IN THE HIGH COURT OF JUDICATAURE AT MADRAS DATED 10.10.2011 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.Nos.49541 of 2006 and 17900 of 2007 V.Pachaiyappan .. Petitioner in both the petitions Vs. The Superintendent of Police, District Police Office, Kancheepuram District. .. Respondent in both the petitions Prayer in W.P.No.49541 of 2006: The original application No.6661 of 2001 has been filed before the Tamil Nadu Administrative Tribunal and after abolition of the Tribunal, the same was transferred to this Court and renumbered as Writ Petition seeking to issue a Certiorarified Mandamus to call for the records of the respondent herein passed in his proceedings J3/PR No.58/2001 dated 31.8.2001 and imposing a punishment of compulsory retirement from service on the applicant and quash the same and consequentially direct the respondent to reinstate the petitioner in service with all consequential monetary and service benefits. Prayer in W.P.No.17900 of 2007: The original application No.2226 of 2006 has been filed before the Tamil Nadu Administrative Tribunal and after abolition of the Tribunal, the same was transferred to this Court and renumbered as Writ Petition seeking to issue a Certiorarified Mandamus to call for the records of the respondent herein passed in his proceedings J2/P.R. No.07/2004 dated 8.4.2004 imposing a punishment of removal from service and the consequential order passed by the respondent herein in his D.O.No.698/2004, J2/P.R. No.07/2004 dated 12.5.2004 and quash the same and consequentially direct the respondent herein to reinstate the applicant in service with all consequential monetary and service benefits. For Petitioner : Mr.Ravi Shanmugam for Ms.Sudha Ravi Associates For Respondent : Mr.R.M.Muthukumar Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R These writ petitions are filed to call for the records of the respondent herein passed in his proceedings J3/PR No.58/2001 dated 31.8.2001 imposing a punishment of compulsory retirement and removal from service and another proceedings J2/P.R. No.07/2004, dated 8.4.2004 imposing a punishment of removal from service and the consequential orders passed by the respondent herein in his D.O.No.698/2004, C.No.J2/P.R.07/2004, dated 12.5.2004 and quash the same and consequentially direct the respondent to reinstate the petitioner in service with all monetary and service benefits. 2.The petitioner was appointed as Grade II Police Constable on 23.12.1985 and he was promoted as Grade I Police Constable in the year 1998. He absented himself from duty for 21 days from 29.4.2000 and he was taken back to duty on 5.6.2000. However, vide Charge Memo dated 18.6.2000 charges were framed against him in P.R.No.70/2000 under Rule 3(b) of Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules 1955 for absence of 21 days from 29.4.2000 and after following the procedure by order dated 28.8.2000 the punishment of compulsory retirement from service was ordered. The petitioner filed O.A.No.8781 of 2000 questioning the aforesaid order dated 28.8.2000 compulsorily retiring him from service. The Tribunal granted stay on 30.11.2000 from retiring the petitioner compulsorily from the service. 3.However, the petitioner absented himself from duty from 19.3.2001 for 21 days and he was taken back to duty on 08.05.2001. Another Charge Memo dated 30.5.2001 in P.R.No.58/2001 under Rule 3 (b) of Tamil Nadu Police Subordinate Services (Discipline and Appeal Rules 1955) was issued to the petitioner, alleging that the petitioner absented himself from duty for more than 21 days from 19.3.2001. This action again resulted in passing of the order dated 31.8.2001 in P.R.No.58 of 2001 imposing punishment of compulsory retirement from service. The petitioner filed O.A.No.6661 of 2001 (W.P.No.49541 of 2006) to quash the order dated 31.8.2001. The Tribunal granted stay of the order of compulsory retirement from service on 12.10.2001. 4.Again the petitioner remained absent from duty from 14.7.2003 for more than 21 days. Hence, he was declared as deserter by order dated 25.8.2003. Thereafter, a Charge Memo dated 28.10.2003 in P.R.No.7/2004 under Rule 3(b) of Tamil Nadu Police Subordinate Services (Discipline and Appeal Rules 1955) was issued alleging that the petitioner absented himself from duty from 14.07.2003 for more than 21 days. This resulted in the order dated 08.04.2004 removing the petitioner from service. The petitioner filed O.A.No.2226 of 2004 (W.P.No.17900 of 2007) to quash the order of removal from service dated 08.04.2004 in proceedings No.J2/P.R.07 of 2004. 5.The respondent has not filed counter affidavit refuting the allegations. https://hcservices.ecourts.gov.in/hcservices/ 6.Heard both sides. The learned Government Advocate made his submissions based on the instructions and the application filed to vacate the interim order. 7.The learned counsel appearing for the petitioner submits that W.P.No.42215 of 2006 (O.A.No.8781 of 2000) was filed questioning the order dated 28.8.2000 compulsorily retiring the petitioner from service and to reinstate the petitioner in service and the same was dismissed by this Court on 13.12.2010 and the said order was upheld by this Court. 