ORDER 1. The petitioner, a Deputy Superintendent of Police, has sought for a writ of certiorari to quash the orders of the first respondent, dated 12.6.2000 and the second respondent, dated 3.9.2004 and for further orders. 2. Facts leading to the writ petition are as follows: The petitioner joined the Police service as a direct recruit Sub-Inspector of Police in the year 1972 and promoted as Inspector of Police in the year 1983. He has secured more than 200 rewards and not come to any adverse notice. While he was serving as Inspector of Police, K.V. Kuppam Circle, in North Arcot Ambedkar District, he availed casual leave from 30.9.1995 to 3.10.1995. As he fell ill, he could not join duty on 4.10.1995 and applied for medical leave for the period from 5.10.1995 to 16.10.1995. He could not recover from illness and therefore, sent a telegram to the Deputy Superintendent of Police, Gudiyattam, under whose control, he was serving, for extension of Medical Leave from 17.10.1995 to 27.11.1995. According to him, the letter sent through the respondent and the telegram were acknowledged by the Deputy Superintendent of Police on 17.11.1995. Without taking cognizance of the extension of Medical Leave applied for by the petitioner, the Deputy Inspector General of Police, Vellore Range, Vellore has passed an order in G.No. A1/-24252/95-RG.500 of 95, dated 28.11.1995, declaring him as deserter. While acknowledging the receipt of the order, the petitioner has made an endorsement that he had already sent Medical Certificates for extension of leave to the Deputy Superintendent of Police, Gudiyatham. The petitioner was however taken back to duty, vide Memo dated 25.3.1996, without prejudice to the proposed departmental proceedings under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules, 1955 and he joined duty on. 30.3.1996. 3. The petitioner has further submitted that he was served with a charge memo, dated 3.4.1996 in P.R.No. 30 of 1996 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules, 1955 by the Deputy Inspector General of Police, Vellore Range, Vellore, alleging that: “Neglect of duty in absenting from duty for more than 21 days from 17.10.1995 without leave or permission and thereby deserting the force.” In proceedings, dated 12.9.1996, the; Superintendent of Police, North Arcot Ambedkar District (now Vellore District) was nominated as Enquiry Officer to conduct an oral enquiry in respect of the above charge. Thereafter, for 14 months, the petitioner did not hear anything either from the Superintendent of Police, Vellore or the Deputy Inspector General of Police, Vellore Range, Vellore and as per G.O.Ms.No.40, P & AR (V) Department, dated 30.1.1996, the disciplinary action should have been initiated and finalised, within six months from the date of receipt of the charge memo. 4. Therefore, the petitioner has made a representation on 16.2.1999 to the Deputy Inspector General of Police, Vellore, stating that since he was taken back for duty, the departmental enquiry ought to have been initiated only under Rule 3(a) of the above said Rules. To the same effect, the petitioner has also submitted a representation on 18.2.1999 to the Director General of Police, Chennai. By memo dated 19.6.1999, the petitioner was informed by the Additional Superintendent of Police, PE Wing, Dharmapuri that his request to alter the charge memo under Rule 3(a) of the TNPSS Rules, has been rejected by the Inspector General of Police and the said memo was not served on the petitioner until the completion of enquiry. 5. It is further submitted that the Additional Superintendent of Police, PEW, Dharmapuri Range, by his proceedings dated 30.11.1999 has drawn a ‘proved minute’ in P.R.No.70 of 1996, under Rule 3(b). On the basis of the said report, the DIG, Chengai Range, Chennai-16, first respondent herein, passed an order in No.70 of 1996, under Rule 3(b), dated 30.11.1999 and awarded a punishment of reduction in time scale of pay by one stage for one year with cumulative effect for the delinquency stated supra. Aggrieved by the same, the petitioner preferred an appeal to the Inspector General of Police, Law and Order, Chenaai-4, second respondent herein, on 19.12.1999 and the same was rejected on 12.6.2000. Challenging the above orders, the petitioner filed Original Application before the Tamil Nadu Administrative Tribunal in O.A. No. 6103 of 2000. On the advice, the said Original Application has been withdrawn by the petitioner and he filed a Mercy Petition to the Director General of Police, Chennai for reviewing the entire punishment. The third respondent, by order dated 3.2.2004, rejected the said Mercy Petition against which, the petitioner has preferred the present Writ Petition. 