Madras High Court
M.Sankara Subramanian vs )The Director General Of Police on 8 March, 2016
Bench: S.Manikumar, R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.03.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
Writ Appeal(MD)No.342 of 2016
and
C.M.P(MD)No.2050 of 2016
M.Sankara Subramanian .... Appellant
vs.
1)The Director General of Police,
Law and Order,
Office of the Director General of Police,
Chennai-600 004.
2)The Commissioner of Police,
Tirunelveli City Police Office,
Tirunelveli-627 002.
3)The Deputy Commissioner of Police,
Law and Order,
Tirunelveli City Police Office,
Tirunelveli-627 002.
4)The Estate Officer,
The Assistant Commissioner of Police,
City Crime Record Bureau,
Tirunelveli City. .... Respondents
Appeal filed under Clause 15 of Letters Patent, against the order made
in W.P(MD)No.23118 of 2015 dated 21.12.2015.
!For Appellant : M.Sankara Subramanian/Party-in-person
^For Respondents : Mr.V.R.Shanmuganathan
Special Government Pleader
:JUDGMENT
(Judgment of the Court was made by Mr.Justice S.MANIKUMAR) Challenge in this appeal by the petitioner/Mr.M.Sankara Subramanian, party-in-person, is to an order, made in W.P(MD)No.23118 of 2015 dated 21.12.2015, by which, a learned Judge of this Court, has declined to issue a Writ of Certiorarified Mandamus, filed to quash a show cause notice, dated 11.12.2015, issued by the 4th respondent/Estate Officer, Assistant Commissioner of Police,City Crime Record Bureau, Tirunelveli City.
2.Show cause notice, dated 11.12.2015, impugned in W.P(MD)No.23118 of 2015, is extracted hereunder:-
''FORM A (SEE RULE 3 OF THE TAMIL NADU PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) RULES, 1878) Notice to show cause against orders of eviction under section 4 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants Act, 1975 (Tamil Nadu Act 1 of 1976) Where as, I N.NACHIMUTHU, ASST. COMMISSIONER OF POLICE, City Crime Record Bureau, Tirunelveli City, Estate Officer, am of the opinion that the public premises Police quarters No.26, at Bharathi Nagar, Palayamkottai Taluk in Tirunelveli District, are under your unauthorised occupation since you were dismissed from service on 17.10.2012. I call upon you to show cause on or before ten days from the date of issue of this notice, why an order of eviction should not be made under sub-section(I) of section 4 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants Act, 1975 (Tamil Nadu Act 1 of 1976).''
3.Assailing the correctness of the show cause notice, before the Writ Court, Mr.M.Sankara Subramanian/party-in-person, has contended that pursuant to a disciplinary proceedings, he was dismissed from service by an order of the 3rd respondent/Deputy Commisioner of Police, Law and Order, Tirunelveli City Police Office, Tirunelveli, on 18.10.2012. His appeal against the said order was rejected by the 2nd respondent/Commissioner of Police, Tirunelveli City Police Office, Tirunelveli, appellate authority. According to him, review application filed before the 1st respondent/Director General of Police, Law and Order, Chennai, is pending for more than 31 months.
4.Party-in-person has further contended that he was allotted police quarters at No.26, Bharathy Nagar, Palayamkottai in Tirunelveli City, on 15.04.2007, while he was in service. He has also submitted that earlier, when he challenged the order of dismissal, in W.P(MD)No.440 of 2005, this Court allowed the writ petition in part, and set aside the dismissal. Writ Court directed reinstatement of the appellant. It is also his contention that the Writ Court directed the 3rd respondent/Deputy Commissioner of Police, Law and Order, Tirunelveli City Police Office, Tirunelveli, 4th respondent therein, to follow the procedure, in conducting the enquiry.
5.Before the Writ Court in W.P(MD)No.23118 of 2015, party-in-person has also contended that the order, setting aside the dismissal, was sustained by a Hon'ble Division Bench in W.A(MD)No.721 of 2009, dated 09.02.2010. Assailing the impugned show cause notice, as arbitrary and violative of Article 14 of the Constitution of India, on the grounds inter alia that his review petition, filed before the 1st respondent/Director General of Police, Law and Order, Chennai, is still pending and that some other persons have been permitted, to occupy the quarters, he has submitted that the show cause notice, issued under Section 4 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 (Tamil Nadu Act I of 1976, should be set aside.
6.Adverting to the above, and taking note of the fact that party-in- person had already been dismissed from service, while dismissing W.P(MD)No.23118 of 2015 at paragraph 7, the Writ Court, ordered as hereunder:-
''7.I am not in agreement with the submission made by the petitioner particularly, when it is admitted that he is already dismissed from service. It is a different matter, if the dismissal is set aside by the appellate authority. But admittedly, the appellate authority also confirmed the order of the disciplinary authority, dismissing the petitioner from service. Just because the revisional authority is keeping the review petition pending, the same will not confer any right to the petitioner to occupy the quarters, that was allotted to him, as he is not in service. It is well known that only the serving persons are allotted quarters and the persons who are dismissed or who retired from service could not occupy the Government quarters beyond the limit prescribed under the rules. Admittedly, the petitioner was dismissed from service as early as on 17.10.2012.''
