The authority has discretion to impose a punishment of compulsory retirement for desertion, which is valid under Police Standing Orders and does not equate to reinstatement.

JUDGMENT :

R.VIJAYAKUMAR, J.

The State has preferred the present writ appeal challenging the order of the writ Court in WP(MD).No.8733 of 2009 dated 14.11.2018.

(A).Factual Matrix:

2.The respondent herein while he was working as a Head Constable in Ramanathapuram Police Station was transferred to Tirunelveli by way of an order dated 07.12.2003. The respondent had not complied with transfer order and he did not join in the transferred place. The department had treated him as a deserter and an order to the said effect was passed on 23.03.2004. Though the respondent had an opportunity to show cause against the said order, he has not chosen to do so. Therefore, the department had passed an order on 05.05.2004 to frame charges as against the respondent. After enquiry, the respondent was dismissed from service on 14.08.2004. He had challenged the same in WP(MD).No.9227 of 2005 wherein an order was passed quashing the order of dismissal and remanding it back to the department for considering a lesser punishment as per Rules. After remand, the first appellant herein has passed an order on 12.06.2009 imposing a modified punishment of compulsory retirement from service.

3.The compulsory retirement order was challenged by the respondent herein in WP(MD).No.8733 of 2009. The writ Court had allowed the writ petition and directed reinstatement in service with continuity of service, but without backwages. The writ Court had further held that the pension amount if any already paid shall not be recovered. The other retirement benefits, if received by the petitioner have to be refunded to the department with interest.

This order is put to challenge by the State in the present writ appeal.

(B).Submissions of the counsels appearing on either side:

4.According to the learned Additional Government Pleader appearing for the appellants, this Court while allowing the writ petition in WP(MD).No. 9277 of 2005 and remanding it back to the authority, had directed the department to impose lesser punishment other than the order of dismissal. Therefore, instead of dismissal, compulsory retirement was imposed by the department. However, the writ Court had arrived at a finding that the compulsory retirement order is not a lesser punishment, in view of the fact that the employee would still be kept out of service. He further submitted that the respondent being a deserter, the punishment of compulsory retirement is a lesser punishment. As far as the Uniformed Service is concerned, no lenient view can be taken in the case of a deserter.

5.The learned Additional Government Pleader had further submitted that the writ Court had inferred from the order in WP(MD).No.9227 of 2005 that the Court had ordered reinstatement. In fact no such reference is made in the said order.

6.The learned Additional Government Pleader had further submitted that under Police Standing Order (PSO)-95, absence without leave for 21 days is an offence of desertion and the name of the officer has to be invariably struck off from the date of absence. Unless the officer makes a request within a period of two months from the date of commencement of absence, the application for reinstatement cannot be considered. In the present case, no such request emanated from the officer. Therefore, invoking PSO 95, an order of dismissal came to be passed. Therefore, the writ Court was not right in arriving at a finding that, once the order of dismissal was set aside in the first round of litigation, the authority has no other option than to reinstate the officer either with or without punishment.

7.The learned Additiona