Madras High Court
M.Mohamed Iqbal vs The Deputy Commissioner Of Police ... on 11 August, 2022
W.P.No.19963 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.19963 of 2014
and
M.P.No.1 of 2014
M.Mohamed Iqbal ...Petitioner
Vs.
1.The Deputy Commissioner of Police (L&O)
Madurai City, Madurai.
2.The Commissioner of Police/
Inspector General of Police,
Madurai City, Madurai.
3.The Director General of Police,
Chennai – 4.
4.The Secretary to Government,
Home (Police IV) Department,
Fort St.George, Chennai – 9. ..Respondents
1/26
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W.P.No.19963 of 2014
Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
to issue a Writ of Certiorari, Calling for the records of the respondents in
st
connection with the impugned orders passed by the 1 respondent in PR
nd
No.72/1998 dated 9.7.1998 and by the 2 respondent in C.No.D1(4)/Appeal
rd
No.12/1998 dated 26.10.1998 and by the 3 respondent in
C.No.AP3(1)/264609/98 dated 3.3.1999 and C.No.24223/AP II(3)2001
th
dated 2.3.2001, RC No.249937/AP2(3)/08 dated 9.4.2010 and by the 4
respondent in GO (2D) No.346 Home (Pol IV) Department dated 25.7.2013
and quash the same.
For Petitioner : Mr.K.Venkat Ramani
Senior Advocate
For Mr.M.Muthappan
For Respondents : Mr.P.Kumaresan
Additional Advocate General
Assisted by
Mrs.S.Anitha
Special Government Pleader
ORDER
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The order of postponement of one increment for one year without
cumulative effect, which was confirmed by the Appellate Authority is under
challenge in the present writ petition.
2. The writ petitioner states that he was directly recruited as Sub-
Inspector of Police in the year 1976 and promoted to the post of Inspector of
Police in the year 1988. He was further promoted as Deputy Superintendent
of Police in the year 2003 and to the post of Additional Superintendent of
Police during the eve of his retirement. The petitioner was allowed to retire
from service on attaining the age of superannuation on 30.04.2010.
3. A charge memorandum under Rule 3 (a) of the Tamil Nadu Police
Subordinate Services (Discipline and Appeal) Rules, 1955 was issued
against the writ petitioner and the charges against the writ petitioner was
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that “Gross neglect of duty and failure to take action in preferring an appeal
against the acquittal in Madurai City Sellur Police Station Crime
No.803/1989 under Section 302, 34, 109, 307 and 342 IPC in time”. The
petitioner submitted his explanation, denying the charges. The petitioner has
stated that Crime No.803/1989 Sellur Police Station was investigated by
Thiru Babu Rajendraprasad, Inspector of Police, Thallakulam Circle. He laid
the charge sheet and gave evidence to the said case. However, the case ended
with an order of acquittal on 20.04.1990. The Thallakulam Circle Inspector
was looking after Sellur Police Station, Madavalayam Police Station and
Government Rajaji Hospital OP. After the formation of the Commissionerate
at Madurai, the Sellur Circle was newly formed on 20.05.1990, consisting of
Sellur L&O Police Station, Madavalayam Police Station and Government
Rajaji Hospital OP, leaving Thallakulam L&O Police station alone as
Thallakulam Circle. The petitioner joined the Sellur Station subsequently on
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W.P.No.19963 of 2014
01.05.1990 after the acquittal of the criminal case in Crime No.803/1989.
