THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM WP No.31012 of 2017 For Petitioner : Mr.Ravi Shanmugam For Respondents : Mr.K.H.Ravikumar, Government Advocate. O R D E R police order quashed and the third respondent is directed to reconsider and impose any other penalty other than the penalty of removal from service, within a period of twelve weeks from the date of receipt of a copy of this order. Further, the respondents are directed to reinstate the petitioner in service without backwages but with continuity of service. With the abovesaid directions, the writ petition stands allowed. However, there shall be no order as to costs.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16-09-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.31012 of 2017
A.Dharmendra .. Petitioner
vs.
1.The Additional Chief Secretary to Government,
Home (Pol.IX) Department,
Secretariat,
Chennai – 600 009.
2.The Director General of Police,
Tamil Nadu,
Chennai – 600 004.
3.The Commandant,
Tamil Nadu Special Police,
IX Battalion, Manimuthar,
Tirunelveli District. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the order of the third respondent herein in his C.No.A4/PR.No.32/2014 u/r 3(b) dated 13.10.2014 imposing a punishment of removal from service and the consequential order passed by the second respondent herein in his Rc.No.120431/AP 3(1)/2015 dated 01.03.2016 and the further consequential order passed by the first respondent herein in G.O.(D) No.564, Home (Pol.IX) Department, dated 05.05.2017 and quash the same and consequently direct the respondents herein to reinstate the petitioner in service with continuity of service without backwages for the period of unemployment.
For Petitioner : Mr.Ravi Shanmugam
For Respondents : Mr.K.H.Ravikumar,
Government Advocate.
O R D E R
The punishment of removal from service and the consequential order passed by the second respondent, are under challenge in the present writ petition.
- The petitioner was appointed as Grade-II Police Constable on 25.01.2013 and joined on 18.02.2013. The petitioner was sanctioned casual leave for two days on 27.01.2014 and 28.01.2014. He had not reported for duty after availing the casual leave, instead he entered on medial leave for 30 days from 29.01.2014 and extended the medical leave in a piecemeal and thus availed 55 days Medical Leave. Since the petitioner had not reported for duty on 25.03.2014, he absented for duty continuously on his own accord for more than 21 days and accordingly, the petitioner was declared as deserter.
- The desertion order was issued by the Competent Authorities on 16.05.2014. The desertion confirmation order was subsequently issued in G.O. No.280 dated 02.06.2014, as the petitioner’s whereabouts were not known to the respondents, the order of desertion was pasted on the door of the delinquent’s house in the presence of the Village Administrative Officer. Thereafter, the departmental disciplinary proceedings were initiated and a charge memo, which was issued on 07.07.2014. Since the petitioner had not responded to the charge memo, an Enquiry Officer was appointed, who in turn conducted an enquiry on 04.08.2014, 11.08.2014, 21.08.2014 and 01.09.2014. The summons were pasted on the door of the charged official in the presence of the Village Administrative Officer, Sivanthipatti. Since the petitioner had not participated in the enquiry proceedings, an ex parte enquiry was conducted and the Enquiry Officer completed the proceedings on 01.09.2014 and submitted his report.
- The charge relating to desertion was proved before the Enquiry Officer and the said report was accepted by the Disciplinary Authority and further opportunity was provided. The petitioner did not avail the opportunity provided to him and thus, the Competent Authority passed the final order imposing the punishment of removal from service.
- The petitioner has not preferred any appeal or revision before the Competent Authorities. However, he filed the mercy petition on 20.07.2015, which was rejected by the Director General of Police in proceedings dated 01.03.2016. Thereafter, the petitioner approached the Government by way of another mercy revision petition and that was also rejected. Thus, the petitioner is constrained to move the present writ petition.
- The learned Government Advocate, appearing on behalf of the respondent, made a submission that the Competent Authorities afforded sufficient opportunity to the writ petitioner to respond to the departmental disciplinary proceedings. Even after the expiry of the medical leave, the petitioner not reported for duty and thus the order of desertion was confirmed by the Competent Authorities. The petitioner failed to receive the summons issued by the Enquiry Officer and thus the Enquiry Officer after affording reasonable opportunity conducted the enquiry proceedings on four occasions. Since the petitioner had not turned back, the Enquiry Officer appointed continued the exparte enquiry and submitted his Final Report holding that the charges are held proved based on the documents and evidences available on record. Thus the respondents have followed the procedures as contemplated without any violation.
- Since the petitioner was declared as a deserter and not reported for duty, the Authorities Competent imposed the penalty of removal from service, which was confirmed in the mercy petitions filed by the writ petitioner. Therefore, the writ petition is to be rejected.
