IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.3471 of 2007 (O.A.No.3793 of 2001) R.Venkatesan ...Petitioner Vs. 1.The Director General of Police Mylapore, Chennai 4 2.The Inspector General of Police Law and Order, Chennai 4 3.The Deputy Inspector General of Police Chengalpattu Range, Chennai 16. 4.The Superintendent of Police Thiruvallur District Thiruvallur ...Respondents Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus to call for the records in pursuant to the impugned order of punishment issued by the 4th respondent in Proc.C.No.P.R.36/F1/99 dated 11.5.99 and the appellate rejection orders issued by the 3rd respondent in proc.C.No.A3/AP.41/99 dated 30.7.99 the order of the 2nd respondent in Rc.No.248782/AP I (2) 99 dated 29.11.99 and the order of the 1st respondent in Rc.No.134666/AP.I(2)/2000 dated 10.8.2000 and quash these orders and to direct the respondents to reinstate the petitioner in service with full backwages and other consequential service benefits. For Petitioner : Mr.S.M.Subramaniam For Respondents : Mr.RM.Muthukumar, GA O R D E R The petitioner filed O.A.No.3793 of 2001 before the Tamil Nadu Administrative Tribunal, challenging the orders dated 11.05.1999 passed by the 4th respondent viz.,Superintendent of Police, Tiruvallur confirmed by the order of the third respondent viz., Deputy Inspector General of Police, Chengalpattu Range, dated 30.07.1999 and further confirmed by the second respondent Inspector General of Police, Chennai dated 29.11.1999 as well as the rejection of mercy petition dated 10.08.2000 passed by the first respondent Director General of Police, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. By the impugned orders, the petitioner was imposed with the punishment of compulsory retirement. His subsequent appeal and mercy petition were rejected by the Appellate Authority. The Original Application was admitted on 21.06.2001. Though the petitioner sought for interim relief, the same was not granted. 3. On notice from the Tribunal, the 4th respondent has filed a reply affidavit dated 30.12.2002. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re- numbered as W.P.No.3471 of 2007. 4. On direction from this Court, the original file relating to the petitioner was circulated for perusal by this Court. 5. The facts leading to the filing of the case are as follows:- The petitioner was appointed as Grade II Police Constable on 23.12.1985. He was working in Padirivedu Police Station from 14.11.1997 to till his date of compulsory retirement on 12.05.99. On 11.11.1998, he was deputed for bandobust duty to Uthukkottai. After completing the bandobust duty, he did not return to Padirivedu Police Station for routine duty on 12.11.1998. He was continued to be absent for more than 21 days from 12.11.1998 to 03.12.1998 without obtaining leave or permission from his superiors. Therefore, a charge memo under rule 3(b) of the Tamil Nadu Police Subordinate Service Rules was framed and disciplinary proceedings were initiated in P.R.No.36 of 1999. 6. Subsequently, the D.S.P. Uthukkottai was nominated as Enquiry Officer and after holding the enquiry, he gave a proved minute against the petitioner. It was found that the petitioner had deserted his duty for more than 21 days without obtaining leave or permission. Since the petitioner also did not appear for the enquiry, on the basis of the available records, proved minute was drawn and before imposing the penalty the petitioner's past record was also taken note of wherein, he had deserted his duty for 5 times. The petitioner's further appeal and mercy petition was also rejected by the appellate authorities. 7. The contention raised by the petitioner was that the genuine circumstances stated by the petitioner was not considered by the respondents. For a simple charge, the respondents ought not to have imposed an excessive punishment of compulsory retirement. He had explained along with the Medical Certificate about his sudden epileptic attack and was fainted while proceeding to Padrivedu. In fact, the petitioner sent a letter dated 17.03.1999 pursuant to the charge memo, wherein, it was stated that he had previously sustained head injury and was fainted and because of medical advise he could not attend office. 8. Before the Enquiry Officer, when his defence statement was sought to be recorded in question No.2 on 26.03.1999, he had categorically stated that he had no witness to examine and no document to be filed. The Enquiry Officer also stated that if he https://hcservices.ecourts.gov.in/hcservices/ has medical condition, he should have get a sick passport from the Station House Officer before proceeding on medical leave and therefore, there was gross neglect of duty. In the Enquiry Officer's report in the concluding paragraph, the Enquiry officer referred to the petitioner's letter dated 04.12.1998 along with the Medical Certificate and also the order under which he was restored to duty on 04.12.1998 by the Department. But notwithstanding the same, these two factors were not considered by the 4th respondent, but he merely went by the record that he was a habitual deserter and had deserted 5 times earlier. Therefore, he imposed the penalty of compulsory retirement. 