@JUDGMENTTAG-ORDER
N. Paul Vasanthakumar, J.@mdashThe prayer in the writ petition is to quash the order of the first respondent issued in G.O.(2D) No.349 Police Department, dated 14.6.2006, confirming the order of the second respondent dated 14.2.2004, which in turn confirmed the order of the third respondent dated 2.5.2000 compulsorily retiring the petitioner and direct the respondents to reinstate the petitioner in service with all benefits.
2. The brief facts necessary for disposal of the writ petition are as follows:
(a) Petitioner was selected and appointed as Grade-II Police Constable in the year 1985 and posted at Railway Police Station. He was transferred to Armed Reserve in the year 1988 and subsequently transferred to Law and Order wing.
(b) While the petitioner was working in the Law and Order Wing, he was posted at Gangavalli Police Station in December, 1998 and he availed weekly off on 4.6.1999 and he had to return to duty on 5.6.1999. Due to sudden chest pain petitioner could not report for duty on 5.6.1999 and he took treatment from the Government General Hospital.
(c) Petitioner applied for medical leave from 5.6.1999 to 29.6.1999 due to his ill-health. The said leave was extended from 29.6.1999 for 25 more days. According to the petitioner the Station House Officer refused to receive the letter seeking leave and therefore petitioner sent the leave application by post.
(d) On 16.9.1999 petitioner met the third respondent and produced medical certificate and fitness certificate and requested permission for reporting to duty. Third respondent directed the petitioner to meet the Deputy Superintendent of Police, Athur and the petitioner met the said officer on 17.9.1999. However no posting order/permission was given to the petitioner.
(e) On 6.3.2000 a charge memo was issued to the petitioner stating that the petitioner unauthorisedly absented from 5.6.1999 and availed medical leave for 29 days without proper passport. The second charge was that he has unauthorisedly absented from 30.6.1999 and therefore he has deserted the police force.
(f) Domestic enquiry was conducted by the Deputy Superintendent of Police, who gave a report holding that the charges were proved. The petitioner was directed to submit his remarks regarding the findings given by the Enquiry Officer, which was also submitted by the petitioner stating that the Enquiry Officer has not considered the medical certificates produced by the petitioner and due to his illness only he could not report for duty. However, the third respondent by order dated 2.5.2000 passed an order compulsorily retiring the petitioner from service.
(g) Petitioner preferred an appeal/review before the second respondent, which was rejected on 14.2.2004, i.e, after about four years. Petitioner filed mercy petition before the third respondent, which was also rejected in G.O.(2D) No.349 Home (Police) Department dated 14.6.2006, i.e, after about 2= years.
(h) The said orders are challenged in this writ petition on 10.1.2007 on the ground that due to sudden chest pain petitioner took treatment initially as an outpatient on 5.6.1999 and after experiencing prolonged pain, he opted for medical leave with medical certificate for 25 days from 5.6.1999 and the said leave was not rejected and therefore the petitioner cannot be treated as unauthorisedly absented from duty; that for medical leave a person can submit leave application while reporting for duty and prior sanction is not always required; that the petitioner extended the leave because of his continued ill-health and the respondents have not passed any order as to the genuinity of the petitioner''s medical leave, and that no finding was given to the effect that the medical certificates produced by the petitioner is not genuine or cannot be accepted for any reason; that the Enquiry Officer failed to appreciate the above facts and a finding was given without application of mind in respect of two charges; and that, the above said facts were pointed out before the third respondent while submitting the reply to the show cause notice which was not appreciated by the third respondent, second respondent and first respondent while passing the impugned orders. In any event, the punishment imposed is highly disproportionate even if the charges were proved.
3. The respondents have filed counter affidavit contending that the petitioner entered into medical leave on 5.6.1999 to 29.6.1999 without getting sick passport from the superior officer, which is in violation of the Police Standing Order Vol.I Order No.272, which states that all subordinate police officers, who proceed on leave should communicate to his immediate superior and keep him informed of any change of address and no police officer may proceed on leave without sanction of leave. Circulars to that effect is also given to the Station House Officers. The petitioner having not intimated the fact of his sickness to his immediate superior officer, he is not entitled to proceed on leave and after 30.6.1999, extension of leave application on medical grounds from 30.6.1999 was refused to be received by the Station House Officer is not true. The petitioner appeared before the Superintendent of Police Crime on 15.9.1999 with medical certificate seeking leave from 30.6.1999 to 15.9.1999 along with fitness certificate on 16.9.1999. There is variation among the certificates issued by the Medical Officer. The petitioner having not reported for duty for more than 21 days he was treated as a deserter in accordance with the Police Standing Order Vol.I, Order NO.88 (Old edition)(No.95 New Edition) by order dated 15.2.2000 and he was dealt with charges framed under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, in P.R.No.11/H3/2000, for which oral enquiry was conducted on 25.3.2000 and the enquiry officer submitted his report on 27.3.2000. Petitioner was given opportunity to cross-examine the prosecution witnesses. However, petitioner refused to cross examine the prosecution witnesses. Petitioner submitted his explanation/remarks to the enquiry officer''s report, however failed to give any further representation. Thereafter the impugned order of punishment was passed by the third respondent on 2.5.2000. The review preferred was rejected by the second respondent and the mercy petition was also dismissed by the Government. As per the counter affidavit petitioner sent his medical leave application for the period from 5.6.1999 to 29.6.1999 and no extension of leave was applied for to his superior officer and on 16.9.1999 petitioner appeared before the Superintendent of Police, Salem with fitness certificate and therefore he was treated as a Deserter.
