The punishment of compulsory retirement for desertion cases is disproportionate and should be modified to a lesser punishment, such as withholding the arrears of salary for the period of absence.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order dated 10.04.2013 Ref.No.C.No.F1/PR 25/2012 and consequential communication dated 16.04.2013 in ref.No.Sl.No.33/F1/2013 passed by the respondent authority and quash the same and consequently direct the respondent to reinstate the petitioner in service and grant him all service benefits.)

Through a charge memo, dated 28.07.2005, the petitioner was alleged to have not reported for duty till 8.00 A.M. on 05.03.2005, after being passported to appear before the Additional Director General of Police(ADGP) on 01.03.2005 and also for having not reported to duty till 21.03.2005, after being passported to appear before the ADGP on 01.03.2005 amounting to desertion. Pursuant to the charges, a domestic enquiry was conducted, whereby, the charges were held to be proved. After rejecting the petitioner's further explanation, the respondent herein had imposed a punishment of “Compulsory Retirement from Service”, through the impugned order, dated 10.04.2013.

2. While the learned counsel for the petitioner submitted that no adequate opportunity was extended to the petitioner in the domestic enquiry and that his further explanation was not at all considered before the impugned order was passed, the learned Special Government Pleader appearing for the respondent placed reliance on the averments made in the counter affidavit and submitted that the delinquency on the part of the petitioner was a highly indisciplinary conduct, which also amounted to insubordination and in view of the seriousness of the charges, the respondent had imposed a proportionate punishment, which does not require interference.

3. The facts involved in the present case are ancillary facts leading to framing of the charges against the petitioner. Such facts could be briefly summed up as follows.

(i) The petitioner, who joined as a Grade II Police Constable in Tamilnadu Special Police on 26.12.1985, was promoted as a Grade I Police Constable in the year 1989 and subsequently, further promoted as a Head Constable with effect from July, 2002. By an order, dated 17.06.2004, he was transferred from Cheyur Police Station to Kudimangalam Police Station. The petitioner had challenged the order of transfer before this Court in W.P.No.19272 of 2004, whereby, an order of interim stay was granted on 08.07.2004. Consequently, the petitioner was permitted to join duty on 14.07.2004. In this background, the petitioner was issued with a passport on 14.07.2004 to report to Kudimangalam Police Station as per the orders of the respondent. Since this order amounted to disobedience of the earlier order of stay granted by this Court, he had moved a Contempt Petition in Cont.P.No.696 of 2004. Pending the Contempt Petition, the respondent had passed an order, dated 08.12.2004, retaining the petitioner at Cheyur Police Station.

(ii) In this background, the petitioner was passported to report to the ADGP (L&O) in Chennai on 28.02.2005. The petitioner claims to have appeared before the ADGP at 9.00 A.M. on the said date and he was instructed to wait till about 9.00 P.M. on the same day. Since the ADGP was not present in his office the whole day, the petitioner had returned to report for duty at Cheyur Police Station on 02.03.2005. However, he was not permitted to join duty on the said date. His representations to the ADGP and the respondent herein for permission to join duty, though received, were not considered. On 17.03.2005, he was issued with a charge memo, dated 03.03.2005, for two charges of desertion and refusal to receive the order of deemed desertion. Challenging this charge memo, dated 03.03.2005, he had filed a Writ Petition in W.P.No.11112 of 2005, which came to be admitted by this Court. On 14.04.2005, the order of the respondent, dated 30.03.2005, was served on the petitioner, treating