9. When the petitioner sent an appeal to the Appellate Authority, even before the imposition of penalty, in his further representation, the petitioner mentioned about his medical condition, head injury as to how he got fainted and the medical treatment he underwent. The alleged period of desertion from 12.11.1998 to 02.12.1998 was also treated as leave without pay which the petitioner was entitled to by the proceedings dated 11.05.1999. In the appeal sent to the Appellate Authority, the petitioner reiterated his medical condition in paragraph 6. But the Appellate authority did not deal with the same. The same was the case of the Reviewing Authority. 10. Thereafter, when a mercy petition was filed before the DIG namely the first respondent, remarks were called for from the subordinates. The Sub-Inspector of Police, B-6 Police Station, Mappedu by his report dated 04.10.2001 informed that during his service, he had injured himself two years before and his case can be considered. He was also mentally affected and was not living permanently in his house. Similarly, the original file shows that the petitioner sent a representation to the Chief Ministers Grievance Cell and the letter dated 30.07.2001 was forwarded to the 4th respondent for appropriate action and to give a reply to the Grievance Cell. In the complaint sent to the grievance cell, the petitioner also enclosed the extract of the discharge summary obtained from the Government General Hospital and the treatment undertaken by him. In the note put up for the 4th respondent, it was indicated that the petitioner subsequent to the injury on 02.10.1994, there was damage to the skull and he does not stay permanently in his house and he is mentally affected and no direct enquiry was made with him. The same reply was forwarded by the 4th respondent to the Chief Ministers Grievance Cell dated 11.12.2001 and in that reply, in paragraph 6 ie.,the last paragraph, the 4th respondent brought these facts to the Grievance Cell. Notwithstanding the same, the petitioner was not given any relief. Therefore, the petitioner's case will have to be considered in the light of these facts. 11. The fact that the petitioner had suffered injury on 02.10.1994 while he was going in the motor cycle on duty and there was skull injury and that he was mentally affected and he was not staying in his house is well within the knowledge of respondents. Even in his first explanation, the petitioner had stated while https://hcservices.ecourts.gov.in/hcservices/ coming back from bandobust duty on 11.11.1998, he fainted and he was admitted to Latchivakkam Government Hospital and took treatment and after regaining consciousness he took medical treatment from 12.11.1998 to 03.12.1998. He also forwarded the same by post requesting 22 days leave to the police station. Though this letter and the enclosure were referred to by the Enquiry Officer in his report as Document No.5, the 4th respondent being the disciplinary authority did not deal with the genuineness of the complaint but merely stated that in case of medical leave, sick passport must be obtained. Though the rule may require technical complaints, the authorities are bound to take note of the substantive reasons for absence. Thereafter, his appeal and review was dismissed in a mechanical fashion and even the first respondent, who called for remarks was posted with the said information. Subsequently, to the Chief Ministers Grievance Cell, the 4th respondent mentioned these facts in the last paragraph of the letter and to the State Government and to the first respondent but nothing was done in the case of the petitioner. 12. In the Original Application filed by the petitioner, in paragraph 3, he had explained his 22 days absence in the following manner:- "3. The applicant submits that he has submitted his explanation stating that he was on bandobust duty on 11.11.98 at Uthukottai and he should return Padrivedu Police Station on 12.11.98. While the applicant was proceeding to Padrivedu, got sudden epileptic and fainted the applicant was given treatment at Primary Health Centre, Latchivakkam, and advised for bed rest for 3 weeks. The Doctor recommended to Medical Leave. The superintendent of Police, who heard the case of the applicant accepted his explanation taken for duty. Under these circumstances action was taken surprisingly a charge memo was issued." 13. In response to this, in the reply affidavit, in paragraph 5, it was averred as follows:- "5. With regard to Para 6(3), it is submitted that the applicant should have appeared before the concerned authorities and obtained leave for taking treatment. But he failed to do so. Hence he was declared as deserter and charge memo was served accordingly for his absence." Therefore, the factual situation was not denied by the respondents but they were only harping on that the petitioner should appear before the concerned authorities for leave. 14. On the contrary, when the petitioner appeared before the 4th respondent, with these materials he was restored to duty by D.O.letter 814/98 in Reference D3/23139/98 dated 04.12.1998 and that was also produced before Enquiry Officer as Document No.6. Therefore, the fact that the petitioner due to his injury had fainted himself which necessitated his subsequent treatment in the https://hcservices.ecourts.gov.in/hcservices/ hospital for 22 days and that he produced these facts as part of his explanation as well as in the enquiry is proved beyond doubt. 