JUDGMENT (Prayer: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order dated 10.04.2013 Ref.No.C.No.F1/PR 25/2012 and consequential communication dated 16.04.2013 in ref.No.Sl.No.33/F1/2013 passed by the respondent authority and quash the same and consequently direct the respondent to reinstate the petitioner in service and grant him all service benefits.) Through a charge memo, dated 28.07.2005, the petitioner was alleged to have not reported for duty till 8.00 A.M. on 05.03.2005, after being passported to appear before the Additional Director General of Police(ADGP) on 01.03.2005 and also for having not reported to duty till 21.03.2005, after being passported to appear before the ADGP on 01.03.2005 amounting to desertion. Pursuant to the charges, a domestic enquiry was conducted, whereby, the charges were held to be proved. After rejecting the petitioner's further explanation, the respondent herein had imposed a punishment of “Compulsory Retirement from Service”, through the impugned order, dated 10.04.2013. 2. While the learned counsel for the petitioner submitted that no adequate opportunity was extended to the petitioner in the domestic enquiry and that his further explanation was not at all considered before the impugned order was passed, the learned Special Government Pleader appearing for the respondent placed reliance on the averments made in the counter affidavit and submitted that the delinquency on the part of the petitioner was a highly indisciplinary conduct, which also amounted to insubordination and in view of the seriousness of the charges, the respondent had imposed a proportionate punishment, which does not require interference. 3. The facts involved in the present case are ancillary facts leading to framing of the charges against the petitioner. Such facts could be briefly summed up as follows. (i) The petitioner, who joined as a Grade II Police Constable in Tamilnadu Special Police on 26.12.1985, was promoted as a Grade I Police Constable in the year 1989 and subsequently, further promoted as a Head Constable with effect from July, 2002. By an order, dated 17.06.2004, he was transferred from Cheyur Police Station to Kudimangalam Police Station. The petitioner had challenged the order of transfer before this Court in W.P.No.19272 of 2004, whereby, an order of interim stay was granted on 08.07.2004. Consequently, the petitioner was permitted to join duty on 14.07.2004. By an order, dated 17.06.2004, he was transferred from Cheyur Police Station to Kudimangalam Police Station. The petitioner had challenged the order of transfer before this Court in W.P.No.19272 of 2004, whereby, an order of interim stay was granted on 08.07.2004. Consequently, the petitioner was permitted to join duty on 14.07.2004. In this background, the petitioner was issued with a passport on 14.07.2004 to report to Kudimangalam Police Station as per the orders of the respondent. Since this order amounted to disobedience of the earlier order of stay granted by this Court, he had moved a Contempt Petition in Cont.P.No.696 of 2004. Pending the Contempt Petition, the respondent had passed an order, dated 08.12.2004, retaining the petitioner at Cheyur Police Station. (ii) In this background, the petitioner was passported to report to the ADGP (L&O) in Chennai on 28.02.2005. The petitioner claims to have appeared before the ADGP at 9.00 A.M. on the said date and he was instructed to wait till about 9.00 P.M. on the same day. Since the ADGP was not present in his office the whole day, the petitioner had returned to report for duty at Cheyur Police Station on 02.03.2005. However, he was not permitted to join duty on the said date. His representations to the ADGP and the respondent herein for permission to join duty, though received, were not considered. On 17.03.2005, he was issued with a charge memo, dated 03.03.2005, for two charges of desertion and refusal to receive the order of deemed desertion. Challenging this charge memo, dated 03.03.2005, he had filed a Writ Petition in W.P.No.11112 of 2005, which came to be admitted by this Court. On 14.04.2005, the order of the respondent, dated 30.03.2005, was served on the petitioner, treating him as a deserter and calling for his explanation. It is claimed that the respondent had refused to receive the petitioner's explanation. On 02.05.2005, a memo was issued to the petitioner for his failure to submit the explanation, to which, the petitioner gave a representation to the Inspector General of Police, Coimbatore, explaining as to how he was prevented from submitting his explanation. (iii) In the light of these developments, another charge memo, dated 28.07.2005, which is