K.Suthanthirarajan vs The Superintendent Of Police
2023 Latest Caselaw 11216 Mad

                                                                               W.P.No.35202 of 2005

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 25.08.2023

                                                          CORAM:

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                    W.P.No.35202 of 2005

                     K.Suthanthirarajan                                             ... Petitioner

                                                             Vs.

                     1.The Superintendent of Police,
                       Cuddalore District
                     2.The Deputy Inspector General of Police,
                       Villupuram Range, Villupuram                                ... Respondents

                     PRAYER:

                                  Writ Petition is filed under Article 226 of Constitution of India

                     praying to issue Writ of Certiorari calling for the records of the

                     respondents in connection with the impugned order passed by the first

                     respondent in C.No.H2/PR/172/03 u/r 3(a) of TNPSS(D&A) Rules dated

                     04.10.2003 and confirmed by the second respondent in C.No.H2/PR

                     C.No.B3/AP.40/2005 dated 24.05.2005 and to quash the same.




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https://www.mhc.tn.gov.in/judis
                                                                                     W.P.No.35202 of 2005

                                         For Petitioner          : Mr.K.Venkatramani,
                                                                   Senior Counsel
                                                                   for Mr.M.Muthappan

                                         For Respondents         : Mr.L.S.M.Hasan Fizal,
                                                                   Additional Government Pleader

                                                                 ORDER

This writ petition has been filed challenging the order

passed by the first respondent dated 04.10.2003, thereby

imposed punishment of censure and the order passed by the second

respondent dated 24.05.2005, thereby confirmed the order of the first

respondent.

2. The petitioner had entered into service as a directly

recruited Sub-Inspector of Police on 28.09.1987. Thereafter he was

promoted as Inspector of police on 28.09.2002. While he was serving as

Inspector of Police, Prohibition Enforcement Wing, Cuddalore from

04.09.2002, the petitioner was served with charge memo in PR.No.172 of

2003 dated 11.08.2003, which reads as follows:

"Gross neglect of duty in having failed to control the possession i.d. arrack and fermented wash in Chinnathanankuppam Village in Kullamchavadi Police

https://www.mhc.tn.gov.in/judis W.P.No.35202 of 2005

Station limits paved way to detection of cases in Kullanchavadi PS.Cr.Nos.447 of 2003 to 449 of 2003 u/s 4(1)(g) and 4(1)(a) TNP Act on 26.07.2003 by the Special Party led by the Superintendent of Police, Cuddalore District, Cuddalore and thereby derelicted duty” On receipt of the same, the petitioner submitted a detailed explanation on

06.09.2003. Without satisfying with the explanation submitted by the

petitioner, an enquiry officer was appointed to conduct enquiry.

However, no witness was examined on the side of the disciplinary

authority. The documents which were annexed along with the charge

memo were relied upon by the enquiry officer and also the explanation

submitted by the petitioner, the enquiry officer had drawn up a minute as

enquiry report and held that the charges proved. Even then, the enquiry

report was not furnished to the petitioner and based on the findings of the

enquiry officer, he was imposed punishment of censure by an order dated

04.10.2003. Aggrieved by the same, the petitioner preferred appeal

before the second respondent and the same was also dismissed and

confirmed the punishment imposed by the first respondent.

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3. Mr.K.Venkatramani, the learned Senior Counsel appearing

for the petitioner submitted that the first respondent passed final order

without any reasoning by non-speaking order. The second respondent is

being appellate authority also passed non-speaking order without any

discussion regarding the explanation submitted by the petitioner for the

charges. There is no discussion with regards to adequacy or inadequacy

of punishment. Therefore, the order of confirmation passed by the second

respondent is in violation of rule 6(3) of Tamilnadu Police Subordinate

Services (Discipline and Appeal) Rules. The petitioner was not given any

opportunity to appear before the enquiry officer and no witness was

examined on the side of the disciplinary authority as well as on the side

of the delinquent i.e. the petitioner herein. Therefore it is violation of

principles of natural justice. Even after enquiry, the petitioner was not

served with any enquiry report and he was not issued any show cause

notice. Though the charge issued under Rule 3(a) of Tamilnadu Police

Subordinate Services (Discipline and Appeal) Rules and it is summary

proceedings, no enquiry was conducted and the petitioner was not

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given opportunity to appear before the enquiry officer to put forth his

defence.

4. The respondents filed counter and Mr.L.S.M.Hasan Fizal,

the learned Additional Government Pleader submitted that the petitioner

acknowledged the charge memo and he submitted explanation. After

analysing the explanation and prosecution documents, the enquiry officer

held the charges proved and submitted its minutes. Based on the proved

minutes, the petitioner was awarded punishment. The appeal was also

dismissed by the appellate authority and the punishment was awarded as

per the Rules. As such, there was absolutely no illegality in the orders

passed by the respondents.

5. Heard, Mr.K.Venkatramani, the learned Senior Counsel

appearing for the petitioner and Mr.L.S.M.Hasan Fizal, the learned

Additional Government Pleader appearing for the respondents.

