Madras High Court
L.Manohar vs The Director General Of Police on 14 August, 2023
WP.No.1857/2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 14.08.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.1857/2018
L.Manohar ... Petitioner
Versus
1.The Director General of Police
Dr.Radhakrishnan Salai
Mylapore, Chennai 600 004.
2.The Secretary to Government
Home [Police II] Department
Fort St George, Chennai 600 009. ... Respondents
Prayer : - Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorari calling for the records of the 1st
respondent in connection with the impugned order passed by him in
Rc.No.269402/Con.II[1]/2001 dated 01.03.2017 served on the petitioner on
20.07.2017 and quash the same and grant such other further relief as this
Court may deem fit.
1
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For Petitioner : Mr.K.Venkataramani
Senior Counsel for
Mr.M.Muthappan
For Respondents : Mr.R.Neethi Perumal
Government Advocate
ORDER
(1) The writ petition has been filed in the nature of a certiorari seeking
records of the 1st respondent/Director General of Police, at Chennai, in
connection with an order passed by him in
Rc.No.269402/Con.II[1]/2001 dated 01.03.2017 served on the
petitioner on 20.07.2017 and to quash the same.
(2) The petitioner had been directly recruited as Sub Inspector of Police
Category-I through a selection conducted by the Tamil Nadu Uniform
Services Recruitment Board and was appointed to service on
01.03.1996. He was due for promotion in the year 2004-05, but was
not promoted. He was subsequently promoted as Inspector of Police
in November 2010. His seniority was restored with his juniors.
While serving as the Sub Inspector of Police at Kottur Police Station
at Tiruvarur District in the year 2000, he had arrested one
Ramanathan in connection with Crime No.35/2000 in the middle of
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the night on 28.01.2000 and had remanded the accused to judicial
custody. There was an enquiry that the petitioner had used force
beyond what was required while taking the said Ramanathan into
custody. The District Revenue Officer, had conducted an enquiry
under the Police Standing Orders 145. Thereafter, two decisions were
taken. One, to prosecute the petitioner for the said criminal offence
and another, to proceed against him by initiating departmental
proceedings. Incidentally, the said Ramanathan who was the accused
in Crime No.35/2000, suffered an order of conviction and was also
sentenced in the criminal trial. The charge against him was that he,
while driving a bullock cart, had dashed it against a Government bus
and poured hot milk on the driver of the bus. The criminal case
against the petitioner herein, had ended in acquittal. Insofar as the
departmental proceedings are concerned, the witnesses produced by
the Presenting Officer, did not stand by their statements and had
spoken adverse to the Presenting Officer. The Enquiry Officer,
therefore, not finding sufficient evidence, had held that the charges
were not proved. But however, the Disciplinary Authority had
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appointed another Enquiry Officer to re-examine and revisit the
evidence. At that time, it was held that charges against the petitioner
were established. A Report in this connection, was submitted on
07.12.2003. Thereafter, the matter went before the Disciplinary
Authority/Commissioner of Police. He examined the entire file and
had taken a decision to drop the charges against the petitioner herein
and differed with the findings of the Enquiry Officer. This was on
14.11.2008.
(3) The Rule provides that if there is an aggrieved party, he/she can file a
revision before the 1st respondent herein/Director General of Police.
But here, there was no aggrieved party since the charges against the
petitioner herein had been dropped. The Rule also provided that the
Director General of Police can suo motu examine the records as suo
motu revision. That is provided under Rule 15[A][1][i] of the Tamil
Nadu Police Subordinate Service (Discipline and Appeal) Rules,
1955. An order dated 23.07.2016, was issued nearly after eight
years, consequent to which the present impugned order was passed.
On the side of the respondents, it is contended that it is not an order,
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but only a show cause notice.
(4) However, the learned Senior counsel appearing on behalf of the
petitioner, questioned the nomenclature, show cause notice by stating
that there a finding was given that the charges against the petitioner
had been established and proved and therefore, contended that it was
not a show cause notice. This particular impugned notice/order is
questioned on the ground that a decision had already been taken and
conveyed in the said notice/order itself. It is therefore, contended by
the learned Senior Counsel that giving any explanation would only be
an empty formality as a decision had already been taken and logically,
the 1st respondent could not turn around and take a different decision
having expressed in clear terms that the charges have been proved and
that he is differing from the views taken by the Disciplinary Authority.
