Madras High Court
P.Thamburaj vs State Of Tamilnadu Rep. By on 19 September, 2023
W.P No.305494 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.09.2023
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
WP No.35494 of 2019
And
W.M.P.No. 36326 of 2019
P.Thamburaj ... Petitioner
-Vs-
1. State of Tamilnadu rep. by
Additional Chief Secretary, Home (Pol. VI) Department
The Secretariate, Chennai – 9.
2. The Deputy Inspector General of Police
Coimbatore Range, Coimbatore District.
3. The Superintendent of Police,
Coimbatore District. ... Respondents
PRAYER: Writ Petition under Article 226 of the Constitution of India
praying for a Writ of Certiorarified Mandamus calling for the records and
quashing the impugned communication vide C.No. 13/AP26/34706/10
D.O.808/11 dated 28.10.2011 communicated by the third respondent
intimating that the Additional DGP modified the original punishment in
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W.P No.305494 of 2019
PR.No. 17/2008 into one of “Black mark” in Chief Office proceedings
C.No. 206735/AP 1(1)/10 dated 30.04.2011 and consequently, direct the
third respondent to fix the seniority of the petitioner in the post of special
sub Inspector of Police (SSI) from the year 2018 by fixing his head
Constable seniority on and from 15.06.2008 as was originally fixed by the
third respondent as per his order dated 27.08.2013 vide District Order
843/2013 Na.Ka.No. A2/24187/2013.
***
For Petitioner : Mr. K. Ravi
For Respondents : Mr. T.K. Saravanan
Additional Government Pleader
ORDER
The Writ Petition has been filed in the nature of Certiorarified
Mandamus to call for the records of the communication dated 28.10.2011
of the third respondent / the Superintendent of Police, Coimbatore District,
intimating that the Additional Director of General Police had modified the
original punishment in PR.No. 17/2008 into one of “Black mark” in Chief
Office proceedings dated 30.04.2011 and direct the third respondent to fix
the seniority of the petitioner in the post of Special Sub Inspector of Police
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W.P No.305494 of 2019
(SSI) from the year 2018 by fixing his Head Constable seniority on and
from 15.06.2008 as was originally fixed by the third respondent by order
dated 27.08.2013.
2. The petitioner herein was employed as Head Constable at
Thadagam Police Station at Coimbatore at the time of filing of the Writ
Petition. When he was working as Mettupalayam Police Station as Head
Constable on 02.09.2007 at around 6.30 hours in the morning, a phone call
was received by the other Head Constable K.Loganathan. An information
was given that a young infant of about one year was dead and was about to
burial in the buried ground in the vicinity. This particular information,
which had been conveyed to the police station was not informed to the
higher officials. The petitioner, who was also on duty in Mettupalayam
Police Station at that particular day along with K.Loganathan, and other
Officer was charged with dereliction of duty for not conveying this vital
information to the higher officials.
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W.P No.305494 of 2019
3. An enquiry was conducted in this regard and the Enquiry
Officer found that the petitioner had not directly received the phone call and
had held that the allegations against the petitioner was not established.
Thereafter, a show cause notice was however issued to the petitioner on
30.07.2009 calling upon him to give an explanation since the second
disciplinary authority had differred from the findings of the enquiry officer.
The petitioner had given his explanation and finally, the Superintendent of
Police, Coimbatore District, had communicated imposition of punishment
of increment. The petitioner had then filed a Petition before the Director
General of Police, who, on consideration of the facts had imposed a
punishment of “black mark”.
4. It must be stated that much earlier on 15.06.2008, the petitioner
had been promoted as Head Constable. That was interfered with
consequent to the imposition of the punishment of “Black mark” and it was
held that owing to the said punishment of “Black mark”, the promotion
given to the petitioner herein was pushed back and he was recognised to be
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W.P No.305494 of 2019
Head Constable only on and from 11.05.2011. Questioning this particular
punishment imposed as “Black mark” and consequential manner in which it
had affected the promotion already granted to him, the Writ Petition has
been filed seeking to quash all those orders.
