Madras High Court
U.Manickavel vs State Represented By on 23 August, 2022
W.P.No.2627 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.08.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.2627 of 2014
and
M.P.No.1 of 2014
U.Manickavel ... Petitioner
Vs.
1.State Represented by
The Secretary,
Home, Prohibition and Excise Department,
Tamil Nadu,
St. George Fort,
Chennai.
2.The Commissioner of Police,
Greater Chennai,
Chennai.
3.The Additional Deputy Commissioner of Police,
Estate, Welfare and Community Policing,
Vepery,
Chennai.
4.The Director General of Police,
Mylapore,
Chennai 600 004.
[R4 Suo moto impleaded in WP.No.2627 of 2014
by order dated 12.08.2022] ...
Respondents
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Page 1 of 24
W.P.No.2627 of 2014
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari, calling for the records relating to Form-
C dated 07.01.2014 issued under Rule 8 of The Tamil Nadu Public
Premises (Eviction of unauthorised Occupants) Rules, 1978 by the third
respondent herein.
For Petitioner : Mr.M.Deivanandam
For Respondents : Mr.P.Kumaresan,
Additional Advocate General
Assisted by Mrs.S.Anitha,
Special Government Pleader
ORDER
The lis on hand has been instituted questioning the validity of the
Form-C dated 07.01.2014 issued under Rule 8 of the Tamil Nadu Public
Premises (Eviction of Unauthorised Occupants) Rules, 1978.
Facts of the Case
2. The petitioner was allotted A6 Mylapore AC Quarters, Chennai
and continued to occupy the same, when he was working as Assistant
Commissioner of Police, Guindy Range, Greater Chennai. The petitioner
was transferred to Myladuthurai as Deputy Superintendent of Police and
joined duty on 29.10.2012. He made a request for transfer to Chennai and
it was considered and again he was transferred from Myladuthurai to
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W.P.No.2627 of 2014
District Crime Record Bureau, Kanchipuram District and he joined duty on
15.06.2013.
3. The family of the writ petitioner continued to reside in the official
quarters allotted at A6 Mylapore AC Quarters, Chennai and the petitioner
states that he had not availed any quarters in Kancheepuram District. The
petitioner's children were studying at Pallikaranai and Sriperumpathur and
the petitioner states that his wife was also undergoing periodical treatment.
4. The third respondent vide memo dated 22.10.2013 issued a show
cause notice in Form-A under Section 4 of the Tamil Nadu Public Premises
(Eviction of Unauthorised Occupants) Act, 1975 read with Rule 3 of the
Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Rules,
1978. The petitioner submitted a reply by stating that he was posted at
Kanchipuram District, which is 70 Kms away from Chennai and the
jurisdiction of the Kancheepuram District is bounded on the OMR road
upto Thazhampur Police Station, on the NH 45 upto Guduvancherry Police
Station and upto Sriperumpathur Police Station limits all of which falls
within 60 Kms from Chennai and therefore, he cannot be construed as an
unauthorised occupant. The third respondent had not considered the
explanations submitted by the writ petitioner and served Form-B under
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W.P.No.2627 of 2014
Rule 4 of the Tamil Nadu Public Premises (Eviction of Unauthorised
Occupants) Rules, 1978, calling upon the petitioner to attend the enquiry.
The petitioner had not attended the enquiry and sought for adjournment.
However, the third respondent served Form-C dated 07.01.2014 on
21.01.2014, under Rule 8 of the Tamil Nadu Public Premises (Eviction of
unauthorised Occupants) Rules, 1978, to remove or cause to be removed,
the property remaining in the subject premises within 14 days from the
date of serving of the notice in default of which action to remove and
dispose it of in public action.
5. The petitioner states that even if an order of eviction has been
passed under Section 5 (1) of the Tamil Nadu Public Premises (Eviction of
Unauthorised Occupants) Act, 1975, by the third respondent, it is in
violation of the Statute, as no opportunity for reasonable hearing was given
to the petitioner and no order of eviction was served to the writ petitioner.
The mandatory requirement regarding the reasons has not been stated.
Thus, the impugned Form-C is liable to be set aside.