The petitioner did not know about the case and his predecessor neither
handed over the CD file in Crime No.803/1989 nor explained about the
acquittal of the case. The petitioner states that Thiru.Babu Rajendraprasad,
who had investigated the case, laid the charge sheet and gave evidence to the
Court has made to follow up action by preferring an appeal against the
acquittal. It is further contended that the copy of the judgment was received
by the DPO only on 28.10.1992 and there was a delay. The explanation
submitted by the writ petitioner was not considered properly by the
Disciplinary Authority and the punishment of postponement of increment for
one year with cumulative effect was imposed on the writ petitioner in
proceedings dated 09.07.1998. The petitioner preferred an appeal on
03.09.1998 and the second respondent/Appellate Authority rejected the
same on 26.10.1998. The Review Petition filed by the writ petitioner was
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W.P.No.19963 of 2014
also rejected by the third respondent on 03.03.1999 and thereafter, the
petitioner submitted a Mercy Petition on 19.01.2001, which was rejected by
the third respondent on 02.03.2001 and the final Petition before the
Government was also rejected.
4. The learned Senior counsel appearing on behalf of the writ
petitioner mainly contended that the copy of the judgment in the Criminal
Case was delivered belatedly to the writ petitioner, more so, even before the
joining of the petitioner at Sellur Police Station. The said Criminal Case in
Crime No.803/1989 ended with an order of acquittal on 20.04.1990 and the
Police Inspector, who dealt with the case Thiru.Babu Rajendraprasad had
not provided any information to the writ petitioner, enabling him to follow
up the matter.
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W.P.No.19963 of 2014
5. The learned Senior counsel contended that no enquiry was
conducted. Even in respect of disciplinary proceedings initiated under Rule
3(a) of the Discipline and Appeal Rules, enquiry is to be conducted, when
the delinquent denied the allegations. In the present case, the petitioner
denied the allegations and thereafter, no enquiry was conducted and
therefore, the impugned punishment order and the Appellate order,
confirming the same are to be set aside.
6. That apart, the third respondent / Reviewing Authority passed a
Non-Speaking order and failed to take into consideration the grounds raised
by the writ petitioner in the Review Petition. Both the Appellate order and
the Revisional order are Non-Speaking and on that ground also, the
punishment is liable to be set aside. The authorities have failed to consider
that the petitioner joined as Inspector of Police in Sellur Police Station only
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W.P.No.19963 of 2014
on 01.05.1990 and the judgment in the Criminal Case in Crime
No.803/1989 was delivered on 20.04.1990. Thus, the petitioner cannot be
held liable for not preferring an appeal against the said judgment, acquitting
the accused persons. The earlier Inspector of Police Mr.Babu Rajendra
Prasad, who was present throughout the trial, did not follow up the case for
the purpose of getting the copy of the judgment in time for further action.
Therefore, the petitioner cannot be blamed for the lapses committed by the
previous Inspector Mr.BabuRajendra Prasad.
7. The Additional Government Pleader appearing on behalf of the
respondents objected the contentions raised by the petitioner by stating that
the lapses noticed against the writ petitioner was based on the records
available. There was no violation of Rule 6(c) of the Tamil Nadu Police
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W.P.No.19963 of 2014
Subordinate Services (Discipline and Appeal) Rules, 1955. His review
rd
petition was considered by the 3 respondent and rejected on merits so also
st
the mercy petition was also rejected. The 1 respondent's order is a Speaking
order. The respondents have discussed explanations submitted by the writ
petitioner and thereafter, passed the final orders. It is incorrect to state that
no action was taken against the previous Inspector Mr.Baburajendra Prasad,
in fact, a charge memo was issued against the said Mr.Baburajendra Prasad
in PR.73/98 under Section 3(a) of the Tamil Nadu Police Subordinate
Services (Discipline and Appeal) Rules, 1955 and his explanation was
examined and further action was dropped against the Inspector
Mr.Baburajendra Prasad. Thus, the authorities formed an opinion that the
said Inspector has followed the case properly and the petitioner, who
committed the lapses in not filing an appeal. The appeal petition of the writ
petitioner dated 03.09.1998 was duly considered by the second respondent
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W.P.No.19963 of 2014
and it was observed that the petitioner, who took charge of the Police Station
after a month, did not go through the F.I.R. Index or other important records
of the Police Station. If he would have done so, he would have known the
fact of acquittal and could have preferred the appeal against acquittal in
time. Hence, the appeal petition was rightly rejected.
