Quashed

A. Dhanasekaran v. the Principal

Madras HC20 Jan 2021WP/36049/2007

Case brief

AI extract

What is this about?

A Police Constable challenged his removal from service for unauthorized absence. The High Court held that the Disciplinary, Appellate, and Government authorities failed to apply their minds to the petitioner's second explanation provided after the initial charge. All impugned orders were quashed as they lacked reasoned findings, and the matter was remanded for fresh consideration.

What did the court decide?

The impugned orders dated 30.11.99, 12.4.2000, and 30.8.2007 are quashed. The matter is remanded to the Disciplinary Authority to reconsider the issue and pass a fresh order within three months.

A. Dhanasekaran Vs the Principal — Service and Employment | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Date : 20.01.2021

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CORAM:

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THE HON'BLE MR. JUSTICE R.SURESH KUMAR

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W.P.No.36049 of 2007

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A.Dhanasekaran ... Petitioner
Vs.
1.The Principal
Police Recruit School,
Cuddalore.
2.The Deputy Inspector General of Police,
Villupuram Range, Villupuram.
3.The Director General of Police
Dr Radhakrishnan Salai
Mylapore, Chennai - 4.
4.The Secretary to Government
Home (Police V) Depot
Fort St. George, Chennai - 9. ... Respondents

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Prayer : Petition filed under Article 226 of Constitution of India praying for issuance of a Writ of Certiorarified mandamus calling for the records of the respondents in connection with the impugned orders passed by the respondents 1, 2 & 4 in C.No.PR 12/TY.P.R.s/99 dated 30.11.99, C. No.B3/AP.18/2000 dated 12.4.2000 and GO 2D No.569 Home (Police V) Department dated 30.8.2007 respectively and quash the same and direct the respondents to reinstate the petitioner into service with all consequential service and monetary benefits.

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For Petitioner : Mr.K.Venkataramani Senior Counsel for Mr.M.Muthappan For 1st Respondent : Mr.K.Magesh Special Government Pleader ORDER

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The prayer sought for in this writ petition is to issue a writ of certiorarified mandamus to call for the records of the respondents in connection with the impugned orders passed by the respondents 1, 2 & 4 in C.No.PR 12/TY.P.R.s/99 dated 30.11.99, C. No.B3/AP.18/2000 dated 12.4.2000 and GO 2D No.569 Home

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(Police V) Department dated 30.8.2007 respectively and quash the same and direct the respondents to reinstate the petitioner into service with all consequential service and monetary benefits.

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2.The petitioner was enlisted as Grade - II Police Constable in the year 1999. He reported duty on 24.05.1999 to undergo the training. While he was in training on 10.07.1999, it is claimed by the petitioner that, he suffered sprain in the neck in the parade ground, therefore, he was granted one day casual leave to meet his parents in order to hand over his monthly salary. After reaching his native place, the petitioner who had sprain in his neck, which got worsen and he developed severe pain on neck and on consulting the doctors, they advised him to take rest after giving first aid treatment. Therefore, the petitioner claimed to have applied for medical leave supported with medical certificate. The doctor, who examined him found that, there is a dislocation in the neck region due to strain, which according to the doctor, is to be called with the medical term 'cervical neuralgia'. Therefore, he was advised to take bed rest for some weeks. Hence, the petitioner applied for medical leave from 10.07.1999 till 20.08.1999 for 40 days.

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3.Thereafter also he made further request for medical leave from 21.08.1999 to 07.09.1999 and again from 08.09.1999 to 08.10.1999.

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4.In the meanwhile, by proceedings dated 03.08.1999 the respondents treating the petitioner as a deserter had initiated proceedings under Rule 3(b) of the TNPSS (D & A) Rules.

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5.Ultimately, the disciplinary proceedings ended in punishment, where, the Disciplinary Authority, by order dated 30.11.1999 inflicted the petitioner with maximum punishment of removal from service. As against which, the petitioner preferred appeal to the Appellate Authority on 05.01.2000, that also was rejected by the Appellate Authority i.e., the second respondent on 12.04.2000. Thereafter, the petitioner filed further appeal/ memorial to the State Government and the same was also rejected by the State Government through the impugned Government Order dated 30.08.2007. Therefore, challenging all these orders passed by the respondents i.e., Original Authority, Appellate Authority as well as the Government, the petitioner filed this writ petition with the aforesaid prayer.

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6.Heard Mr.K.Venkataramani, learned Senior Counsel appearing for the petitioner, who would submit that, first of all the petitioner though had taken one day leave or rest to meet his parents to hand over the salary which he received during the training period, before which, since he has already suffered with neck pain that had developed due to the vigorous

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training he has taken in the parade ground, he immediately approached the doctor, who, after having examined the petitioner, has given a medical advise on 11.07.1999 to take bed rest and treatment for 40 days i.e. from 11.07.1999 to 20.08.1999.

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7.Based on the medical certificate, he had applied for medical leave and subsequently also for some period he had applied for medical leave.