4. Mr. C. Selvaraju, learned Senior Counsel appearing for the petitioner submitted that the petitioner having suffered chest pain availed leave for taking treatment and leave application was initially given for 25 days and thereafter it was extended with medical certificate. The leave application having not been rejected, the question of desertion as contended by the respondents in the charge memo and counter affidavit will not arise. The learned Senior Counsel also submitted that the petitioner, even if found to be deserted for the first time, he cannot be imposed with major penalty of compulsory retirement as per the circular issued by the Director General of Police in the year 2005 and the punishment imposed is highly disproportionate to the gravity of the charges.
5. The learned Additional Government Pleader on the other hand submitted that the petitioner having violated the Police Standing Orders as stated in the counter affidavit, was issued with charge memo and departmental enquiry was conducted in which the petitioner fully participated. The Enquiry Officer gave a finding and the same is not a perverse finding, which was accepted by the disciplinary authority and imposed the punishment of compulsory retirement, which was confirmed by the appellate authority in appeal and by the Government in review. There is no illegality in the said impugned orders.
6. During the course of the arguments the learned Senior Counsel prayed for production of entire file before this Court for perusal, pursuant to which the file was produced by the learned Additional Government Pleader on 13.7.2011.
7. I have considered the rival submissions of the learned Counsel on either side and perused the file.
8. In the file produced by the respondents among other documents, the following documents are also available:
(a) Leave application of the petitioner dated 22.6.1999 (at page No.43 of the file) stating that from 5.6.1999 he was suffering from chest pain and he took treatment from Government Hospital at Suramangalam, Salem District.
(b) Medical certificate issued by the Medical Officer (at page No.45 of the file) advising the petitioner to go on leave from 5.6.1999 to 30.6.199.
(c) Leave application dated 16.9.1999 (at page No.47 of the file) submitted by the petitioner before the Superintendent of Police, Salem District with medical certificate recommending leave from 30.6.1999 to 24.7.1999. The medical Certificate is found at page No.49 of the file.
(d) Medical Certificate dated 25.7.1999 suggesting to take leave for the period from 25.7.1999 to 31.8.1999 (page No.51).
(e) Medical Certificate dated 1.9.1999 for the period from 1.9.1999 to 15.9.1999 (page No.53)
(f) Fitness certificate to return to duty dated 15.9.1999 (at page No.55)
(g) Petitioner''s representation dated 7.2.2000 addressed to the Superintendent of Police, Salem, requesting permission to report for duty (at page No.57).
(h) The Assistant Commissioner of Police, Athur, issued a memo on 8.10.1999 for not sending the petitioner''s leave letter to the second respondent and the said memo is found at page No.161 of the file.
From the above materials available in the file it is evident that the petitioner was suffering from chest pain and he was taking treatment and submitted leave application and application for extension of leave. The file nowhere contains any order rejecting the leave application of the petitioner. Thus, the petitioner cannot be termed as an unauthorised absentee from 5.6.1999 to 30.6.1999, though he had not obtained prior permission before availing the leave.
9. As rightly contended by the learned Senior Counsel for the petitioner, getting prior sanction of medical leave before availing the same is not possible at all times as sickness may arise at any time and before reporting for duty medical certificate can be submitted supported with medical leave application for having taken medical treatment. Thus, the third respondent is not justified in initiating proceedings against the petitioner regarding Charge No.1.
10. As far as Charge No.2, the leave application was submitted after 75 days from 30.6.1999, i.e, on 16.9.1999. The petitioner having produced medical certificates and submitted leave applications, though at a later state, the third respondent ought to have considered the said certificates. Even otherwise, petitioner served in the Police Department for about 14 years and in the counter affidavit no previous delinquency of the petitioner is stated. Thus, the learned Senior Counsel is justified in contending that the punishment imposed is disproportionate to the gravity of the charges of unauthorised absence from 1.7.1999.
11. Whether for unauthorised absence a police person can be dismissed from service was considered by the Honourable Supreme Court in the decision reported in
12. The above said decisions were followed by me in W.P. No. 3984 of 2006, dated 16.07.2010. In the said order the Circular issued by the Director General of Police in AP- 1(1)/223597/2005, dated 02.11.2005 was considered, wherein it is stated that desertion once may be accepted, and repeated desertion should not be accepted.
13. The Division Bench of this Court in W.A(MD) No.388 of 2008, dated 21.10.2009, also interfered with the punishment of dismissal of a police constable on the ground of unauthorised absence by imposing a reduced punishment of stoppage of increment for two years without cumulative effect for the proved charges.
