Judgment 1. The prayer in the writ petition is to quash the order of the third respondent dated 11. 1999 dismissing the petitioner from service which was confirmed by the second respondent by order dated 3. 99 as well as the order of the first respondent dated 4. 1999 and direct the respondents herein to reinstate the petitioner in service with all consequential monetary and service benefits. 2. The case of the petitioner is that he was appointed as Grade-II Police Constable on 212. 1985 and promoted as Grade-I Police Constable in 1997. According to the petitioner, he has received 96 rewards for his efficient service. The petitioner was served with a charge memo on 20.11.93 in P.R.No.125/98 for the allegation that he had absented from duty without leave or permission and deserted the police force. The Deputy Superintendent of Police, Kancheepuram, was appointed as an Enquiry Officer, who conducted enquiry and held that the charges were proved. Based on the Enquiry Officers finding, the third respondent, by order dated 11. 1999, passed a final order. Thereafter, remarks were called for, by the third respondent as to why the Enquiry Officers finding cannot be accepted, for which, the petitioner submitted his remarks and after getting the remarks, the third respondent, passed the order of punishment of removal from service, by order dated 11. 1999. The petitioner preferred an appeal before the Deputy Inspector General of Police, Chengalputtu Range, which was also dismissed on 3. 1999. The petitioner filed a review before the Inspector General of Police (Law and Order) and the same was also rejected on 4. 1999 by the first respondent. The said orders are challenged in this writ petition by contending that the petitioner was not feeling well to attend duty and he had suffered sudden heart attack. The petitioner also claimed that he has put in 13 years of service and considering his family circumstances and the previous records, the punishment ought to have been modified by the second respondent/appellate authority or by the Inspector General of Police. 3. The respondents filed counter affidavit wherein it is stated that the petitioner was promoted as Grade-I Police Constable in the year 1997 and he was having 51 rewards to his credit. The Enquiry Officer, found that the charges levelled against the petitioner, were proved and thereafter, the disciplinary authority accepted the findings and imposed the punishment. 3. The respondents filed counter affidavit wherein it is stated that the petitioner was promoted as Grade-I Police Constable in the year 1997 and he was having 51 rewards to his credit. The Enquiry Officer, found that the charges levelled against the petitioner, were proved and thereafter, the disciplinary authority accepted the findings and imposed the punishment. It is also stated in the counter affidavit that it is an admitted case of the petitioner that he had heart attack and also a diabetic cum blood pressure patient and with that complicated health condition, he is not suitable for active police work. Therefore, the punishment of removal from service for his desertion and unauthorised absence needs no modification. 4. The learned counsel for the petitioner submitted that the department, having accepted the fact about the petitioners heart ailment and suffering from diabetic cum blood pressure, ought to have considered the defence of the petitioner that due to ill-health only, he could not attend the duty and there is no willful desertion and therefore, minor punishment could have been imposed. 5. The learned Additional Government Pleader, on the other hand submitted that the petitioner who was serving in police force, absented himself from duty on three occasions and on the earlier two occasions, his desertion was condoned and on the third occasion only, the punishment of dismissal from service was passed which needs no interference. 6. I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Additional Government Pleader. 7. The charges framed against the petitioner under Rule 3(b) of the Tamil Nadu Police Subordinate (Discipline and Appeal) Rules issued in P.R.No.125/98 reads as follows: "(i) Gross neglect of duty in absenting himself for duty from 10-04-98 to 14-04-98 to 14-04-98 without leaving or permission. (ii) Reprehensible conduct and gross neglect of duty in absenting for duty and then becoming deserter from 18-04-98." 8. It is an admitted case of the petitioner as well as the respondent that the petitioner is a diabetic cum blood pressure patient and he suffered heart attack. It goes without saying that a heart patient needs immediate medical care and if no medical care is taken and reports for duty, it will even cause death. It is an admitted case of the petitioner as well as the respondent that the petitioner is a diabetic cum blood pressure patient and he suffered heart attack. It goes without saying that a heart patient needs immediate medical care and if no medical care is taken and reports for duty, it will even cause death. In the order of the Appellate Authority as well as the counter affidavit, it is stated that the petitioner being a heart patient and a diabetic cum blood pressure patient is having complicated health condition and therefore, he may not be suitable for active police work. Thus, the department itself found genuine reasons for not attending duty by the petitioner. 9. The petitioner was put in 13 years of services. If the petitioner was not suitable for active police work, the department ought to have given him a lighter duty in the office. On the contrary, by stating the said reasons, the petitioner was removed from service. By the removal of the petitioner from service who has put in 13 years of service with more than 51 rewards, the petitioners right of employment is affected. In the affidavit filed by the petitioner dated 14. 2009, it is stated that only due to unavoidable circumstances and health condition, the petitioner absented from duty. The petitioners family consists of his wife and two sons aged 23 and 18 years and one daughter aged 19 years and all the family members of the petitioner are depending on his salary and the petitioner is working on daily wage basis from the date of removal from service. In the said additional affidavit, it is also stated that the respondents have not considered the genuine reason of not attending the duty by the petitioner and has chosen to dismiss the petitioner which is disproportionate to the gravity of the offence. If the respondent finds that the petitioner is unfit to continue in the police force, the impugned order of dismissal from service may be set aside and the petitioner may be given compulsory retirement from service from the date of this order so that the petitioner will get pensionary benefits and other retiral benefits. An undertaking is also given by the petitioner in his affidavit dated 4. 2009 that he will not claim backwages for the period of non-employment. The said undertaking is recorded. 10. An undertaking is also given by the petitioner in his affidavit dated 4. 