the subject matter of the present Writ Petition came to be passed. (iii) In the light of these developments, another charge memo, dated 28.07.2005, which is the subject matter of the present Writ Petition came to be passed. Among the two charges levelled therein, the petitioner was alleged to have failed to report for duty till 8.00 A.M. on 05.03.2005, after being passported to appear before the ADGP on 01.03.2005 and for not having reported to duty till 21.03.2005, which amounted to desertion. Thereafter, when the Writ Petition in W.P.No.11112 of 2005 challenging the charge memo, dated 03.03.2005, was listed before this Court, an order of interim stay of charge memo was granted on 23.03.2006 and by another interim order, dated 22.06.2006, passed in W.P.No.16448 of 2006, this Court had directed the respondent herein to permit the petitioner to report for duty. Accordingly, the petitioner had joined duty on 26.06.2006. On 23.11.2006, the charge memo, dated 28.07.2005, came to be stayed by this Court. Ultimately, on 18.08.2011, a common order came to be passed in all the five Writ Petitions filed by the petitioner, whereby, three of the Writ Petitions were allowed and the Writ Petition in W.P.No.16448 of 2006 was dismissed as infructuous and the Writ Petition in W.P.No.40987 of 2005, challenging the charge memo, dated 28.07.2005, was dismissed on the ground that no interim orders were granted pending the Writ Petition. The Writ Appeal filed by the petitioner was also dismissed on 05.09.2012. Subsequently, the respondent had called for explanation from the petitioner to the proven charges. The petitioner's explanation, dated 11.03.2013, came to be rejected and through the impugned order, dated 10.04.2013, the respondent had imposed the punishment of compulsory retirement from service. Challenging the said impugned order, the present Writ Petition has been filed. 4. The two primary charges against the petitioner were that he had failed to appear before the ADGP, even though he was passported to appear and that his failure to appear amounted to desertion. Insofar as the second charge of desertion is concerned, it requires to be straightaway rejected for the simple reason that the Director General of Police, Chennai, through a Circular, dated 06.12.2007, had ordered that in all cases of desertion, the punishment of removal/dismissal from service or compulsory retirement should not be imposed and that any other punishment can be imposed for such desertion cases. This Circular came to be considered in various decisions of this Court and in one such case of Arumugam Vs. The Superintendent of Police, Thiruvannamalai District and others in W.P.No.11854 of 2016, dated 02.02.2022, I had set aside the order of dismissal therein and directed the respondents to impose a lesser punishment of withholding the employee's salaries for the period of his absence. The relevant portion of the order reads as follows: “4. Insofar as the punishment of compulsory retirement for the charge of desertion is concerned, this Court had dealt with a similar issue in the case of R.Sudhakar Vs. The Principal Secretary to Government, Home (Pol-V) Department and others passed in W.P.No.7927 of 2015 dated 21.12.2021, wherein it has been held as follows:- "2. The original punishment of dismissal from service as well as the modified punishment by the 2nd respondent herein into one of the Compulsory Retirement cannot be sustained on the sole ground that the Director General of Police had earlier issued Circulars dated 13.10.1990 and 06.12.2007, holding that in cases of desertion, the punishment of removal/dismissal from service or Compulsory Retirement should not be imposed. In a later circular, dated 06.12.2007, it was reiterated that these guidelines should be strictly followed, while dealing with dismissal cases and that any other minor punishment can be imposed. For the sake of clarity, the circular dated 06.12.2007 is hereby extracted, Rc.No.235355/AP-IV(2)/2007 Office of the Director General of Police, Chennai-600 004. Dated:06.12.2007 CIRCULAR MEMORANDUM Sub: Police - Desertion cases - Head constables and Police Constables - Taking delinquents on duty - Major punishment awarded - Instructions issued - Regarding. Ref: Circular Memo in C.No.243881/AP1(1)/1990, dated: 30.10.1990. <<<>>> The attention of the Unit Officers is invited to the Chief Office Circular Memorandum cited. 