th
8. The respondents have stated that the 4 respondent in his order
dated in G.O.2(D) No.346, Home (Police.IV) Department, dated
25.07.2013, has examined the mercy petition and stated that the petitioner
has not taken any action to prefer the appeal against acquittal. The case in
Sellur Police Station in Cr.No.803 of 1992 under Sections 302, 34, 307,
109, 324 India Penal Code ended with an order of acquittal. The judgment
was delivered on 20.04.1990. A copy of the judgment was delivered in the
City Police Office on 28.10.1990. The petitioner did not take follow up
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W.P.No.19963 of 2014
action and obtained a copy of the judgment. If the petitioner would have
collected a copy of the judgment within time, action would have been taken
to prefer an appeal against the acquittal of the case within the stipulated
time. Thus, the contention of the writ petitioner that the order was non-
speaking order is incorrect and in the order, the authorities have assigned
reasons for rejection of the grounds raised by the writ petitioner.
9. Regarding the ground raised by the petitioner that no enquiry was
conducted, despite the fact that the petitioner denied the allegations in the
charge memo, it is relevant to consider the scope of charge memorandum
issued under Rule 3(a) of the Tamil Nadu Police Subordinate Services
(Discipline and Appeal) Rules.
10. Let us now look into the scope of Rule 3(a) of the Tamil Nadu
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Police Subordinate Services (Disciplinary and Appeal) Rules, 1955, which
contemplates imposition of minor penalties with reference to certain minor
misconducts. The Rule reads as under:
“Rule 3. (a) In every case where it is proposed to
impose on a member of a service any other penalties
mentioned in clauses (a), (b), (c), (e), and (f) of rule2, he
shall be given a reasonable opportunity of making any
representation that he may desire to made and such
representation, if any shall be taken into consideration
before order imposing the penalty is passed.”
11. Perusal of the above Rule reveals that no enquiry has been
contemplated. The Rule unambiguously stipulates that a reasonable
opportunity of making any representation is to be afforded to the delinquent
official and based on such representation, the Disciplinary Authority shall
decide the issues on merits and pass final orders.
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12. The procedures for enquiry contemplated under Rule 3(b) and the
procedures prescribed under Rule 3(a) are different and distinct. Rule 3(a) is
summary proceedings. According to Rule 3(b), the enquiry becomes
mandatory. In the said enquiry under Rule 3(b), examination of witnesses,
cross examination, scrutinisation of documents and procedures are
contemplated, which is of trial natured and the charged official has got a
right to cross examine the witnesses, scrutinise the documents and defend
his case in a full-fledged manner, and it is for imposing major penalty.
13. At the outset, an enquiry contemplated under the Rule 3(b) is a
trial natured enquiry, which cannot be compared with the summary
proceedings contemplated under Rule 3(a) of the Tamil Nadu Police
Subordinate Service (Disciplinary and Appeal) Rules, 1955.
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14. The Courts have to find out, whether the principles of natural
justice as contemplated under rules has been complied with or not. The
principles of natural justice is a flexible rule in the hands of the judiciary to
reach out in fit cases to remedy injustice. Therefore, the principles of natural
justice cannot be expanded unnecessarily for the purpose of interfering with
the decisions, which is otherwise taken impartially and in accordance with
the rules in force. When the rule itself contemplates principles of natural
justice, the power of judicial review of the High Court is excepted to be
restricted within the ambit of the rule, wherein the principles of natural
justice has already been contemplated.
15. In the case of State Bank of Patiala Vs. S.K.Sharma reported in
[(1996) 3 SCC 364], the Hon’ble Supreme Court of India, while deciding on
the question of whether enquiry was not fair on the ground of non-service of
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documents on the delinquent officer held as follows:
“28. The decisions cited above make one thing clear, viz.,
principles of natural justice cannot be reduced to any hard
and fast formulae. As said in Russell v. Duke of Norfolk
[(1949) 1 All ER 109 : 65 TLR 225] way back in 1949,
these principles cannot be put in a strait-jacket. Their
applicability depends upon the context and the facts and
circumstances of each case. (See Mohinder Singh Gill v.