6. On the advice, the said Original Application has been withdrawn by the petitioner and he filed a Mercy Petition to the Director General of Police, Chennai for reviewing the entire punishment. The third respondent, by order dated 3.2.2004, rejected the said Mercy Petition against which, the petitioner has preferred the present Writ Petition. 6. In the counter affidavit, the respondents have submitted that the petitioner was directly recruited as Sub-Inspector of Police in the year 1972 and was promoted as Inspector of Police in the year 1983 and got enough experience in the Department. When the petitioner was working as Inspector of Police in K.V. Kuppam Circle in Vellore District, he was granted leave for four days by the Deputy Superintendent of Police, Gudiyatham Sub-Division from 30.9.1995 to 3.10.1995 with specific instructions to attend the monthly Sub-Division crime meeting on 4.10.1995. But the petitioner did not attend the monthly meeting and sent a telegram, stating that he was sick and went on Medical Leave for 12 days from 5.10.1995 to 16.10.1995. The said Medical Certificate was received by the Deputy Superintendent of Police, Gudiyatham only after a delay of 45 days, i.e., on 17.11.1995. 7. The respondents have further submitted that since the petitioner has not obtained prior permission from the competent authority, before going on medical leave and not followed the procedure laid down for extending leave, he was treated as a deserter from-17.10.1995 as per PSO 88 (now PSO 88[1]) by the Deputy General of Police, Vellore Range, Vellore dated 28.11.1995. Though the petitioner had acknowledged-the receipt of desertion order on 1.12.1995, he did not appear before the Deputy Inspector General of Police, Vellore Range, Vellore on 16.12.1995 and submit his representation, if any, with reasons for the unauthorised absence from 17.10.1995, as directed in the desertion order. However, in pursuance of the order of the Director General of Police, Chennai, dated 19.3.1996, the petitioner was taken back for duty by the Deputy Inspector General of Police, Vellore Range, Vellore, without prejudice to the departmental proceedings to be against him for desertion. 8. The respondents have submitted that a charge memo in P.R.No.70 of 1996, dated 3.4.1996 was served and the petitioner was directed to submit his preliminary explanation within a period of seven days. 8. The respondents have submitted that a charge memo in P.R.No.70 of 1996, dated 3.4.1996 was served and the petitioner was directed to submit his preliminary explanation within a period of seven days. As the petitioner was transferred to ‘Q’ Branch, CID, Chennai, the proceedings were sent to the Superintendent of Police, Q Branch, CID, Chennai, for service and return of the acknowledged copy of the proceedings. The said proceedings were served on the petitioner on 30.12.1996. Citing heavy load of 17 punishment rolls handled him, the Superintendent of Police, then North Arcot District, the Superintendent of Police, Vellore requested the Deputy Inspector General of Police, Vellore Range, to change the enquiry proceedings to the Additional Superintendent of Police, DCRB, Vellore. Thereafter, the Deputy Inspector General of Police, Vellore Range, Vellore, changed the enquiry officer and nominated the Additional Superintendent of Police, District Crime Record Bureau, Vellore in proceedings, dated 20.2.1997 and the said Enquiry Officer continued the Oral Enquiry in the above Punishment Roll, even after his transfer to Dharmapuri District as ADSP, PEW, as per the proceedings dated 26.2.1999 of the Deputy Inspector General of Police, Vellore Range, Vellore. Since the petitioner was transferred from Vellore Range to Chennai and due to the transfer of the Enquiry Officer, there was a delay in conducting the disciplinary proceedings. On the basis of the Enquiry report, the Disciplinary Authority, by order dated 30.10.1999, imposed a punishment of Reduction in the time scale of pay by one stage for one year with cumulative effect. Challenging the penalty, the petitioner filed O.A.No. 6103 of 2000 before the Tamil Nadu Administrative Tribunal, Chennai and after filing the reply affidavit, the Original Application was dismissed as withdrawn. 