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8.Therefore, the learned Senior Counsel would submit that, these aspects have not been considered either by the Enquiry Officer or by the Disciplinary Authority. In this context, the learned Senior Counsel drew the attention of this Court as to the stand taken by the petitioner before the Enquiry Officer with regard to the application made by him for medical leave, which reads thus:

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"gpiHahsp jhd; rku;g;gpj;j jdJ vjpu;thj vGj;JK:ykhd rkhjhdj;jpy;. jhd; 10/07/99 md;W jdJ khj Cjpaj;ij tPl;oy; bfhLj;J tu tpLKiw mDkjp xU ehs; bgw;W brd;wjhft[k;. 11/07/99 md;W fhiy gapw;rpf;F jpUk;g ntz;oa jhd;. jdJ cly;epiy rupapy;yhj fhuzj;jhy;. 11/07/99 Kjy; 20/08/99 Koa kUj;Jt tpLg;g[ rhd;wpGld; j';fSf;F m";ry; K:yk; kDt[k; mDg;gp cs;sjhft[k;. 21/08/99 md;W gzpf;F jpUk;g ntz;oa jhd;. jdJ cly;epiy nkYk; nkhrkhfnt ,Ue;j fhuzj;jhy;. nkYk; 21/08/99 Kjy; 7/9/99 Koa kUj;Jt rhd;wpjH; cld; j';fSf;F kD mDg;gpa[s;nsd; vd;Wk;. nkYk; jdJ cly;epiy rupapy;yhky; nghfnt 8/9/99 Kjy; 30 ehl;fs; kUj;Jt tpLg;g[ rhd;Wld; j';fSf;F kD mDg;gp cs;nsd; vd;Wk;. nkYk; 8/10/99 Kjy; kUj;Jt rhd;wpjGld; 30 ehl;fs; kUj;Jt tpLg;g[ ntz;o kD rku;g;gpj;J cs;nsd; vd;Wk;. jw;nghJ jdJ cly; epiy KGikahf Fzk; mile;J gapw;rp bgWk; epiyapy; ,Ug;gjhft[k;. 26/10/99 ,d;W kUj;Jt rhd;Wld; tha;bkhHp tprhuizf;F mwpf;if bra;njd; vd;Wk;. ma;ah mtu;fs; jdJ cly;jFjpia ghu;j;J. jd;id kPz;Lk; gapw;rpapy; nru;j;J bfhs;Sk;go nfl;Lf;bfhs;tjhft[k; bjuptpj;Js;shu;/ "

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9.Relying upon these, the learned Senior Counsel would submit that, this aspect has not been properly considered by the Enquiry Officer. Therefore, his conclusion that the charges framed against the petitioner as if that he had been unauthorisedly absent for more than 21 days as proved, is not correct and he would further submit that, the said aspect has also not been considered by the Disciplinary Authority, who passed order on 30.11.1999.

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10.The learned Senior Counsel would also submit that, the Disciplinary Authority, in fact, has not at all considered the

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

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second explanation against the Enquiry Officer's report as absolutely there is no whisper in the order of the Disciplinary Authority dated 30.11.1999 that the Disciplinary Authority has considered the second explanation given by the petitioner after the Enquiry Officer's report. The learned Senior Counsel would also contend that, when appeal was filed, the Appellate Authority also has not considered these aspects or these lacuna, as has been pointed out by the petitioner, in proper perspective and they mechanically rejected the appeal filed by him and the very same procedure has been adopted by the Government by passing the impugned G.O.2D No.569 Home (Police V) Department dated 30.08.2007. Therefore, the learned Senior Counsel would submit that, it is the case to be reconsidered by the authorities i.e. by the very Disciplinary Authority himself and therefore, if the orders passed, which are impugned herein, are set aside and the matters are remanded back to the Disciplinary Authority for reconsideration, the petitioner would be satisfied.

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11.However, Mr.K.Magesh, learned Special Government Pleader appearing for the respondents would point out that, the petitioner had been enlisted as member of the disciplined force, where, he had been under initial training at the academy. Therefore, in the Police Training College, he should have maintained strict discipline in all aspects, therefore, when he had taken one day leave, he should report duty immediately on the next day. However, he had not reported training duty for several days i.e., beyond 21 days. Therefore, the disciplinary proceedings was initiated and charge memo was issued against him.

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12.In this context, the learned Special Government Pleader would also point out that, though the petitioner claimed that he met the doctor and obtained a certificate on 11.07.1999, the same was not immediately sent to the respondents with leave letter applying medical leave for 40 days, as claimed by him, instead, the said request has come from the petitioner only in the last week of August 1999 i.e., well after 40 days of initial leave he applied for. Therefore, that itself proved that the petitioner had not cared to immediately respond to the officials if at all he needs any medical leave and in this regard, the procedure contemplated has not been followed by the petitioner, therefore, he cannot now make out a case to state that, his request for medical leave with medical certificate dated 11.07.1999 was not considered by the respondents.

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13.The learned Special Government Pleader would also submit that, the reasons stated by the petitioner that, he had applied for medical leave, as has been quoted at page 8 of the Enquiry Officer's report, which has been heavily relied upon by the petitioner, has been considered in proper perspective by the

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Enquiry Officer in the very enquiry itself and this has been accepted by the Disciplinary Authority and therefore, the maximum punishment of removal of service has been inflicted against the petitioner.

