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2012 DIGILAW 2659 (MAD)

S. Rajamani v. Deputy Commissioner of Police

2012-06-26

C.T.SELVAM

body2012
Judgment :- 1. This petitioner challenges the order of the first respondent passed in 'F' order dated 26.02.2005 in P.R.No.267/2004, which was confirmed by the second respondent in his proceedings C.No.D2(1)20044/2005 dated 08.04.2005, the proceedings of the third respondent in R.C.No.96517/AP2(3)/2005, dated 08.06.2005 and proceedings of the fourth respondent in R.C.No.183215/AP2(3)/2005, dated 25.09.2005 and to quash the same and to direct the respondents to reinstate the petitioner in service together with backwages and other attendant and consequential benefits. 2. The first respondent issued a charge memo, dated 26.02.2005, in his proceedings No.267/2004, requiring the petitioner to explain why disciplinary proceedings should not be initiated against the petitioner in respect of the following charges:- (i) Failure to attend Governor's bandobust duty, dated 15.04.2004 and entered on medical leave without obtaining prior permission. (ii) Indisciplinary conduct in having abstained from duty in drunken mood and entered in wordy altercations with station writer. (iii) Dereliction of duty in having absented from duty on 05.08.2004 at 21.15 hours and continued absence beyond 21 days and thus committed the delinquency of desertion. 3. The petitioner submitted his explanation which was not accepted. Disciplinary proceedings were initiated against him. The Assistant Commissioner of Police, Madurai City, was appointed as Enquiry Officer. On completion of the enquiry, the Enquiry Officer submitted a report informing that the charges against the petitioner stood proved. A copy of the enquiry report was forwarded to the petitioner and he was afforded an opportunity of making a representation. His explanation was rejected and an order of dismissal was passed by the first respondent. The petitioner preferred an appeal before the second respondent, on 30.03.2005, which came to be dismissed. His application for review also was rejected by the third respondent under an order, dated 10.06.2005. Further, mercy Petition moved before the fourth respondent also stood rejected. Hence, the petitioner has moved the present writ petition. 4. Learned counsel for the petitioner submitted that in respect of the first charge viz., failure to attend Governor's bandobust duty on 15.04.2004 and entering on medical leave without obtaining prior permission, the same stood condoned by the orders of the first respondent and it was treated as absence on earned leave and thus such charge ought not to have been framed against the petitioner. 5. 5. Another charge against the petitioner is of dereliction of duty and commission of the delinquency of desertion in that he absented himself from 05.08.2004 at 21.15 hours and continued his absence beyond twenty-one days till 25.08.2004. An officer would be held guilty of the charge of desertion, if he continuously had been absent for a period of twenty-one days. In the instant case, even the records of the respondents informed that the petitioner had absented himself from duty only for a period of twenty days. Therefore, he could not have been charged of desertion. 6. As regards, the remaining charge, viz., wrongful conduct of absenteeism from duty in a drunken mood and of entering into wordy altercation with the Station Writer, it is submitted that though the Inspector of the concerned station has been examined in support thereof, the Disciplinary Authority further has relied on a Vigilance Report, which supported such contention. Such report ought not to have been relied upon in the absence of examination of the officer who prepared the same as a departmental witness. Further, it is contended that the other documents such as special Reports, if any, of the Inspector or the writer, the General Diary entry and the notebook entries, if any, available were not filed. Therefore, in the absence of any material evidence, the petitioner has been found guilty of such charge. Learned counsel for the petitioner relied upon a judgment of this Court rendered in W.P.No.3662 of 2007 where-under the principles to be followed in a departmental proceedings had been explained as follows:- "9. In the latest decision of the Honourable Supreme Court in STATE OF UTTARANCHAL AND OTHERS Vs. KHARAK SINGH ( (2008) 8 SCC 236 ), while reiterating the concept of natural justice and the procedures to be followed in Departmental Enquiry, the Honourable Mr. Justice P. Sathasivam while speaking for the Bench, after referring to the various decisions, including that of B.KARUNAKAR'S CASE (referred to above), apart from the decisions in RADHEY SHYAM GUPTA VS. U.P.STATE AGRO INDUSTRIES CORPN. LTD., [ (1999) 2 SCC 21 ] and SYNDICATE BANK V. VENKATESH GURURAO KURATI [ (2006) 3 SCC 150 ) has enunciated various principles to be followed in the Departmental proceedings in paragraph No.15, which reads as follows:- "15. U.P.STATE AGRO INDUSTRIES CORPN. LTD., [ (1999) 2 SCC 21 ] and SYNDICATE BANK V. VENKATESH GURURAO KURATI [ (2006) 3 SCC 150 ) has enunciated various principles to be followed in the Departmental proceedings in paragraph No.15, which reads as follows:- "15. From the above decisions, the following principles would emerge: (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witness of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any." 7. Learned counsel also relied on decision of the Hon'ble Apex Court in RAM KISHAN v. UNION OF INDIA, (1995) 6 Supreme Court Cases 157, particularly the following observations:- "11. It is next to be seen whether imposition of the punishment of dismissal from service is proportionate to the gravity of the imputation. When abusive language is used by anybody against a superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of abusive language. No straight-jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case has to be considered on its own facts. What was the nature of the abusive language used by the appellant was not stated. 12. No straight-jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case has to be considered on its own facts. What was the nature of the abusive language used by the appellant was not stated. 