9. The respondents have further submitted that both the disciplinary authority as well as the Head of the Department have considered the points raised by the petitioner with reference to the records and found that the penalty is commensurate with the charges and therefore, confirmed the same. It is further submitted that; the petitioner has failed to follow the procedure before going on Medical Leave and this aspect has been properly discussed in the orders of the first respondent. The genuineness of the illness of the petitioner, could not be ascertained till the receipt of the certificates sent by him after a delay of 45 days, i.e., on 17.11.1995. The genuineness of the illness of the petitioner, could not be ascertained till the receipt of the certificates sent by him after a delay of 45 days, i.e., on 17.11.1995. It is further submitted that since the procedure has been properly followed in the departmental enquiry, there is no illegality or irregularity in the impugned order. The respondents have denied the contention of the petitioner that the Director General of Police, has issued a circular that in cases of desertion, an officer has to be proceeded only under Rule 3(a) of the TNPSS (D & A) Rules. In these circumstances, the respondents have prayed for dismissal of the Writ Petition. 10. Referring to the Circular Memorandum of the City Police, Chennai, in ROC.Na.567 of 209366/PR-1(4)/1990, dated 5.12.1990, Mr. K.Venkataramani, learned senior counsel appearing for the petitioner submitted that when the petitioner was taken back to duty on 25.3.1996, the Deputy Inspector of Police, Chengai range, has no jurisdiction to initiate departmental action under Rule 3(b) of the Tamil Nadu Police State and Subordinate (Discipline and Appeal) Rules, 1995 and therefore, the whole proceedings are vitiated. Inviting the attention of this Court to the telegrams dated 5.10.1995 and 27.11.1995, he submitted that the sickness of the petitioner was intimated to the competent authority and having acknowledged the same, the authorities cannot say that the whereabouts of the petitioner were not known and hence, treat him as a deserter from service. According to him, desertion does not amount to mere absence, but it means absence with an intention not to return to duty forever. Therefore, he submitted that when the petitioner had applied for extension of leave by sending telegram and letter. Having reinstated him in service after Medical Leave, he cannot be treated as a deserter. 11. Learned senior counsel further submitted that though the charges were levelled against the petitioner in 1995 in P.R. No.70 of 1996, for the alleged absence, due to the delay in disposal of the disciplinary proceedings, the petitioner was overlooked atleast on three occasions in the panel of Deputy Superintendent of Police and considering the length of service put in by the petitioner and the hardship caused due to the delay, the punishment is disproportionate to the charge framed and therefore, requires interference. 12. Per contra, Mr. 12. Per contra, Mr. A.Arumugam, learned counsel for the petitioner submitted that the petitioner had absented himself continuously from duty without leave or permission and therefore, he had committed an act of desertion, for which, a detailed enquiry was conducted. All the authorities have categorically found that the petitioner did not return to duty and submitted his leave application only after a period of 45 days. As an Officer of the Police Department, who had rendered a long number of years of service, he should have submitted the leave application well in advance and obtained a sick passport from competent authority. As regards initiation of the disciplinary proceedings under Section 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, he submitted that the administrative instructions issued by the department do not have the force of law, when the Police Standing Order contemplates a proper disciplinary action to be taken against the deserter. Heard the counsel appearing for the parties and perused the materials available on record. 