M BASKAR Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) The petitioner was originally recruited as Grade II Police Constable on 14.07.2002. After initially serving in Tamil Nadu Special Police IV battalion, Kovaipudur, he was transferred to City Armed Reserve, Coimbatore. While serving in City Armed Reserve, the petitioner fell ill on 04.05.2008 and therefore, he was absent and did not attend duty for some time. According to the petitioner, he had informed one of his colleagues about the reason for his absence. According to him, when he was ill, at the same time, his mother also fell ill and was suffering from paralytic stroke. Therefore, he had to rush to his native place to look after his mother. In view of his absence, the petitioner was declared a deserter by Deputy Commissioner of Police, based on the report of the duty Sub-Inspector, who made an endorsement with reference to the absence of the petitioner from 04.05.20008. The declaration of deserter was by proceedings dated 12.06.2008. Thereafter, the petitioner was issued with charge memo under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules on 06.09.2008, for the act of desertion and absence without leave or permission for a period of 21 days from 04.05.2008. On receipt of the charge memorandum, the writ petitioner submitted his explanation on 22.09.2008, explaining the reasons as set out above for his absence. Not satisfied with the explanation, an enquiry was ordered and in the enquiry also, the petitioner had explained about his illness and other family circumstances, which forced him to remain absent for some time. However, without appreciating the explanation given by the petitioner, the enquiry officer submitted his report holding the charge as proved on 07.11.2008. The petitioner filed the objection to the enquiry report on 29.01.2009. But the disciplinary authority accepted the findings of the enquiry officer's report and imposed punishment of removal from service by an order dated 18.02.2009, which was served upon the petitioner on 08.03.2009.

(2.) While the petitioner was contemplating of filing an appeal against the order of penalty dated 18.02009, the 2nd respondent took suo motu review and confirmed the punishment. However, the petitioner submitted an appeal to the Commissioner of Police, the 2nd respondent herein against the 1st respondent's punishment order. Since the 2nd respondent already reviewed the order, he forwarded the same to the 3rd respondent. The 3rd respondent confirmed the order of the 1st respondent and refused to interfere with the punishment by order dated 10.11.2009. The order of the disciplinary authority dated 18.02009 as confirmed by the 3rd respondent on 10.11.2009 is the subject matter of challenge in this Writ Petition.

(3.) Mr.K.Venkataramani, learned senior counsel appearing for the petitioner would inter alia contend that apart from various infirmities in the conduct of the enquiry against the petitioner and also the orders by the disciplinary authority as well as the other higher authorities, the punishment of removal from service as such is grossly disproportionate to the gravity of misconduct alleged against the petitioner. According to the learned senior counsel, this Court, in a number of cases, by Single judge as well as by Division Bench, have held that punishment of removal from service for the misconduct of desertion was disproportionate and interfered with such punishment and modified the same into one of minor penalty or in some cases the matter was remanded back to the authority for imposition of minor penalty.