5. A counter affidavit had been filed by the third respondent / the
Superintendent of Police, Coimbatore District, who after stating the facts of
the case had stated that the punishment was modified to that of “Black
mark” by the Director General of Police in proceedings dated 30.04.2011
and therefore stated that since the currency of punishment completed only
on 11.05.2011, the petitioner became eligible for promotion as Head
Constable only with effect from 11.05.2011. It was stated that he had been
mistakenly upgraded as Head Constable with effect from 15.06.2008.
Therefore, there was a complete reversal of the standing of the petitioner
herein so far as upgradation was concerned and later upgradation as Special
Sub Inspector of Police.
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W.P No.305494 of 2019
6. The learned Senior Counsel appearing on behalf of the
petitioner questioned this particular denial of recognisation of the petitioner
being upgraded as Head Constable with effect from 15.06.2008 by placing
reliance on the Police Standing Order 94(4) of the Tamilnadu Police
Standing Orders, relating to “Black mark”.
7. Police Standing Order 94(4) of the Tamilnadu Police Standing
Orders reads as follows:-
“94. Black Marks—Rules — The
following rules regulate the system of punishment
by Black Marks: -
(1) ..............
(2) ........
(3) .......
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W.P No.305494 of 2019
(4) Black Marks shall take effect from the
date of the delinquency, unless otherwise stated.
(5) The above rules must be strictly
enforced, provided that in any case in which the
officer awarding the Black Mark considers that
the application of the rules will result in hardship
to the delinquent, he shall refer the case for the
orders of the Deputy Inspector—General
concerned.”
8. It is contended by the learned Senior Counsel that the
punishment can be put into effect only from the date of offence and if it is
so considered in this case, it should have come into effect before on and
from 02.09.2007 when the information was received at the police station
where the petitioner was working about the burial of an infant.
9. Learned Senior Counsel placed further reliance on Police Standing
Orders 97, which is as follows:-
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W.P No.305494 of 2019
“97. Deferred punishments —
(1) For minor offences and in case of
more serious misconduct when a man has a
previous good record, the punishment may be
held in abeyance for a stated period ranging
from three to six months at the end of which
order of punishment will be cancelled, if the
officer‘s conduct while on duty during the
period or postponement has been good. If the
delinquent‘s conduct is found to be
unsatisfactory at any time during the period of
postponement, the punishment may at once be
confirmed. A deferred punishment will be
entered in the defaulter sheet, if confirmed but
not otherwise.(G. O. 2960, Home, 4th October,
1954)
NOTE - ....
(2) When the punishment held in
abeyance is a Black Mark, Reprimand or a
Censure, the period should not exceed six
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W.P No.305494 of 2019
months. If the Black Mark, Reprimand or
Censure is subsequently confirmed, it will have
effect from the date of the delinquency to which
it relates.
(G.O. 2494, Home, 26th June 1947 and
1926, Home 30th June 1954)
(3) ......... ”
10. A reading of the above provision shows that any punishment
could be kept in abeyance and if it is confirmed, it will have effect from the
date of the offence to which it relates. It had also been stated that any
punishment of “Black mark” or Censure can be in place only for a period of
six months. It is therefore contended by the learned Senior counsel on
behalf of the petitioner that even in the extreme case of the “Black mark”
being confirmed by this Court, the punishment tenure will end on
completion of six months from the date of offence, namely, 02.09.2007,
which would indicate that it would lapse on 02.03.2008. This would not
affect the promotion of the petitioner on 15.06.2008.