2) In the above Circular Memorandum, clear instructions were already issued that while taking Head Constables and Police Constables for duty in desertion cases and disposing of P.Rs emanated from the delinquency of desertion, penalty such as removal/dismissal from service or Compulsory Retirement should not be given. Any other punishment can be imposed and this guideline should be kept in view, while dealing with desertion cases. Any other punishment can be imposed and this guideline should be kept in view, while dealing with desertion cases. 3) While disposing of review/mercy petitions of the subordinate police personnel, I noticed that scant regard is shown to the earlier Chief Office instructions and the Superintendents of Police are still in the habit of awarding the maximum penalty of dismissal or removal from service in desertion cases after taking them for duty. This action is unfair, cannot be justified and consequently cannot be accepted. 4) Hence, it is reiterated that when a Head Constable/Police Constable is struck off as a deserter, notice is to be 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 can be imposed and these guidelines should be strictly followed while dealing with desertion cases. 5) The above instructions should be scrupulously followed and there should not be any violation. If any deviation is found it will be viewed adversely. 6) The receipt of the Chief Office Memo should be acknowledged forthwith. Sd/-P.Rajendran Director General of Police 3. The original order of dismissal by the 3rd respondent, as well as the order of the Director General of Police modifying the punishment into one of the Compulsory Retirement, is in clear violation of the Circular issued by the Director General of Police. Likewise, the Director General of Police himself had violated his own proceedings by modifying the original punishment into one of the Compulsory Retirement. 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. Likewise, the Director General of Police himself had violated his own proceedings by modifying the original punishment into one of the Compulsory Retirement. 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 both the original punishment, as well as the modified punishment, are not only disproportionate to the impugned charges, but also violative of the procedure contemplated for imposing punishments in the aforesaid circulars." 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, the High 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 as follows:- “11. Next point to be considered is proportionality of punishment. For the absence of 21 days, Petitioner was awarded punishment of dismissal from service. Placing reliance upon AIR 1994 SC 215 (Union of India and others v. Giriraj Sharma); (1996) 7 SCC 634 (Malkiat Singh v. State of Punjab and others); (1999) 9 SCC 86 (Syed Zaheer Hussain v. Union of India and others) and (2006) 4 MLJ 1008 (J.Patric v. Government of Tamil Nadu, rep. by its Secretary, Home (Pol.VI) Department, Chennai and others), learned counsel for the Petitioner contended that in cases where the punishment imposed is disproportionate to the charge, court can set aside the same or modify the punishment based on the facts and circumstances of the case. 12. On the other hand, learned Government Advocate would submit that as far as the Petitioner is concerned, it was not an isolated case of desertion for 21 days. 12. On the other hand, learned Government Advocate would submit that as far as the Petitioner is concerned, it was not an isolated case of desertion for 21 days. But he was in the habit of deserting habitually and therefore, punishment of dismissal from service came to be passed. 13. According to the Petitioner, he was unwell and hospitalised and his family members could not inform the higher officials about his ill-ness and his absence was not deliberate. Charges framed for absence for 21 days. 14. In AIR 1996 SC 484 : 1995 (6) SCC 634 (B.C.Chaturvedi v. Union of India and others), the Hon'ble Supreme Court has decided the question as to whether Tribunal was justified in interfering with the punishment imposed by the disciplinary authority by referring to various Judgments to the effect that it is for the disciplinary authority who has to imposed penalty and normally Tribunal or High Court should not interfere. Supreme Court has further held that in cases where punishment shocks the conscience of the High Court or Tribunal, the High Court or Tribunal can either direct the disciplinary authority to reconsider the penalty or to shorten the litigation in exceptional cases and in rare cases imposed an appropriate punishment. 15. In this aspect, Hon'ble Supreme Court has laid down the law as follows:- “..... A review of the above legal position would establish that the disciplinary authority, and on appeal the appeallate 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.” 