Chief Election Commr. [(1978) 1 SCC 405 : (1978) 2 SCR
272]). The objective is to ensure a fair hearing, a fair deal,
to the person whose rights are going to be affected. (See
A.K. Roy v. Union of India [(1982) 1 SCC 271 : 1982 SCC
(Cri.) 152] and Swadeshi Cotton Mills v. Union of India
[(1981) 1 SCC 664].) As pointed out by this Court in A.K.
Kraipak v. Union of India [(1969) 2 SCC 262], the dividing
line between quasi-judicial function and administrative
function (affecting the rights of a party) has become quite
thin and almost indistinguishable--a fact also emphasised
by House of Lords in Council of Civil Service Unions v.
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Minister for the Civil Service [(1984) 3 All ER 935 : (1984)
3 WLR 1174 : 1985 AC 374, HL] where the principles of
natural justice and a fair hearing were treated as
synonymous. Whichever the case, it is from the standpoint
of fair hearing--applying the test of prejudice, as it may be
called--that any and every complaint of violation of the
Rule of audi alteram partem should be examined. Indeed,
there may be situations where observance of the
requirement of prior notice/hearing may defeat the very
proceeding--which may result in grave prejudice to public
interest. It is for this reason that the Rule of post-decisional
hearing as a sufficient compliance with natural justice was
evolved in some of the cases, e.g., Liberty Oil Mills v.
Union of India [(1984) 3 SCC 465]. There may also be
cases where the public interest or the interests of the
security of State or other similar considerations may make
it inadvisable to observe the Rule of audi alteram partem
altogether [as in the case of situations contemplated by
Clauses (b) and (c) of the proviso to Article 311(2)] or to
disclose the material on which a particular action is being
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taken. There may indeed be any number of varying
situations which it is not possible for anyone to foresee. In
our respectful opinion, the principles emerging from the
decided cases can be stated in the following terms in
relation to the disciplinary orders and enquiries: a
distinction ought to be made between violation of the
principle of natural justice, audi alteram partem, as such
and violation of a facet of the said principle. In other
words, distinction is between "no notice"/"no hearing" and
"no adequate hearing" or to put it in different words, "no
opportunity" and "no adequate opportunity". To illustrate--
take a case where the person is dismissed from service
without hearing him altogether (as in Ridge v. Baldwin
[1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935]). It
would be a case falling under the first category and the
order of dismissal would be invalid--or void, if one chooses
to use that expression (Calvin v. Carr [1980 AC 574 :
(1979) 2 All ER 440 : (1979) 2 WLR 755, PC]). But where
the person is dismissed from service, say, without supplying
him a copy of the enquiry officer's report (Managing
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Director, ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993
SCC (L&S) 1184 : (1993) 25 ATC 704]) or without
affording him a due opportunity of cross-examining a
witness (K.L. Tripathi [(1984) 1 SCC 43 : 1984 SCC (L&S)
62]) it would be a case falling in the latter category--
violation of a facet of the said Rule of natural justice--in
which case, the validity of the order has to be tested on the
touchstone of prejudice, i.e., whether, all in all, the person
concerned did or did not have a fair hearing. It would not
be correct--in the light of the above decisions to say that
for any and every violation of a facet of natural justice or
of a Rule incorporating such facet, the order passed is
altogether void and ought to be set aside without further
enquiry. In our opinion, the approach and test adopted in
B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 :
(1993) 25 ATC 704] should govern all cases where the
complaint is not that there was no hearing (no notice, no
opportunity and no hearing) but one of not affording a
proper hearing (i.e., adequate or a full hearing) or of
violation of a procedural Rule or requirement governing
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the enquiry; the complaint should be examined on the
touchstone of prejudice as aforesaid.”
