@JUDGMENTTAG-ORDER
K.B.K. Vasuki, J.@mdashThe writ petition is filed against the removal order dated 18.04.2006 passed by the then Superintendent of police Nagapattinam confirmed by Director General of Police and the Deputy Inspector General of Police Thanjaur Range in their orders dated 12.6.2008 and 02.04.2009 respectively to quash the same and to consequentially direct the Respondent to reinstate the Petitioner in service and other attendant benefits.
2. The Petitioner while in service as Grade-I police constable in Vellipalayam Police Station, Nagapattinam absented from duty for more than 21 days between 22.01.2005 to 11.02.2005 without any leave letter or permission and he was consequently declared as deserted and removed from service by the 1st Respondent in his proceedings dated 05.04.2006 and the same was received by the Petitioner on 13.04.2006. Aggrieved against which the Petitioner preferred an appeal to the 3rd Respondent and mercy petition filed to the Director General of Police and mercy petition was dismissed on 12.06.2008 and the appeal is also consequently rejected. The Petitioner has now come forward with this writ petition thereby challenging the removal order dated 18.04.2006 passed by the 1st Respondent.
3. According to the learned Counsel for the Petitioner the absence of the Petitioner for the period in question is not without applying for leave or without obtaining any permission and the leave letter sent by him was refused to be received by the Sub Inspector in-charge of the concerned Police station and the absence is also due to his serious ill health and the impugned order is also passed without considering the medical records and without considering the circumstances under which the Petitioner was absent from his duty. It is further contended by the learned Counsel for the Petitioner that the punishment of removal from service is also disproportionate to the misconduct alleged against the Petitioner.
4. On the contrary, the learned Additional Government pleader representing the Respondents has seriously opposed the Petitioner''s claim for his reinstatement mainly on the ground that the Petitioner being chronic deserter deserves no indulgence and the punishment for removal from service is just and reasonable in the given circumstances.
5. I have considered the rival submissions made on both sides and perused the records.
6. The fact that the Petitioner absented himself from duty for more than 21 days from 22.01.2005 to 11.02.2005 is not seriously disputed. It is true that the Petitioner has obtained some medical certificate on 22.01.2005 from one Dr. T. Veeramuthu at Karaikal who advised him to be absent from duty for 38 days w.e.f 22.01.2005 for restoration of his health. But there is absolutely no record available herein to show that the Petitioner has duly applied for leave in the prescribed form along with the medical certificates as above referred to. The CT scan requisition and the certificate issued by telegraph office for addressing telegram to the Inspector General of police on 02.10.2004 and courier receipt for sending some document to the same Inspector General of police on 15.10.2004 with an endorsement "party refused to receive" as rightly pointed out by the learned Additional Government Pleader does not refer to the period of absence in question.
7. The proceedings of the Deputy Superintendent of Police, Nagapttinam the copy of which is enclosed at Pages 5 to 9 of the typed set of papers would reveal that the absence of the Petitioner is reported to the Superintendent of police and the Petitioner was declared as deserter and the same was also intimated to the Inspector of Police, Velipalayam Police station and the consequential order dated 17.02.2005 is also served upon the Petitioner with further direction issued to him to appear before the Superintendent of police to submit his explanation within 60 days from the date of receipt of copy of the order. On his failure to do so, the order declaring him as deserter is confirmed by the Superintendent of police on 31.08.2005 and the same is also served on the Petitioner on 12.09.2005 and thereafter the charge memo is issued to the Petitioner on 16.11.2005 for his absence for more than 21 days as mentioned herein. The Petitioner has, on receipt of the same, submitted his explanation on 27.12.2005 and the same is followed by oral enquiry in the course of which the Sub Inspector of Police Vellipalayam Police Station and the Assistant District Police Department, Nagapattinam were examined as witnesses 1 and 2 and the Petitioner/delinquent did not cross examine the prosecution side witnesses and did not examine any witness on his side and the same is followed by the enquiry report dated 31.01.2006 holding the charges as proved against the Petitioner. The removal order dated 05.04.2006 which is impugned herein cameto be passed only on the basis of the enquiry report and the name of the Petitioner is directed to be struck off from the district strength w.e.f. 30.04.2006 and the same is also intimated to the Petitioner on 18.04.2006.
8. The Petitioner has admittedly not approached the statutory appellate authority but has filed mercy petition on 01.08.2007 before the Director General of Police and the same was rejected on the ground that the Petitioner is chronic deserter as per his past history and after rejection of the mercy petition he approached the appellate authority and the appellate authority has also by reason of the rejection of his mercy petition by Director General of Police rejected the appeal. The perusal of order dated 12.06.2008 and order dated 02.04.2009 passed by the Director General of Police and the Deputy Inspector General of Police as above referred to would disclose that both the orders are totally non speaking order.
9. Be that as it may, the original removal order passed by the 1st Respondent/Superintendent of Police, Nagapattinam is as rightly argued by the learned Counsel for the Petitioner liable to be rejected mainly on the ground that it is in violation of principles of natural justice and contrary to the well established procedure laid down under law. It is true that the Petitioner did not avail the pre-departmental enquiry opportunities given to the Petitioner and departmental enquiry is held against the Petitioner after giving due opportunity to the Petitioner to defend himself and the findings of the enquiry officer dated 30.01.2006 holding the charges as proved is forwarded to the 1st Respondent/Superintendent of police/the disciplinary authority. But the Disciplinary authority has immediately passed the impugned order of removal of service and the order of removal of service is not preceded by any show cause notice along with the copy of the enquiry report issued to the Petitioner calling upon him to submit his explanation.
10. As rightly argued by the learned Counsel for the Petitioner, the impugned order to that extent is totally vitiated. It is well laid down legal principle that the failure to issue show cause notice along with enquiry report amounts to gross violation of principles of natural justice and the same renders the impugned order of removal of service perse illegal and without jurisdiction.
11. Though, the validity of the removal order was questioned by the Petitioner belatedly before the appellate authority and the revisional authority, the authorities concerned have also failed to consider this aspect and proceeded to confirm the order that too by way of totally non speaking order. Neither the Director General of Police nor the 3rd Respondent/Deputy Inspector General have assigned any reasons much less valid reason for confirming the removal order. As a matter of fact the 3rd Respondent who is an appellate authority rejected the appeal petition mainly by reason of rejection of mercy petition by the Director General of Police. Such order of the 3rd Respondent is not only non speaking in nature but is also not based on merit.
12. That being the manner in which the punishment of removal from service imposed on the Petitioner the same is want of opportunity given to the Petitioner is liable to be set aside. However that will not preclude the authority concerned to proceed from the stage at which it is held to be vitiated.
13. In the result, the impugned order is set aside and the Respondents are directed to reinstate the Petitioner with continuity of service and monetary benefit and with liberty given to the 1st Respondent to pass final order in the disciplinary proceeding initiated against the Petitioner after sending him due notice along with the copy of the enquiry report and after giving due opportunity to submit his explanation and subject to the out come of the same the Petitioner is permitted to avail further statutory and legal remedy, if any.
14. The writ petition is accordingly ordered. No costs. Consequently, connected miscellaneous petition is closed.
