S.KENNADY Vs. SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) In this writ petition, the petitioner in this writ petition has challenged the finding of guilty as well as the punishment imposed on him in a disciplinary proceedings, to be illegal and arbitrary, inasmuch as according to him, his absence from service was neither intentional nor unauthorized as he had informed the Sub-Inspector of Police attached to the respondent no.2 that for health reasons, he is proceeding on leave on 23/12/2013 and thereafter due to Cardiology problem and advice of the treating physician, he had remained absent for 20 days and on his joining, he had furnished application on 13/1/2014 to the respondent no.2, which was not forwarded and he was declared as a Deserter. Consequently, disciplinary proceeding was initiated against him. So also, according to him, the disciplinary proceeding was conducted in violation of the principles of natural justice, inasmuch as no show-cause notice was issued to him to submit his explanation/objection. Therefore, he prayed in this writ petition to quash the impugned order passed by the Disciplinary Authority and to issue writ of mandamus to reinstate him.

(2.) Controverting the aforesaid submission, the respondent no.1 has filed the counter affidavit indicating therein that since the petitioner remained on unauthorized absence from 23/12/2013, inasmuch as there was neither any leave nor any permission for the same which is for over 21 days, he was considered as Deserter and under Rule 3(b) of Tamil Nadu Special Police Subordinate Service Rules in PR.No.08/2014, charges were framed against him. An Enquiry Officer was also appointed. The petitioner was given due opportunity to defend him in the said enquiry and on conclusion of the enquiry, the Enquiry Officer has found him guilty of charge of misconduct. The petitioner was imposed with the punishment after giving him the due opportunity to show-cause against such finding of the Enquiry Officer. Therefore, the unauthorized absence of the petitioner being intentional and also there being no violation of the principle of natural justice, in conducting the disciplinary proceedings the writ petition is devoid of merit. It is also contended that since, the statutory appeal provision is available against the impugned order, but the writ petitioner without availing of the same, he has filed this writ petition the same should not be entertained and should be dismissed.

(3.) It is contended by the learned counsel appearing for the writ petitioner that there was violation of the principle of natural justice, inasmuch as the petitioner was never given due opportunity to defend him in the case and also the authority without taking into consideration the compelling reasons for which the petitioner remained absent from duty, has recorded the finding of guilt of unauthorized absence, hence the same cannot be sustained, more so, for the reason that the petitioner 's absence is not intentional but for his self-illness, i.e., Cardiology problem. Otherwise also, punishment imposed appears to be certainly disproportionate and, as such, the same is liable to be quashed and the same may be modified with any other lesser punishment, particularly considering the mitigating circumstances, i.e., the family of the petitioner is dependent on him. In support of his submission, he has relied upon the decisions of the Hon 'ble Apex Court in the case of Krushnakant B. Parmar vrs. Union of India and another, reported in 2012 (3) SCC 178 and in the case of Shri Bhagwan Lal Arya vrs. Commissioner of Police, Delhi and others, reported in 2004 (4) SCC 560.