6. The learned counsel for the petitioner reiterated that the petitioner
was not provided with an opportunity before issuing the impugned order.
That apart, the petitioner has now vacated the official quarters at A6
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W.P.No.2627 of 2014
Mylapore AC Quarters, Chennai and therefore, there is no reason to
sustain the order impugned.
7. The learned Additional Advocate General appearing on behalf of
the respondents, objected the said contentions raised on behalf of the
petitioner by stating that procedures as contemplated under the Act and
Rules were scrupulously followed. The petitioner has committed an
illegality, which is otherwise not permissible under the Rules in force.
Admittedly, the petitioner was transferred to Myladuthurai initially and
thereafter, transferred to Kancheepuram District. However, retained the
official quarters at A6 Mylapore AC Quarters, Chennai and therefore, he
has committed an act of illegality by not vacating the official quarters on
his transfer to Myladuthurai. Thus, the third respondent initiated actions
under the provisions of the Tamil Nadu Public Premises (Eviction of
Unauthorised Occupants) Act. An opportunity was provided to the writ
petitioner and he has not availed the said opportunity.
8. This Court raised a question when the higher officials of the
Police Department is allowed to commit such serious misconduct and
illegality in occupying the police quarters for several years, even after they
were transferred to various places. What is the action taken immediately to
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W.P.No.2627 of 2014
vacate the premises, so as to allot the same to the serving Officer of the
particular station. The police quarters are meant for the service officials,
who all are working in that particular station or place. Even after transfer,
if the higher police official has not vacated the quarters for several years,
then the question at large arises, whether the Police Department has taken
swift action in such circumstances.
9. In this Context, it is brought to the notice of this Court that
several such misconducts or offences of the higher police officials of the
Department are not responded and no actions are taken. In this context, it
is placed before this Court that despite the orders of the Honourable
Supreme Court of India to remove the Dark/Black Films in all the vehicles
are not implemented by the higher police officials in the State of Tamil
Nadu. The higher police officials are still practising the orderly system in
their residences and extracting household works from the uniformed police
personnel, which was already abolished by the Government in the year
1979 itself. It is further contended that number of such higher police
officials are in illegal occupation of the official quarters and no prompt
actions are initiated by the Department in this regard.
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W.P.No.2627 of 2014
Analysis
10. The structural unconstitutionality, in the Police Department,
prompted this Court to invoke the residuary relief clause in the writ prayer,
so as to deal with the same. Misconducts including unauthorised
occupation of police quarters, orderly systems, maintaining dark / black
films in the cars in violation of Hon'ble Supreme Court orders etc., if
organised and no possibility of complaints by the aggrieved persons, the
Constitutional Courts have duty bound to mould the relief in the interest of
justice and to remove the injustice or unconstitutionality. Thus, justifying a
judicial intervention in order to combat structural causes of the violations
and to put everything back in order with our constitution is duty
mandatory.
11. Regarding the moulding of the relief by the Constitutional
Courts, the Hon'ble Supreme Court of India in the case of M.Sudakar Vs.
Manoharan & Others reported in [MANU/SC/1139/2010], held that “The
power to mould relief is always available to the Court possessed with the
power to issue high prerogative writs. In order to do complete justice it can
mould the relief, depending upon the facts and circumstances of the case”.
12. In the case of Dwaraka Nath Vs. Income Tax Officer reported
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W.P.No.2627 of 2014
in [AIR 1966 SC 81], the three Judges Bench of the Hon'ble Supreme
Court of India held that “Ex facie confers a wide power on the high
court to reach injustice wherever it is found”.
13. The following are the words of Durga Das Basu in the book
authored by him, “Shorter Constitution of India”.
