Allowed

K. Palaniswamy v. the Commandant

Madras HC9 Apr 2013WP/25534/2006

Case brief

AI extract

What is this about?

This judgment allows a writ petition challenging the dismissal of a police constable for alleged desertion. The court held that unauthorised absence due to family circumstances without intention to quit does not constitute desertion. The dismissal was set aside as shockingly disproportionate, ordering reinstatement with continuity of service but no backwages.

What did the court decide?

Writ petition allowed; impugned order set aside; petitioner reinstated in service with continuity of service but no backwages; respondents to pass appropriate orders within four weeks.

K. Palaniswamy Vs the Commandant — Pension and Retirement Benefits | Madras HC (2013)

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IN THE HIGH COURTOF JUDICATURE AT MADRAS

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DATED : 09.04.2013

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CORAM

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THE HONOURABLE MR. JUSTICE S.TAMILVANAN

W.P.No.25534 of 2006

K.Palaniswamy

Petitioner

/vs/

The Commandant,

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T.N.Special Police IV Battalion,

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Kovaipudur, Coimbatore District.

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The Deputy Inspector General of Police, Armed Police, Trichy-12. .. Respondents

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Writ petition filed under Article 226 of the Constitution of India, seeking an order in the nature of Certiorarified Mandamus calling for the records pertaining to the impugned order passed by the respondents 1 and 2 in P.R.No.49/99 dated 12.02.2000 and C.No.A2/Appeal.9/2006 dated 06.05.2006 respectively and quash the same and direct the respondents to reinstate the petitioner into service and grant him all consequential service and monetary benefits.

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For Petitioner : Mr.K.Venkataramani, Senior Counsel for Mr.Muthappan

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For Respondents : Mr.S.Navaneethan Addl. Govt. Pleader for R1 & R2

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O R D E R

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Heard the learned Senior Counsel appearing for the petitioner as well as the learned Additional Government Pleader appearing for the respondents.

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2.The writ petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of Certiorarifed Mandamus calling for the records pertaining to the impugned order passed by the respondents 1 and 2 in P.R.No.49/99 dated 12.02.2000 and C.No.A2/Appeal.9/2006, dated 06.05.2006 respectively and quash the same and direct the respondents to reinstate the petitioner into service and grant him all consequential service and monetary benefits.

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https://hcservices.ecourts.gov.in/hcservices/

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3.It is not in dispute that the petitioner had entered into service as Grade – II Police Constable through a selection process conducted by Tamil Nadu Uniformed Services Recruitment Board, in the year 1993. The petitioner has stated that during June, 1999, due to family circumstances of the petitioner and misunderstanding between the petitioner and his wife, he availed casual leave for one day on 13.06.1999 and, after reaching his village, due to his family problem, he could not report for duty and, hence, he sent a telegram for two days casual leave on 14.06.1999 stating his inability in reporting duty. However, the petitioner was declared as a deserter by the first respondent on 28.07.1999 for absenting from duty from 30.06.1999 to 21.07.1999. When the petitioner reported for duty, he was not taken back for duty and he was served with a charge memo under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline & Appeals) Rules (hereinafter referred to TNPSS (D&A) Rules in PR.No.49/99 dated 15.02.1999, on the ground that he has deserted the Force from 30.06.1999 for a period of 21 days without leave or permission.

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4.The Assistant Commandant, Tamil Nadu Special Police IV Battalion was nominated as the enquiry officer. The petitioner participated in the oral enquiry on 29.12.1999 and also submitted his explanation that due to his family circumstances he proceed only on leave and he had no intention of deserting the Force permanently. In his explanation, the petitioner has stated that his sister expired and he has got three children and two other brothers depending on him. Hence, he requested to drop further action against him on the allegations. However, the respondents held the petitioner guilty of charges levelled against him and ordered dismissal of the petitioner from service. While imposing penalty, the first respondent had not considered the vital point that the petitioner had not been permitted to proceed on medical leave from 12.06.1999 for 18 days. Hence, the petitioner ought not to have been dismissed from service by the respondents for the alleged charges.

