(Prayer: Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus directing the respondents to reinstate the petitioner in service with continuity of service backwages and all other attendant benefits in pursuance of order passed by the first respondent in G.O.Ms.No.375 dated 19.05.2005.)
Prayer: Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order passed by the first respondent in his proceedings in G.O(2D)No.274 dated 03.06.2010 and quash the same as illegal and consequentially to direct the respondents to reinstate the petitioner in service with all attendant benefits.)
1. The petitioner was appointed as Police Constable and was serving under the fifth respondent. While serving at Tuticorin, he availed four days leave from 23.01.1999 to 26.01.1999. Thereafter, he went on sick leave and made an application with medical certificate for continuing his leave. The periodical extensions were came to end on 13.04.1999. From which date onwards, he was declared as a deserted by the fourth respondent in his proceeding in Na.Ka.No.D2/tpR132/99/B.O.No.385/1999, dated 09.05.1999. Pursuant to this, the fifth respondent issued a charge memo in P.R.No.46/1999, dated 18.08.1999 under Rule 3(b) of Tamil Nadu Police Subordinate Service (D and A) Rules, for having deserted from 13.04.1999 to 03.05.1999 for 21 days without any leave or permission.
2. The writ petitioner had not submitted any explanation to the charges. But on 05.10.1999, he has sent a communication to the Deputy Commandant, Tamil Nadu Special Police, IX, Battalion, Manimutharu, Tirunelveli District, requesting him to permit him to join duty after his domestic problems are over. Since the petitioner had not given any explanation to the charges, the fifth respondent has passed an order of removal from service in P.R.No.46/1999, dated 26.10.1999. Against which, the writ petitioner has made an appeal to the fourth respondent, which was rejected. Thereafter, he filed review petition and mercy petition to the 3rd and 4th respondents, which were also rejected.
3. The writ petitioner on 18.02.2002 preferred a mercy petition to the first respondent. The first respondent, after having considered the facts, has found that the order of punishment suffers infirmity due to non-furnishing of enquiry report. Therefore, he would set aside the punishment order and direct the second respondent to instruct the appointing authority on reinstatement of the petitioner to proceed further from where the infirmity passed i.e., by communicating the enquiry report to the individual and get further representation from him. There is a further direction to pass final orders after giving reasonable opportunity.
4. The writ petitioner would further state that he had been making representation for reinstatement, which is a precondition proceeding the enquiry from where the infirmity passed. But no order of reinstatement was passed by the respondents. Aggrieved by the same, the writ petitioner has filed W.P(MD)No.5265 of 2008 seeking a direction for reinstatement in service backwages and all other attendant benefits in light of G.O.Ms.No.375, dated 19.05.2005. While the matter was pending before the Court, the first respondent has again passed an order on the petition for reinstatement.
5. The first respondent, while considering the petition made for reinstatement, has cancelled the previous Government order passed in G.O.Ms.No.375, Home (Pol.9) dated 19.05.2005 and ordered the punishment of removal from service. Aggrieved over the order passed by the first respondent in G.O(2D)No.274, Home (Pol.IX) Department, dated 03.06.2010, the writ petitioner has preferred another petition in W.P(MD)No.12028 of 2010 for setting aside the said order.
6. The respondents have filed a counter affidavit stating that the order passed in G.O.Ms.No.375, dated 19.05.2005 was due to mistake of fact. The order came to be passed under an impression that the enquiry report was not furnished to the delinquent. But in fact, it was served on him and he had acknowledged the receipt of the enquiry report. Therefore, the mistake was rectified and the present impugned order in G.O(2D)No.274, dated 03.06.2010 came to be passed.
7. The learned Special Government Pleader would further contend that there is discrepancy in passing the above order as small mistake has been set right by the present order and the punishment of removal of service has neither been enhanced nor a different punishment was issued to call for only further explanation.
8. Heard both sides.
9. It is not in dispute that the G.O.Ms.No.375, dated 19.05.2005 was passed by the Government with a direction to reinstate the petitioner and to proceed further with the disciplinary proceeding from where the infirmity passed i.e., non-furnishing of enquiry report, thereby, the writ petitioner has got right to get reinstatement until final orders are to be passed. But the respondents have not reinstated the petitioner. The writ petitioner has made a representation for reinstatement on 07.06.2007 and filed a writ petition for a direction to reinstate him in W.P(MD)No.5265 of 2008. During the pendency of the writ petition, the Government considered the petition made by the writ petitioner for reinstatement and passed the present order of removal from service.
10. From the perusal of the narration of events, we could see that no notice was given to the writ petitioner with regard to modification order of the punishment. But it is contended that the order came to be passed on the petition requesting reinstatement, therefore, no notice is required. In fact, the latter order certainly causes civil consequences on the carrier of the writ petitioner. Therefore, notice must have been given to him before modifying the order and failure to do so is violative of principles of natural justice, which is the contention of the writ petitioner.
11. The writ petitioner would draw the attention of this Court to Judgment reported in 2012(5) MLJ 756 (G.Anandan and other vs. State of Tamil Nadu and others). In the said Judgment, it is categorically held that for the misconduct of desertion the punishment of removal is very harsh and disproportionate to the charges. The said Judgment is based on the Judgment of the First Bench reported in (2008)6 MLJ 863 (R.Ramesh vs. The Deputy Inspector General of Police, Kancheepuram Range, Kancheepuram and another).
12. This Court has extracted a Circular issued by the Director General of Police, dated 30.10.1990, and instructed that imposing the order of penalty of dismissal or removal from service in desertion cases, after taking them for duty, is unfair and cannot be justified.
13. Therefore, it is crystal clear from the circular issued by the Department as well as the Judgment in the subject in issue by this Court that removal from service is disproportionate to the charges and punishment has been considered as unfair and unjustified.
14. The writ petitioner has further taken the attention of this Court to the Judgment reported in (2009)14 SCC 690 (Prakash Ratan Sinha vs. State of Bihar and others). In that decision taking away the promotion without affording an opportunity of hearing the appellant likely to have far reaching civil consequences on the incumbent. It had adversely affected his right. The decision ought to have been made in a fair and reasonable manner. Therefore, the writ petitioner would contend that the modification or revision of the order made by the first respondent in G.O.(2D)No.274, dated 03.06.2010 was taken without giving opportunity to the writ petitioner and thereby violative of principles of natural justice and resulted in civil consequences against the writ petitioner.
15. We have considered the rival contentions and there is some force in the arguments made by the writ petitioner that the impugned order passed in G.O(2D)No.274, dated 03.06.2010 suffers from arbitrariness and passed in violation of principles of natural justice. Therefore, the impugned order dated 03.06.2010 is set aside. The respondents are directed to consider the case of the writ petitioner in view of the circular issued by the Director General of Police, dated 30.10.1990, and Judgment of the First Bench of this Court in (2008)6 MLJ 863 (R.Ramesh vs. The Deputy Inspector General of Police, Kancheepuram Range, Kancheepuram and another) and as followed in the Judgment reported in 2012(5) MLJ 756 (G.Anandan and other vs. State of Tamil Nadu and others). The respondents shall consider the representation of the writ petitioner afresh as directed above and passed orders within a period of six weeks from the date of receipt of a copy of this order.
16. In view of the above, these writ petitions are allowed. No order as to costs.