13. Before adverting to the facts of this case, it is relevant to extract the provision dealing with desertion in Tamil Nadu Police Standing Orders, 1988- Vol.1. “(1) Absence without leave for 21 days complete as the offences of desertion, after which the officers name shall invariably be struck off from the date of offence. (G..186, Judicial, 2l.1.1984) (2) An application for reinstatement from an officer who has been struck off as deserter shall not be entertained unless it reaches the Superintendent or an officer of equal rank under whom the subordinate officer was serving within two months from the date of the commencement of the absence without leave. The Superintendent or the corresponding officer of equal rank, as the case may be, shall not reinstate a deserter (a) until the deserter has attended in Person which he should do, not later than the date prescribed by the officer dealing with the case, and has given his explanation for his absence without leave and (b) unless the Superintendent or an officer of equal rank, as the case may be, is satisfied after such enquiry as may be necessary that the case deserves consideration. At the end of the two months, if no application for reinstatement is received and if the whereabouts of the deserter are not known the officer dealing with the case will record in writing the reason for his being satisfied that it is not reasonably practicable. to give the deserter an opportunity of showing cause against his dismissal and can only confirm the dismissal. In other cases a charge should be framed and the procedure prescribed in Order No. 80 complied with, before confirming the dismissal or reinstating the deserter with or without punishment.” 14. As per the Police Standing Order, in case, the disciplinary Authority decides to proceed against a member of the policeman for desertion, charges have to be framed and the procedure as contemplated in P.S.O. 80 has to be followed for imposing major penalty of compulsory retirement, removal or dismissal. P.S.O. 80 states that on the occurrence of an incident likely to be the subject of disciplinary action, the responsible officer to whom the incident is reported make such enquiry, if any, as he considers to establish the prima facie correctness of the facts alleged. If this preliminary enquiry discloses that there is prima facie case for disciplinary action, a decision should be taken either by the Officer himself, assuming that he is an Inspector or above that rank, or by his immediate superior Officer, as to whether the full machinery preliminary to punishment should be set in motion. He should also decide whether the offence may require an oral enquiry. If it is decided to set in motion the full machinery preliminary to punishment a specific charge or charges should be framed in the light of the evidence recorded in the preliminary enquiry. 15. In the instant case, though the petitioner by letter dated 27.9.1995 had requested the Deputy Superintendent of Police, Gudiyatham, to grant him four days of holiday permission from 30.9.1995 to 2.10.1995 and one day Casual Leave on 4.10.1995. The Deputy Superintendent of Police, Gudiyatham, has granted holiday permission from 30.9.1995 to 3.10.1995 for four days only and has specifically instructed the petitioner to attend the monthly crime meeting on 4.10.1995 at 9.30 a.m., without fail. Instead of reporting for duty, the petitioner has sent a telegram on 5.10.1995, stating that he was admitted in the hospital due to sickness. Instead of reporting for duty, the petitioner has sent a telegram on 5.10.1995, stating that he was admitted in the hospital due to sickness. Again, the petitioner has sent a letter to the Deputy Superintendent of Police, Gudiyatham, dated 17.11.1995, stating that he had gone on Medical Leave on 5.10.1995 and since then, he could not recover from illness and as per the Doctors advice, he had continued-his Medical Leave for 12 days from 5.10.1995 to 16.10.1995. Thereafter, the petitioner has sent a telegram on 27.11.1995 to the Deputy Superintendent of Police, Gudiyatham, stating that he has extended his Medical Leave for 40 days from 17.10.1995 to 27.11.1995. Perusal of the materials show that since the petitioner did not attend the crime meeting on 4.10.1995 and a wireless message was also given to that effect. As the petitioner had remained absent without leave or permission for more than 21 days, by order dated 28.11.1995, the petitioner was treated as a deserter with effect from 17.10.1995, as per Police Standing Order. 16. Before the enquiry officer, four prosecution witnesses were examined on behalf of the department, viz., Thiru R.Abdul Affee, Junior Assistant to the Deputy Superintendent of Police, Thiru. A. Kandasamy, Deputy Superintendent of Police, SB CID Head Quarters, Thiru.G.Manoharan, Assistant, L1 Seat, District Police Office, Vellore, and Thiru U.P. Perumal, formerly Deputy Superintendent of Police, Gudiyatham. Apart from oral evidence, six documents were also marked. The Enquiry Officer, after analysing the oral and documentary evidence, has come to the conclusion that the petitioner instead of getting prior permission from the competent authority, has absented himself from duty and just extended his Medical Leave through telegrams, dated 5.10.1995 and 27.11.1995, without obtaining prior permission. 