“The High Court in issuing directions, orders and
writs under Article.226 can travel beyond the contents of writ
which are normally issued as writ of Habeas Corpus,
Certiorari, Mandamus, quo-warranto and prohibition. Though
it is desirable that the prayers in application under Article.226
should be as specific and definite as they can be, the court is not
powerless to afford necessary relief to proper case. Merely
because in the cause title Article.226 has not been specifically
mentioned and the proper writ or direction has not been prayed
for, an application which is in substance one under Article.226
cannot be thrown out. The court should mould the remedy
according to the circumstance of the case. The court is not
confined to the form of the Prerogative Writs or the order asked
for by the petitioner but has the discretion to frame a proper
order which would suit the exigencies of the case before the
Court. In exercise of writ jurisdiction, the Court may mould the
relief having regard to the facts of the case and interest of
justice, provided in doing so the High court does not contravene
any provision of the Constitution or the law declared by the
Supreme Court. It is open to the applicant to ask for specific
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reliefs and “such other relief as the Court may deem fit and
W.P.No.2627 of 2014
proper”. Under such residuary prayer, the court may grant an
applicant the proper relief which he should get in view of
changed circumstances, even though the relief may be
altogether different from the specific reliefs asked for. The court
may also make directions as may be necessary to do complete
justice to the parties and to prevent injustice to third parties.”
14. Thus, in the said context, when the writ on hand has been dealt
with by this Court with reference to the unauthorised occupation of the
police quarters by the higher police officials and other organised
misconducts are brought to the notice of this Court and there is no
possibility of complaint by any police personnel, whose Fundamental
Rights are infringed on the hands of the higher police officials of the Police
department, then the High Court, if not interfered, failing in its
Constitutional duty to protect the Fundamental Rights of the citizens of our
great Nation.
15. Human dignity is ensured under Article 21 of the Constitution of
India. Life includes decent life with dignity. The dignity if infringed at the
instance of the powerful higher police officials, then the poor subordinate
last grade police personnels became voiceless and their life became misery,
as they are forced to perform the household works, which is undoubtedly
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below the dignity of trained police personnel, who is expected to perform
W.P.No.2627 of 2014
the duty of policing as per law, in the interest of public at large.
16. The right of the people in general is also infringed on account of
the large scale abuse and misuse of power by the higher police officials by
not utilizing the services of the trained uniformed personnels for
performing their public duties. The public servants are forced to perform
private duties in the residences. The concept is opposed to public policy
and directly in violation of Article 21 of the Constitution of India, as it
affects the dignity of the trained uniformed police personnels, whose public
duty is to maintain the Law and Order and guard our great Nation.
17. The Arms of the Indian Constitution is far more powerful to
hammer the organised misconduct or offences if any committed by the
higher police officials, since the Constitution of India is resolved by “We
people of India”. In the event of continuing such misconduct or offences
such officials are liable to be prosecuted under the relevant Law and under
the Departmental Disciplinary Rules.
18. Constitutional Courts are expected to realise ill effects of the
situation, where an organised misconduct is being committed by the higher
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W.P.No.2627 of 2014
police officials and there is no one to complain as they are the powerful
officials, maintaining Law and Order in the society and possessing Arms
and Ammunition and the Subordinate officials, who became voiceless.
Thus, the Constitutional Courts are the only Institution to step in and
protect the rights of the last grade police personnels, who all are made to
suffer on the hands of the higher officials in the name of orderly system.
19. Organised or structural misconducts or offences leading to
unconstitutionality result not only in violation of individual rights but to be
construed as structural violations. The unconstitutional affairs at large in
the Police Department is the cause allows the Constitutional Courts to
acknowledge the failure of the Executive Branches of the Government to
enforce public policies against the widespread and systematic violation of
fundamental rights of our citizen. Thus, judicial intervention by invoking
residuary relief clause in the writ prayer in order to combat the systematic
violations are justified.
20. The importance of structural misconducts or offences therefore
lies in its focus upon the widespread and systematic violation of
fundamental rights. In the matter of abolition of orderly system of
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W.P.No.2627 of 2014
extracting household works from the trained uniformed police personnel
by large number of higher police officials, not only are the criteria for the
application of certain legal principles, but such unconstitutional affairs of
the Police Department, at no circumstances be allowed to be continued in
a developing Nation, wherein the people are marching towards vibrant
democracy. It allows the Courts to take into the “systematic nature” of this
practice, both in the recent past, and in its spread across the State of Tamil
Nadu.