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6. The learned Senior Counsel appearing for the petitioner

relied upon the judgment of the Hon'ble Division Bench of this Court in

the case of C.K.G. Nathan Vs. Assistant Commandant Central

Industrial Security Force, CISF Unit, CPCL, Manali, Chennai and

Another reported in (2009) 5 MLJ 1121, wherein the Honorable

Division Bench of this Court held that the disciplinary authority is duty

bound to consider the imputation of the misconduct or misbehaviour

committed by the delinquent officer, the explanation offered by him and

the relevant records to satisfy himself as to whether an enquiry, is

necessary or not in terms of Rules. When the delinquent

specifically refutes the charges, the following Rationes Decidendi drawn

up by the Hon'ble Division Bench of this Court:

I. "Even in case where the rules do not make a provision for enquiry in cases where minor penalties are imposed, nevertheless, the compliance of the principles of natural justice may be required and the non compliance may vitiate the order. It depends upon the facts of each case. In the event the charges are very minor and the order imposing minor penalty merely refers to the charge without adversely imputing anything about the delinquent

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employee, the failure to conduct an enquiry will not vitiate the order. However, the same cannot be the general rule. In case if the charges are serious in nature and nevertheless the employer proceeds to follow Rule 37 of the Central Industrial Security Force and the order of punishment contains certain adverse imputation, remarks or even comments on the delinquent employee which may be considered as a stigma or which may be likely to affect his reputation in the eye of public, certainly the failure to conduct enquiry by giving an opportunity to such delinquent employee would vitiate the order for non compliance of the principles of natural justice. This principle also applies to the case where charges are minor, nevertheless some imputations/observations are made against the delinquent. The test to decide whether an enquiry is required or not is not the mere fact of minor penalty is imposed, but the nature of charges, the nature of observations or findings of the disciplinary authority while passing final orders of penalty.' II. "An enquiry is mandatory, where the charges are refuted by the delinquent."

7. Thus, it is clear that the principle also applies to the case

where charges are minor, nevertheless some imputations/observations are

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made against the delinquent. The test to decide whether an enquiry is

required or not is not the mere fact of minor penalty is imposed, but the

nature of charges, the nature of observations of finding of the

disciplinary authority while passing final orders of penalty. Further, an

enquiry is mandatory where the charges are refuted by the delinquent.

8. In the case on hand, the petitioner categorically refutes the

charges framed against him by detailed representation. In fact, the

disciplinary authority appointed enquiry officer. The enquiry officer did

not call upon any party, neither the delinquent nor the presenting officer

to adduce any evidence. The enquiry officer, on the basis of the charge

along with the documents which were annexed and the explanation

submitted by the delinquent, prepared minutes in the form of enquiry

report and submitted before the disciplinary authority. On the strength of

the minutes, the disciplinary authority imposed punishment on the

petitioner without even giving any opportunity to submit his explanation.

Therefore, the above judgment is squarely applicable to this case and the

entire disciplinary proceedings is vitiated.

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9. The learned Senior Counsel also relied upon the judgment of

this Court in the case of Nawabkhan Vs. Superintendent of Police,

Chengai MGR East District, Chennai and another reported in (2008) 7

MLJ 1275, wherein this Court laid Rationes Decidendi as follows:

I. "Holding an employee liable for the charges levelled against him on the basis of his explanation and documentary evidence, without conducting any enquiry, would result in injustice to him and is not justified."

II. "When the enquiry officer is not the disciplinary authority, the delinquent employee has got a right to have a copy of the report of the enquiry officer before the disciplinary authority arrives at a conclusion with regard to the guilt or innocence of the delinquent in respect of the charges levelled against him. Denial of right to the employee to have the copy of the enquiry report would definitely amount to denial of reasonable opportunity and violation of the principles of natural justice."

10. As stated supra, the petitioner was not given any opportunity

to appear before the enquiry officer and he was not given any

opportunity to adduce evidence to defend the charge. Even the minutes

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submitted by the enquiry officer was not served on the petitioner and he

was not called upon to explain for the minutes submitted by the enquiry

officer. Therefore, it is violation of principles of natural justice and the

said judgment is squarely applicable to the case on hand and the entire

disciplinary proceedings cannot be sustained and it is liable to be

quashed.

11. Further, the Appellate Authority i.e. the second respondent

failed to give any independent reasons for coming to the conclusion on

that the charge against the petitioner had been proved. The Appellate

Authority mechanically confirmed the order passed by the first

respondent without any discussion by non speaking order. In the case of

an appeal against an order of penalty, the appellate authority shall

consider (a) whether the facts on which the order was based have been

established (b) whether the facts established offered sufficient ground for

taking action and (c) whether the penalty is excessive, adequate

or inadequate and after such consideration shall pass orders as it thinks,

proper. The Appellate Authority i.e. the second respondent failed to state

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any reason on the crucial question as to whether the findings of the first

respondent were unwarranted by the evidence on record. The Appellate

Authority also failed to state that whether the penalty imposed was

adequate or justified in the facts and circumstances of the case. Therefore

the order passed by the second respondent is in violation of the rules

relating to disposal of the appeal.

12. In view of the above discussion, the impugned orders passed

by the first respondent in C.No.H2/PR/172/03 u/r 3(a) of TNPSS(D&A)

Rules dated 04.10.2003 and confirmed by the second respondent in

C.No.H2/PR C.No.B3/AP.40/2005 dated 24.05.2005 are quashed and the

writ petition is allowed. There shall be no order as to costs.

25.08.2023 Internet: Yes Index: Yes/No Speaking/Non-speaking order lok

https://www.mhc.tn.gov.in/judis W.P.No.35202 of 2005

G.K.ILANTHIRAIYAN, J.

lok

To

1.The Superintendent of Police, Cuddalore District

2.The Deputy Inspector General of Police, Villupuram Range, Villupuram

3. The Government Advocate, High Court, Madras.

W.P.No.35202 of 2005

25.08.2023

https://www.mhc.tn.gov.in/judis