16. In AIR 1994 SC 215 (Union of India and others v. Giriraj Sharma), Government Servant over stayed the leave period subsequent to the order of rejection of application for explanation of leave. In AIR 1994 SC 215 (Union of India and others v. Giriraj Sharma), Government Servant over stayed the leave period subsequent to the order of rejection of application for explanation of leave. Observing that there was no wilful intention to flout the order that the punishment of dismissal merely on the ground of over-staying leave period was held to be harsh and disproportionate and the Supreme Court has ordered reinstatement with all monetary and service benefits granted with liberty to visit minor punishment. 17. In (1999) 9 SCC 86 (Syed Zaheer Hussain v. Union of India and others) the deliquent Government servant was dismissed from service on the ground of unauthorised absence for 7 days. Observing that dismissal was too harsh, Supreme Court directed the Appellant to reinstate with continuity in service with all other benefits but limiting the back wages to 50% only for the period between dismissal to the date of passing of the order by the Court. In the present case, Petitioner was absent for 21 days. It is one of the clear instance where the punishment of dismissal from service is disproportionate to the charge. 18. In the result, the impugned Orders are set aside and this Writ petition is allowed. Petitioner is ordered to be reinstated into service within a period of eight weeks from the date of receipt of copy of this order. Absence period and the period after dismissal are directed to be taken as “leave on loss of pay”. However, the said period shall be taken into account for continuity of service and other benefits.”” 5. The aforesaid extract is self-explanatory. When the circular of the Director General of Police clearly indicates that the punishment of 'dismissal/removal from service' or 'compulsory retirement' should not be imposed on a delinquent for charges of desertion, the punishment of compulsory retirement is deemed to be disproportionate to the charges, as held by the Hon'ble Supreme Court and which was relied upon by this Court in the aforesaid decision. 6. The allegation against the petitioner in the first charge was that though he was passported to appear before the ADGP at 10.00 A.M. on 01.03.2005, he had failed to report before the Cheyur Police Station till 8.00 A.M. of 05.03.2005, which is a misconduct. 7. 6. The allegation against the petitioner in the first charge was that though he was passported to appear before the ADGP at 10.00 A.M. on 01.03.2005, he had failed to report before the Cheyur Police Station till 8.00 A.M. of 05.03.2005, which is a misconduct. 7. The defence taken by the petitioner is that he had appeared before the ADGP at 9.00 A.M. on 01.03.2005 and owing to the non-availability of the ADGP in his office, he had waited there till about 9.00 P.M., to of no avail. On the next day, he claims to have appeared before the Cheyur Police Station on 02.03.2005 at 10.00 A.M., but was not permitted to report for duty on the ground that he had to obtain orders from the ADGP. In this background, the petitioner had given representations to the ADGP and the Superintendent of Police, Coimbatore, seeking for permission to discharge his duty, which representations were duly received by both the ADGP and the Superintendent of Police on 05.03.2005 and 07.03.2005. While that being so, he had received a charge memo dated 03.03.2005, on 17.03.2005, for charges of desertion and refusal to receive the order of desertion. When the petitioner herein had challenged this charge memo, dated 03.03.2005, before this Court in W.P.No.11112 of 2005, an order of interim stay was initially granted and ultimately by a common order, dated, 18.08.2011, the charge memo came to be quashed. 8. The respondent, in paragraph Nos.18, 21, 22 and 23 of their counter affidavit, have admitted the fact that the petitioner had appeared before the ADGP on 01.03.2005, but had not waited for further instructions. It is in the strength of this statement that the first limb of the (impugned) charges were framed. The charge in this regard is contradictory to the statement made by the respondent in their counter affidavit. In other words, while the charge goes to state that the petitioner had not reported before the ADGP on 01.03.2005 at 10.00 A.M., which gave a cause of action for the second charge of desertion, the counter affidavit admits the statement of the petitioner that he had reported before the ADGP on 01.03.2005, but had failed to wait for further instructions. 9. In normal circumstances, when facts relating to the delinquency is disputed, it would be appropriate to subject the delinquent to establish such disputed facts during the course of inquiry. 