Madras High Court
K.Suthanthirarajan vs The Superintendent Of Police on 25 August, 2023
W.P.No.34845 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.34845 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 H2/PR No.347/03 u/r 3(a) dated 11.02.2004 and confirmed
by the second respondent in C.No.B3/A.P.No.42/2005 dated 07.06.2005
and to quash the same.
1/12
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W.P.No.34845 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 11.02.2004, thereby
imposed punishment of 'censure deferred for a period of three months
from the date of order' and the order passed by the second respondent
dated 07.06.2005, 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 in Virdhachalam
from 02.09.2003, the petitioner was served with charge memo in
PR.No.347 of 2003 dated 09.12.2003, which reads as follows:
"gross neglect of duty and disobedience of the
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W.P.No.34845 of 2005
orders given during the earlier monthly crime meeting
thereby having failed to reduce the pendency of TNP Act
cases in Oct 03”
On receipt of the same, the petitioner submitted a detailed explanation.
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 deferred for a period of three months
from the date of order' by an order dated 11.02.2004. 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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W.P.No.34845 of 2005
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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W.P.No.34845 of 2005
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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W.P.No.34845 of 2005
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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W.P.No.34845 of 2005
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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W.P.No.34845 of 2005
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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W.P.No.34845 of 2005
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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W.P.No.34845 of 2005
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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W.P.No.34845 of 2005
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 H2/PR No.347/03 u/r 3(a) dated 11.02.2004
and confirmed by the second respondent in C.No.B3/A.P.No.42/2005
dated 07.06.2005 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
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W.P.No.34845 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.34845 of 2005
25.08.2023
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