2006. 5. Assailing the orders, the petitioner has submitted that though the petitioner was given 7 days time to submit his explanation from the date of receipt of charge memo, an enquiry officer was appointed even before the expiry of the prescribed period, taking away the statutory right of the petitioner to submit his reasonable explanation to the charge. By appointing the enquiry officer, the disciplinary authority has prejudged the issue to enquire into the matter and therefore the proceedings are vitiated. 6. Placing reliance on a judgement reported in 1971 1 SLR 801, learned counsel for the petitioner submitted that initiation of disciplinary proceedings and appointment of enquiry officer simultaneously, are in violation of Rule 3(b) of the Tamil Nadu Police Subordinate Service Rules and therefore proceedings should be treated as void and the resultant order of penalty is liable to be quashed. 7. Referring to the administrative instructions of the Head of the department dated 30.10.90, learned counsel for the petitioner submitted that if a deserter, Police Constable/Head Constable is taken back to duty by the Superintendent of Police, an extreme punishment of dismissal, removal or the compulsory retirement should not be imposed while disposing of punishment Roll. Applying the said instructions to the facts of the case, learned counsel for the petitioner submitted that when the petitioner was declared as a deserter, he had reported before the disciplinary authority on 17.2.1997 and also explained the circumstances, in which he had absented from duty. According to the learned counsel for the petitioner, once the petitioner is taken back to duty, then as per the instructions dated 30.10.1990, the Superintendent of Police, District Police Office, Thanjvur District, the third respondent, has no jurisdiction to impose a major penalty of compulsory retirement from service. Hence the impugned order is contrary to the instructions of the Head of the department. 8. Placing reliance on a judgement in Syed Zaheer Hussain vs. Union of India and others reported in AIR 1999 SC 3367 Bhagwan Lal Arya vs. Commissioner of Police, Delhi, and another reported in AIR 2004 SC 2131, learned counsel for the petitioner submitted that the punishment of compulsory retirement for absence from duty is excessive and disproportionate. Therefore he prayed for interference with the quantum of penalty. 9. Learned counsel for the petitioner further submitted that apart from the allegation of delinquency, which had culminated into a punishment of compulsory retirement, the petitioner had not come to any adverse notice so far. In this background, referring to the proceedings of the Director General of Police, Madaras dated 30.11.2002 and 22.3.2007 respectively, learned counsel for the petitioner submitted that in the case of dismissal from service of police constables Thiru.K.Ponnusamy and Thiru.P.Karunanithi, the Director General of Police, Madras taking into consideration of the length of service put in by the above policemen, modified the penalty into that of reduction in time scale of pay, by one stage for one year without cumulative effect. Further, placing reliance on the decision of the Supreme Court in B.C.Chaturvedi v. Union of India and Ors. reported in 1995 (6) SCC 749, he prayed for suitable orders, modifying the penalty. 10. Learned counsel for the petitioner further submitted that having reinstated the petitioner in service, the observation of the disciplinary authority that the petitioner had no intention to serve in police force and that such a person would spoil the discipline of the force is unwarranted and the said observation depicts his prejudged and closed mind. 11. Learned counsel for the petitioner further submitted that though the procedural defects in conducting the domestic enquiry, violation of principles of natural justice, and the biased attitude of the disciplinary authority, were categorically raised in the memorandum of appeal dated 25.7.1997, the appellate authority, without considering the grounds of appeal and the parameters set out in Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, has passed a cryptic order, exhibiting non application of mind. 12. Relying on the decisions reported in (2006) 4 MLJ 1382 K.Kandasamy Vs. Deputy Inspector General of Police and another, in (2006) 11 SCC 147 Director (Marketing), Indian Oil Corporation Ltd. and another Vs. Santosh Kumar, and Divisional Forest Officer and others Vs. Madhusudhan Rao, reported in 2008 2 MLJ 1018 SC, learned counsel for the petitioner submitted that both the disciplinary authority as well as the appellate authority have failed to consider the important factors set out in Rule 6 of the Tamil Nadu Police Subordinate Appeal Rules and therefore, the orders have to be set aside. 