Aboobakkar vs State Of Tamil Nadu Rep
2021 Latest Caselaw 19905 Mad

                                                                                    W.P.No.18149 of 2009

                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 29.09.2021

                                                     CORAM:

                               THE HON'BLE Dr. JUSTICE ANITA SUMANTH
                                              W.P.No.18149 of 2009

                 Aboobakkar
                                                                             ... Petitioner

                                                         vs.

                 1. State of Tamil Nadu rep.
                    Rep. by Principal Secretary to
                    Govt. Home Dept.
                    Madras-9.

                 2. The Commissioner of Police,
                    Egmore, Chennai-8.

                 3. The Deputy Commissioner of Police,
                    South Egmore, Chennai-8.                                 ... Respondents



                 PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
                 praying to issue Writ of Certiorari, calling for the records of the first respondent
                 in       G.O.Ms.No.469     dated     14.03.1991,      confirming       the      order
                 C.No.48AP/PR1(4)/88 dated 11.10.1989 of the second respondent confirming
                 the order P.R.No.185/PRII(4)/87 dated 29.03.1989 of the third respondent and
                 quash the same.




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                                                                                 W.P.No.18149 of 2009

                                For Petitioner    : Mr.V.K.Sathiamurthy
                                For Respondents : Mr.S.John J.Raja Singh,
                                                  Government Advocate

                                                    ORDER

The petitioner was employed as Grade I Police Constable and had been

dismissed from service by order passed by the Deputy Commissioner of

Police/R3 on 29.03.1988. In appeal before the Commissioner of Police/R2, the

petitioner had alleged violation of principles of natural justice. According to

him, notice ought to have been issued by R3 intimating him of the proposed

punishment and calling for a reply in that regard. The appeal was rejected on

11.10.1989, pursuant to which a Revision Petition was also filed before the

Director General of Police (DGP). The same was forwarded to the

Government, since the DGP happened to be the appellate authority, who

decided the appeal and the State vide order dated 14.03.1991 also came to

reject the Revision Petition.

2. The petitioner thereafter filed an application before the Tamil Nadu

Administrative Tribunal (Tribunal) and upon abolition of the Tribunal, the

matter had been transferred to the file of this Court. It is in the aforesaid

circumstances that this Writ Petition has come up before me for consideration.

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W.P.No.18149 of 2009

3. The sole ground that has been raised in the Writ Petition and also

argued before me is a gross violation of principles of natural justice. According

to the petitioner, a charge memo was issued to him calling for explanation in

regard to the charges laid. After consideration of the explanation filed by him

and due enquiry, charges have come to be framed and an enquiry report

prepared. Though the petitioner would allege that the enquiry report has not

been served upon him, the pleadings (affidavit filed in support of the Writ

Petition and appeals filed before R2 and thereafter the DGP), do not reflect this

submission.

4. The only ground agitated in the pleading is that R3, upon receipt of the

charges and the enquiry report, had called for an explanation from the petitioner

which was also duly furnished by him. However, no show cause notice was

issued thereafter crystallizing the punishments that he intended to impose. This

issue was framed and on 16.09.2021 the following direction was issued to the

respondents.

“The specific point urged in this writ petition is violation of Rule-3(b)(ii) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, which require a notice to be issued to the concerned employee setting out the punishment proposed to be imposed. In this case, the petitioner has, vide ground-12 of the affidavit filed in support of the writ petition, stated that this procedure has been given a go-by and a statutory notice has not been issued. There is no denial of this aspect of the matter in the counter, though it is stated that the procedure has been complied with.

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W.P.No.18149 of 2009

2. In order that there be clarity, let the records be produced to verify whether any notice has been issued as aforesaid.”

5. In response thereto, written instructions dated 24.09.2021 have been

placed on record to the effect that Rule 3(b) (ii) of the Tamil Nadu Police

Subordinate Services (Discipline and Appeal) Rules, 1955 (in short 'TNPSS

(D&A) Rules') that sets out the procedure in these matters was amended with

effect from 04.09.1979 dispensing with the necessity to issue second show

cause notice by the competent authority who proposes to impose punishment.