8.In such circumstances, the learned counsel for the petitioner further submits that the punishment of compulsory retirement imposed in proceedings J3/PR No.58/2001, dated 31.8.2001 which is challenged in W.P.No.49541 of 2006 (O.A.No.6661 of 2001) could be sustained and the writ petition filed in W.P.No.17900 of 2007 (O.A.No.2226 of 2004) questioning the proceedings J2/P.R.07/2004, dated 8.4.2004 imposing punishment of removal from service could be allowed, so that, the petitioner could receive terminal benefits. The learned counsel for the petitioner submits that taking into account the dependency of the family members, a lenient view could be taken by this Court, so that, the petitioner and his family members would get terminal benefits. 9.In support of his submission, the learned counsel for the petitioner relied on the judgment of a Division Bench of this Court dated 27.01.2011 in W.A.No.58 of 2011 (R.RAMESH VS. THE DEPUTY INSPECTOR GENERAL OF POLICE, KANCHEEPURAM AND OTHERS) and another Division Bench judgment of this Court in RM. PALANIAPPAN VS. THE TRANSPORT COMMISSIONER [2006 (1) MLJ 48] He also relied on the judgment of a learned Single Judge dated 01.10.2007 made in W.P.No.4024 of 2005 (K.PERIYASAMY VS. THE DIRECTOR GENERAL OF POLICE, KAMARAJAR SALAI, CHENNAI) in this regard. 10.On the other hand, the learned Government Advocate has sought dismissal of the writ petitions and his submission is that the petitioner does not deserve any leniency and this Court need not interfere with the impugned orders. 11.I have heard the submissions on either side. The facts are not in dispute. 12.The petitioner was imposed punishment of compulsory retirement by order dated 28.8.2000 for absenting himself for more than 21 days. He filed O.A.8781 of 2000 (W.P.No.42215 of 2006) to quash the said order dated 28.8.2000. This Court rejected the said writ petition and confirmed the order dated 28.8.2000. However, when O.A.No.8781 of 2000 was admitted, the Tribunal granted stay of compulsory retirement on 30.11.2000. The petitioner again remained absent from 19.3.2001 and he was taken back to duty on 8.5.2001. A Charge Memo dated 30.5.2001 was issued to the petitioner alleging that the petitioner remained absent for more than 21 days from 19.3.2001. This resulted in passing the punishment order https://hcservices.ecourts.gov.in/hcservices/ dated 31.8.2001, compulsorily retiring the petitioner from service. The petitioner filed O.A.No.6661 of 2001 (W.P.No.49541 of 2006). While admitting O.A.No.6661 of 2001, the Tribunal granted stay from compulsorily retiring the petitioner from service on 12.10.2001. 13.The petitioner again remained absent for more than 21 days from 14.7.2003, a Charge Memo dated 28.10.2003 was issued under Rule 3(b) of Tamil Nadu Police Subordinate Services (Discipline and Appeal Rules 1955). This resulted in passing the order dated 08.04.2004 removing the petitioner from service. The petitioner filed O.A.No.2226 of 2004 (W.P.No.17900 of 2007). 14.The learned counsel for the petitioner submits that imposing the punishment of compulsory retirement dated 31.08.2001 could be confirmed and the order dated 08.04.2004 passed for removing the petitioner from service has to be set aside, so that, the petitioner can get terminal benefits for the services rendered by him. 15.The learned counsel for the petitioner placed reliance on the judgment of this Court dated 27.1.2011 in W.A.No.58 of 2011 (R. RAMESH VS. THE DEPUTY INSPECTOR GENERAL OF POLICE AND ANOTHER) which is, extracted here under. "Heard the learned counsel for the parties. This appeal is filed challenging the order of the learned Single Judge dated 2.9.2008 passed in writ petition No.33624 of 2005. 2.The appellant/writ petitioner, who was serving as Grade-II Police Constable in the Police Department at Kancheepuram, was proceeded against departmentally on the charge that he remained absent from duty for a period of 21 days. The Enquiry Officer held the charge against the appellant as proved. In view of the finding of the Enquiry officer, as also the fact that the appellant had earlier deserted the force on three occasions and absented himself from duty on two occasions, the disciplinary authority, viz., the second respondent herein, passed an order of dismissal from service against the appellant. The appellant challenged the same by filing the writ petition, which was dismissed by the learned Single Judge, who held that the appellant, being employed in the Armed Reserve, was expected to maintain strict discipline and in view of his past conduct, the punishment of dismissal cannot be termed a excessive or disproportionate. After hearing the learned Senior Counsel for the appellant and the learned Government Pleader, we are prima facie of the view that the punishment imposed on the appellant is disproportionate to the charge levelled against him and it is in fact, https://hcservices.ecourts.gov.in/hcservices/ shocking the conscience of this Court. We, therefore, allow this writ appeal, set aside the impugned judgment passed by the learned Single Judge and remit back the matter to the disciplinary authority, viz., the second respondent herein, to re-consider the matter with regard to the quantum of punishment imposed on the appellant and to take a decision within six weeks from today. It is made clear that in the event the quantum of punishment imposed on the appellant is reduced, he shall not make any claim with regard to the wages for the period he has not performed his duty. But the continuity in service will not be affected. There shall be no order as to costs. Consequently, M.P.No.1 of 2010 is closed. " 16.Though the appellant