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Mr.K.Venkataramani, learned Senior Counsel appearing for the petitioner submitted that the absence of the petitioner could not be construed as desertion by the respondents as the petitioner had no intention to desert the Force for which he was recruited as Grade II Constable. Even on three earlier occasions, according to the learned Senior Counsel for the petitioner, the petitioner, on account of his family circumstances, could not report for duty and that was explained by the petitioner. However, the same was not properly considered by the respondents with humanitarian consideration.

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Learned Senior Counsel appearing for the petitioner further contended that the punishment imposed on the petitioner is shockingly disproportionate and also relied on various decisions rendered by this Court. The first Bench of this Court (Mr.M.Y.Iqbal Chief Justice

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https://hcservices.ecourts.gov.in/hcservices/

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and Mr.T.S.Sivagnanam , J) in W.A.No.58 of 2011 by its Judgment dated 27.01.2011 set aside an impugned order of dismissal and directed the respondents therein to reinstate the Police Constable into service without backwages with continuity of service. In Writ Appeal No.1608 of 2011 by judgment, dated 26.02.2013, referring the earlier decision, on a similar set of facts, this Court (Mr.R.K.Agrawal, Acting Chief Justice and Mr.N.Paul Vasanthakumar, J) allowed the writ petition in favour of the petitioner who was dismissed from service under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955.

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In another decision in W.P.No.16415 of 2009 dated 15.06.2011, this Court (Mr.N.Paul Vasanthakumar,J) took a similar view taken by the Division Bench in W.A.No.58 of 2011 dated 27.01.2011, whereby, the orders passed by the respondents were set aside and the matter was remitted back to the second respondent to re-consider the issue of proportionality of the punishment alone, in the light of the additional affidavit filed by the third respondent therein and to pass fresh orders within the time stipulated by this Court.

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Mr.K.Venkataramani, learned Senior Counsel appearing for the petitioner, contended that as per the judgment in W.A.No.58 of 2011 dated 27.01.2011, though there was three earlier desertions and two unauthorised absence, considering the facts and circumstances of the said case, Division Bench of this Court held that the punishment of dismissal imposed was shockingly disproportionate and accordingly the impugned order passed therein was set aside and the respondents therein were directed to pass appropriate orders with regard to quantum of punishment. Similarly, in the Writ Appeal No.1608 of 2011, as per the judgment dated 26.02.2013, the Division Bench of this Court held that dismissal of the Police Constable for two desertions would be shockingly disproportionate. Accordingly, based on the earlier decisions rendered by this Court in V.Ramesh vs. The Deputy Inspector General of Police and another, set aside the impugned order passed by the second respondent therein and remitted back the matter for consideration in respect of punishment. Similar order was passed by learned Single Judge in W.P.No.16415 of 2009 dated 15.06.2011.

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According to the learned Senior Counsel appearing for the petitioner, the petitioner, who is a Grade II Constable, has not deserted the police force for three times and further argued that due to stress and strain, in addition to his family circumstances and extraction of work more than working hours, Grade II Police Constables. However, the same is alleged as desertion from the Police Force and dismissed from service without any humanitarian consideration. According to the learned Senior Counsel for the petitioner, the respondents had passed the orders of dismissal of the petitioner from service is against law and the punishment is shockingly disproportionate.

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Learned Additional Government Pleader appearing for the respondents could not in dispute that the aforesaid decisions cited by the learned Senior Counsel appearing for the petitioner would show that the facts and circumstances of this writ petition are also covered by the aforesaid decisions.

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Having gone through the affidavit, counter and other supporting materials and the decisions rendered by this Court referred to above in R.Ramesh vs. The Deputy Inspector General of Police and another (W.A.No.58 of 2011, dated 27.01.2011), this Court held as follows:

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"3. 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, 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."

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In the judgment in Writ Appeal No.1608 of 2011, dated 26.02.2013, of this Court (Mr.N.Paul Vasanthakumar, J), in paragraph-9 observed as follows:

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"9. Thus proportionality of the punishment has to be gone into by the Disciplinary Authority as well as by the Appellate Authority. The said aspect has not been considered in this case by the learned Single Judge. Hence, the order of the learned Single Judge is set aside and the matter is remitted back to the fourth respondent to consider the issue regarding the proportionality of the punishment and pass fresh orders within a period of eight weeks from the date of receipt of a copy of this order."

