IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.45643 OF 2006 (O.A.NO.4984 OF 2000) V.Murugesan ... Petitioner Versus 1.The Deputy Inspector General of Police Vellore. 2.The Inspector General of Police (Law and Order), Chennai – 600 004. 3.The Govt. of Tamil Nadu Rep. by its Secretary to Government Home Department Fort St. George, Chennai – 600 009. 4.The Superintendent of Police Vellore. (R4 – impleaded as per order dated 01.10.2010 in M.P.No.1/2010 in W.P.No.45643/2006) ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.4984 of 2000 from the file of Tamil Nadu Administrative Tribunal with a prayer to issue a writ of Certiorari Mandamus, to call for the records of the Superintendent of Police, Vellore, the fourth respondent herein pursuant to his proceedings made in PR.No.101/98 under Rule 3(b) dated 08.04.1998 besides punishment of compulsory retirement awarded by the first respondent made in his proceedings C.No.B2/AP-87/98 dated 18.08.1998 as confirmed by the 2nd and 3rd respondents in their proceedings made in RC.No.208357/AP 2(2)/98 dated 10.12.1998 and GO (D) No.465, Home (Pol VI) Department, dated 27.05.1999 respectively and quash the same as null and void, illegal and invalid and consequently direct the respondents to reinstate the petitioner in service with all service and attendant benefits. (Prayer amended as per order dated 21.10.2010 made in M.P.No.2/2010 in W.P.No.45643 of 2006) For Petitioner : Mr.A.Amal Raj For Respondents: Mrs.Lita Srinivasan Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner joined service as Grade – II Police Constable in the Tamil Nadu Special Police on 05.04.1981. While he was serving in the Armed Reserve, Vellore, he absented from duty from 26.11.1997, without obtaining prior permission. The Superintendent of Police, Vellore, the fourth respondent herein, issued an order dated 18.12.1997 declaring him as "deserter". The petitioner appeared before the fourth respondent on 12.01.1998 and offered his explanation. According to him, his wife was not well at his native place for the past seven years and that therefore, he had to go to his native place. Thereafter, he also became sick. 2.Not satisfied with the explanation offered by the petitioner, the Superintendent of Police, Vellore issued a charge memo dated 08.03.1998 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules to the petitioner. The petitioner submitted his explanation on 10.03.1998 reiterating his earlier stand that he made in his explanation dated 12.01.1998. 3.However, not satisfied with the explanation dated 10.03.1998, an enquiry was ordered. Based on the enquiry, the Superintendent of Police, Vellore, passed an order dated 08.04.1998 removing the petitioner from service. 4.The petitioner preferred an appeal dated 08.05.1998 before the Deputy Inspector General of Police, Vellore, the first respondent herein. The appeal was partly allowed and the removal order was modified as compulsory retirement, by the first respondent, vide order dated 18.08.1998. 5.Aggrieved by the order of the first respondent, the petitioner took up the matter further before the second respondent, by filing a review petition dated 30.09.1998. The second respondent rejected the review petition and confirmed the order of the first respondent, vide order dated 10.12.1998. 6.The petitioner again took up the matter before the third respondent Government by way of a mercy petition dated 29.01.1999. The third respondent Government passed an order in G.O (D) No.465, Home (Pol. VI) Department, dated 27.05.1999, rejecting his mercy petition. Ultimately, the petitioner suffered the punishment of compulsory retirement, imposed by the first respondent vide his order dated 18.08.1998. It is also stated that in view of the order of compulsory retirement, the petitioner was paid pension. 7.The petitioner filed Original Application in O.A.No.4984 of 2000 (W.P.No.45643/2006) to quash the order dated 08.04.1998 of the fourth respondent; the order dated 18.08.1998 of the first respondent; the order dated 10.12.1998 of the second respondent and https://hcservices.ecourts.gov.in/hcservices/ G.O.(D) No.465, Home (Pol VI) Department, dated 27.05.1999 of the third respondent and for a consequential direction to the respondents to reinstate him in service with all service and attendant benefits. 8.Heard the submissions made on either side and perused the materials available on record. 