ORDER

Heard Ms.M.Muthu Yazhini, learned counsel appearing on behalf of the petitioner and Mrs.C.Sangamithirai, learned Special Government Pleader appearing for the respondents.

2. The petitioner herein, while serving as Women Police Constable, has been served with a charge memo, wherein he was deserted from the service for absenting himself from duty for more than 21 days from 25.08.2011 onwards. The charge was held to be proved and through the impugned order dated 27.06.2012, the fourth respondent herein imposed the punishment of removal from service against the petitioner. Thereafter, the petitioner preferred appeals before the first and second respondent, which came to be rejected. Aggrieved against the same, the present Writ Petition has been filed.

3. The punishment of dismissal from service cannot be sustained on the sole ground that the Director General of Police had earlier issued a Circular dated 30.10.1990, holding that in cases of desertion, the punishment of removal from service or Compulsory Retirement should not be imposed. For the sake of clarity, the circular dated 30.10.1990 is hereby extracted:-

"CIRCULAR MEMORANDUM Rc.No.243881/AP.I(1)/90 Director General of Police, P.B.No.601, Madras-4.

Dated: 30.10.1990 Sub: P.R.s in Desertion cases after taking delinquents for duty - Certain Instructions - Issued.

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While disposing of appeals/reviews from Head Constables to Police Constables, I noticed that the Superintendents of Police are awarding the maximum penalty of dismissal or removal from service in desertion cases, after taking them for duty.

This is unfair and cannot be justified.

2. When a Head Constable/Police Constable is struck off as a deserter, notice is issued directing the delinquent to appear before the Superintendent of Police within two months. When he appears, Superintendent of Police should make up his mind whether the absence is on valid grounds and whether the period of absence is covered by a valid medical certificate. If Superintendent of Police is not satisfied, the delinquent should not be taken for duty. If on the other hand, Superintendent of Police is satisfied, he can be taken for duty. In such cases while disposing of P.Rs, punishment of removal/dismissal from service or Compulsory Retirement should not be given. Any other punishment is acceptable. This guideline may be kept in view, while dealing with desertion cases.

3. Please acknowledge in the proforma enclosed.

Sd/- Inspector General of Police (Law and Order)

30.10.90"

4. The order of removal from service passed by the fourth respondent, as well as the appeal orders of the first and second respondents, is in clear violation of the Circular issued by the Director General of Police. These kind of Circulars would be binding on all the authorities of the Government when it is issued from the highest authority of the Department. As such, the very original punishment itself cannot be sustained. Consequently, it requires to be held that the punishment of removal from service is not only disproportionate to the impugned charge, but also violative of the procedure contemplated for imposing punishments in the aforesaid Circular.

5. On the issue of disproportionality of a punishment is concerned, the same has been dealt in various decisions of this Court, as well as the Hon'ble Supreme Court, to the effect that the ultimate punishment requires to be in confirmity with the gravity of the charges. In one such decision of a learned Single Judge of this Court in the case of R.Jayakumar Vs. The Deputy Commissioner of Police and another passed in W.P.No.26072 of 2004, dated 08.08.2008, this Court had placed reliance on three decisions of the Hon'ble Supreme Court and interfered with the punishment of dismissal for the period of unauthorised absence of 21 days and directed the delinquent therein to be reinstated into services without the benefits of pay for the period of absence. The relevant portion of the order reads thus:-

“11. Next point to be considered