T. SURESH KUMAR Vs. COMMANDANT

JUDGEMENT

(1.) The petitioner prays for the issuance of a Writ of Certiorari, calling for the records of the respondents 1 to 4 in connection with the impugned orders dated 11.5.1999, 3.7.2003, 7.1.2004, 17.8.2004, 13.2.2007 and 30.9.2009 respectively passed by them and to quash the same. The case of the petitioner is that the petitioner is a Grade II Police Constable and he was posted to service in XI Battalion, Rajapalayam and has been serving there without any complaint whatsoever. The petitioner was on casual leave from 31.5.1998 to 9.6.1998 for a period of 10 days. After visiting his native place, all of a sudden, he fell ill and due to stress and strain, he got himself admitted in a private nursing home and based on the recommendations of the Medical Officer, he applied medical leave for a period of 21 days from 10.6.1998 to 5.7.1998. Even after taking treatment, he was not fully recovered and hence he could not report for duty. As there was no one to help the petitioner, he could not report the matter to the higher officials, and hence he was declared as a deserter for his absence from 5.7.1998 to 31.7.1998 and he was issued with the desertion order dated 31.7.1998. On 5.8.1998, when he reported for duty before the Commandant along with the medical certificate, he was taken back for duty. Again from 19.8.1998 to 23.8.1998, he applied casual leave with permission to visit his village and he fell ill during that period, along with the medical certificate, once again he applied for medical leave from 24.8.1998 to 20.9.1998. He was not able to report for duty on 21.9.1998, as he could not recover fully from the illness. Hence once again he was declared as a deserter by orders of the Commandant on 4.12.1998. Therefore, a departmental enquiry was conducted and he was issued with a charge memo by the Enquiry Officer. The Enquiry Officer, found the charges proved against the petitioner and finally, the petitioner was removed from service by an order dated 11.5.1999 and a copy of the same was also served to the petitioner on 3.6.1999. The petitioner was issued with an order of removal of service without giving him a copy of the enquiry report. The enquiry report was not furnished to the petitioner as he did not attend the oral enquiry. Moreover, the oral enquiry which resulted in a major punishment has not been conducted in a manner known to law. It is an ex parte, enquiry without giving an opportunity to putforth the petitioner's contention after examination of the witnesses. Besides that the copy of the Enquiry Officer report which is the basis for imposing a punishment was not furnished to the petitioner. If the report had been served on him, he would have represented to the authorities concerned giving the reason for his absence and got himself imposed with a lesser punishment or total exoneration of the charges. Therefore, the petitioner has come up with the above writ petition.

(2.) I have heard Mr. Venkataramani, learned Senior Counsel representing the petitioner and Mr. Vijayakumar, learned Additional Government Pleader for the respondents. The respondent department has not filed any counter. I have also gone through the affidavit filed in support of the writ petition and other documents available on record.

(3.) The learned Senior Counsel appearing for the petitioner, at the outset, would submit that desertion order passed by the respondent department in view of the petitioner's absence from duty is illegal and his absence from duty was not deliberate. In fact, such absence for a long period, came up for consideration before this Court in a number of cases and in one case, where the petitioner therein was a Constable, who was absented for duty for a period of 21 days and suffered an order of desertion, was considered by a Division Bench of this Court in W.A. No. 58 of 2011 by an order dated 27.1.2011, held that the order of punishment was disproportionate to the charge levelled against the petitioner and in fact, it was shocking to the conscience of the Court. Therefore, the writ petition was allowed and the order impugned was set aside and the matter was remitted back to the Department for reconsideration. With regard to the quantum of punishment imposed on the petitioner therein and to take a decision. However, it was made clear therein that in the event the quantum of punishment imposed on the petitioner is reduced, he shall not make any claim with regard to the wages for the period he has not performed his duty, but the continuity in service will not be affected. Similar orders were passed in another appeal in W.A. No. 1608 of 2011 dated 26.2.2013.