7.Mr.M.Sankara Subramanian, party-in-person, assailed the correctness of the order, made by the Writ Court, on the grounds inter alia that his review petition is still pending, on the file of the 1st respondent, for nearly 31 months. It is also his contention that despite his request, under the Right to Information Act, 2005, regarding the disposal of review petition, no proper information was given and therefore, he was constrained to approach the Tamil Nadu State Information Commission.
8.During the course of hearing of the present appeal, when the party- in-person, was posed with a question, as to why he has not enclosed the order dated 18.10.2012, by which, the 3rd respondent/Deputy Commissioner of Police, Law and Order, Tirunelveli City Police Office, Tirunelveli, had dismissed him from service, there was no answer. Going through the material on record enclosed in the typedset of papers, filed along with the present writ appeal, we find that the order of the appellate authority namely, 2nd respondent/Commissioner of Police, Tirunelveli City Police Office, Tirunelveli, is also not enclosed.
9.Though party-in-person has submitted that his review petition, is still pending, with the 1st respondent/Director General of Police, Chennai, perusal of the order made in W.P(MD)No.23118 of 2015, dated 21.12.2015, shows that before the Writ Court, it was the submission of the learned Government Advocate, that no review is pending with the 1st respondent, and that the same was also informed to the appellant herein.
10.During the course of hearing, when party-in-person was posed with a question, as to who are entitled to police quarters, he had categorically answered that police quarters is meant for those police personnel who are in service. Submission is placed on record.
11.Referring to a judgment of the Hon'ble Supreme Court in Bharat Petroleum Corporation Ltd., vs. Maddula Ratnavalli and others, reported in (2007) 6 SCC 81, party-in-person submitted that action of the 4th respondent, in issuing the impugned show cause notice, does not satisfy the test of fairness or unreasonableness. According to him, the arbitrary notice has to be set aside.
12.Party-in-person also made submissions, assailing the correctness of the order of dismissal and confirmation on appeal and at this juncture, he was also informed that the above issue is not the subject matter of the present appeal.
Heard Mr.M.Sankara Subramanian, party-in-person and perused the materials available on record.
13.Material on record discloses that pursuant to a departmental proceedings initiated, by issuance of a charge memo on 01.06.2001 under rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, the appellant has been dismissed from service, vide order, dated 17.09.2001. Thereafter, he preferred an appeal to the 2nd respondent/Commissioner of Police, Tirunelveli City Police Office, Tirunelveli, who, by an order dated 05.11.2001, confirmed the order, passed by the disciplinary authority. Thereafter, he had preferred a review petition to the 1st respondent/Director General of Police, Law and Order, Chennai. Vide order, dated 13.07.2002, review petition has been dismissed. As against the said order, he preferred a mercy petition to the Director General of Police, Chennai. Thereafter, he has filed W.P(MD)No.440 of 2005 challenging the abovesaid orders dated 17.09.2001, 05.11.2001 and 13.07.2002 respectively, of the disciplinary, appellate and revisional authorities.
14.Adverting to the challenge made to the abovesaid orders, Writ Court vide order in W.P(MD)No.440 of 2005, dated 10.06.2009, set aside the aforesaid orders and directed that the appellant to be reinstated in service. By observing that a fair opportunity should be given to the appellant, the Writ Court directed the 4th respondent therein, to afford a reasonable opportunity to the appellant, in accordance with law, so as to enable him, to participate in the enquiry. Writ Court further directed that procedure should be followed.
15.Not satisfied with the order made in W.P(MD)No.440 of 2005, dated 10.06.2009, the Director General of Police, Chennai, and three others have filed W.A(MD)No.721 of 2009. Adverting to the rival submissions of the parties therein, and while dismissing W.A(MD)No.721 of 2009 dated 09.02.2010, a Hon'ble Division Bench, directed the appellants therein, to issue notice to the party-in-person and to conduct the disciplinary proceedings in accordance with law.
16.Thereafter, party-in-person, has filed W.P(MD)No.6297 of 2012, to quash the charge memo issued in P.R.No.34 of 2001, dated 01.06.2001. Taking note of the earlier orders stated supra, aforesaid writ petition has been dismissed on 20.06.2012. Thereafter, enquiry seemed to have been conducted and vide order dated 18.10.2012, the 3rd respondent/Deputy Commissioner of Police, Law and Order, Tirunelveli City Police Office, Tirunelveli, dismissed the party-in-person from service.
17.Being aggrieved by the same, party-in-person has filed an appeal, to the 2nd respondent/Commissioner of Police, Tirunelveli City Police Office, Tirunelveli. Appeal has been dismissed. Here again, he has not enclosed the copy of the order passed by the appellate authority. Thereafter, party-in- person is stated to have filed a review petition dated 06.06.2013, to the 1st respondent/Director General of Police, Law and Order, Chennai. It is the case of the party-in-person that his review petition, dated 06.06.2013, is still pending and correct information is not given by the Public Information Officer and Inspector General of Police (Establishment), office of the Director General of Police, Chennai, 1st respondent, and therefore, party-in- person was constrained to approach the Tamil Nadu State Information Commission.
