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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
M. Sonai Muthu - Appellant
Versus
The Secretary to Government Home Police (II) Department, Chennai & Others - Respondent
W.P. No. 9421 of 2015 & W.M.P. No. 34347 of 2016
Decided On : 30-08-2022
Natural Justice - Unauthorised Absence - Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 - Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus - [Natural Justice] - [Unauthorised Absence] - [Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, Rule 3(b)] - The court discussed the principles of natural justice and the disciplinary rules in the context of unauthorised absence, emphasizing the importance of establishing the genuinity of absence and the consequences of intentional and willing misconduct in disciplinary proceedings. The court held that unauthorised absence per se cannot be construed as grave misconduct and leniency should be considered if the absence is genuine and not habitual. The court also highlighted the waiver of the principle of natural justice in the case of intentional non-participation in enquiry proceedings.
Fact of the Case:
The petitioner, a Grade-II Police Constable, was removed from service due to unauthorised absence and desertion. The petitioner argued that the principles of natural justice were not followed and the punishment was disproportionate.
Finding of the Court:
The court found that the petitioner intentionally remained unauthorisedly absent, did not participate in the enquiry proceedings, and had no intention to continue in the service. The court held that the punishment of removal from service was not disproportionate and dismissed the Writ Petition.
Issues: Principles of natural justice, proportionality of punishment, intentional absence, non-participation in enquiry proceedings
Ratio Decidendi: The court emphasized the importance of establishing the genuinity of unauthorised absence, the consequences of intentional and willing misconduct, and the waiver of the principle of natural justice in case of intentional non-participation in enquiry proceedings.
Final Decision: The Writ Petition was dismissed, and the petitioner was not entitled to the relief sought.
JUDGMENT
(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, calling for the records of the respondents in connection with the impugned order passed by the 4th respondent in Na.Ka.No.E1/PR.20/2010 dated 14.09.2010 and Na.Ka.No.E1/PR.20/2010 dated 23.06.2014 and confirm by the 2nd respondent in Na.Ka.No.107563/Me.Mu.3(1)/2014 dated 24.08.2014 and quash the same and consequently direct the respondents to reinstate the petitioner with continuity of service.)
1. The order of removal from service issued by the Commandant dated 14.09.2010 and confirmed by the Appellate Authority on 23.06.2014 and the Mercy Petition was rejected in proceedings dated 24.08.2014 are under challenge in the present writ petition.
2. The petitioner was recruited as Grade-II Police Constable and appointed on 28.02.2009. The petitioner went on Casual Leave for two days on 21.11.2009 and 22.11.2009, since his mother died suddenly due to heart attack. He also fell ill and admitted in a private nursing home. Thus, the petitioner could not able to report for duty or inform the fact to the higher officials. Thus, he remained absent and consequently, he was declared as deserter and issued with an order of desertion on 14.12.2009. thereafter, the departmental disciplinary proceedings were initiated in PR.No.20/2009 by the Commandant, TSP VII Battalion, Pochampalli dated 18.05.2009.
3. A charge memo was issued and an enquiry was conducted. However, the petitioner has not participated in the enquiry proceedings and the same ended with an ex-parte enquiry. The charges were held proved and the petitioner states that he has not received the copy of the enquiry report. Without obtaining further explanation, the punishment of removal from service was issued in order dated 14.09.2010. The petitioner states that the order of punishment was served on him on 16.09.2010 and he preferred an appeal to the 3rd respondent / Deputy Inspector General of Police, Chennai, on 21.04.2014. But the Appellate Authority held that the appeal was time barred and without considering the grounds on merits, the appeal was rejected on 23.06.2014. Thereafter, he preferred a Mercy Petition before the Director General of Police on 07.07.2014, which was also rejected on 24.08.2014, without considering the grounds raised by the writ petitioner.
4. The learned counsel for the petitioner mainly contended that based on the ex-parte, the petitioner was removed from the service. Thus, the principles of natural justice has not been followed.
5. That apart, the punishment of dismissal from service for unauthorised absence / desertion is disproportionate to the gravity of the allegations and therefore, the order of removal is liable to be set aside. The petitioner has relied on the judgment of the Hon'ble Division Bench in W.A.No.58 of 2011 dated 27.01.2011 and contended that the Division Bench has taken a view that punishment of removal from service for unauthorised absence is disproportionate to the gravity and the matter is remitted back to reconsider the matter regarding quantum of punishment. Thus, the said proposition is to be complied in the present case.
6. The respondents filed a counter affidavit stating that the petitioner was enlisted as Police Constable on 28.02.2009 at Temporary Police Recruits School, Tamil Nadu Special Police IX Battalion, Manimuthar. He underwent basic training. After completion of training on 04.08.2009, he was serving in the Battalion. He had deserted the Force from 23.11.2009, after availing two days Casual Leave. Hence, the desertion order was issued in the Battalion Order: 945/2009 dated 14.12.2009. The same was unacknowledged by the petitioner on 20.12.2009. In the desertion order, the petitioner was granted 60 days time to appear before the Commandant for taking him back for duty. If he fails to appear before the Commandant, the desertion will be confirmed. The delinquent did not appear before the Com
The punishment imposed should meet the standards of fairness and be in strict compliance with principles of natural justice.
The punishment imposed must be proportionate to the gravity of the proved charges, and the court will interfere only if the punishment is shockingly disproportionate.
The punishment imposed must be proportionate to the gravity of the misconduct, and the principles of natural justice and statutory regulations prescribing the mode of enquiry must be followed.
The punishment of dismissal was disproportionate to the offence of unauthorized absence from duty.
Disciplinary actions must follow due process, and absence due to illness cannot be deemed willful misconduct without proper inquiry.
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