Madras High Court
R.Sekar vs The Director General Of Police on 16 November, 2023
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.23739 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 09.11.2023
ORDER PRONOUNCED ON : 16.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.23739 of 2022
R.Sekar ....Petitioner
Vs
1.The Director General of Police
Tamil Nadu, Mylapore
Chennai 600 004
2.The Deputy Inspector General of Police
Tirunelveli, Tirunelveli District
3.The Superintendent of Police
Kanyakumari District, Nagercoil ...Respondents
(R4 is deleted vide Court order dated 14.10.2022
in WP(MD).No.23739 of 2022)
Prayer: This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, calling for the records of the
respondents, especially the 'Final Order' passed by the 4th respondent on his
capacity as 3rd respondent pursuant to his proceedings made in L1/P.R.
103/2014 dated 05.06.2014 awarding punishment of 'Compulsory Retirement
from Service' as confirmed by the 2nd respondent pursuant to his proceedings
made in Na.Ka.No.C4/Mey.Mu.56/2015, dated 19.07.2015 contrary to
https://www.mhc.tn.gov.in/judis
1/21
W.P(MD).No.23739 of 2022
Rule-6(1) of T.N.Police (Discipline & Appeal) Rules as further confirmed by
the 1st respondent pursuant to his proceedings made in R.C.No.
175394/AP-2(1)/2015, dated 16.07.2016 and quash the same as null and void,
illegal and invalid and consequently directing the respondents 1 to 3 to
reinstate the petitioner not only as Grade-I Police Constable but awarding his
regular promotions vis Sub Inspector of Police as of 2010 on the strength of
his duty at Police Radio Branch (Maintenance), Nagercoil on par with his
juniors posting at Radio Branch (Maintenance), Nagercoil allotting light duty
with all monetary and service benefits providing with all increments,
allowances and left out monetary benefits, besides cancelling all other minor
punishments.
For Petitioner : Mr.A.Sivasubramanian
For Respondents : Mr.S.Shaji Bino
Special Government Pleader
ORDER
The present writ petition has been filed by a Grade-I Constable challenging the order of compulsory retirement from service.
2.The facts relevant for disposal of the writ petition are as follows:
(i)The petitioner herein was appointed as a Grade-II Constable on 25.10.1993 and he was later promoted as a Grade-I Constable. In view of his medical reports in the year 1999, he was transferred to Radio Branch(Maintenance), Nagercoil on deputation basis. In the year 2009, he was transferred to Local Police posting at Control Room (Law & Order), https://www.mhc.tn.gov.in/judis 2/21 W.P(MD).No.23739 of 2022 Thoothukudi. While he was working there, he had sustained serious injuries due to falling of a tree on him and as a result of which the normal functioning of his brain turned topsy-turvy, spinal cord joints have also been dislocated and broken down. Hence, he made a request to the authorities to allot light duty at Radio Branch (Maintenance), Nagercoil.
(ii)In the year 2013, he was transferred from Control Room, Thoothukudi to Control Room, Nagercoil. Even before he could join Control Room, Nagercoil, another order was passed transferring him to Virudhunagar on 11.03.2013. Challenging the same, the petitioner had filed W.P.No.7290 of 2013 and an order of interim stay was granted by this Court.
(iii)The petitioner had further filed W.P.No.11312 of 2013 seeking a writ of mandamus directing the first respondent to pass orders upon his representations dated 29.03.2012 and 20.06.2012 wherein he had made a request for allotting light duty at Radia Branch (Maintenance), Nagercoil. Both these writ petitions were heard together and this Court was pleased to pass a common order dated 19.04.2013 directing the first respondent to pass orders on his representation.