17. As per the procedure, if a member of the police force falls sick and wants to avail medical leave, he has to report before the competent authority and obtain a sick passport. If the said member is unable to meet the said competent authority in person and report the fact of his sickness, due to either hospitalisation or unable to move about, then the sickness of the said individual has to be certified by a Medical Officer. If the said member is unable to meet the said competent authority in person and report the fact of his sickness, due to either hospitalisation or unable to move about, then the sickness of the said individual has to be certified by a Medical Officer. The member of the Police force has to submit the Leave application along with the Medical Certificates, so as to enable the competent authority to verify the truth or otherwise of the sickness reported by him and that on ascertaining the geniuses of the sickness of the individual, sick passport would be issued. 18. In the instant case, the petitioner has neither appeared before the competent authority nor sent any leave application along with the Medical Certificates from qualified Medical Officers, before proceeding on leave. On the contrary, he has sent a letter dated 17.11.1995 to the Deputy Superintendent of Police, Gudiyatham, stating that he had gone on leave from 5.10.1995 and thereafter, sent a telegram on 27.11.1995 to the authority, stating that he has extended the Medical Leave for 40 days from 17.10.1995 to 27.11.1995. It is evident that the petitioner has not obtained any prior permission from the competent authorities before proceeding on Medical Leave. Mere sending of telegram and letters cannot at any rate be construed as prior permission. Perusal of the report reveals that the enquiry has been conducted in a fair manner, giving ample opportunity to the petitioner to defend the charges. I do not find any perversity in the finding of the Enquiry Officer and therefore, the same is confirmed. 19. As regards the contention of the learned senior counsel for the petitioner that the deserter, who has been reinstated in service should be proceeded only under Rule 3(a) of the TNPSS (D & A) Rules, it is evident from the Police Standing Order, 95 (88(1) of the Old Order) that for unauthorised absence, the procedure in Order No,80 has to be followed before confirming the order of dismissal or reinstating the deserter with or without punishment. The procedure to be followed for imposing punishment of removal or dismissal is set out in Rule 3(b) of the TNPSS (D & A) Rules. 20. The procedure to be followed for imposing punishment of removal or dismissal is set out in Rule 3(b) of the TNPSS (D & A) Rules. 20. Further, as per the circular dated 5.12.1990, if any disciplinary proceedings have already been initiated under Rule 3(b) of the Rules, the disciplinary Authorities were instructed to impose minor penalties applicable to Rule 3(a) of the said Rules. Initiation of disciplinary proceedings under Rule 3(a) or 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules depends upon the gravity of the offence/misconduct committed by the member of the disciplined force. The Disciplinary Authority is vested with the jurisdiction to take appropriate action for imposing the major penalty like dismissal, removal, compulsory retirement and the same cannot be curtailed by administrative instruction. Nevertheless, in the case on hand, on facts, though the disciplinary action taken against the petitioner was to impose a major penalty, on conclusion of the enquiry, the disciplinary authority has imposed only a minor penalty of reduction in time scale of pay by one stage for one year with cumulative effect against the petitioner. 21. Disciplinary action has been taken against the petitioner in the year 1996. Having participated in the enquiry proceedings and suffered an order of penalty, it is not open to the petitioner to challenge the competency of the authority to initiate the proceedings under Rule 3(b) of the said Rules. For the above said reasons, I am unable to accept the contention of the learned senior counsel for the petitioner that the proceedings are vitiated, for violation of the circular issued by the City Police Office. 