(5) In the show cause notice/order, the 1st respondent herein, after
extracting the facts, had stated as follows:-
''7.Hence, I conclude that the charges against
the delinquent have been conclusively proved by the
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enquiry officer and the opinion of the Disciplinary
Authority is not in order. Further, I agree with the
findings of the Enquiry Officer and hold that charge
as proved and it is proposed to impose any one of the
penalties mentioned, in Rule 2 of TNPSS [D&A] Rules,
1955 on the delinquent.
8.Hence, you are directed to submit
representation if any, within 15 days from the date of
receipt of this show cause notice, regarding the
proposed penalty to be imposed on you. If no
representation is received within stipulated time, it
will be presumed that you have no representation to
make and final orders will be passed on merits of the
case.''
(6) A perusal of the extracted portion shows that the 1st respondent had
concluded that the charges have been proved by the Enquiry Officer
and that the opinion of the Disciplinary Authority is not in order. The
authority has a right to hold so, but he should have held so only after
giving an opportunity to the petitioner herein to advance his case and
after examining the records and viewing it from all sides, including the
first findings of the Enquiry Officer originally holding that the charges
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have not been proved, the findings of the second Enquiry Officer on
the same piece of evidence that the charges have been established, the
opinion of the Disciplinary Authority that the charges should be
dropped and then, weigh them with the explanation of the petitioner
and then, come to a conclusion whether the charges have been proved
or not proved. Even without examining all these materials, coming to
a conclusion that the charges have been conclusively proved, is
prejudicial to the petitioner herein as whatever explanation the
petitioner gives, would only stand rejected and there is no possibility
of the explanation being considered in their proper light. The 1 st
respondent should have worded the show cause notice a little more
carefully and should have left the issues open and should have taken
any decision only after examining the records more particularly, the
explanation given by the petitioner herein. It must be kept in mind
that judicial review lies against the procedure adopted. While
granting opportunity to answer to a show cause notice, it should be
made clear that the authority has an open mind and would receive the
explanation, examine it and then, take a decision whether the
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allegations in the show cause notice stand proved or not proved,
established or not established. But, once the authority shuts his/her
mind to any possibility of holding otherwise, then the only possibility
which remains is that the charges have been proved, and giving an
opportunity to answer to the show cause notice is only an empty
formality. Opportunity should not be only in letter, but in spirit also.
It should be effective. It should inspire the confidence of the
delinquent that if he makes any statement by way of an explanation, it
would be considered.
(7) Learned Senior Counsel appearing on behalf of the petitioner relied on
the judgment reported in 2006 [9] SCC 440 [Lav Nigam Vs. the
Chairman and Managing Director, ITI Limited and Another],
wherein it had been held that when the Disciplinary Authority had
taken a view different to that by the Enquiry Officer, then, notice
should be given to the charged employee and thereafter, a decision
whether the charges have been held proved or not, should bet taken.
The Hon'ble Supreme Court had also referred to two earlier decisions
reported in 1998 [7] SCC 84 [Punjab National Bank Vs. Kunj
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Behari Misra] and in 1999 [7] SCC 739 [Yoginath D.Bagde Vs.
State of Maharashtra].
(8) The dictum laid down by the Hon'ble Supreme Court as encompassed
in paragraphs No.10 to 12 are extracted as follows:-
''10. The conclusion of the High Court was
contrary to the consistent view taken by this Court that
in case the disciplinary authority differs with the view
taken by the inquiry officer, he is bound to give a
notice setting out his tentative conclusions to the
appellant. It is only after hearing the appellant that
the disciplinary authority would at all arrive at a final
finding of guilt. Thereafter, the employee would again
have to be served with a notice relating to the
punishment proposed.
11.In Punjab National Bank v. Kunj Behari
Misra [(1998) 7 SCC 84 : 1998 SCC (L&S) 1783] a
Bench of this Court considered Regulation 7(2) of the
Punjab National Bank Officer Employees' (Discipline
and Appeal) Regulations, 1977. The Regulation itself
did not provide for the giving of any notice before the
disciplinary authority differed with the view of the
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enquiry officer. This Court held: (SCC p. 97, para 19)
“The result of the aforesaid discussion would
be that the principles of natural justice have to
be read into Regulation 7(2). As a result
thereof, whenever the disciplinary authority
disagrees with the enquiry authority on any
article of charge, then before it records its own
findings on such charge, it must record its
tentative reasons for such disagreement and
give to the delinquent officer an opportunity to
represent before it records its findings. The
report of the enquiry officer containing its
findings will have to be conveyed and the
delinquent officer will have an opportunity to
persuade the disciplinary authority to accept
the favourable conclusion of the enquiry
officer. The principles of natural justice, as we
have already observed, require the authority
which has to take a final decision and can
impose a penalty, to give an opportunity to the
officer charged of misconduct to file a
representation before the disciplinary
authority records its findings on the charges
framed against the officer.”