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W.P No.305494 of 2019
11. On the other hand, the Additional Government Pleader placed
reliance on Tamilnadu Government Servants (Conditions of Service) Act,
2016 and more particularly to Appendix 11 and Sub-rule (11) and Sub-rule
(11) which are as follows:-
“(11) Any punishment (other than 'censure')
imposed on a member of service within a period of
five years prior to the crucial date and a punishment
of 'Censure' imposed within a period of one year
prior to the crucial date shall beheld against the
member of service and his name shall not be
considered for inclusion in the approved list. Any
punishment, including 'Censure' imposed on a
member of service after the crucial date, but before
actual promotion or appointment shall be held
against the member of service and he shall not be
given promotion or appointment.”
17. Any punishment imposed on a member
of service under Rule 8 of the Tamil Nadu Civil
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W.P No.305494 of 2019
Services (Discipline and Appeal) Rules shall take
effect from the date on which the said punishment
order is served to the member of service
concerned and the name of such member of
service shall not be considered for inclusion in
the approved list until the said punishment is
over.”
12. Thus it is stated that any punishment other than censure would
be in force for a period of five years and the punishment of censure would
be in force for a period of one year. It is therefore contended by the learned
Additional Government Pleader that Black mark is a punishment other than
Censure, and it will be in force for a period of five years. It is therefore
contended that it had been rightly held by the respondents that the petitioner
can be considered for upgradation to the post of Head Constable only in the
year 2011 and not in the year 2008.
13. Learned Additional Government Pleader further placed reliance
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W.P No.305494 of 2019
on the Judgment of a learned Single Judge of this Court in W.P.No. 17392
of 2014 [ L.Venkatesan Vs. the State of Tamil Nadu and Others]. The
punishment imposed in that particular case was postponement of increment
with cumulative effect for one year and the issue was the effective date on
which the punishment would commence. It was held as follows:-
“4.5. The learned counsel for the petitioner
relied upon Rules 17 and 18 to Schedule XI of
Section 7 (1) of the Tamil Nadu Government
Servant Conditions of Service Act, 2016, which is
reproduced hereunder for convenient reference:-
“SCHEDULE-XI [Section 7 (1)] PART–A (17)
Any punishment imposed on a member of service
under rule 8 of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules shall take effect
from the date on which the said punishment order
is served to the member of service concerned and
the name of such member of service shall not be
considered for inclusion in the approved list until
the said punishment is over. (18) The performance
of a member of service for promotion or
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W.P No.305494 of 2019
appointment shall be assessed on the basis of the
Annual Confidential Report or Record Sheet
written for a period of five years prior to the
crucial date. If any adverse remarks are recorded
against a member of service in the Annual
Confidential Report or Record Sheet within a
period of five years prior to the crucial date, his
name shall not be considered for inclusion in the
approved list. Any adverse remarks relating to a
period of five years prior to the crucial date
which have not been shown to and acknowledged
by the member of service shall be ignored and his
name shall be considered for inclusion in the
approved list.”
Thus, it is clear that the currency of
promotion shall take effect from the date on
which the said punishment order is served to the
member of service concerned and it cannot be
postponed to the period commencing from
annual increment. ”
14. It is therefore contended by the learned Additional Government
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W.P No.305494 of 2019
Pleader that in accordance with Rule 8 of Tamilnadu Government Servants
(Conditions of Service) Act, 2016, the punishment would take effect only
from the date on which the said order of punishment was served on the
member of the service concerned. It is further contended that since the
order of Black mark has been passed by the Director General of Police after
modifying the earlier punishment, the upgradation of the petitioner only
from the year 2011 is correct and should not be interfered with by this
Court.
15. It must however be pointed out that this particular Act namely,
the Tamilnadu Government Servants (Conditions of Service) Act, 2016
received the assent of the Governor only on 14.09.2016.
16. Section 68 of the said Act is as follows:-
“68. Overriding Effect of special rules.- If
any provision of this Act is inconsistent with any
provision of the special rules applicable to any
particular service, the special rules shall, in
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W.P No.305494 of 2019
respect of that service, prevail over the provisions
of this Act.