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14.In this context, the learned Special Government Pleader would contend that, since the petitioner had been in a training period, where, he had been unauthorisedly absent for several months and in this context, his absence for more than 21 days itself is enough to inflict him with maximum punishment, therefore, the punishment now imposed against the petitioner by the Disciplinary Authority, as has been confirmed by the Appellate Authority, cannot be said to be an excessive punishment or not in commensurate with the proven charge against the petitioner. Therefore, the orders impugned are to be sustained, hence these orders do not require any interference from this Court, he contended.

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15.I have considered the rival submissions made by the learned counsel appearing for the parties and have perused the materials placed before this Court.

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16.After having perused the materials and the point raised by both sides, this Court finds that, insofar as the Disciplinary Authority is concerned, he has concurred with the findings given by the Enquiry Officer that, the charge made against the petitioner has been proved by the Ex.P.1 to Ex.P.7, which were marked through the P.W.1 to P.W.3 and accordingly, the maximum punishment of removal of service has been inflicted by the Disciplinary Authority.

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17.However, Mr.K.Venkataramani, learned Senior Counsel has pointed out that, after the Enquiry Officer's report, the second explanation has also been given in detail by the petitioner, which ought to have been considered by the Disciplinary Authority, who has not considered the same, therefore the order passed by the Disciplinary Authority is vitiated.

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18.I have gone through the order passed by the Disciplinary Authority, where, with regard to the second explanation given by the petitioner, there has been no discussion made and if at all any discussion made and if it is rejected by the Disciplinary Authority with reasons, it can be accepted. However, no such discussion has been made in the order of the Disciplinary Authority while passing the order of punishment, that too inflicting the maximum punishment of removal of service. When this aspect has been brought to the notice of the Appellate Authority as well as the Government, in the appeal as well as the memorial petition filed by the petitioner, both the Appellate Authority as well as the Government have not

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considered these aspects in proper perspective.

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19.In fact, the Government in the impugned order dated 30.08.2007 has not given any reason for rejecting the memorial petition filed by the petitioner through the impugned Government Order in G.O.2D No.569 dated 30.08.2007.

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20.The Courts have repeatedly held that, the Disciplinary Authority, Appellate Authority as well as the Revisional Authority who are dealing with the disciplinary proceedings of the Government servants are quasi judicial authorities, where, they must apply their mind with regard to the facts and law, which have been put forth before them by both sides and accordingly, they must give their reasoning as to how and why, they concurred with the Enquiry Officer's report and Disciplinary Authority as well as Appellate Authority respectively or why they are not agreeing with those findings given by the said authorities.

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21.In this context, it is to be noted that, in a given case suppose the Appellate Authority considered the appeal filed by the delinquent, where, if the Appellate Authority comes to the conclusion that the very punishment inflicted against the petitioner is not in commensurate with the proven charge or it is a lessor punishment, in that case, law permits that the Appellate Authority can issue a notice to the delinquent and enhance the punishment.

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22.When such kind of power is vested with the Appellate Authority, at the same time the Appellate Authority must also exercise the power as to how and why he concurs with the view taken by the Disciplinary Authority, of course based on Enquiry Officer's report. Therefore, it has become clear that, both the Appellate Authority as well as the further Revisional Authority or the State Government while dealing with this kind of petition i.e., memorial petition are to act as quasi judicial authority. Therefore, cogent reasons must be given to the satisfaction of all concerned that they considered the issue in proper perspective and accordingly, come to a reasonable conclusion.

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23.In this context, none of the orders, which are impugned herein, have met the aforesaid principle in law and therefore, this Court feels that, for these reasons, all the impugned orders are liable to be interfered with.

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24.In the result, the impugned orders are quashed and the matters are remanded back to the Disciplinary Authority for reconsideration of the issue, where, while reconsidering, an opportunity can also be given to the petitioner and if such opportunity is given, it is open to the petitioner to put forth

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his case by raising all the issues raised before this Court and after having considered those grounds to be raised by the petitioner, the Disciplinary Authority shall pass a fresh order within a period of three months from the date of receipt of a copy of this order.

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25.With these directions, this Writ Petition is ordered accordingly to the extent indicated above. No costs.

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Sd/-
Assistant Registrar (CS-V)
//True Copy//
Sub Assistant Registrar
Sgl
To
1.The Principal
Police Recruit School,
Cuddalore.
2.The Deputy Inspector General of Police,
Villupuram Range, Villupuram.
3.The Director General of Police
Dr Radhakrishnan Salai
Mylapore, Chennai - 4.
4.The Secretary to Government
Home (Police V) Depot
Fort St. George, Chennai – 9.
+1cc to Mr.M.Muthappan, Advocate, S.R.No. 3083
+1cc to the Government Pleader, S.R.No. 3059
W.P.No.36049 of 2007
RK(CO)
GN(05/07/2021)

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A. Dhanasekaran v. the Principal

Case brief

What is this about?

What did the court decide?

A. Dhanasekaran v. the Principal

Case brief

What is this about?

What did the court decide?

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