J. PALANI Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) The petitioner herein seeks for issuance of a writ of certiorarified mandamus to call for the records of R-5 passed in his C. No. PR88/GI/2004, dated 02.02.2005, imposing a punishment of compulsory retirement from service and consequential order passed by R4 in his Rc.N.B2/173/3324/2005, AP 27/B1/2005 dated 02.05.2005 and the consequential order of R3 passed in his Rc. No. 620/158030/PR.2(2)/2005 dated 10.10.2005 and the consequential order passed by R2 in his Rc. No. 974/234701/PR.2(2)/2005 dated 04.01.2006 and further consequential order passed by R1 in G.O.(2D) No. 563/Home (Pol.VI) Department, dated 26.09.2006, confirming the punishment and quash the same and direct the respondents to reinstate the petitioner in service with all consequential monetary and service benefits. Mr. Ravishanmugam, learned counsel appearing for the petitioner, would submit that the petitioner, while serving as Grade-I Police Constable in Mathur Police Station, was served with a Charge Memo in P.R. 88/2004, dated 02.06.2004 under Rule-3(b) of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules (hereinafter referred to as the 'Rules') on the allegation that from 29.03.2004 to 18.04.2004, for 21 days, he had absented himself from duty without any leave application or permission and thereby, he became a deserter. Unfortunately, during the course of oral inquiry conducted by the Deputy Superintendent of Police (DSP), Pargur, the said Officer/DSP failed to examine the prosecution witnesses mentioned in Annexure-IV of the charge memo for the reason that the petitioner had dispensed with the examination of those witnesses. According to the learned counsel, Rule-3(b) of the Rules makes it abundantly clear that evidence shall be recorded during the oral enquiry for the charges not admitted by the delinquent, therefore, when the petitioner denied the allegations levelled against him, even if he did not opt for examination of the prosecution witnesses, it is the duty of the Enquiry Officer to record the evidence during the oral enquiry, but, without scrupulously following the procedure prescribed in the Rules, a perverse finding was recorded by the Enquiry Officer in his report dated 11.10.2004 holding that the charge was proved. Based on the findings of the Enquiry Officer/DSP, Pargur, R-5/Superintendent of Police (SP), Krishnagiri, passed the order of compulsory retirement from service on 02.02.2005. Aggrieved by the grave punishment of compulsory retirement from service, the petitioner filed an appeal petition on 08.04.2005 by taking a ground that the impugned order of compulsory retirement from service is against the Circular Memorandum issued by the Inspector General of Police (Law and Order) in Rc. No. 243881/AP I(1)/90, dated 30.10.1990, wherein, it is stated that when a Head Constable/Police Constable is struck off as a deserter, notice has to be issued directing the delinquent to appear before the Superintendent of Police within two months, whereupon, when the deserter appears, the SP 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. The Circular Memorandum further reads that if the SP is not satisfied, the delinquent should not be taken for duty and if, on the other hand, the SP is satisfied, he can be taken for duty and, in such cases, while disposing of P.R.s, punishment of removal/dismissal from service or compulsory retirement should not be given, however, any other punishment is acceptable. On the strength of this Circular, the learned counsel would add that the present impugned order of compulsory retirement passed against the petitioner runs absolutely contrary to the guideline drawn in the Circular. That is why, based on the said Circular, the petitioner made a plea in the Appeal to allow his prayer by setting aside the impugned order, but, R-4/appellate authority rejected the appeal by order dated 02.05.2005 by simply confirming the punishment of compulsory retirement without even considering the fact that the petitioner was taken back to duty and that the period of absence involved was also a very short duration of three weeks. As against the above order passed in the appeal petition, the petitioner filed a Mercy Petition on 20.05.2005 before the Additional Director General of Police, Law and Order, Chennai-4, however, the said Mercy Petition was also dismissed by way of a non-speaking order on 10.10.2005. Consequently, another petition was submitted before R2/Director General of Police (DGP), Chennai, and by order dated 04.01.2006, the said Authority also dismissed the petition, again, by way of a non-speaking order. Ultimately, the petitioner filed a petition before the Government and, by G.O.(2D) No. 563/Home (Pol. VI) Department, dated 26.09.2006, the case of the petitioner was rejected, thereby, he was put to great prejudice and irreparable loss.

(2.) Per contra, learned Additional Government Pleader would submit that none of the submissions of the learned counsel for the petitioner would in any way help the petitioner for the simple reason that the petitioner's case of desertion is not a solitary instance but he is a chronic deserter on about 5 occasions and viewing in that perspective, this Court can visualize that the Authorities in fact leniently dealt with the case of the petitioner by imposing only a punishment of compulsory retirement and further, there is no scope of remand by applying the ratio laid down in the various decisions referred to by the learned counsel for the petitioner since those decisions are distinguishable on facts and the present case relates to habitual desertion on the part of the petitioner/delinquent. So pointing out, he prayed for dismissal of the writ petition.

(3.) I have carefully considered the rival submissions advanced on either side.