9. In normal circumstances, when facts relating to the delinquency is disputed, it would be appropriate to subject the delinquent to establish such disputed facts during the course of inquiry. But, by taking note of the fact that the respondent themselves had admitted that the petitioner herein had reported before the ADGP's office on 01.03.2005 at 10.00 A.M., the very basis on which the charge has been laid in this regard, become unfounded. Thus, subjecting the petitioner to undergo the ordeal of a disciplinary inquiry would not only cause further prejudice to the petitioner, but would also be a futile exercise in view of the admitted facts by the respondent in their counter affidavit with regard to the petitioner's appearance in the ADGP's office on the concerned date. 10. Though the first charge of delinquency relates to the petitioner's non-appearance before the ADGP on 01.03.2005, the counter affidavit now seems to state that though the petitioner herein had appeared before the office of the ADGP on 01.03.2005, he had failed to wait for further instructions, which amounts to insubordination and indiscipline, which cannot be dealt with leniently. Incidentally, the charge against the petitioner does not refer to such insubordination or indiscipline nor does it make a reference to the petitioner's absence in the ADGP's office on the concerned date. It is settled proposition of law that the charges against the delinquent cannot be further improved by way of statements made in the counter affidavit. Thus, the reason adduced by the respondent in the counter affidavit, that the alleged failure to wait for further instructions at the office of the ADGP would amount to insubordination and indiscipline, would amount to improvement of the levelled charges, which is impermissible in law and on this ground also, the consequential inquiry as well as the punishment, cannot be sustained. 11. As stated above, the second charge of desertion against the petitioner arises from the delinquency of the petitioner's alleged non-reporting before the ADGP's office on 01.03.2005. Since I have already held that a charge of desertion cannot result in a punishment of compulsory retirement from service and also that the respondent themselves have admitted the petitioner's appearance before the ADGP on 01.03.2005, which is contrary to the first charge of delinquency, the consequential impugned punishment of compulsory retirement cannot be sustained. 12. Since I have already held that a charge of desertion cannot result in a punishment of compulsory retirement from service and also that the respondent themselves have admitted the petitioner's appearance before the ADGP on 01.03.2005, which is contrary to the first charge of delinquency, the consequential impugned punishment of compulsory retirement cannot be sustained. 12. However, on a cojoint reading of both the charges against the petitioner, the charge of unauthorised absence cannot be left unnoticed. The Circular of the Director General of Police, dated 06.12.2007, as extracted in the preceding paragraphs, indicates that in cases of such unauthorised absence, a lesser punishment instead of removal/dismissal from service/compulsory retirement can be imposed. 13. In the light of the decision of this Court in the case of Arumugam (supra), wherein, the Circular of the Director General of Police, as well as the decisions of the Hon'ble Supreme Court were relied upon, I am of the view that if the petitioner's salaries for the period of his absence is withheld, without affecting the continuity of his service as well as other service benefits, the ends of justice could be secured. 14. In the result, the impugned order, dated 10.04.2013, insofar as it imposes the punishment of compulsory retirement is concerned, is set aside. Consequentially, there shall be a direction to the respondent herein to pass orders, modifying the punishment imposed on the petitioner into one, withholding the arrears of salary for the period of the petitioner's absence in connection with the delinquency under the charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 in PR No.70/2005 of Coimbatore District (now PR No.25/2012 of Tiruppur District), within a period of four (4) weeks from the date of receipt of a copy of this order. The respondent herein shall pass such orders together with orders for reinstatement, together with continuity of service and other service benefits. 15. The Writ Petition stands thus allowed. There shall be no order as to costs. Consequently, connected miscellaneous petition stands closed.