15. Whether the respondents on a technical ground that there was no prior permission or that he was a habitual deserter can impose the extreme penalty of compulsory retirement is the issue to be answered in this case. In this context, it is necessary to refer to the judgment of the Supreme Court in Union of India v. Giriraj Sharma reported in 1994 Supp (3) SCC 755. In paragraph 2, it was observed as follows:- "2. Mr Jain, the learned counsel for the appellant-Union of India contended that the interpretation placed on Section 11(1) of the Central Reserve Police Force Act, 1949 (hereinafter called ‘the Act’) is not correct and it is on account of this erroneous understanding of the provision that the High Court quashed the order of dismissal. In support of his contention he invited our attention to a decision of the Rajasthan High Court reported in Shyamsingh v. Dy. Inspector General of Police, C.R.P.1 He also relied on certain other decisions but it is sufficient to state that according to him the learned Judges of the High Court had committed an error in interpreting the said sub-section. In our opinion it is not necessary for us to construe sub-section (1) of Section 11 of the Act in the backdrop of the facts of the present case. Assuming Mr Jain is right, we are of the opinion that so far as the present case is concerned the allegation is in regard to the incumbent having overstayed the period of leave by 12 days. The incumbent while admitting the fact that he had overstayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. We are of the opinion that the punishment of dismissal for overstaying the period of 12 days in the said circumstances which have not been controverted in the counter is harsh since the circumstances show that it was not his intention to wilfully flout the order, but the circumstances forced him to do so. In that view of the matter the learned counsel for the respondent has fairly conceded that it was open to the authorities to visit him with a minor penalty, if they so desired, but a major penalty of dismissal from service was not called for. We agree with this submission." 16. Subsequently, the Supreme Court in Malkiat Singh v. State of Punjab reported in (1996) 7 SCC 634, in paragraph 3, held as follows:- "3. The appellant was appointed on 20-4-1990 and https://hcservices.ecourts.gov.in/hcservices/ was discharged from service on 22-7-1992 on the ground that he remained absent from duty for more than 1 month 9 days. Another ground was that he was irregular in attending to the duty. So he could not prove himself to be an efficient constable. We had sent for the records which disclose that he was absent on three occasions. On the first occasion, when he was called upon to report for duty at 12 noon, he reported on 10-9-1990 and was late by six hours. On the second occasion, he was absent, on 30- 6-1991, from night duty. The third occasion was on 24-4-1995. The explanation offered for the absence on the third occasion was that since in his wife's delivery certain complication had arisen, he had to attend to his wife and so he could not be present. The medical certificate in that behalf was produced. In view of the medical certificate, it cannot be said that he had deliberately absented himself from duty. On the previous two occasions, the absence for one day and in another year for one night cannot be considered to be regular absence so as to reach the conclusion that he had not proved his efficiency. It is true that discipline is required to be maintained. However, absence may sometimes be inevitable. In the facts and circumstances of this case, an opportunity may be given to the appellant to work efficiently to prove his excellence. The order of discharge is set aside. The respondents are directed to take the appellant into service forthwith. If the appellant absents himself again for two consecutive days within one year without prior permission, appropriate action may be taken by dismissing him from service. The appellant, however, is not entitled to back wages." 17. If it is seen in the context of the above two judgments and also the petitioner's health condition which was very much available in the enqiry file and also taken note of by the 4th respondent in his subsequent communication sent to the first respondent as well as to the State Government, then holding the petitioner guilty of the misconduct and also visit him with the penalty of compulsory retirement is slightly excessive and not called for under the circumstances of the case. 18. In the light of the above, the writ petition stands allowed. The impugned orders will stand set aside. The petitioner is entitled for all consequential benefits. However, there will be no order as to costs. 19. Since the respondents in their file noting and subsequent communications stated that the petitioner's mental condition is not stable and he was not staying in his house, the respondents are entitled to refer his case for further medial opinion and if his mental condition is not conducive for continuing https://hcservices.ecourts.gov.in/hcservices/ him in the service in the post for which he was appointed, then they are bound to deal with his case in terms of Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. This exercise shall be undertaken by the respondents within a period of eight weeks from the date of receipt of a copy of this order. Svki Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar To 1.The Director General of Police Mylapore, Chennai 4 2.The Inspector General of Police Law and Order Chennai 4 3.The Deputy Inspector General of Police Chengalpattu Range Chennai 16 4.The Superintendent of Police Thiruvallur District Thiruvallur +1cc to Government Pleader Sr.59035 ORDER IN W.P.No.3471 of 2007 (O.A.No.3793 of 2001) NM(CO) rvr 29/09/2011 https://hcservices.ecourts.gov.in/hcservices/