K PERUMAL Vs. COMMISSIONER OF POLICE CHENNAI

JUDGEMENT

(1.) THE petitioner who was employed as a Police Constable in the Armed Reserve attached to 12th Platoon, Chennai City Police, has filed O.A.No.8759 of 2000. He challenged an order, dated 4.10.2000 wherein and by which he was imposed with a penalty of dismissal from service from the date of his desertion. THE Tribunal admitted the O.A. on 5.12.2000. In view of the abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.40859 of 2006. Till date the respondents have not filed any counter affidavit disputing the averments made by the petitioner.

(2.) THE facts leading to the filing of the petition are as follows: THE petitioner joined the service of the respondent on 17.11.1988. THEreafter, during September, 1998, he was transferred to the Armed Reserve unit at Pudupet. On 8.1.2000, his wife Sarala met with an accident. He was forced to take her to the Christian Medical Hospital at Vellore. On 9.1.2000, the petitioner informed these facts to the Reserve Inspector and had requested for grant of leave. But leave was refused. On 9.1.2000, as his wife had undergone a brain surgery, the petitioner informed the same to the third respondent. He reported for duty on 11.1.2000. THE petitioner's wife was discharged from the hospital only on 12.1.2000. She was asked to take rest and report back on 16.1.2000. THE petitioner on 15.2.2000 took her to the hospital for further treatment. On 16.2.2000, he reported for duty before the Armed Reserve Inspector. But, he was not allowed to resume duty despite intimating reasons for his absence on 15.2.2000. On 21.3.2000, he made a representation with medical certificate. However, he was given an order, dated 17.3.2000 declaring him as a deserter with effect from 15.2.2000. He was also asked to show cause by appearing before the Assistant Commissioner (AR) on 14.4.2000. On 30.3.2000, the petitioner appeared before the second respondent and made a representation to allow him for reporting for duty. He was informed that his request will be considered after the finalisation of the charges against him. THEreafter, a charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules was framed against him. He was asked to appear for an enquiry by the Assistant Commissioner (AR). He gave his explanation in 1.8.2000 intimating reasons for his absence and also told them about the accident met by his wife, who subsequently underwent a brain surgery. After the enquiry officer gave his report, a show cause notice, dated 25.8.2000 was given for which the petitioner gave his explanation on 4.9.2000. Without considering his explanation, the impugned order of punishment came to be passed by the second respondent. Challenging the same, the OA came to be filed.

(3.) IT is rather unfortunate that the respondents did not consider the plight of the petitioner whose wife was ill and was undergoing brain surgery and also the statement that he had met the Reserve Inspector as well as the Deputy Commissioner to inform them orally about the same. Mere recording the petitioner as a deserter by itself will not enable them to dismiss the petitioner. If the petitioner has valid explanation, than that should have been considered by the respondents.