2009 that he will not claim backwages for the period of non-employment. The said undertaking is recorded. 10. Learned counsel for the petitioner also cited a judgment of the Supreme Court reported in (2004) 4 S.C.C. 560 (Bhagwan Law Arya v. Commissioner of Police) and prayed for to set aside the order of termination and impose a punishment of compulsory retirement from this date. In the above cited judgment, a similar case like the petitioner was considered and the Honourable Supreme Court set aside the order of punishment and in paragraph 11 of the said judgment it is held as follows. "The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing sanction for leave for the period in question, the employee’s legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered an act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal/removal from service can be awarded only for acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility or complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become the basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires Rules 8(a) and 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of which, not only he but his entire family totally dependent on him will be forced to starve. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of which, not only he but his entire family totally dependent on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside." (Emphasis supplied) In the above said case, the Honourable Supreme Court set aside the punishment of dismissal from service without any backwages or service benefits for the period on which the petitioner was kept out of employment. 11. Here, in this case, the department having found that the petitioner is unfit to continue in the police force due to ill-health, the quantum whether a person who is found disabled to do the duties can be thrown out without giving alternate employment or grant compensatory relief was considered by the Honourable Supreme in the decision reported in AIR 1991 SC 1003 (Anand Bihari v. R.S.R.T. Corporation) wherein it is held that "in case of the employees acquiring disability during employment, the employer should provide for adequate safeguards to remedy the situation by giving them alternate job or by compensating them in some form for the al-round loss they suffered for no fault of theirs. In that case, the drivers of the roadways buses of the respondent Corporation who have put in long years of service, during their routine medical examination were found to have developed defective eyesight and did not have the required vision for driving heavy motor vehicles like buses. The Corporation terminated their services since their eyesight was not of the standard required to drive buses." The Honourable Supreme Court held that the action of the Corporation was not proper and equitable and directed the Corporation to offer them alternative employment or grant compensatory relief for the loss they suffered on account of the premature retirement necessitated by their unfitness to work as drivers. The Court observed that "the workmen are not denizens of an animal farm to be eliminated ruthlessly the moment they become useless to the establishment. They have not only to live for the rest of their lives, but also to maintain the members of their family and other dependents, and to educate and bring up their children. The Court observed that "the workmen are not denizens of an animal farm to be eliminated ruthlessly the moment they become useless to the establishment. They have not only to live for the rest of their lives, but also to maintain the members of their family and other dependents, and to educate and bring up their children. Their liability in this respect at the advanced age at which they are thus retired stands multiplied. They may no longer be of use to the Corporation for the job for which they were employed, but the need of their patronage to others intensifies with the growth in their family responsibilities. In the circumstances of the case, the Court proposed a scheme to give relief to the workmen involved in that case." 12. Again in the decision reported in (1994) 4 SCC 460 : AIR 1995 SC 519 (Narendra Kumar Chandla v. State of Haryana) i.e., prior to the enactment of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the Supreme Court considered similar issue and ordered to give alternate employment taking note of the fundamental right guaranteed under Article 21 of the Constitution of India. The operative portion of the order reads as follows: "Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the post he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties. Asking the appellant to discharge the duties as a Carrier Attendant is unjust. Since, he is a matriculate, he is eligible for the post of LDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. For Clerk, typing generally is not a must. Therefore, the State Electricity Board should relax his passing of the typing test and appoint him as an LDC. Since, on the date when he had unfortunate operation, he was drawing the salary in the pay scale of Rs.1,400-2,300, his last drawn pay and scale of pay have to be protected. He will also be entitled to arrears of salary." 13. Since, on the date when he had unfortunate operation, he was drawing the salary in the pay scale of Rs.1,400-2,300, his last drawn pay and scale of pay have to be protected. He will also be entitled to arrears of salary." 13. Whether the High Court can modify the punishment to shorter the litigation to do complete justice was considered by the Honourable Supreme Court in the decision reported in AIR 1996 Supreme Court 484 (B.C. Chaturvedi v. Union of India). The Supreme Court held that in exceptional cases the High Court can modify the punishment to shorten the litigation in appropriate cases. In para 18, it is held as follows: "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." The said judgment is followed in 1998(3) SCC 192 (Colour-chem Ltd. vs. A.L. Alapurkar) and 2000(3) SCC 450 (U.P. State Road Transport Corporation vs. Mahesh Kumar Mishra) and the Honourable Supreme Court upheld the modification of punishment by the High Courts. 14. Applying the above principles laid down by the Honourable Supreme Court to the facts of this case, I am of the view that interest of justice would be met by setting aside the order of punishment of removal from service. Accordingly, the impugned order of removal from service is set aside and the petitioner shall be treated as compulsory retired from service from the date of this order. The respondents are directed to settle the terminal benefits treating the petitioner as compulsory retired from 14. 2009, within three months from the date of receipt of a copy of this order. The writ petition is disposed of accordingly. No costs. The respondents are directed to settle the terminal benefits treating the petitioner as compulsory retired from 14. 2009, within three months from the date of receipt of a copy of this order. The writ petition is disposed of accordingly. No costs. Consequently, M.P.1 of 2008 is closed.