(iv)W.P.No.7290 of 2013 was dismissed as withdrawn. In compliance with the order of the High Court, the third respondent had passed an order on 10.07.2013 to the effect that the petitioner is already posted to Control Room (Maintenance), Nagercoil which is the Special Unit involving light duty. https://www.mhc.tn.gov.in/judis 3/21 W.P(MD).No.23739 of 2022
(v)According to the petitioner, he was compelled to submit a VRS application on 09.07.2013 and he had recalled the said application by way of representation on 10.07.2013. The petitioner was again transferred to Virudhunagar Unit by an order dated 25.11.2013.
(vi)A newspaper publication appeared in a Tamil Daily on 15.03.2014 wherein it was stated that a physically challenged person is being harassed by the higher officials of the Police Department. Despite orders of the Court, the petitioner is not able to get any relief from the Department.
(vii)In view of the said paper publication, a charge memo was issued to the writ petitioner on 29.12.2014. The petitioner submitted his preliminary explanation on 09.01.2015 contending that in a clandestine manner, the press reporter and the photographer colluded and published the photo in the newspaper and he was not responsible for the said publication. The said explanation was not accepted and an Enquiry Officer was appointed by an order dated 21.01.2015.Thereafter, the petitioner submitted a detailed explanation on 30.03.2015 contending that the news item in the Daily was based upon the imagination of the reporter to enhance the sale of papers and reiterated that he had never approached the press people or made any arrangement to publish his official life and physical disposition.
(viii)After affording due opportunities to the petitioner, the enquiry report was submitted on 28.04.2015 and he was found guilty of the charges. https://www.mhc.tn.gov.in/judis 4/21 W.P(MD).No.23739 of 2022 After receiving the enquiry report, the petitioner had submitted his further explanation on 25.05.2015.
(ix)The third respondent herein after considering the enquiry report and the explanation submitted by the writ petitioner, passed an order on 05.06.2015 imposing the punishment of compulsory retirement from service from the date of receipt of the order. Challenging the said order, the petitioner had filed an appeal before the second respondent herein. The second respondent vide order dated 19.07.2015 had rejected the appeal filed by the petitioner and confirmed the punishment. Challenging the same, the petitioner had filed a review petition before the first respondent herein. The first respondent vide order dated 16.07.2016 had rejected the review petition on the ground that the petitioner himself had admitted in the statement that he had given news to the press. Challenging the original order, the order of the Appellate Authority and the Review Authority, the petitioner had filed W.P.No.32451 of 2016 before the Principal Bench and by an order dated 20.07.2022, a learned Single Judge was pleased to find that the Principal Seat cannot entertain the said writ petition and granted permission to the writ petitioner to withdraw the same with liberty to file a fresh writ petition. Thereafter, the present writ petition has been filed. https://www.mhc.tn.gov.in/judis 5/21 W.P(MD).No.23739 of 2022
3.Contentions of the learned counsel appearing for the writ petitioner:
(i)The learned counsel appearing for the writ petitioner had contended that the charge memo has been issued for violation of Rule-16 of Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964. A bare reading of the said Rule will clearly indicate that the said Rule is not applicable to the facts and circumstances of the present case. The writ petitioner/delinquent had never made any adverse criticism of the State or Central Government. He had never made any statement which would embarrass the relation betwen the Central Government and the Government of any foreign States.
(ii)He has also not expressed any opinion or statement of fact of opinion to the press. The press reporters who accidently came to the house of the petitioner had taken photographs of the petitioner. Clandestinely and secretly they had published the news item in order to gain popularity. He had never given any interview or made any arrangement for publication of any material in the newspaper.
(iii)Though several witnesses were examined on the side of the department, none of them had deposed that the petitioner had given any interview or made arrangement for publication of any news item in the Tamil Daily.
(iv)The Disciplinary Authority had arrived at a perverse finding that https://www.mhc.tn.gov.in/judis 6/21 W.P(MD).No.23739 of 2022 any oral or documentary evidence whatsoever, the Appellate as well as the Review Authorities have not independently considered the defence put forth by the writ petitioner. The grounds raised by the writ petitioner have not been properly appreciated by them.
