W.P.No.26474 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.26474 of 2017
B.Gengan ... Petitioner
Vs.
1.The Director General of Police,
Tamil Nadu, Chennai 600 004.
2.The Deputy Inspector General of Police,
Kancheepuram Range, Kancheepuram.
3.The Superintendent of Police,
District Police Officer,
Kanchipuram District,
Kanchipuram. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, to call for the records
pertaining to the order of the first respondent herein passed in his Rc. No.
108753/ AP.I (2)/2014 dated 05.01.2017 imposing a modified punishment
of compulsory retirement from service and the consequential order of the
third respondent herein passed in his C.No.J1/PR.10/2011, D.O.
No.49/2017 dated 01.02.2017 and the further consequential order passed
by the second respondent herein in his C.No.B2/ 8475/2012, R.O.
No.63/2017 dated 22.05.2017 settling the period of suspension as eligible
leave including EOL and the consequential order passed by the third
respondent herein in his C.No.J1/P.R.10/2012, D.O.372/2017 dated
https://www.mhc.tn.gov.in/judis
01.06.2017 and quash the same and consequently direct the respondents
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W.P.No.26474 of 2017
herein to allow the petitioner to retire from service with effect from
30.06.2014 by treating the period of suspension from 24.07.2011 to
17.04.2014 as duty for all purposes with all consequential retirement
monetary benefits.
For Petitioner : Mr.Ravi Shanmugam
For Respondents : Mr.B.Vijay
Additional Government Pleader
ORDER
The order impugned modifying the punishment of dismissal from service as that of compulsory retirement is under challenge in the present writ petition.
2. The petitioner was holding the post of Sub-Inspector of Police and retired from service. The petitioner was placed under suspension, while he was in service on 23.07.2011, on the ground that he had involved in a Criminal Case in Crime No.588 of 2010.
3. The learned counsel for the petitioner contended that the criminal charges against the writ petitioner was based on the complaint given by his own son, stating that his signature was forged by the petitioner, who is none other than the father of the defacto complainant. The charge sheet was filed in C.C.No.123 of 2011 before the Learned Judicial Magistrate-II, https://www.mhc.tn.gov.in/judis Kanchipuram on 10.06.2011 and the petitioner was convicted by the Page 2 of 9 W.P.No.26474 of 2017 Learned Judicial Magistrate-II, Kanchipuram by judgment dated 17.03.2014 and sentenced to undergo Rigorous Imprisonment for three years with fine of Rs.15,000/- was imposed.
4. Pursuant to the order of conviction, the Deputy Inspector General of Police, Kancheepuram Range had issued a show cause notice as to why the petitioner should not be imposed a punishment of dismissal from service based on the conviction in show cause notice dated 01.04.2014. Consequently, the punishment of the dismissal from service was imposed on the petitioner in proceedings dated 17.04.2014.
5. The petitioner preferred a Criminal Appeal No.3 of 2014 and the Learned Sessions Judge, Kanchipuram had acquitted the petitioner honourably in vide judgment dated 31.08.2015. Based on the order of acquittal, the petitioner preferred an Appeal Petition to the Director General of Police and made a request to allow him to retire from service with effect from 30.06.2014, the date of superannuation. The Appeal Petition filed by the petitioner in this regard on 23.09.2015 was disposed of by the Director General of Police in proceedings dated 05.01.2017, modifying the punishment of dismissal from service to that of compulsory retirement.
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6. Subsequently, the period of suspension was regularised as EOL based on the Fundamental Rules. The Superintendent of Police, kanchipuram has issued a consequential order, treating the period of suspension as Eligible Leave including EOL in proceedings dated 01.06.2017.
7. The learned counsel for the petitioner mainly contended that the punishment of dismissal from service was imposed against the writ petitioner under Rule 3 (c)(i)(1) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. Since the punishment of dismissal from service was imposed based on the order of conviction by the Competent Criminal Court of Law, the said punishment cannot be modified by the competent authority in an Appeal Petition filed by the writ petitioner to set aside the punishment of dismissal from service.