therein deserted on three occasions and absented himself from duty, the Division Bench was inclined to set aside the removal order and the authorities were directed to impose some other punishment. In this case, the petitioner absented for more than 21 days. The Division Bench of this Court has taken lenient view though, the Constable committed misconduct of desertion on three occasions. In my view, the principles of the above said judgment are applicable to this case also. 17.Furthermore, the learned counsel for the petitioner relied on the Division Bench judgment of this Court in RM.PALANIAPPAN's case (cited supra) for modification of punishment of compulsory retirement to any other punishment. That was a case of Motor Vehicles Inspector Grade II. The allegation made against the appellant therein was that he engaged a tout and collected money through the tout. He was removed from service based on the charges. A Division Bench of this Court, interfered with the punishment and modified the punishment into deprival of annual increments and other benefits for five year. In this regard, paragraphs 28 to 30 of the said judgment are extracted hereunder: "28.Moreover, when the petitioner is vested with the power of issuing licenses to the persons and the vehicle as well, it cannot be expected of him that he would give licence to the persons who are eligible in all aspects or the vehicles fit for running on the road, when he has decided to mint money by engaging a tout. This is not a good omen to the civilized and democratic Society, when especially, the nature of work of the petitioner directly plays a vital role with the lives of the people moving on the road. 29.Considering the above aspects, though we are disinclined to impose extreme punishment of dismissal from service, we are of the view that the imposition of stringent punishment on the petitioner would meet the ends of justice. https://hcservices.ecourts.gov.in/hcservices/ 30.Accordingly, the first and second respondents are directed not to give any effect to and pay Annual Increments, Dearness allowance, Bonus, if any, and any other monetary benefits alike, due after the date of this order with cumulative effect and also any service benefits like considering his name for promotion etc., for five years from the date of this order. In other words, the petitioner has to go home with his monthly salary alone i.e. what is drawing as on date for five years from the date of this order. The orders of the first respondent as well as the Tribunal with regard to punishment are set aside". 18.Even in W.A.No.58 of 2011, the appellant has committed series of allegations, the Division Bench, taking into account the position of the family of the Government employee, interfered with the extreme punishment of dismissal from service and modified into some other punishment. Likewise, I am of the view that the said judgment is also applicable to this case. 19.Likewise, in the judgment dated 1.10.2007 in W.P.(MD) No.4024 of 2005, (K. PERIYASAMY VS. THE DIRECTOR GENERAL OF POLICE AND TWO OTHERS), the petitioner therein was charged for demanding and accepting bribe of Rs.100/- and he was removed from service. The learned Single Judge of this Court, in W.P.(MD)No.4024 of 2005, modified the punishment of removal from service into compulsory retirement. The relevant portion of Paragraph 9 of the said judgment is extracted hereunder: "In this context, it is relevant to refer to a recent decision of the Division Bench of this Court in W.P.No.22983 of 2005, disposed on 13.8.2007, (V.C.RAJAMANICKAM V. STATE OF TAMIL NADU AND ANOTHER) and the following passage found in paragraph 18 of the said order is reproduced below: "As contended by the learned senior counsel for the petitioner the petitioner has put in a long number of years of service and there is no adverse entries in his annual confidential reports and in such circumstances if the punishment of dismissal from service is imposed not only the petitioner but his entire family will be put to great hardship. Therefore we are of the considered view that the ends of justice will be met if punishment of dismissal from service is modified into one of compulsory retirement since both the penalties are major penalties and the punishment of dismissal from service appears to be disproportionate and not commensurate with the act of delinquency of the petitioner. Hence we modify the dismissal from service into one of compulsory retirement." https://hcservices.ecourts.gov.in/hcservices/ 20.In view of the aforesaid judgments, I am of the view that W.P.No.17900 of 2007 has to be allowed and accordingly, the order dated 8.4.2004 removing the petitioner from service is quashed. W.P.No.49541 of 2006 (O.A.No.6661 of 2001) questioning the order dated 31.8.2001 compulsorily retiring the petitioner from service has to be dismissed. Accordingly, W.P.No.17900 of 2007 is allowed and W.P.No.49541 of 2006 is dismissed. The respondent is hereby directed to pay pension payable to the petitioner pursuant to the compulsory retirement as expeditiously as possible. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar cla To The Superintendent of Police, District Police Office, Kancheepuram District. + 2 C.C. To Government Pleader Sr.No.62151, 62144 + 1 C.C. To M/s. Sudha Ravi Associates Sr.No.6204 W.P.Nos.49541 of 2006 and 17900 of 2007 KU[CO] KS 12/11/2011 https://hcservices.ecourts.gov.in/hcservices/