(v)The petitioner is suffering from several illness and he is not in a position to carry on his daily activities. His wife and son are also affected with illness. Therefore, the petitioner was continuously making representations to the authorities to allot some light duty. Without considering the physical ailment of the petitioner, he was transferred from one place to another place within a short span of time and he was put to much harassment.
Therefore, the petitioner was constrained to approach this Court challenging the order of transfer and seeking a mandamus for allotment of light duty.
(vi)Though a direction was issued to the respondents to consider the request of the writ petitioner for light duty, the same was not considered and he was again posted in a Control Room which involved several duties and responsibilities including attending of compulsory parade and look after emergent law and order issues and to attend peak hours duty and to clear traffic movements. Therefore, with some ulterior motive, the charge memo has been issued and without properly appreciating the oral and documentary evidence, the enquiry report has been submitted. Neither the disciplinary authority nor the Appellate and Review authorities have independely https://www.mhc.tn.gov.in/judis 7/21 W.P(MD).No.23739 of 2022 considered the explanation submitted by the writ petitioner.
(vii)Considering the physical ailments of the writ petitioner, the authorities ought to have permitted the petitioner to retire on medical invalidation. Instead the petitioner has been imposed with a punishment of compulsory retirement which would seriously affect the pensionary rights of the writ petitioner who is already suffering from serious physical ailments. Hence, he prayed for allowing the writ petition.
4.Contentions of the learned Special Government Pleader appearing for the respondents are as follows:
(i)The learned counsel for the respondents had contended that a perusal of publication in the newspaper would clearly indicate that all the service details of the writ petitioner and the physical ailment of the family members are mentioned in the said news items.
(ii)During the preliminary enquiry, the petitioner in his own handwriting has submitted a report admitting that he has given interview to the newspaper. Only based upon the above said facts, he was found guilty in the enquiry report and it was accepted by the disciplinary authorities wherein a punishment of compulsory retirement was imposed.
(iii)The petitioner belonging to uniformed service, cannot approach the press for ventilating his grievance. If at all the petitioner has got any grievance as against his own department, he has to either approach the Court https://www.mhc.tn.gov.in/judis 8/21 W.P(MD).No.23739 of 2022 or the concerned officials for allotment of light duty or for transfer to a particular place. In the paper publication, the petitioner has specifically spoken ill about the police department and he has expressed his statement of fact of opinion that he is being made to run from pillar to post despite his illness which is not factually correct.
(iv)Even though the petitioner had challenged the order of transfer, he had ultimately withdrawn the same. The writ petition filed by the petitioner seeking allotment of light duty was disposed of with a direction to the authorities to consider his representation. The said request was considered and it was rejected on the ground that the petitioner is already working in a Control Room which is only a light duty. Therefore, the petitioner cannot have any grievance whatsoever as against the department and he had approached the press to place wrong facts in order to bring bad name to the department.
(v)In the said paper publication, the petitioner has adversely made various comments and criticism as against the department. Therefore, the invocation of Rule 16 of Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964 is perfectly right and the punishment of compulsory retirement imposed upon the petitioner cannot be said to disproportionate to his misconduct considering the fact that the petitioner is in uniformed service.
Hence, he prayed for sustaining the order passed by the authorities. https://www.mhc.tn.gov.in/judis 9/21 W.P(MD).No.23739 of 2022
5.I have considered the submission made on either side and perused the material records.
6.A news item has been published in Tamil Daily Dinakaran on 15.03.2014 giving full details about the physical ailments of the writ petitioner and his family members. The said news item also points out the year-wise transfer order passed to the writ petitioner. The news items further refers to the Court proceedings initiated by the writ petitioner. The news items further states that in view of physical ailments, the petitioner will not be able to perform his duty because he has been posted in Law and Order Section. The last paragraph of the paper publication reveals that the writ petitioner has given an interview to the Daily to the effect that in view of above said facts, he has lodged a complaint to the Chief Minister's Cell.
