D. Gnanasekar vs The Superintendent of Police and The Director General of Police

P. Jyothimani, J.—The writ Petitioner, who was serving as Grade I Police Constable in Kadupatti Police Station, Madurai District in 1998, and was in charge of law and order bandobust duty, is stated to have gone on leave from 21.04.1998, by sending a letter, and the same is stated to have been refused by the authority and ultimately on the ground that he has absented himself continuously for a period of twenty one days without any sanctioned leave, the authority, declaring him as deserter, framed a charge against him. An Enquiry Officer was appointed for conducting the enquiry and in his report, dated 09.05.1999, the enquiry officer has held that the charges framed against the Petitioner stood unproved.

The first Respondent has decided to not to agree with the enquiry officer''s report and ultimately passed the impugned order of punishment postponing increment for a period of six months with cumulative effect, on 28.05.1999, on the basis that the charge against the Petitioner stood proved. It was against that order, the Petitioner filed a mercy petition before the Deputy General of Police, which was rejected on 04.03.2003.

Even though, the Petitioner has not filed a statutory appeal before the appellate authority, namely, the Deputy Inspector General of Police, in which event, it is the duty of the appellate authority to consider the various issues and pass orders. The impugned order of the first Respondent is challenged on the ground that when once the enquiry officer has given a finding to the effect that the charges are not proved and the disciplinary authority decides to differ from that view, it is the duty of the disciplinary authority to give further notice to the delinquent. But that procedure has not been followed in the case of the Petitioner and therefore, according to the Petitioner, as submitted by the learned Counsel for the Petitioner, the impugned order of the first Respondent is illegal on that short ground. I am able to find force in the contention of the learned Counsel for the Petitioner. Especially, when the enquiry officer having conducted an elaborate enquiry and recorded evidence of various witnesses, has come to a categoric conclusion that the charge of desertion against the Petitioner has not been proved, the disciplinary authority, who is entitled to differ from the enquiry officer, ought to have issued a show cause notice enclosing the report of the enquiry officer, to enable the delinquent officer to give his explanation. When such procedure having been not followed, I am of the view that the impugned order of punishment has to be set aside and the matter has to be remanded back to the first Respondent to give a show cause notice to the Petitioner for the purpose of differing from the enquiry officers report.

Accordingly, the writ petition is ordered by setting aside the order of punishment imposed by the first Respondent against the Petitioner, dated 28.05.1999, however, permitting the first Respondent to proceed to issue further show cause notice to the Petitioner for the purpose of differing from the enquiry officer''s report, and decide the matter after receiving explanation from the Petitioner, in the manner known to law. In view of the present decision, by remanding the matter to the first Respondent, the order of the second Respondent, which is on a mercy petition, also stands set aside. Considering the fact that the issue relates to the year 1998, the first Respondent is directed to complete the entire process within a period of four weeks from the date of receipt of a copy of this order. No. costs.