16. It is relevant to rely on the judgment of the Hon’ble Supreme
Court of India in the case of State of U.P. Vs. Sudhir Kumar Singh and
Others in Civil Appeal No.3498 of 2020 dated 16.10.2020, wherein all the
earlier important judgments of Hon’ble Supreme Court on the principles of
natural justice have been considered by Hon’ble Mr. Justice R.F.Nariman
and the principles are summarised as under:
“39. An analysis of the aforesaid judgments thus reveals:
(1) Natural justice is a flexible tool in the hands of the judi-
ciary to reach out in fit cases to remedy injustice. The
breach of the audi alteram partem rule cannot by itself,
without more, lead to the conclusion that prejudice is
thereby caused.
(2) Where procedural and/or substantive provisions of law
embody the principles of natural justice, their infraction per
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se does not lead to invalidity of the orders passed. Here
again, prejudice must be caused to the litigant, except in the
case of a mandatory provision of law which is conceived
not only in individual interest, but also in public interest.
(3) No prejudice is caused to the person complaining of the
breach of natural justice where such person does not dis-
pute the case against him or it. This can happen by reason
of estoppel, acquiescence, waiver and by way of non-chal-
lenge or non-denial or admission of facts, in cases in which
the Court finds on facts that no real prejudice can therefore
be said to have been caused to the person complaining of
the breach of natural justice.
(4) In cases where facts can be stated to be admitted or in-
disputable, and only one conclusion is possible, the Court
does not pass futile orders of setting aside or remand when
there is, in fact, no prejudice caused. This conclusion must
be drawn by the Court on an appraisal of the facts of a
case, and not by the authority who denies natural justice to
a person.
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(5) The "prejudice" exception must be more than a mere ap-
prehension or even a reasonable suspicion of a litigant. It
should exist as a matter of fact, or be based upon a definite
inference of likelihood of prejudice flowing from the non-
observance of natural justice.”
17. In the above judgment the Hon’ble Supreme Court of India
reiterated that where procedural / or substantive provisions of law embody
the principles of natural justice, their infractions per se does not lead to
invalidity of the orders passed. Therefore, the case is to be considered with
reference to the rules and the procedures followed and the principles of
natural justice adhered to while taking a decision. In the present case, a
charge memorandum under Rule 3(a) was issued to the writ petitioner. He
submitted his explanations by availing the opportunity as contemplated
under the Rule 3(a) of the Tamil Nadu Police Subordinate Services
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W.P.No.19963 of 2014
(Discipline and Appeal) Rules. Thereafter, the Disciplinary Authority
considered the explanation and the materials available on record, passed
final orders. Thus, there is no violation of procedures as per the rules in
force.
18. Justice means justice between both the parties. The interest of
justice equally demand that the guilty should be punished and that
technicalities and irregularities which do not occasion failure of justice are
not allowed to defeat the ends of justice. Principles of natural justice are but
the means to achieve the ends of justice. They cannot be perverted to achieve
the very opposite end. That would be a counter-productive exercise.
Therefore, in the present case, this court has no hesitation in forming an
opinion that principles of natural justice as contemplated under Rule 3(a) of
the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules
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were followed by the Disciplinary Authority and the petitioner also availed
the said opportunity and the punishment imposed cannot be said to be
disproportionate or otherwise.
19. In view of the facts and circumstances, the petitioner has not
established any acceptable ground for the purpose of interfering with the
orders passed by the respondents.
20. Accordingly, the writ petition stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
11.08.2022
Index : Yes
Speaking order:Yes
kak
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W.P.No.19963 of 2014
To
1.The Deputy Commissioner of Police (L&O)
Madurai City, Madurai.
2.The Commissioner of Police/
Inspector General of Police,
Madurai City, Madurai.
3.The Director General of Police,
Chennai – 4.
4.The Secretary to Government,
Home (Police IV) Department,
Fort St.George, Chennai – 9.
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W.P.No.19963 of 2014
S.M.SUBRAMANIAM, J.
kak
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11.08.2022
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