21. The question arises, once unconstitutional affairs largely in any
Uniformed Services and/or Government Departments, have been identified,
what is the remedy follows? Certain Courts in foreign countries developed
the remedy of structural injunction, or as we know it in India, the
continuing Mandamus. The continuing Mandamus allows the
Constitutional Courts to take cognizance of the situation, issue interim
orders and to monitor for compliance, which crucially will not be limited to
single case, but will extend to such unconstitutional affairs in any of the
Government Department at large.
22. No doubt, the writ petition on hand relating to an unauthorised
occupation of the official police quarters by the higher official for several
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W.P.No.2627 of 2014
years and it is brought to the notice of this Court that such illegalities are
commonly found in Police Department and more so, such higher officials
are maintaining the 'orderly system' of engaging the uniformed service
personnel to perform their household works. The illegal occupation is one
aspect of the matter. Utilizing the uniformed personnel for household
works in the residence of the higher officials is another aspect. Both
together the concept of organised misconducts by the police higher officials
are to be dealt with, in view of the fact that the last grade uniformed
personnels are voiceless and there is no possibility of registering a
complaint against the higher police officials by the last grade police
personnels. State, though abolished the orderly system in the year 1979,
miserably failed to implement the same till today.
23. Though these police personnels are working as menials in the
residence of the higher police officials, they are to be construed as
oppressed and depressed class amongst the homogeneous class of
uniformed personnels and the Constitutional Courts as the protector of the
Constitution, is expected to raise voice for such voiceless police personnels
made to perform household works in the residence of the higher officials.
Thus, moulding of relief in such circumstances became imminent and the
Constitutional Courts are not expected to remain as silent spectators in
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W.P.No.2627 of 2014
such circumstances, where the Fundamental Rights of group of persons are
infringed at large and there is no possibility of registering complaints or
filing a writ by any person least by these police personnel working in the
residences of the higher officials.
The Assurances given by the Respondents
24. Soon after, the issues were considered by this Court, the first
respondent / State of Tamil Nadu spontaneously responded by stating that
the orderly system in Police Department was abolished in
G.O.Ms.No.2231 dated 05.09.1979. In this Context, the Additional Chief
Secretary to Government, Home (Police-X) Department in Letter
No.37131/Police X/2022-2, dated 16.06.2022 issued instructions to the
Director General of Police, which reads as follows:
“Home (Police X) Department
Secretariat
Chennai – 600 009.
Letter No.37131/Police X/2002-2, dated 16.06.2022
From
Thiru K.Phanindra Reddy, I.A.S.,
Additional Chief Secretary to Government.
To
The Director General of Police,
Tamil Nadu, Chennai – 4. (w.e.)
Sir,
https://www.mhc.tn.gov.in/judis Sub: Writs – Writ Petition No.2627 of 2014 – Filed
W.P.No.2627 of 2014
by Thiru.U.Manickavel, Deputy Superintendent of
Police (under suspension and not allowed to
retire), before High Court of Madras, for
restraining the authorities from evicting him from
the quarters – Certain instruction issued.
Ref: Interim Orders of High Court of Madras
dated 14.06.2022 in W.P.No.2627 of 2017.
******
I am directed to enclose a copy of the interim order cited
and to state that, in the above orders, the Hon'ble Court has
mentioned the following allegations against the police officials:
a) Usage of black film in the official vehicles by the
higher officials of the police department.
b) Misuse of department's name in the private vehicles.
c) Abuse of police force in the name of orderly in their
residences or otherwise.
3. In this connection, I am to request you to issue suitable
instructions to all the officers under your control to strictly
follow the instructions issued in this regard, under intimation to
Government and also to report the progress in implementing
the instruction within 4 weeks.
Yours faithfully,
for Additional Chief Secretary to Government.”
25. The Director General of Police also issued a circular on
01.07.2022. Further circular was also issued by the Director General of
Police on 16.07.2022 and thereafter on 20.07.2022. The Government
issued several circulars even from the year 2012 onwards to remove the
Black Films from the official vehicles and to remove the unauthorised
usage of Emblem, Department name etc., and the learned Additional
Advocate General made a submission that all appropriate actions were
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W.P.No.2627 of 2014
initiated based on the judgment of the Apex Court in this regard.