13. Reiterating the averments made in the counter affidavit, learned counsel for the respondents submitted that the the petitioner was working as Grade-II Police Constable in Armed Reserve Force, Thanjavur. While so, he was sanctioned 5 days casual leave from 17.12.1996. Since the petitioner remained absent for more than 21 days without leave or permission, as per Police Standing Order 1988, he was treated as deserter on 15.1.1997. On receipt of the order of desertion, the petitioner appeared before the Superintendent of Police, Thanjavur, on 17.2.1997 and explained the circumstances which forced him to remain absent. Thereafter, he was taken back to duty. 14. For the offence of desertion, the petitioner was served with a charge memo under rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. After due enquiry and consideration of the explanation, with reference to the evidence recorded by the enquiry officer, the disciplinary authority, by an order dated 23.7.1997, imposed a penalty of compulsory retirement. The statutory appeal and the review petition filed by the petitioner were also rejected. 15. Learned counsel for the respondents further submitted that though the petitioner had acknowledged the charge memo on 28.5.1997, he had not objected to the appointment of the enquiry officer and therefore it is not open to him to raise it as a ground for the first time before this court. 16. It is further submitted that the petitioner was taken back to duty without prejudice to the departmental action, as the offence of absence or desertion warrants disciplinary action for imposing a major penalty and therefore the said misconduct cannot be said to be condoned. He further submitted that there is no provision either in the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules or in Police Standing orders that those who were taken for duty should not be awarded with a major penalty. As regards the administrative instructions of Director General of Police, Chennai, he submitted that the said instructions do not have the force of law and it would not fetter the authority of the disciplinary authority for imposing a punishment commensurate with the delinquency. 17. The State counsel further submitted that the petitioner was given a reasonable opportunity during the enquiry and his further representation was also considered by the disciplinary authority. In these circumstances, there is no violation of principles of natural justice, and therefore there is no need to interfere with the findings recorded by the enquiry officer. 18. It is further submitted that the petitioner who was sanctioned leave for five days ought to have reported for duty on 22.12.1996, but he had absented himself from duty, without leave or permission and nothing was heard from him till his appearance before the third respondent on 17.2.1997. As misconduct of desertion committed by the petitioner, a member of the disciplined force was serious in nature, the same was dealt with in accordance with rules and therefore the action taken against him as per PSO 1988 ( Now 1995) to impose a major penalty cannot be termed as illegal or contrary to the statutory rules. 19. Learned counsel for the respondents further submitted that both the disciplinary as well as appellate authorities on the basis of the materials available on record with reference to the charge, have come to a categorical conclusion, that the petitioner had deserted from service and therefore the findings recorded by them need not be interfered with, as there is no perversity. In these circumstances, the respondents have prayed for dismissal of the writ petition. 20. Placing reliance on the decision of the Supreme Court in Government of A.P. and Others vs. Mohd. Taher Ali, reported in (2007) 8 SCC 656, learned counsel for the respondents submitted that the petitioner being a police constable and a member of the disciplined force, cannot absent himself without leave or permission from the superior officer and that such absence cannot be taken lightly. He further submitted that the punishment of compulsory retirement is commensurate with the misconduct and therefore prayed not to interfere with the quantum of penalty. 21. Heard the learned counsel for the parties and perused the materials available on record. 22. The charge levelled against the petitioner under Rule 3(b) of Tamil Nadu Polie Subordinate Service (Discipline and Appeal) Rules is as follows: "Having absented from duty without leave or permission from 22.12.1996 and thus committed the offence of desertion." 23. Pleadings disclose that the petitioner was sanctioned 5 days leave from 17.12.1996 and that he was to report for duty on 22.12.1996, but he did not report for duty. The said fact was reported by the Sub-Inspector of Police, Armed Force to the higher authorities. 24. Before the enquiry officer, three prosecution witnesses were examined and seven documents were filed. 