22. The contention that desertion does not amount to mere ‘absence, but should be construed to mean absence with an intention, not to return to duty for ever’, is also not acceptable, in view of the specific definition of word, “desertion” in the Police Standing Order. As a Member of a disciplined force and having absented himself without leave or permission from the competent authority, the attempt to give a different meaning to the word “desertion”, cannot be approved and it is nothing but adding words to the meaning given in Police Standing Order, 88 (now 95). There is no ambiguity in the definition. Absence without leave or permission for 21 days constitutes desertion, whether with or without an intention to join duty. 23. There is no ambiguity in the definition. Absence without leave or permission for 21 days constitutes desertion, whether with or without an intention to join duty. 23. The disciplinary proceedings which, had commenced in the year 1996, has culminated into a penalty of reduction of time scale of pay in the year 2000. During pendency of the proceedings, the petitioner is stated to have been overlooked in the panel of Deputy Superintendent of Police, it is evident from the counter affidavit that though the charge memo was served on the petitioner on 24.4.1996 and he was directed to submit the explanation within seven days, he has failed to do so. It is further seen that initially, the Superintendent of Police, Vellore, was nominated as Enquiry Officer as on 12.9.1996 to conduct an oral enquiry. As the petitioner was transferred out of Vellore Range and posted to ‘Q’ Branch, CID, Chennai, the proceedings was sent to the Superintendent of Police, ‘Q’ Branch, CID, Chennai for service and return of the acknowledged copy of the proceedings. Pursuant to the request of the Superintendent of Police, Vellore, the Deputy Inspector General of Police, Vellore Range, Vellore has changed the enquiry officer and nominated the Additional Superintendent of Police, District Crime Record Bureau, Vellore to proceed with the enquiry. The said officer was subsequently transferred to Dharmapuri District as ADSP, PEW. However, he continued the enquiry even after transfer. It is thus evident that the departmental enquiry has been delayed due to the change of enquiry officer, transfer of the petitioner and for other administrative reasons seated supra. In the counter affidavit, the respondents have further stated that the petitioner has also filed O.A. No. 9356 of 1997, dated 14.11.1997, challenging the departmental proceedings. The reasons stated in Paragraphs 6 and 8 of the counter affidavit are acceptable and therefore, the contention of the learned counsel for the petitioner that the delay has resulted in miscarriage of justice and affected the promotion of the petitioner, cannot be accepted. The petitioner was working as Inspector of Police when the departmental enquiry was ordered. The next promotional post was Deputy Superintendent of Police and it is a Selection Post. Courts have consistently held that promotion to a selection post can be postponed during the pendency of disciplinary proceedings. The petitioner was working as Inspector of Police when the departmental enquiry was ordered. The next promotional post was Deputy Superintendent of Police and it is a Selection Post. Courts have consistently held that promotion to a selection post can be postponed during the pendency of disciplinary proceedings. Therefore, merely because the petitioner was passed over for further promotion due to the pendency of the disciplinary proceedings and current punishment, the impugned order of penalty for his long absence without prior permission cannot be condoned. As seen from the above, the protraction of the proceedings is not on account of any deliberate action of the respondents and therefore, that cannot be a reason for setting aside the penalty. 24. The imposition of the penalty of reduction in time scale of pay by one stage for one year with cumulative effect cannot be said to be a double jeopardy. The petitioner, being an Inspector of Police with sufficient experience ought to have known the procedure before going on leave for a long period. The appellate authority and the Head of the Department have rightly considered the gravity of the charge and confirmed the penalty, which is not too harsh, touching conscious of the Court and it does not warrants interference. 25. In the result, the writ petition is dismissed. No costs. Writ petition dismissed.