17. So far as the Tamilnadu Police Force is concerned, the special
rules would be the Police Standing Orders. In the Standing Orders a
separate punishment of censure and of Black Mark had been provided.
Therefore, when punishment of Black Mark is imposed, it would be in
effect only for a period of six months from the date of commission of the
offence.
18. In this connection, a learned Single Judge of this Court had
also taken the same view in W.P.(MD).No. 14661 of 2019 by an order
dated 07.10.2021 [ S.Pitchai Vs. the Director General of Police and
others], wherein also a punishment of Black mark had been imposed. The
learned Single Judge had held as follows:-
“ 7.It is not in dispute that the petitioner was
not given upgradation with effect from
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W.P No.305494 of 2019
01.12.2013, only because, the petitioner suffered
with the punishment of Black Mark and this
punishment will disable the petitioner to be
considered for promotion, in view of the check
period of one year. According to the respondents,
the petitioner was imposed with the punishment
of Black Mark by order of the 2nd respondent
dated 08.01.2015 and the punishment period was
completed on 07.01.2016 and accordingly, he
was upgraded as Grade I Police Constable on
01.02.2016.
8. The learned Standing Counsel for
respondents has brought to the notice of this
Court, the provisions of new enactment called
“Tamil Nadu Government Servant (Condition of
Service) Rules, 2016”. This Act, except Section 1
Sub Section 30, all the remaining provisions of
the Act, came into effect from the date of
notification.
9. As per the new enactment, the procedure
for preparation of approval list for promotion
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W.P No.305494 of 2019
should be as per para-A, schedule-XI of the Act.
Sub clause (11) of clause-II of Para-A of
Schedule-XI of the Act reads as follows:
“II. Consideration of members for
inclusion in the approved lists:
(11) Any punishment (other than
“Censure”) imposed on a member of service
within a period of five years prior to the crucial
date and a punishment of “Censure” imposed
within a period of one year prior to the crucial
date shall be held against the member of service
and his name shall not be considered for
inclusion in the approved list. Any punishment,
including “Censure” imposed on a member of
service after the crucial date, but before actual
promotion or appointment shall be held against
the member of service and he shall not be given
promotion or appointment.”
10. Relying upon the above, it is contended
on behalf of the respondents that the punishment
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W.P No.305494 of 2019
of black mark is a specific punishment for a
Constable or a Head Constable and others, who
are holding corresponding rank and only by
virtue of the new enactment, the the petitioner
cannot be considered for promotion, as he has
suffered a minor punishment of black mark,
which will disable the petitioner to be considered
for promotion for a period of one year.
11. However, it is relevant to extract Police
Standing Order No.94(4) which reads as under:
“PSO 94. Blackmark - Rules - The following
rules regulate the system of punishment by
blackmarks:-
(1) to (3) . .... .... ....
(4). Blackmarks shall take effect from the date of
the offence, unless otherwise stated.
(5). .... .... ....”
12.Admittedly, the punishment of postponement
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W.P No.305494 of 2019
of increment was modified as that of punishment
of blackmark by the 2nd respondent on
08.01.2015 and it is not in dispute that the date
of delinquency committed by the petitioner was
11.08.2012. Therefore, under PSO 94(4), it has
been clearly contemplated that punishment of
Blackmark shall take effect from the date of
offence, unless otherwise stated. When that be so,
as rightly contended by the learned counsel for
the petitioner there was no embargo for
consideration of the claim of the petitioner for
upgradation as on 01.12.2013. The provisions of
the new enactment extracted above will apply
only in the matter of minor and major
punishments that any punishment (other than
“Censure”) imposed on a member of service
within a period of five years prior to the crucial
date and a punishment of “Censure” imposed
within a period of one year prior to the crucial
date shall be held against the member of service
and his name shall not be considered for
inclusion in the approved list. As regards the
punishment of blackmark is concerned, as per
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W.P No.305494 of 2019
PSO 94(4) extracted above, the punishment
would take effect from the date of delinquency i.e.
on 11.08.2012 and thereby, there was no
impediment for consideration of the claim of the
petitioner. Accordingly, after the punishment of
blackmark was imposed, the petitioner is entitled
to the upgradation with effect from 01.12.2013.