25. It is seen from the punishment order dated 23.7.1997 of the Superintendent of Police, Thanjavur that the petitioner did not cross-examine the prosecution witnesses or adduce any evidence on his side. Though the petitioner has attacked the very initiation of the disciplinary proceedings on the ground of violation of rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, and further submitted that the appointment of enquiry officer along with the charge memo reflected the biased attitude of the disciplinary authority, it is evident that the petitioner had agreed for the commencement of the enquiry proceedings, without any demur. Thus he had acquiesced himself to the jurisdiction and participated in the enquiry and therefore, it is not open to the petitioner to raise it as a ground for attack, before this Court, for the first time in the writ petition. 26. Pleadings further disclose that within one month from the date of desertion, the petitioner had reported before the disciplinary authority on 17.2.1997, and was also permitted to report for duty on 6.3.1997. Desertion in Tamilnadu Police Standing Orders and the procedure to be followed by the department as set out in PSO 95 are as follows: "(1) Absence without leave for 21 days complete as the offences of desertion, after which the officers name shall invariably be struck off from the date of offence. (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 or equal rank under whom the subordinate officer was serving within two months from the date of the commencement of the absence without leave. The Superintendent or the corresponding officer of equal rank, as the case may be, shall not reinstate a deserter (a) until the deserter has attended 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 or 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 the 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 can only 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." 27. As rightly contended by the learned counsel for the petitioner, the Superintendent of Police, Thanjavur, having permitted the petitioner to join duty on 6.3.1997, has erred in observing that the petitioner had no intention to serve in police force. If the petitioner had no intention to serve in the police force, he would not have even reported for duty, before the Superintendent of Police, Thanjavur, and explained the cause for his absence. 28. Now let me consider some of the cases in which the Supreme Court has interfered with the quantum of penalty, in the case of desertion. 29. In Syed Zaheer Hussain, vs. Union of India and others, reported in AIR 1999 SC 3367, the Supreme Court tested the correctness of an order of dismissal from service imposed for unauthorised absence of a government servant. Considering the request of the employee, the Apex Court interfered with the imposition of penalty and directed the petitioner to be reinstated in service with 50% of backwages, from the date of dismissal till the date of passing of the order. In the above case, the appellant- government servant was unauthorisedly absent for about 7 days and therefore the Supreme court interfered with the quantum of punishment. 30. In Bhagwan Lal Arya v. Commissioner of Police, Delhi and another reported in AIR 2004 SC 2131, the appellant was absent for a period two months, 7 days and 17 hours on medical grounds. During the period, he remained under treatment in Government Hospital. Since appellant had applied for leave on medical grounds supported with medical certificates from the competent Medical Officer, the appellate authority passed orders sanctioning leave without pay for the period of illness. However, for the alleged misconduct of absence, a disciplinary action was initiated and ultimately, he was removed from service. While testing the validity of the order of removal, particularly, keeping in mind the maintenance of discipline of police personnel, at paragraph No.11 of the judgement, the Supreme held that: "..... The High Court also did not appreciate that, after issuing sanction for leave for the period in question, the employee's 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 and 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 Rules 8 (a) and 10 of the Delhi Police(Punishment & Appeal Rules 1980) and is liable to be set aside...." 