26. The fourth respondent/Director General of Police filed a counter
affidavit by stating that the Government abolished the orderly system in
the year 1979 and even if some officials follow the same, all suitable
actions are initiated to withdraw the orderly system from all quarters.
27. The fourth respondent states in his counter affidavit that there
are some allegations of using policemen for household works, the
Department is taking all possible steps to curtail this without sacrificing
the official work at the camp office. Further, the Department is committed
to sincerely comply to the views of this Hon'ble Court in order to eliminate
the misuse of the police personnel for household work of the officers.
Certain misconducts were also developed in this regard and if at all any
such irregularities prevail, steps will be taken to correct the same. The
Director General of Police in paragraph 14 of the counter affidavit states as
follows:
“14. I further submit that when a Government official is
appointed to discharge public duty, it is not proper to use his
services for private work in the residence of senior police
officers. Hence, in order to comply with the orders of the
Hon'ble High Court the following steps have been taken.
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W.P.No.2627 of 2014
(i) In this regard I have issued a circular
in C.No 192/DGP(HoPF)/TN/Camp/2022 dated
01.07.2022 with instructions for restructuring of
units as follows:-
"In order to improve the efficiency of
delivery of police services, it is necessary that
maximum number of police personnel are
utilized in the core police work and the number
of Police personnel on support functions be kept
at a minimum level.
At present, many police personnel are
serving in various Units as drivers and support
staff on Other Duty basis. While it is essential
that adequate drivers are available for driving
the vehicles, keeping them on Other Duty basis is
not a healthy practice in human resources
management.
Therefore, the Unit officers are requested
to assess the strength needed for drivers and
other support functions and send proposal for
increasing the sanctioned strength with proper
justification in the format enclosed. The
additional strength required can be made
available through redeployment of posts from
other units.
After the completion of redeployment
exercise, requests for posting Police personnel on
Other Duty basis in any unit will not be
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W.P.No.2627 of 2014
such as investigation of sensitive cases etc.,
additional man power will be made available on
temporary basis for a short period after the
approval of the Competent Authority.
All unit officers especially the
Commissioner of Police, Greater Chennai Police
and Additional Director General of Police,
Armed Police are requested to adhere to the
above instructions without any deviation.
(ii) In compliance of the orders of the
Hon'ble High Court of Madras dated 25.07.2022
in W.P.No.2627/2014, all the Superintendents of
Police of State Service and all IPS officers have
been instructed individually to strictly adhere to
the instructions issued in G.O.Ms.No.2231, Home
(Police VI) Department, dated 05.09.1979 and
the interim orders of the Hon'ble High Court
dated 14.06.2022 in W.P.No.2627 of 2014,
against the use of Police personnel for household
work. The memorandum issued in this regard
reads as follows:
"Please find enclosed the Government
Order in G.O.Ms.No.2231, Home (Pol -VI)
Department, dated: 05.09.1979 and Interim
Orders of High Court of Madras, dated
14.06.2022 in W.P.No.2627 of 2014 and a
Circular from this office in this regard.
2) You are instructed to follow the
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W.P.No.2627 of 2014
and Interim orders of the High Court against the
use of police personnel for household work.
Compliance report should be given by
08.08.2022."
(iii) Written undertakings that no Police
personnel are being used for household or
menial work have been obtained from all the
Senior Officers in the following format:
UNDERTAKING
I am aware that the orderly system has been abolished as per
G.O.Ms.No.2231, Home (Police-VI) Department,
dated.05.09.1979. It is certified that none of the Police
Personnel deployed on official duty like Security, Wireless
operations etc at my residence are being employed in any
other duty other than the official work assigned to them.
Date: Signature:
Name :
Designation:
(iv) To implement the orders of the Hon'ble
High Court in letter and spirit, a detailed audit of
Police personnel attached to the Senior Officers
for performing official duties as mentioned
above was undertaken to ascertain whether there
is any misuse of these Police personnel for
household work. Wherever it was seen that
excess Police personnel have been attached to
Senior Officers who could have been utilized for
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W.P.No.2627 of 2014
asked to report to their Parent Unit for Executive
work. 430 Police personnel were withdrawn in
the above exercise.