- Considering the arguments as advanced between the respective learned counsels appearing on behalf of the parties to the lis on hand, the fact regarding the desertion of the writ petitioner and not reporting for duty after availing the medical leave is not disputed.
- The petitioner deserted duty for more than 21 days and therefore, this Court do not find any infirmity in respect of the order of desertion passed by the Competent Authorities. The desertion was confirmed subsequently. A charge memorandum was issued and an enquiry was conducted. The petitioner failed to avail the opportunity afforded by the Competent Authorities for that the respondents cannot be found fault with. Thus, the respondents have conducted the departmental disciplinary proceedings by following the procedures as contemplated under the Discipline and Service Rules and there is no infirmity as such.
- The Courts have broadly considered the principles in the departmental disciplinary matters to find out (1) whether fair and transparent procedures in the enquiry has been adopted or not; (2) the principles of injustice are to followed; (3) the intention of the delinquent with reference to the charges established; (4) punishment is out of proportion to the misconduct committed; (5) the nature of services and the position held by the delinquent employee; (6) the period of absence caused/ explanation for absence; (7) is the employee is guilty of failure of duty of devotion to duty or behaviour unbecoming of a Government Servant and (8) the Disciplinary Authority is required to prove that the absence is willful.
- In the present case, the procedures as contemplated under the Discipline and Appeal Rules were followed and the petitioner was afforded with the opportunity though he has failed to avail the same. Thus the principles of natural justice has been complied with by the Competent Authorities, while undertaking the process of enquiry proceedings.
- Regarding the intention of the employee to remain absent, the petitioner contended that he was proceeded on medical leave on account of the ailment to his parents, who all are residing in his native place. While attending his parents in his native place, he was forced to extend the leave and was not in a position to report for duty on expiry of the medical leave.
- That apart, the petitioner has not earned any previous punishment in any departmental disciplinary proceedings. The unauthorised absent is for about 21 days and on completion of 21 days, he was declared as deserter.
- The petitioner was not permitted to rejoin for duty despite the fact that he expressed his willingness to join duty.
- The respondents refused to grant permission to join duty and thereafter the order of removal from service was issued.
- The question whether unauthorised absence from duty amounts to failure of devotion to duty or behaviour unbecoming of a Government Servant cannot be decided without deciding the question whether the absence is willful or because of compelling circumstances. If the absence of the writ petitioner is result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful.
- Absent from duty without any application or prior permission may amount to unauthorised absence. But it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accidents, hospitalisation etc. But in such case, the employee cannot be held guilty of failure to devotion to duty or behaviour unbecoming of a Government Servants.
- Therefore, the facts play a pivotal role in deciding whether an employee remained unauthorisedly absented willfully or such absent or behaviour unbecoming of a Government Servant.
- In the present case, the petitioner is a young person joined in the Uniformed Forces. He completed his training and probation also was declared. Thus he commenced his career with great ambition and at that point of time, he received information from his native place that his parents fell ill. Thus he availed leave and went back to his native place for attending his parents on account of certain compelling circumstances, he could not return back and report for duty.
- This being the factum established for the unauthorised absence for about 21 days, this Court is of the considered opinion that the punishment of removal from service is excessive and not in commensuration with the gravity of the proved charges. No doubt, the misconduct of unauthorised absence has been proved against the writ petitioner. However, this Court has to consider the proportionality of the punishment imposed on an employee with reference to the unauthorised absent of about 21 days. The petitioner is not considered as a habitual offender. He is the first time offender who committed an act of unauthorised absence and that being the case, this Court has to consider the quantum of punishment imposed by the Competent Authority, which is certainly excessive and dis-proportional to the proved charges. In such circumstances, the Competent Authorities ought to have imposed any other punishment other than the punishment of removal from service.
- In view of the facts and circumstances, the orders impugned passed by the third respondent in proceedingsC.No.A4/PR.No.32/2014 u/r 3(b) dated 13.10.2014 and the consequential order passed by the second respondent herein in his Rc.No.120431/AP 3(1)/2015 dated 01.03.2016, are quashed and the third respondent is directed to reconsider and impose any other penalty other than the penalty of removal from service, within a period of twelve weeks from the date of receipt of a copy of this order. Further, the respondents are directed to reinstate the petitioner in service without backwages but with continuity of service.
- With the abovesaid directions, the writ petition stands allowed. However, there shall be no order as to costs. 16-09-2022
Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn
S.M.SUBRAMANIAM, J.
Svn
To
1.The Additional Chief Secretary to Government,
Home (Pol.IX) Department,
Secretariat,
Chennai – 600 009.
2.The Director General of Police,
Tamil Nadu,
Chennai – 600 004.
3.The Commandant,
Tamil Nadu Special Police,
IX Battalion, Manimuthar,
Tirunelveli District. WP 31012 of 2017
16-09-2022