31. In Director (Marketing) Indian Oil Corpn. Ltd. and another vs. Santosh Kumar reported in (2006) 11 SCC 147, the Supreme Court considered the correctness of an order of the appellate authority who simply adopted the language employed by the disciplinary authority and refused to interfere with the dismissal order. The short facts of the reported case are as follows: Before the Supreme Court, the Director (Marketing) and the General Manager (Operations), Indian Oil Corporation Ltd. were the appellants. The respondent was a dismissed employee of the appellant Corporation. He was charge-sheeted for irregular supply of high-speed diesel to the purchasers. Accepting the report of the enquiry officer, the disciplinary authority, after perusing the records and the reply submitted to the show cause notice, dismissed the respondent from service. The appellate authority after extracting the summary of proceedings, by his cryptic order rejected the appeal in the following manner. "I have applied my mind and I find that Shri.Santose Kumuar has not brought about any point which may warrant my interference with the said orders passed by the competent disciplinary authority. Accordingly I hereby by reject the appeal of Santose Kumar. Let Shri Santosh Kumar be advised accordingly." The supreme court having regard to the irregularity committed by the appellate authority set aside the order passed passed by the disciplinary authority and remitted the matter for fresh disposal to the disciplinary authority. 32. Reverting back to the case on hand and as regards the contention of the learned counsel for the petitioner that the appellate authority has failed to consider the parameters set out in the rule 6 of TNPSC (D & A) Rules, it is necessary to extract the order dated 24.9.1997 of the appellate authority, viz. the Deputy Inspector General of Police, Thanjavur. j";rht{h; ruf fhty; Jiw Jizj; jiyth; mth;fspd; bray;Kiwfs; ;/ mspg;gth; ;/ jpU/ v!;/nf/ nlhr;uh. ,/rh/g/. nky;KiwaPL 67-o1-97 ehs; ;/ 24?9?97 bghUs; ;/ nky; KiwaPL jpU m/ n$hjpr';fh; fhtyh; 1998 Ma[jg;gil. j";rht{h; j/ nfhg;g[ 103-97. gphpt[/3(M) fl;lha Xa;t[ jz;lidia vjph;j;J nky; KiwaPL ? Miz gpwg;gpj;jy; bjhlh;ghf/ ghh;it ;/ 1/ fhty; fz;fhzpg;ghsh;. j";rht{h; jz;lidf; nfhg;g[ 103-97. gphpt[ 3(M) Miz ehs; 23/7/97. 2/ fhtyh; 1098 jpU/ m/n$hjp r';fh; nky; KiwaPL kD ehs; 25/7/97. Miz; ;/ jz;lidf; nfhg;g[ 103-97. gphpt[ 3(M) jz;lid nfhg;gpy; Miz ehs; 23/7/97 kw;Wk; nky; KiwaPl;L tpz;zg;gk; vd;dhy; ghh;itaplg;gl;lJ/ 2. nky; KiwaPl;lhsh; 22/12/96 Kw;gfy; Kjy; vt;tpj tpUg;ngh. Kd; mDkjpnah bgwhky; Mg;brd;lhfp 21 ehl;fSf;F nky; gzpf;F tuhky; tpl;nlhoahd xG';fPdkhd braYf;fhf ghh;it 1?y; fz;l Mizapd; go fl;lha Xa;tpy; mDg;gg;gl;Ls;shh;/ 3/ jz;lid nfhg;gpy; fz;l mur jug;g[ vLj;jhtz';fs; 1 Kjy; 7 tiua[s;sit nky; KiwaPl;hsh; gzpf;F tuhky; Mg;brd;l; Md Fw;wj;ij ed;F epUgpf;fpd;wd/ nky; KiwaPl;lhsh; TWk; rkhjhd';fs; Vw;g[ilajhf ,y;iy/ vdnt ,e;j nky;KiwaPl;il js;Sgo bra;fpnwd;/ xk;-? ???????????????? fhty;Jiw Jizj; jiyth; j";rht{h; rufk;. j";rht{h;/ bgWeh; ;/ fhtyh; 1098 jpU/m/ n$hjp r';fh; fhty; fz;fhzpg;ghsh;/ j";rht{h; K:yk; 2 gpujpfs; mDg;gg;gLfpwJ/ xU gpujpapd; xg;g[jy; bgw;w cld; mDg;g nfhug;gLfpwJ/ efy; ;/ fhty; fzfhzpg;ghsh;. j";rht{h;/ j ;/nrh 103-97 cld; mDg;gg;gLfpwJ/ 33. Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955 reads as follows: "Rule 6 (i) 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 based 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 orders-- (i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction, as it may deem fit, in the circumstances of the case; Provided that-- (a) if the enhanced penalty which the appellate authority proposed to impose is one of the penalties specified in clauses (d), (e)(3),(h) (i) and (j) of Rule 2 and an enquiry under sub-rule (b) of Rule 3 has not already been held in the case, the appellate authority shall, subject to the provisions, of sub-rule (c) of Rule 3, itself hold such enquiry or direct that such enquiry be held in accordance with the provisions of sub-rule(b) of Rule 3 and thereafter on consideration of the proceedings of such enquiry and after giving the appellant a reasonable opportunity of making representation against the penalty proposal on the basis of the evidence adduced during such enquiry, make such order as it may deem fit. (b) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties, specified in clauses (d), (e) (3), (h), (i) and (j) of Rule 2 and an enquiry under sub-rule (b) of Rules 3 has already been held in the case, the appellate authority shall, after giving the appellant reasonable opportunity of making representation against the penalty proposed to be imposed on the basis of the evidence adduced during the enquiry, make such order as it may deem fit; and (c) no order imposing an enhanced penalty shall be passed in any other case unless the appellant has been given a reasonable opportunity as far as may be in accordance with the provisions of sub-rule (b) of rule 3 of making representation against such enhanced penalty." 34. As rightly contended by the learned counsel for the petitioner, the appellate authority has failed to consider the parameters set out in the Discipline and Appeal Rules. The appellate order does not reflect application of mind to the above parameters. Hence,this court is of the considered view that there is a procedural violation in considering the statutory appeal. Useful reference can be made to a decision of