AI Structured Summary
Not yet generated for this judgment
Judgment
G. Rajasuria, J.—This Writ Petition has been focussed to call for the records relating to the impugned order of the first respondent in C. No.
F1.PR. No. 69/04 D.O. No. 842/2004 dated 13.09.2004 and the order of the second respondent in C. No. U1/Appeal 36/2004 dated
28.10.2004 and the orders of the third respondent in RC No. 250863/AP1 (3)/2004 dated 08.06.2005 and quash the same and consequently
direct the respondents to reinstate the petitioner with all arrears of salary, monetary benefits and all attendant benefits.
Heard both sides.
A resume of facts which are absolutely necessary and germane for the disposal of this Writ Petition would run thus:
The Writ petitioner was working as a Grade I Police Constable in Tamil Nadu Police Service. While so he was served with transfer and posting
order dated 13.09.2004 vide proceedings C. No. F1.PR. No. 69/04 in D.O. No. 842/2004 of Superintendent of Police, Ramanathapuram.
However, the petitioner did not join that post. Thereupon disciplinary proceeding was initiated against him by issuing charge memo. He
participated in the enquiry, by furnishing explanation to the effect that he got perplexed by the transfer order as he being the father of three school
going children, he could not join the new post. He would also expound that he went to Kerala because of his mental imbalance and that after
regaining his mental stability he participated in the enquiry and explained his position. However, he was dismissed from service by the first
respondent, which was confirmed in appeal and revision also. Being aggrieved by and dissatisfied with the same, he filed this Writ Petition on the
main ground that the punishment is disproportionate to his alleged unauthorised absence.
The point for consideration is as to whether this Court could interfere with the order of termination imposed by the disciplinary authority and
confirmed by other authorities?
The learned Counsel for the petitioner would only pray for considering this matter sympathetically on the main ground that the petitioner
rendered impeccable service in the Police Department ever since 1988 and because of the sudden transfer he got perplexed and could not
immediately go and join the new post.
Whereas the learned Government Advocate (CS) would submit that the punishment imposed by the Disciplinary Authority cannot be interfered
with normally by Courts.
In this connection the learned Counsel for the petitioner cited the unreported decision of this Court in W.P. No. 3265 of 2005 dated
12.04.2006. The perusal of the said judgment would reveal that the learned Single Judge considered several decisions of the Hon''ble Apex Court
and arrived at the conclusion that the disciplinary authorities concerned could consider the matter for lesser punishment. An excerpt from the said
decision would run thus:
But then, the only question remains to be considered is whether the punishment of dismissal is proportionate to the actual charge of
unauthorised absence against the petitioner. While dealing with the power of judicial review, the power of the High Court or Tribunals in judicial
review relating to the punishment imposed by the disciplinary authority, the Hon''ble Supreme Court after explaining in detail in hierarchy of case
law on the subject has held the concept in the following words, in B.C. Chaturvedi Vs. Union of India and others, in para 18 as follows:
18.A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding
authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial
review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary
authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the
disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose
appropriate punishment with cogent reasons in support thereof.
Further the Supreme Court in para 22 also reiterated the principles in the following words:
The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the
punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is
not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present
nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.
Referring the said judgment of the Apex Court even in a subsequent case in U.P. State Road Transport Corporation and Others Vs. Mahesh
Kumar Mishra and Others, the Apex Court while discussing about the powers of the High Court under Article 226 of the Constitution of India in
interfering with the quantum of punishment states in the following words.
This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that
penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned Counsel for the appellants, that the High Court
can, in no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings.
In that case on a charge that a conductor was found to have issued short distance tickets to 11 passengers in a bus and ultimately after
conducting enquiry he was terminated from service. The High Court in that case has considered the totality of the circumstance and came to the
conclusion that the punishment inflicted upon the conductor was disproportionate to the nature of charge and ordered reinstatement allowing the
back wages only to the extent of 25%. The Hon''ble Supreme Court while confirming the said order of the High Court has made the above
observations.
Therefore, it is clear that the law is well settled that in normal circumstances this Court will not interfere in the quantum of punishment, when a
decision is arrived at about the correctness of the procedure followed in the departmental enquiry. But in cases where the punishment given by the
authority is grossly improportionate to the charges framed, the High Court can either remand the matter back to the authority concerned or itself
mould the relief by modifying the quantum of punishment if the punishment awarded is shockingly unconscionable and also giving cogent reasons in
support of the reduction of the punishment.
The learned Counsel for the appellant would submit that in the cited case decided by this Court there were desertions even then the Court was
pleased to give direction to the appropriate authorities to reconsider the matter for lesser punishment. At this juncture it is worthwhile to refer to
Rule 95 of Police Standing order, which is extracted hereunder for ready reference:
PSO 95. Desertion: (1) Absence without leave for 21 days complete as the offences of desertion, after which the officers name shall invariably be
struck off from the date of absence.
(G.O. 186, Judicial, 21st January, 1984)
(2) An application for reinstatement from an officer who has been struck off as deserter shall be entertained unless it reaches the Superintendent or
an officer of equal rank under whom the subordinate officer was serving within two months from the date of commencement of the absence without
leave. The Superintendent or the corresponding officer of equal rank, as the case may be, shall not reinstate a deserter (a) until the deserter has
attended in Person which he should do, not later than the date prescribed by the officer dealing with the case, and has given his explanation for his
absence without leave and (b) unless the Superintendent or an officer of equal rank, as the case may be, is satisfied after such enquiry as may be
necessary that the case deserves consideration. At the end of the two months, if no application for reinstatement is received and if the whereabouts
of the deserter are not known the officer dealing with the case will record in writing the reason for his being satisfied that it is not reasonably
practicable to give the deserter an opportunity of showing cause against the dismissal and can only confirm the dismissal. In other cases a charge
should be framed and the procedure prescribed in Order No. 80 complied with, before confirming the dismissal or reinstating the deserter with or
without punishment.
In this case despite desertion for over 21 days and not having reported for duty, the authority had issued charged memo because his whereabouts
subsequently were known. He received the charge memo and participated in the enquiry by, explaining his position. As such there was no total
absentee from service with any malafide intention. It is ex-facie and prima-facie clear that because of the transfer order he got panic, shoked and
perplexed which landed him in a confusion worst confronted situation. I am therefore of the view that since he has been in Service from the year
1988 and only during the year 2003 such incident occurred he could be considered for lesser punishment as per rules.
Accordingly, the punishment of removal from service ordered vide C. No. F1.PR. No. 69/04 D.O. No. 842/2004 dated 13.09.2004 is
quashed and the matter is remitted back to the first respondent for considering it for lesser punishment as per rules, which shall be considered
within a period of 8 weeks from the date of receipt of a copy of this order. No costs.