(v) Further, black films in 578 nos. of
Police vehicles and POLICE' boards / Stickers in
8907 nos. of private vehicles were removed so
far. This drive is being continued throughout the
State to remove black films in Police vehicles
and 'POLICE' boards / Stickers in private
vehicles including Two Wheelers.''
28. In paragraph 15 of the counter affidavit, the Director General of
Police in his command reiterated that the Department is fully in
agreement with the views of this Hon'ble Court that Police personnels
should not be used as household and menial works and has taken
vigorous steps to prevent the same. The steps have been taken to fully
implement the orders of the Hon'ble High Court in letter and spirit. He
further assured this Court that this drive will continue in future also.
29. In continuation of the counter affidavit filed by the fourth
respondent Dr.C.Sylendra Babu, I.P.S., Director General of Police, himself
has filed an undertaking that “It is Certified that none of the Police
Personnel deployed on official duty like Security, Wireless operations
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etc., at my residence are being employed in any other duty other than
W.P.No.2627 of 2014
the official work assigned to them”. Such undertakings have been
obtained from all the higher officials serving in the Police Department
across the State of Tamil Nadu.
30. Consequent to the implementation of the Government Order in
G.O.Ms.No.2231, Home (Police-VI) Department, dated 05.09.1979, in its
letter and spirit by eradicating the orderly system in the Police Department,
the higher police officials require assistants on par with other All India
Rank Officials. The Government in G.O.Ms.No.2231 dated 05.09.1979,
itself has stated that an alternate arrangement for appointment of Last
Grade Government Servant will have to be made in the places of orderlies
at the scale admissible under the orders in force. The Government order
further states that the Director General of Police has to submit a proposal
in this regard to the Government in consultation with the Principal
Secretary to Government. Thus, the said exercise is to be done by the
respondents 1 and 4 as expeditiously as possible for the benefit of higher
police officials and for their effective and efficient functioning and
performance of public duties.
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W.P.No.2627 of 2014
Conclusion
31. Accordingly, this Court is inclined to pass the following orders:-
(1) Based on the counter-affidavit filed by the fourth
respondent and the respective undertakings furnished by the
Police Officials, the respondents 1 to 4 are directed to ensure
that the practice of orderly system stands eradicated in entirety
in accordance with G.O.Ms.No.2231, Home (Police-VI)
Department, dated 05.09.1979. The said exercise shall be
done within a period of four months from the date of receipt of
a copy of this order.
(2) The respondents 1 and 4 are directed to withdraw
the orderlies if deputed to the residence of the retired officials
immediately as it amounts to an illegality and in violation of
law.
(3) The respondents 1 or 4 as the case may be is
directed to conduct an enquiry, in the event of receiving any
complaint or information as regard to the misconducts or
offences from any person and initiate all appropriate actions
under the relevant law and under the Discipline and Appeal
Rules, as the case may be.
(4) The respondents 1 to 4 are directed to identify the
illegal occupation of official police quarters and initiate all
steps for eviction under the provisions of the Statute and the
Rules in force.
(5) The writ petitioner in respect of his grievance, if any
exists, is at liberty to approach the first respondent in the
manner known to law.
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W.P.No.2627 of 2014
32. With the aforesaid directions, the Writ Petition stands disposed
of. Consequently, connected Miscellaneous Petition is closed. However,
there shall be no order as to costs.
23.08.2022
Jeni
Index : Yes
Internet : Yes
Speaking order : Yes
To
1.The Secretary,
State,
Home, Prohibition and Excise Department,
Tamil Nadu,
St. George Fort,
Chennai.
2.The Commissioner of Police,
Greater Chennai,
Chennai.
3.The Additional Deputy Commissioner of Police,
Estate, Welfare and Community Policing,
Vepery,
Chennai.
4.The Director General of Police,
Mylapore,
Chennai 600 004.
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W.P.No.2627 of 2014
S.M. SUBRAMANIAM, J.
Jeni
W.P.No.2627 of 2014
23.08.2022
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