Though the learned Government Counsel refers
to the new enactment, namely, Tamil Nadu
Government Servant (Condition of Service)
Rules, 2016, which cannot have any application
to the petitioner's case. Any provision, which is
penal in nature, cannot be given retrospective
effect unless there is express provision. ”
19. There is yet another Judgment of a learned Single Judge of this Court
in W.P.No. 13831 of 2019 [ T.Malai Mathi Vijayan Vs. the Commissionr of
Police and others] wherein, the learned Single Judge had observed as
follows:-
“10. It is clear from the above amendment
that a candidate who is aspiring to participate
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W.P No.305494 of 2019
under the Department Quota in the selection,
must have a clean record of service without any
punishment. The only exception that has been
given under the Rule is that the minor punishment
of Black Mark, Reprimand and/or Censure, are
not considered to be disqualifications. It is clear
from the Rule that apart from these three
punishments which have been enlisted, a
candidate who has suffered any other punishment
is disqualified from participating in the
appointment and such punishments are construed
to the effect that the candidate does not possess a
clean record of service. ”
20. It is thus seen that Black mark is only a minor punishment. Any
person who suffers any other punishment would be disqualified, but Black
mark is an exception to the general rule.
21. A conjoined reading of the ratio laid above would show that
the petitioner's punishment having been modified to Black mark, can at the
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most be in force for a period of six months from the date of commission of
the offence.
22. The learned Senior Counsel for the petitioner however
contended that even the punishment of Black mark should not have been
imposed since there had been a clear admission by the Head Constable, who
was in place at that particular point of time, namely, K.Loganathan that he
alone received the phone call and that he had not conveyed the message to
the higher officials.
23. But if that is to be the case, the petitioner can give a fresh
representation seeking review of the punishment of Black mark by citing
this particular letter of the said Head Constable and seek that the said
punishment should also be set aside by the respondents.
24. This Court cannot travel to that extent as, after considering all
facts, the punishment of Black mark had been imposed against the petitioner
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W.P No.305494 of 2019
by the Director General of Police. But however, it would not have any
effect on the promotion of the petitioner herein and therefore, even though
that particular punishment is retained by this Court subject to further
representation given by the petitioner herein, the substantial relief of the
petitioner, namely, to refix the promotion as Head Constable on and from
15.06.2008 as originally fixed by the third respondent by order dated
27.08.2013 is restored and the petitioner is to get the benefit of Seniority in
the post of Special Sub Inspector of Police from the year 2018. He is also
entitled for appropriate monetary benefits.
25. Necessary proceedings in this regard are directed to be issued
by the respondents within a period of 16 weeks from the date of receipt of a
copy of this order. To that extent, though the punishment of Black mark is
not interfered but since liberty has been given to the petitioner to represent
again by forwarding a copy of the letter of K.Loganathan, Head Constable,
the Writ Petition stands allowed. No order as to costs. Consequently
connected Civil Miscellaneous Petition is closed.
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W.P No.305494 of 2019
vsg 19.09.2023
Index:Yes/No
Neutral Citation:Yes/No
To
1. Additional Chief Secretary,
State of Tamilnadu
Home (Pol. VI) Department
The Secretariate, Chennai – 9.
2. The Deputy Inspector General of Police
Coimbatore Range, Coimbatore District.
3. The Superintendent of Police,
Coimbatore District.
C.V.KARTHIKEYAN, J.
vsg
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W.P No.305494 of 2019
WP No.35494 of 2019
And
W.M.P.No. 36326 of 2019
19.09.2023
https://www.mhc.tn.gov.in/judis