8. The learned Additional Government Pleader appearing on behalf of the respondents objected the said contentions by stating that Appellate Authority is empowered to modify the punishment under the Rules in force. Thus by invoking the said power, the punishment of dismissal from service was modified as compulsory retirement. That apart, the Appellate Authority considered the fact that the petitioner had given room for a https://www.mhc.tn.gov.in/judis criminal complaint against him, who was in uniformed services and taking Page 4 of 9 W.P.No.26474 of 2017 note of the said misconduct, the punishment of dismissal from service was imposed. Thus, there is no infirmity.
9. Considering the arguments as advanced by the learned counsels appearing on behalf of the parties to the lis on hand. The question arises, whether in respect of the punishment of dismissal from service imposed based on the order of conviction, the authority competent modified the punishment without conducting an independent enquiry by following the procedures as contemplated under the Discipline and Appeal Rules by framing specific charges in the present case under Rule 3 (b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules.
10. With reference to the said issue, the learned counsel for the petitioner relied on the judgment of the Honourable Supreme Court of India in the case of Nar Singh Pal Vs. Union of India reported in [(2000) 3 SCC 588] and the relevant portion reads as under:
“12. The fact that the appellant was involved in a criminal case is not disputed by the appellant. What is contended by him is that he was ultimately acquitted by the Court of Chief Judicial Magistrate, Agra and, therefore, involvement of the appellant in a criminal case https://www.mhc.tn.gov.in/judis could not have been made the basis for terminating his services. Since the appellant was Page 5 of 9 W.P.No.26474 of 2017 acquitted, and it was a clean acquittal, the stigma attached to him of having been prosecuted in a criminal case should have been treated to have disappeared and no argument can be allowed to be raised for justifying the order of dismissal on the ground of the appellant's involvement in a criminal case.”
11. With reference to the punishment of dismissal from service, it is not in dispute that it was issued under Rule 3(c)(i)(1) of the Discipline and Appeal Rules based on the order of conviction passed by the Criminal Court of Law. Further, it is not in dispute that the petitioner was honourably acquitted in the Criminal Appeal by the Learned Sessions Court, kanchipuram. Since the petitioner was honourably acquitted in the criminal case, the authorities, if at all found certain other misconducts are involved with reference to the allegations are bound to conduct an independent enquiry by following the procedures as contemplated under rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules. Contrarily, the competent authority cannot unilaterally modify the punishment in an Appeal filed by the petitioner to set aside the punishment of dismissal from service based on the honourable acquittal.
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12. For modification of punishment of dismissal from service to that of compulsory retirement is that the petitioner ought not to have given room for any such registration of criminal case against him. Such reasons stated is untenable, in view of the fact that the criminal case ended with an order of honourable acquittal and therefore, such a stigma cannot be attached on the writ petitioner, since he was acquitted honourably. When an accused was acquitted honourably by the Criminal Court of Law, no stigma can be attached. In the present case, the room for giving criminal complaint and the said reason relied on would not arise in view of the judgment rendered in a Criminal Appeal by the Competent Appellate Court. Thus, the very reason relied on by the competent authority for modification of punishment is untenable and thus, the petitioner is entitled for the relief.
13. Accordingly, the orders impugned passed by the 1st respondent in his proceedings in Rc.No.108753/AP.I(2)/2014 dated 05.01.2017 and 3rd respondent in his proceedings in C.No.J1/PR.10/2011, D.O. No.49/2017 dated 01.02.2017 and 2nd respondent in his proceedings in C.No.B2/8475/2012, R.O.No.63/2017 dated 22.05.2017 and the 3rd respondent in his proceedings in C.No.J1/P.R.10/2012, D.O.372/2017 dated 01.06.2017 are quashed.
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14. The respondents are directed to allow the writ petitioner to retire from service from the date of his actual superannuation on 30.06.2014 and settle all the terminal and retirement benefits and the consequential benefits within a period of four (4) months from the date of receipt of a copy of this order.
15. With these directions, the Writ Petition stands allowed. No costs.
13.09.2022 Jeni Index : Yes / No Speaking order : Yes / No To
1.The Director General of Police, Tamil Nadu, Chennai 600 004.
2.The Deputy Inspector General of Police, Kancheepuram Range, Kancheepuram.
3.The Superintendent of Police, District Police Officer, Kanchipuram District, Kanchipuram.
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Jeni W.P.No.26474 of 2017 13.09.2022 https://www.mhc.tn.gov.in/judis Page 9 of 9