7.Annexure-II of the charge memo dated 29.12.2014 is extracted as follows:
“You are a member of the disciplined force and serving as a Grade-I Police Constable bearing General No.935/KKI at South Thamaraikulam P.S.from 19.02.2014. You are not expected to make arrangement to publish derogatoric news through any information media criticizing the official administration of the Police Department. But you made arrangements through “Dinakaran” news paper on 15.03.2014 to publish false and fictitious matters criticizing the official administration of police department for your personal gains.
The news published in “Dinakaran” news paper dated 15.03.2014 https://www.mhc.tn.gov.in/judis 10/21 W.P(MD).No.23739 of 2022 reveals that your limbs have become inactive due to the fall of a tree on your person in the year 2012. Again you were harassed and tortured by frequent transfers and not given light duty despite Court orders. But during discreet enquiry the news published on your instigation and arrangement in the “Dinakaran” news paper on 15.03.2014 are found to be false, exaggerations and fictitious. Such derogatoric news has marred the reputation of the disciplined force and it amounts to violation of Rule 16 of Tamil Nadu Subordinate Police Officers Conduct Rules, 1964. Hence, the count of the charge.
8.Paragraph No.4 of the preliminary explanation submitted by the writ petitioner on 09.01.2015 is extracted as follows:
“4.Some days prior to 15.03.2014 the press reporter and the photographer of Dinakaran news paper came to our residential place and enquired about certain person. At that time I was found with bandages and walking stick in my hand. In a clandestine manner the press reported and the photographer colluded and published the photo in the newspapers issue dated 15.03.2014 with intention to put me in trouble. When the publication came to my notice, I really worried and contacted the press reporters and shared by worries. I never received any gains by the publication. The prosecution has abruptly failed to specify gain I derived by publishing such news.”
9.Paragraph Nos. 5 and 6 of the further written statement of the defence submitted by the writ petitioner on 30.03.2015 is extracted as follows:
https://www.mhc.tn.gov.in/judis 11/21 W.P(MD).No.23739 of 2022 “5.While I was suffering from physical ailments, some press reporters came to my village on some other duties. They noticed my pathetic condition and with a view to get personal profit and gains, they published my photo and their own ideas on imagination in their news paper to enhance the sale of papers and to attract the attention of the customers. I never approached them to publish my official life in their news paper. They published the said news in an attractive manner to earn the sympathy of public. I never made any arrangement to publish the official life of mine and my physical disposition.
6.When the matter was read over in the news paper of Dinakaran, my superior officers came to the conclusion that the news was arranged to be published on my instigation. It is only a presumption. I am still striving hard with poor physical condition.
I am daily spending huge amount to get remedy from my physical ailments. I am not at all responsible for the news published by the news paper without my consent. During cross enquiry the three D.P.O staff and D.S.P.,Kanyakumari (PW6) categorically stated that they were not aware of the communication to the press”
10.During enquiry one P.Selvaraj who is a Deputy Superintendent of Police was examined as PW6 and through him Exhibits P8 to P11 have been marked. Exhibit P9 is the preliminary report prepared by him on 16.06.2014. During preliminary enquiry, the handwritten statement of the writ petitioner has been marked as Exhibit P9. In Exhibit P9, dated 09.04.2014 which is a https://www.mhc.tn.gov.in/judis 12/21 W.P(MD).No.23739 of 2022 handwritten statement of the writ petitioner, the writ petitioner has admitted that he had made arrangement to publish such news items in Dinakaran Daily on 15.03.2014 to attract the attention of the superior officers. Primarily based upon Exhibit P9, the enquiry officer found that the charges as against the delinquent is proved.
11.On receipt of enquiry report, the petitioner has submitted his second explanation on 25.05.2015 wherein he has not disputed his statement under Exhibit P9 during preliminary enquiry or given any explanation for such a statement. That apart, a perusal of the news item indicates that not only the illness of the writ petitioner, but also the ailment of his family members, the entire service details of the writ petitioner along with the Court proceedings have been published. The last paragraph of the said news item reveals that the petitioner has given the interview.
