Disciplinary Proceedings Cannot Be Initiated For Absence When The Period Of Absence Is Regularised By Competent Authority: Madras High Court

A bench of Justice SM Subramaniam held that though normally such a lengthy period of absence was not condoned by the authorities, especially if the Police Personnel is a chronic absentee or habitual absentee, however, once the authorities have accepted the reasons for absence, the misconduct is condoned. It observed as under:

In normal circumstances, such long absence will not be condoned by the competent authorities. When the Police Personnel is a chronic absentee or habitual absentee, then serious actions are to be initiated. However, once the authority competent, accepted the reasons for absence, considered the same and regularized the period of medical leave, thereafter the misconduct if at all committed become condoned and therefore the action cannot be sustained.

Therefore, it held that once the misconduct has been considered based on explanations, initiation of disciplinary proceedings cannot be held to be valid.

In other words, the disciplinary action is permissible only if the misconduct exist and once the alleged misconduct was considered based on the explanations or otherwise and the period of leave has already been regularized then initiation of disciplinary proceedings cannot be held valid.

In the present case, the petitioner police personnel, was working as Head Constable and had served the department for about 25 years. While so, on day while he was on duty he fell ill and was taken to nearby hospital where he was diagnosed with Chronic Peptic ulcer. The petitioner, who had entered on medical leave, took Ayurvedic Treatment in his native place. Thereafter, he submitted medical reports for the purpose of extension of medical leave. The leave applications were accepted and the leave period was regularised by the Superintendent of Police.

After directing the Petitioner before the Medical Board and on obtaining fitness certificate, the petitioner joined duty. Thereafter, the charge memo was issued under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules and enquiry was ordered. The Enquiry Officer submitted his report without considering the petitioner's leave applications and the subsequent regularisation of service. Thereafter, a second show cause notice was issued. The disciplinary authority issued the impugned order of dismissal from service. Though an appeal was preferred, the same was rejected.

It was contended that the misconduct, as alleged, did not exist on the date of issuance of charge memorandum and thus the punishment was liable to be quashed. They placed reliance on the decision of Dr. G Rajendran v The Secretary to Government,Health and Family Welfare Department (2006) 2 MLJ 686 wherein the courts, on similar facts, held that the proceedings would not be sustainable. The decision was also reflected in the decision of the Apex Court in Union of India and another v. RK Sharma (2015) wherein the court had held that "no misconduct can be attributed for the respondent for the periods he availed one or the other sanctioned leave"

The court noted that, in the present case, even before the petitioner was issued with a charge memo, his period of absence was regularised by the District Superintendent of Police after which the petitioner re-joined for duty.

On such facts, the court observed that the punishment of dismissal from service was untenable. Therefore, the court quashed the impugned order of dismissal and directed the respondents to reinstate the petitioner in service without back wage but with continuity of service.

Case Title: C Jagadeesan v. Additional Director General of Police and another

Case No: WP No. 31934 of 2014

Citation: 2022 LiveLaw (Mad) 340

Counsel for the Petitioner: Mr.G.Bala for M/s.G.Bala and Daisy

Counsel for the Respondent: Mrs.S.Anitha Special Government Pleader