9.The issue lies in a very narrow campus, as the petitioner urges only dis-proportionality of the punishment. According to the petitioner, he absented from duty from 26.11.1997 to 11.01.1998, i.e. he was unauthorisedly absented for 47 days. It is not in dispute that he appeared on 12.01.1998 before the fourth respondent and offered his explanation. However, his explanation was not acceptable by the fourth respondent. 10.The learned counsel for the petitioner relies on a Division Bench judgment of this Court in D.SAINSON VS. THE CHIEF SECURITY COMMISSIONER reported in 1997 Writ L.R. 626; judgments of the Honourable Apex Court in SHRI BHAGWAN LAL ARYA VS. COMMISSIONER OF POLICE reported in 2004 (4) SCC 560 and CHAIRMAN – CUM – MANAGING DIRECTOR, COAL INDIA LIMITED AND ANOTHER VS. MUKUL KUMAR CHOUDHURI AND OTHERS reported in 2009 (15) SCC 620. 11.In the Division Bench judgment of this Court reported in 1997 Writ L.R. 626, the appellant was unauthorisedly absented for 45 days. He was removed from service. The Division Bench of this Court modified the punishment of removal into that of withholding of increment for three years with cumulative effect. In this regard, para 6 of the said judgment is extracted hereunder: "6.Mr.S.V.Jayaraman, learned Senior Counsel for the appellant also did not seriously argue about the entitlement of the appellant for the back wages for the period of removal from service from 21.3.1981 till the date of reinstatement on 22.5.1995. By this, the appellant will be losing his backwages for about 14 years. This in addition to the punishment of withholding of increment for a period of three years with cumulative effect will be the just and fair punishment for the offence committed by the appellant. Therefore, we allow the Writ Appeal to the above extent. The order of the learned single Judge is modified to this extent. We make it clear that the period between 21.3.1981 and 22.5.1995 will be treated as qualifying service for all the benefits. " 12.In the judgment of the Honourable Apex Court reported in 2004 (4) SCC 560, the appellant was a Constable in Delhi Police. He unauthorisedly absented for 2 months and 8 days. He was removed from https://hcservices.ecourts.gov.in/hcservices/ service. The Honourable Apex Court set aside the punishment of removal and reinstated the appellant in service. In this regard, para 14 of the said judgment is extracted hereunder: "14.Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated up to the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment." 13.In the other judgment of the Honourable Apex Court reported in 2009 (15) SCC 620, the appellant was absented unauthorisedly for six months. He was removed from service. The Honourable Apex Court ordered reinstatement without backwages. In this regard, paras 21 and 22 of the said judgment are extracted hereunder: "21.In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company’s rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his https://hcservices.ecourts.gov.in/hcservices/ resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. 22.Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if Respondent 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorised absence for six months." 14.In view of the aforesaid judgments, I am of the view that the punishment of compulsory retirement is too harsh and the same is liable to be interfered with. Hence, the order dated 18.08.1998 of the first respondent; the order dated 10.12.1998 of the second respondent and G.O.(D) No.465, Home (Pol VI) Department, dated 27.05.1999 of the third respondent are quashed. The respondents are directed to reinstate the petitioner in service, within a period of four weeks from the date of receipt of a copy of this order. However, it is made clear that the pension that was already paid to be petitioner could not be recovered and at the same time, the petitioner is also not entitled to any wages other than the payment of pension, which he received already. The payment of pension could be treated as the wages paid to the period of non-employment. Besides the above, the petitioner is also imposed with the punishment of stoppage of increment with cumulative effect for three years. 15.This writ petition is allowed on the above terms. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar TK https://hcservices.ecourts.gov.in/hcservices/ To 1.The Deputy Inspector General of Police Vellore. 2.The Inspector General of Police (Law and Order) Chennai – 600 004. 3.The Secretary to Government of Tamil Nadu Home Department Fort St. George, Chennai – 600 009. 4.The Superintendent of Police Vellore. 1 cc to M/s.A.Amalraj, Advocate, Sr.No.75915 1 cc to Government Pleader, Sr.No.76126 W.P.NO.45643 OF 2006 (O.A.NO.4984 OF 2000) NSM {CO} TP/2.11.2010. https://hcservices.ecourts.gov.in/hcservices/