12. This view has been reiterated in Yoginath D.
Bagde v. State of Maharashtra [(1999) 7 SCC 739 :
1999 SCC (L&S) 1385] . In this case also Rule 9(2) of
the Maharashtra Civil Services (Discipline and
Appeal) Rules, 1979 did not specifically provide for a
disciplinary authority to give an opportunity of
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hearing to the delinquent officer before differing with
the view of the enquiry officer. The Court said: (SCC
p. 758, para 29)
“But the requirement of ‘hearing’ in
consonance with the principles of natural
justice even at that stage has to be read into
Rule 9(2) and it has to be held that before the
disciplinary authority finally disagrees with
the findings of the enquiring authority, it
would give an opportunity of hearing to the
delinquent officer so that he may have the
opportunity to indicate that the findings
recorded by the enquiring authority do not
suffer from any error and that there was no
occasion to take a different view. The
disciplinary authority, at the same time, has to
communicate to the delinquent officer the
‘TENTATIVE’ reasons for disagreeing with the
findings of the enquiring authority so that the
delinquent officer may further indicate that the
reasons on the basis of which the disciplinary
authority proposes to disagree with the
findings recorded by the enquiring authority
are not germane and the finding of ‘not guilty’
already recorded by the enquiring authority
was not liable to be interfered with.”
(9) The reasoning given is that the delinquent officer should have the
opportunity to give an explanation and thereafter, the decision should
be taken. It had been stated that principles of natural justice require
the authority to take a final decision after giving an opportunity to the
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officer charged to make a representation, record findings and then
take a decision.
(10) In view of this particular dictum laid down, I hold that the order
impugned, namely, the show cause notice/order dated 23.07.2016
suffers from procedural violations and therefore, the said order is
interfered with by me. The consequential punishment which has been
imposed vide order dated 01.03.2017 is therefore, kept in abeyance.
(11) It is informed by the learned Senior counsel that owing to this
particular decision taken, the promotional aspects of the petitioner had
suffered.
(12) Let the promotion of the petitioner not be anymore delayed. The
punishment imposed has been kept in abeyance. The show cause
notice/order dated 23.07.2016 is struck down. The matter is remitted
back to the 1st respondent/Director General of Police to issue a fresh
show cause notice, and give an opportunity to the petitioner herein
and then take any decision. He may take a decision by imposing the
same punishment which is kept in abeyance or he may even withdraw
the said punishment. The prerogative is entirely left to the 1st
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respondent. The 1st respondent may also take into consideration, the
delay in initiating the suo motu revision. The Disciplinary Authority
had dropped the proceedings on 14.11.2008 and just when the
petitioner was due for promotion from Inspector of Police to Deputy
Superintendent of Police on 23.07.2016, the show cause notice has
been issued. These aspects may be taken into consideration. The 1 st
respondent therefore, has to keep an open mind on granting of
promotion and grant promotion to the petitioner herein and also take a
decision whether the suo motu revision will have to be pursued further
or not. Let a considered decision on all these aspects be taken once
again by the 1st respondent after a thorough review of the entire
records. Such decision should to be taken within a period of four
months from the date of receipt of a copy of this oder. If the petitioner
is entitled for promotion, then such promotion may be granted and if
there is no delinquency found, it may be dated back so that the
petitioner may not suffer owing to any delay.
(13) The writ petition stands disposed of. The show cause notice dated
23.07.2016 is set aside. The consequential punishment imposed on
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01.03.2017 is kept in abeyance. The matter is remitted back to the
1st respondent/Director General of Police to revisit the entire records
and take a proper decision in accordance with law. No costs.
14.08.2023
AP
Internet : Yes
To
1.The Director General of Police
Dr.Radhakrishnan Salai
Mylapore, Chennai 600 004.
2.The Secretary to Government
Home [Police II] Department
Fort St George, Chennai 600 009.
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WP.No.1857/2018
C.V.KARTHIKEYAN, J.,
AP
WP.No.1857/2018
14.08.2023
https://www.mhc.tn.gov.in/judis
