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Judgment
N. Paul Vasanthakumar, J.—This writ appeal is filed by the appellant challenging the order of the learned Single Judge passed in W.P. No.
11164/2006 dated 22.09.2008, wherein the learned Single Judge has upheld the order of removal from service of the petitioner from the post of
Grade II Police Constable on the ground of desertion. The appeal as well as mercy petition filed before the Department was also rejected. The
crux of the charge framed under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, against the appellant is
that the appellant availed casual leave from 26.6.2004 to 30.6.2004 and extended the casual leave from 1.7.2004 to 5.7.2004 and thereafter,
availed medical leave from 6.7.2004 to 15.7.2004 without joining duty on 6.7.2004, thereby absented for 21 days from 16.7.2004 voluntarily
without any permission to leave and thus deserted duty and he did not appear before the commandant within 60 days from desertion and explained
the reasons for his absence even after instructions.
The defence of the applicant was that he had entered on casual leave from 26.6.2004 to 30.6.2004 and due to ill health he extended the casual
leave from 1.7.2004 to 5.7.2004; that as his health still worsened he went to Government Hospital, Tindivanam, and in accordance with the
recommendation of the medical officer, he submitted application for medical leave for 10 days from 6.7.2004 to 15.7.2004; that as he did not
recover by then, he asked his parents to send application for medical leave and they did not do so as they were ignorant of that procedures; and
that, only due to ill health he could not report for duty.
The said defence was not accepted and based on the enquiry report, he was removed from service by order dated 1.12.2004. Appeal filed
before the Inspector General of Police was rejected by order dated 5.7.2005. Mercy petition filed was also rejected by Director General of Police
on 22.10.2005.
The appellant''s illness during the period is not disputed. Hence his absence cannot be treated as wilful desertion.
The issue as to whether on the act of desertion, a person could be dismissed from the service or not was considered by the Honourable
Supreme Court in the decision reported in Shri Bhagwan Lal Arya Vs. Commissioner of Police Delhi and Others, wherein in paragraphs 11 and
14, it is held thus,
The order dated 16.1.1995 passed by the respondents was produced by the respondents themselves in their reply to CWP before the High
Court of Delhi that they had sanctioned leave without pay for the period from 7.10.1994 to 15.12.1994, the period of alleged unauthorised
absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing
sanction for leave for the period in question, the employee''s legitimate expectation would be that no stern action would be taken against him with
respect to the alleged act of misconduct which by no stretch of imagination can be considered an act of gross misconduct or continued misconduct
indicating incorrigibility and complete unfitness for police service. It is not the case of the respondents that the appellant is a habitual absentee. He
had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is
excessive and disproportionate. 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 of
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 source of income
and will not get 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.
Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly
excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set
aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and
consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost,
we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the
condition that the period during which the appellant remained absent from duty and the period calculated up to the date on which the appellant
reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service
benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of
punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report
on duty within a period of six weeks from today to take benefit of this judgment.
In the decision reported in Krushnakant B. Parmar Vs. Union of India (UOI) and Another, , the Supreme Court 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. The dismissal order confirmed by the Central Administrative Tribunal as well as the High Court was set aside with 50%
backwages.
In an identical set of fact, the Division Bench of this Court in paragraph 3 of the order in W.A. No. 58 of 2011 dated 27.1.2011, R. Ramesh v.
The Deputy Inspector General of Police and Other, held as follows:-
... 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 reconsider 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....
In the said case the appellant who served as Grade II Police Constable deserted the force on three occasions and absented from duty on two
occasions. The said order was also implemented by the very same Police Department by its order dated 10.6.2011. The appellant therein was
imposed with a punishment of postponement of next increment for two years which shall operate to postpone his future increments. He also joined
duty on 28.4.2011.
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 copy of this order. It is also made clear that in the event the quantum of punishment is reduced, the
appellant shall not claim backwages for the period in which he has not performed his duty. With the above observation, the writ petition is allowed.
No costs.