Unauthorized absence in uniformed services justifies strict disciplinary action, and leniency is only applicable when compelling circumstances are proven.

COMMON JUDGMENT

(D.KRISHNAKUMAR, ACTING CHIEF JUSTICE.)

Aggrieved by the orders passed by the writ court in W.P.No.18993 of 2016 dated 05.07.2021 and W.P.No. 28467 of 2014, dated 17.07.2018, these writ appeals have been filed by the appellants.

2. Since the issue involved in both writ appeals are the same, both the writ appeals are clubbed together and common judgment is passed.

W.A.No.1454 of 2022 Brief facts:

3.1 The respondent was appointed as a Grade II Police constable in TSP-I Battalion by the Petitioner Department on 01.12.2003, subsequently transferred to the TSP XII Battalion in June 2006. He was given three days casual leave from 14.03.2007 to 16.03.2007, which the respondent extended on two occasions, from 17.03.2007 to 20.03.2007, thereafter he failed to report for service 21.03.2007. Since there was no permission granted and he absented himself from duty for more than 21 days, he was struck off as a 'deserter' by order in B.O. 122/2007 dated 11.04.2007. The respondent was issued with a charge memo under Rule 3 (b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules 1956 for the offence of 'desertion' in PR 25/2007. The enquiry officer's report, which obtained an explanation from the respondent, confirmed that he was not willing to continue his service in the department. The said findings was agreed by the disciplinary authority, and awarded the punishment of 'removal from service' to the respondent. A mercy petition was submitted by the respondent, after six years, to the Director General of Police and the same came to be rejected by proceeding in C.No. 100691/ AP 3 (1) /2014, dated 01.09.2014, stating that it was not appropriate to reinstate the respondent, who had no inclination to serve in the department. 3.2 Aggrieved by the said order of the DGP and the earlier disciplinary proceedings, the respondent/petitioner has filed a writ petition in W.P. No. 18993 of 2016 before this Court, wherein this Court by order dated 05.07.2021, set aside the orders passed by the appellant-department and modified the punishment awarded by the appellant. Challenging the same, the present this Writ Appeal No. 1454 of 2022.

3.3 The learned counsel for the appellant has submitted that the appellant has sanctioned 3 days of casual leave to the respondent on his request, after which he did not report for duty, instead he extended the leave in two more occasions through telegram, thereafter he absented again without any leave or prior permission. Since the absence was for more than 21 days continuously, on his own accord, he was struck off as deserter with instructions to appear before the competent authority with valid reasons for the absence within 60 days. After conducting oral enquiry and based on the report of the enquiry officer, the punishment was awarded to the respondent as per TNPSS D&A rules.

3.4 The learned counsel for the appellant has submitted that based on the written statement submitted by the respondent that he was not willing to continue his service in the department, the disciplinary authority awarded the punishment of 'Removal from Service'. The respondent did not prefer any appeal within stipulated time and submitted his mercy petition to the Director General of Police after a period of six years, which was duly considered and rejected on the ground that the respondent had no inclination to serve in the department.

3.5 The learned counsel for the respondent has submitted that there were no previous delinquencies or punishments against the respondent and therefore, the major punishment of removal from service awarded by the appellant is excessive. The learned counsel for the respondent has further submitted that before the writ court, the respondent undertook not to claim continuity of service and backwages for the period from the date of the original punishment until the date of reinstatement. Based on the undertaking given by the respondent, the writ court modified the order of punishment; hence,