12. On the facts and circumstances of the case, we are of the considered view that the imposition of punishment of dismissal from service is harsh and disproportionate to the gravity of charge imputed to the delinquent constable. Accordingly, we set aside the dismissal order. We hold that imposition of stoppage of two increments with cumulative effect would be an appropriate punishment. So, we direct the disciplinary authority to impose that punishment. However, since the appellant himself is responsible for the initiation of the proceedings, we find that he is not entitled to back wages, but, all other consequential benefits would be available to him." 8. Heard the learned Special Government Pleader on the above submissions. 9. I have considered the rival submissions made by the learned counsel on either side and perused the materials available on record. 10. This Court is inclined to accept the submissions of learned counsel for the petitioner in so far as the charge of dereliction of duty of failure to attend Governor's bandobust duty, dated 15.04.2004 and entering on medical leave without obtaining prior permission. Once such offending act of the petitioner stood treated as earned leave, the same could not have formed the basis of a charge against the petitioner. 11. As regards the unauthorised absence over a period of twenty days against the petitioner, this Court finds that though the learned Special Government Pleader strenuously would contend that the petitioner is guilty of desertion, the same cannot be the case. This is so because in the first place, the absence from duty is only for a period of twenty days and not the stipulated period of twenty-one days. Under Rule 29 of the Departmental Orders and Instructions, issued vide Madras Police Gazette, No.4, Madras, Saturday, January 25, 1969, desertion and the procedure to be followed in the case thereof is informed as follows:- "29. Desertion : Absence leave for 21 days complete the offence of desertion, after which the officer's name shall invariably be struck off from the date of action. Desertion : Absence leave for 21 days complete the offence of desertion, after which the officer's name shall invariably be struck off from the date of action. (2) An application for re-instatement from an Officer who has been struck off as a deserter shall not be entertained unless it reaches the Supdt. Or an officer of equal rank under whom the subordinate officer was serving, within 2 months of the date of the commencement of the absence without leave. The Supdt. Or the corresponding Officer of the equal rank as the case may be shall not re-instate 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 Supdt. Or an Officer of equal rank as the case may be is satisfied after such enquiry as may be necessary that the case deserves reconsideration. At the end of the two months if no application for re-instatement is received and if the whereabouts of the deserter are not known the Officer dealing with the case will record in writing the reasons for his being satisfied that it is not reasonably practicable to give the deserter an opportunity of showing cause against his dismissal and then confirm the dismissal. In other cases, a charge should be framed and the procedure prescribed in paragraph 8 complied with before confirming the dismissal or re-instating the deserter with or without punishment." This Court finds that the above instructions have not been followed in the instant case. 12. As regards the remaining charge of having attended the police station in a drunken state and having entered into wordy altercations with the Station Writer, this Court is unable to accept the contention of the learned counsel for the petitioner that such charge has been held proved without any material. The Inspector of the Police Station has been examined as P.W.1 and his evidence is in support thereof. By way of additional supporting material, the report of the Vigilance stands filed. When rules of evidence do not strictly apply in respect of departmental proceedings, this Court does not find any merit in the submission of learned counsel for the petitioner that the officer, who prepared the report, ought to have been examined as a witness. 13. By way of additional supporting material, the report of the Vigilance stands filed. When rules of evidence do not strictly apply in respect of departmental proceedings, this Court does not find any merit in the submission of learned counsel for the petitioner that the officer, who prepared the report, ought to have been examined as a witness. 13. Taking into consideration the merits of the case and the rival submissions, this Court is of the view that though the finding of guilt on the count of the petitioner having misbehaved with the writer of the Station in a drunken state stands well substantiated, the punishment accorded rather is disproportionate. This Court says so, because this Court is conscious of the fact that the punishment accorded to the petitioner by the disciplinary authority is upon a finding of guilt in respect of all the three charges. This Court has now held that two of such charges would not stand. Therefore, if punishment is to follow only upon the single charge which this Court has now held substantiated, the punishment of dismissal from service certainly would be too severe. This Court also note that even the respondents do not charge the petitioner of having used any abusive language. Following the rationale of the decision of the Hon'ble Apex Court in (1995) 6 Supreme Court Cases 157 (referred to supra), this Court would substitute the punishment with one of punishment of withholding four increments with cumulative effect. The petitioner shall be entitled to 50% of the back-wages during the relevant period. 14. In view of the aforesaid reasoning, this Court is inclined to set-aside the order of punishment in so far as it calls for dismissal of the petitioner from service. The respondents shall effect compliance within a period of twelve weeks from the date of receipt of a copy of this order. 15. The above writ petition is ordered accordingly. No costs.