6. The amendment, (based upon Articles 42 and 311(2) of the

Constitution of India) does away with the necessity to extend an opportunity of

representation upon the penalty proposed. The only opportunity contemplated

shall be in respect of the charges framed.

7. Thus, post the date of amendment, that is, 04.09.1979, upon

completion of enquiry, the noticee must be heard in regard to the charges

framed, the competent authority must serve a copy of the enquiry report upon

the officer and call for a response thereto and there is no necessity for a further

show cause notice indicating the punishment proposed.

8. Learned Counsel for the petitioner would fairly admit to the position

that a copy of the enquiry report has been furnished and an explanation sought

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W.P.No.18149 of 2009

for from him prior to passing of the impugned order. This satisfies the

requirement of Rule-3(b)(ii) of the TNPSS (D&A) Rules, post amendment.

9. Pursuant to the aforesaid amendment, G.O.Ms.No.847 Home (Police –

V) Department dated 15.06.1999 has been issued clarify the above position, the

relevant portion of which is extracted below:

(ii)After the inquiry or personal hearing referred to in clause (i) has been completed and if the authority competent to impose the penalty specified in that clause, is of the opinion, on the basis of the evidence adduced during the inquiry, any of the penalties specified in rule 2 should be imposed on the person charged, it shall, before making an order imposing such penalty, furnish to him a copy of the report of the inquiry or personal hearing or both, as the case may be, call upon to submit his further representation, if any, within a reasonable time, not exceeding fifteen days. Any representation received on his behalf within the period shall be taken into consideration before making any order imposing the penalty, provided that such representation shall be based on the evidence adduced during the inquiry only. It shall not be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed.

10. Thus, in summary and to reiterate, post 15.06.1999, procedure to be

adopted in the matters concerning imposition of major punishment under Rule

3 of the TNPSS (D&A) Rules are (i) framing of charges and forwarding of the

same along with statement of charge and all annexures to the noticee calling for

explanation, (ii) receipt of explanation from the noticee (iii) conduct of enquiry

including personal hearing of the noticee, (iv) forwarding of the enquiry report

to the competent authority simultaneous with furnishing of a copy of the same

to the noticee, (v) competent authority to call for an explanation from the

noticee, (vi) competent authority to decide the matter based on the enquiry http://www.judis.nic.in

W.P.No.18149 of 2009

report furnished by the Enquiring Authority and the explanation furnished by

the noticee without necessity for any further show cause notice. This procedure

is not shown to have been violated in the present case.

11. Learned Counsel for the petitioner relies on the judgment of Supreme

Court in the case of S.P.Malhotra Vs Punjab National Bank and others (CDJ

20913 SC 577) in the context of the Industrial Disputes Act, wherein the ratio

is that the principles of natural justice require the authority who has to take a

final decision in the matter to afford an opportunity to the Officer charged of

misconduct to file a representation before he records his findings on the charges

framed against the Officer. In this case, such opportunity has been so afforded

to the petitioner.

12. Learned Counsel for the petitioner also argues that one Suseelan who

was also mulcted with same charges as laid against the petitioner, was let off

easy and only visited with reduction in pay of one stage for one year without

affecting future increments. No material is placed before me in support of this

submission and in the absence of any evidence to compare the charges in that

case, this submission is of no assistance to the petitioner. In fact, the counter

filed, while referring to the charges laid against the petitioner, mentions the

involvement of Suseelan in one part of the activity. Thus, it appears that the

involvement of, and charges laid against Suseelan are less in gravity. http://www.judis.nic.in

W.P.No.18149 of 2009

13. This Writ Petition is dismissed. No costs.

29.09.2021 sl/kbs Index: Yes Speaking order

To

1. The Principal Secretary to Govt. Home Dept. Madras-9.

2. The Commissioner of Police, Egmore, Chennai-8.

3. The Deputy Commissioner of Police, South Egmore, Chennai-8.

Dr.ANITA SUMANTH, J.

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W.P.No.18149 of 2009

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W.P.No.18149 of 2009

29.09.2021

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