14. The Honourable Supreme Court in the decision reported in
24. Dealing with the question of proportionality with regard to punishment in disciplinary matters, the Court said:
32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of "proportionality". There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to "irrationality", there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in "outrageous" defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain "Ranjit Thakur v. Union of India (Supra).
33. In Ranjit Thakur v. Union of India (Supra) this Court interfered with the punishment only after coming to the conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, Wednesbury and CCSU tests were satisfied. In another case, in
18.... The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
Similar view was taken in
34. In such a situation, unless the Court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi v. Union of India(supra) case that the Court might - to shorten litigation - think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. (In B.C. Chaturvedi v. Union of India (supra) and other cases referred to therein it has however been made clear that the power of this Court under Article 136 is different.) For the reasons given above, the case cited for the respondent, namely, State of Maharashtra v. M.H. Mazumdar cannot be of any help.
25. Again, in the case of
17.So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by Courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a Court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the "doctrine of proportionality.
18."Proportionality" is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise the elaboration of a rule of permissible priorities.
19. DE SMITH states that "proportionality" involves "balancing test" and "necessity test." Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to be least restrictive alternative. (JUDICIAL REVIEW OF ADMINSTRATIVE ACTION (1995), pp. 601-05, para 13.085; see also WADE & FORSYTH: ADMINSTRATIVE LAW (2005), p. 366.)
20. In HALSBURY''S LAWS OF ENGLAND (4TH Edn.) Reissue, Vol. 1(1), pp. 144- 45, para 78, it is stated:
The Court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior Courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English Courts where European law is enforceable in the domestic Courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground for review in English law, but is regarded as one indication of manifest unreasonableness.
21. The doctrine has its genesis in the field of Administrative Law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no "pick and choose", selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a "Sledgehammer to crack a nut." As has been said many a time; "where paring knife suffices, battle axe is precluded."
22. In the celebrated decision of Council of Civil Service Union v. Minister for Civil Service (1985) AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL) LORD DIPLOCK proclaimed: (ALL ER p.950 h-j)
Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ''illegality", the second ''irrationality'' and the third ''procedural impropriety''. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ''proportionality''...."
(Emphasis supplied)
23. CCSU has been reiterated by English Courts in several subsequent cases. We do not think it necessary to refer to all those cases.
24. So far as our legal system is concerned, the doctrine is well settled. Even prior to CCSU, this Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a Court to interfere with such penalty in appropriate cases.
25. In
It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner.
(Emphasis supplied)
The Court concluded that the punishment imposed on the workmen was
Not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed.
(Emphasis supplied)
26.The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company''s Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the respondent No.1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months." Thus, it is evident that for unauthorised absence or desertion, punishment of dismissal or compulsory retirement is too harsh. The impugned order was passed on 2.5.2000 and the petitioner is eligible to get pension from 2.5.2000 i.e, 50% salary and he is now aged 53 years.
15. A Division Bench of this Court in the case of one R. Ramesh, who deserted work thrice, in W.A. No.58 of 2011 by judgment dated 27.1.2011, set aside the order of the learned single Judge upholding the order of termination of police person and remitted the matter to the Director General of Police for reconsideration with regard to the quantum of punishment. On remand, the Director General of Police modified the punishment by imposing the punishment of postponement of one increment for two years.
16. The petitioner''s mercy petition filed on 23.9.2002 before the Government was forwarded to the second respondent and the second respondent treated the same as a review filed under Rule 15A of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, and passed a cryptic order, which states as follows:
I have gone through the petition and connected records. No fresh point has been raised for consideration. Petition is rejected.
The petitioner raised several points for consideration in five pages. The said order passed is not in compliance with Rule 15A(3) which reads as follows,
15-A(3) An application for review shall be dealt with in the same manner as if it were an appeal under these rules.
How the appellate authority shall consider the appeal is stated in Rule 6 of the said Rules.
17. How the appellate authority shall consider the appeal and pass orders in appeal is decided by a Division Bench of this Court in the decision reported in 2008 WLR 86 (The Joint Commissioner of Police & Another v. G. Anandan). In the said order the order of the appellate authority was set aside with a direction to pass fresh orders by complying with Rule 6.
(a) The Supreme Court in the decision reported in
3. Having heard the parties, we are satisfied that in disposing of the appeal the Director General has not applied his mind to the requirements of Rule 27(2) of the Rules, the relevant provisions of which read as follows:
27. (2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said Rules, the appellate authority shall consider:
(a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders
(i) confirming, enhancing, reducing, or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.
4. The word "consider" in Rule 27(2) implies "due application of mind". It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.
5. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside."
(b) The above decision was followed by the Supreme Court in its latter judgment reported in
(c) Another Division Bench of this Court in 2004 (3) LW 32 (M.Nagarajan & Others v. The Registrar, High Court, Madras-600 104 and another) following the above referred decision in
(d) In
18. In the light of the above findings, the orders passed by the respondents 1 and 2 are set aside and the matter is remitted to the second respondent to consider the review petition which was entertained by the second respondent as review and pass fresh orders in compliance with Rule 15A read with Rule 6 of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, within a period of eight weeks from the date of receipt of this order.