18.When W.P(MD)No.23118 of 2015, challenging the show cause notice, dated 11.12.2015 was heard, it was the submission of the learned Government Advocate that no review petition is pending. According to her, review petition of the petitioner has already been disposed of and that party-in- person was also informed.
19.It is a fact that party-in-person has approached the Public Information Officer and Inspector General of Police (Establishment) under the Right to Information Act, 2005. Though the information given by the said authority, is not germane to the issue to be decided, by this Court, in this appeal, yet, for completion of facts, the same is reproduced hereunder:-
20.Not satisfied with the information, party in person seemed to have made another application, dated 11.11.2015, to the 1st respondent/Director General of Police, Chennai, stating that he had not received any information, about the disposal of his review petition, dated 06.06.2013, and sought for such details. Fact that the party-in-person, has been dismissed, by order, dated 18.10.2012, passed by the 3rd respondent/Deputy Commissioner of Police, Law and Order, Tirunelveli City Police Office, Tirunelveli, is admitted.
21.As observed in the foregoing paragraphs, party-in-person himself, has admitted that police quarters is given, only to those police personnel, who are in service. From his own admission, it is evident police quarters is not given to those, who are not in service. Admittedly, the petitioner is not in service. The decision in Bharat Petroleum Corporation Ltd., vs. Maddula Ratnavalli and others, reported in (2007) 6 SCC 81, relied on by the appellant is inapposite to the facts of the case. Observation of the Hon'ble Supreme Court, with reference to the facts of that case cannot be applied to the case on hand.
22.Placing on record the admission of the appellant that police quarters is given only to those in service, We only observe that whether the review petition is pending or not, Policemen who are not in service, have no right to squat over police quarters, intended to those who are in service. Writ against a show cause notice is not maintainable.
(i)In Executive Engineer, Bihar State Housing Board vs. Ramesh Kumar Singh, reported in 1996 (1) SCC 327, the Hon'ble Supreme Court has held as follows:-
''We are concerned in this case, with the entertainment of the writ petition against a show-cause notice issued by a competent statutory authority. It should be borne in mind that there is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 notice is ex facie a ?nullity? or totally ?without jurisdiction? in the traditional sense of that expression ? that is to say, that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorised. In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show-cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India.''
(ii)In Special Director v. Mohammed Ghulam Ghouse, reported in 2004 (3) SCC 440 = A.I.R. 2004 S.C 1467, the Hon'ble Supreme Court has observed as follows:-
''This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted.''
(iii)In N.Kailasam vs. Bar Council of India, reported in 2005 (4) SLR 754 (MAD(DB), a Hon'ble Division Bench of this Court held as follows:-
''It is well-settled that ordinarily no writ will lie against as show cause notice. A writ petition against a show cause notice is premature because no cause of action has arisen by a mere issuance of a show cause. The appellant can file his reply to the show cause notice, and if and when any adverse order is passed against him, it is at that stage that he can approach the appropriate forum for appropriate relief.''
(iv)In Union of India v. Kunisetty Satyanarayana, reported in AIR 2007 SC 906, the Hon'ble Apex Court, at paragraphs 13, 14 and 16, held as follows:
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramdesh Kumar Singh and Ors. [JT 1995 (8) SC 33], Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr. [AIR 2004 SC 1467], Ulagappa and Ors. v. Divisional Commissioner, Mysore and Ors. [2001(10) SCC 639], State of U.P. v. Brahm Datt Sharma and Anr. [AIR 1987 SC 943] etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
(emphasis supplied)
(v)In Ministry of Defence vs. Prabhash Chandra Mirdha, reported in 2012 (11) SCC 565, the Hon'ble Apex Court has held as follows:-
''Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court.''
23.Hence, prima facie, show cause notice, dated 11.12.2015, issued under Section 4 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 (Tamil Nadu Act I of 1976) in our view, does not call for any interference. There is no manifest error, in issuing a show cause notice. The impugned order of the Writ Court is sustained.
24.In the light of the above discussion and decisions, the only course open to the party-in-person is, to submit his reply to the show cause notice. Hence, while dismissing the appeal, we permit the party-in-person, to submit his reply, to the show cause notice, within the time provided therefor. No costs. Consequently, C.M.P(MD)No.2050 of 2016 is closed.
To
1)The Director General of Police, Law and Order, Office of the Director General of Police, Chennai-600 004.
2)The Commissioner of Police, Tirunelveli City Police Office, Tirunelveli-627 002.
3)The Deputy Commissioner of Police, Law and Order, Tirunelveli City Police Office, Tirunelveli-627 002.
4)The Estate Officer, The Assistant Commissioner of Police, City Crime Record Bureau, Tirunelveli City..