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Learned Senior Counsel appearing for the petitioner, while making his arguments has fairly conceded that the plea of the petitioner in the writ petition seeking backwages is not legally sustainable. It has been well settled by the Hon'ble Supreme Court in various decisions that unless the punishment is shockingly disproportionate, this Court cannot interfere with the same. In the instant case, after the enquiry, the respondents held that the alleged delinquency of the petitioner has been proved. It is not in dispute that the petitioner herein was absent for 21 days. Though the petitioner has stated that due to sudden death of his sister and quarrel between his wife and the other family members and also due to his ill-health, he could not

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report duty within the time, there is no supporting evidence to establish the same as sufficient defence in favour of the petitioner.

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It is relevant to refer the rule 3(b)(i) of the Tamil Nadu Police Subordinate Service ( Discipline & Appeal) Rules which reads as follows:

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"In every case where it is proposed to impose on a member of a service any of the penalties specified in clauses (d), (h), (i) and (j) of rule 2 the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of allegations on which each charge is framed and if any other circumstances which it is proposed to take into consideration in passing orders on the case"

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In SHRI BHAGWAN LALARYA VS. COMMr. OF POLICE, 2004 (4) SCC 560, in paragraph-11, the Hon'ble Supreme Court has held as follows:it has been held that:

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"... ... We are of the view that the punishment of dismissal/removal from service can be awarded only for acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility or complete unfitness for police service. Merely one incident f absence and that too because of bad health and valid and justified grounds/reasons cannot become the 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 rules 8(a) and 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 and is liable to be set aside. The appellant also does not have any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of which, not only he but his entire family totally dependent on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside."

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It is well settled that a person can be said to be a deserter of the service only when he leaves the post with an intention to never return to the service again.

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As per the interpretation given by Ramanatha Aiyar's, Law Lexicon, the term 'desertion' read as follows :

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Deserter: One who deserts, one who quits a service without permission.[S.41(1)(f), Cr.P.C.]

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https://hcservices.ecourts.gov.in/hcservices/

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Desertion: In general, the act by which a person abandons and forsakes, without justification but a station or condition of public or social life, renouncing its responsibilities and to evading its duties.

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In KRUSHNAKANT B. PARMAR VS. UNION OF INDIA, (2012) 3 SCC 178, the Hon'ble Supreme Court has held that for punishing a person for unauthorised absence, wilful absence must be proved and if the person has absented due to compelling circumstances, his absence cannot be held to be wilful. Hence, the dismissal order confirmed by the Central Administrative Tribunal as well as the High Court was set aside with 50% backwages.

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As contended by the learned Senior Counsel appearing for the petitioner, in view of the interpretation, the mere unauthorised absence could not be construed as desertion, so as to impose a major punishment of dismissing the person from service.

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In the light of the above decisions rendered by the Hon'ble Apex Court and this Court in similar cases, held that the unauthorised absence could not be construed as desertion. In this case, the materials available on record would show that the petitioner had no intention to leave the service or not to return back to service but only absent due to his family circumstances. Hence, dismissal of the petitioner from service is certainly shockingly disproportionate, in the light of various decisions rendered by the Hon'ble Apex Court and this Court.

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On the aforesaid facts and circumstances of the case, I find it just and reasonable to dispose of this writ petition in so far as it relates to quantum of punishment is concerned. Accordingly, the writ petition is allowed and the impugned order passed by the respondents are set aside. The respondents are directed to re-instate the petitioner in service. It is made clear that the petitioner is not entitled to get any backwages on the principle of no work no pay, however, there shall be continuity of service for all other purposes and the respondents are directed to pass appropriate orders, within a period of four weeks from the date of receipt of a copy of this order. No order as to costs..

-Sd/Asst. Registrar

Sub Asst.Registrar

kal

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