12.A combined reading of Exhibit P9 handwritten statement of the writ petitioner during preliminary enquiry along with press report will clearly reveal that the petitioner has called the press people and furnished the entire details based upon which, a news item has been published along with his photographs. In the preliminary explanation submitted by the writ petitioner on 09.01.2015 and in his final explanation submitted on 30.03.2015, the petitioner has contended that those news items were published by the reporter for their personal profits and gains in order to attract the attention of the https://www.mhc.tn.gov.in/judis 13/21 W.P(MD).No.23739 of 2022 customers. He had never approached them to publish his official life or his personal life. If really the press reporter and the photographers have clandestinely taken photographs and published the news item without his consent, the petitioner would have objected immediately after publication.
13.Considering the fact that the publication was made on 15.03.2014 and such a defence is taken only in the explanation submitted to the charge memo after a period of 10 months, this Court is not in a position to believe the said version of the writ petitioner. The Disciplinary Authority has also mainly relied upon Exhibit P9 for imposing punishment of compulsory retirement. The petitioner has not chosen to offer any explanation for his handwritten report submitted to the preliminary enquiry officer wherein he has admitted about his arrangements to publish the news item. When the petitioner has not questioned the paper publication immediately and he has taken such a defence only after issuance of charge memo and he has admitted the same during the preliminary enquiry by filing a handwritten report under Exhibit P9, this Court does not find that the enquiry report is in any way perverse.
14.The issue now that arises for consideration is whether the imposition of punishment of compulsory retirement is commensurate with the proved misconduct. Rule-16 of Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964 is extracted as follows:
https://www.mhc.tn.gov.in/judis 14/21 W.P(MD).No.23739 of 2022 “Rule16. Criticism of Government:
(1)No Police Officer shall, in all radio broadcast or in any document published anonymously or in his own name or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact of opinion.
(i)Which has the effect of an adverse criticism on any current or recent policy or action of the Central Government or State government: or
(ii)Which is capable of embarrassing the relations between the Central Government and the Government of any foreign States.
Provided that nothing in this rule shall apply to any statement made or views expressed by a Police Officer in his official capacity or in the due performance of the duties assigned to him.
(2)A Police Officer shall not, except in the discharge of his official duties, preside over, or take part in the organisation of or occupy a prominent position at or address, any non-official meeting or conference at which it is likely that speeches may be made or resolutions may be proposed or passed criticising the action of the Government or requesting the Government to take certain action other than to make grants admissible under Government Rules or Orders in support, of educational or similar institutions.
Explanation: Regularly convened meetings, for the transaction of the legitimate business, of associations of Police Officers recognised by Government and of Committees or branches of such bodies or associations are not “non-official” meetings for the purpose of this rule.
(3)Nothing contained in this rule shall be deemed to prohibit https://www.mhc.tn.gov.in/judis 15/21 W.P(MD).No.23739 of 2022 any Police Officer from participating in discussions at any private meeting solely of Police Officers, or matters which affect the personal interests of such Police Officers individually or generally:
Provided that nothing contained in this sub-rule shall be construed to limit or abridge the power of the Government to require any Police Officer to publish and explain any policy or action of the Government in such manner as may appear to them to be expedient or necessary.
(4)A Police Officer who intends to publish any document or to make any communication to the press or to deliver any public utterance containing statements in respect of which any doubt as to the application of the restrictions imposed by this rule may arise, shall submit to the Inspector-General of Police/Commissioner of Police, Madras a copy or draft of the document which he intends to publish or of the utterance which he intends to deliver, and shall thereafter act in accordance with such orders as may be passed by the Inspector-
General of Police /Commissioner of Police, Madras.”
15.Rule 16(1) clearly points out that a police officer should not in any communication to the press, make any statement of fact of opinion which has the effect of an adverse criticism on any current or recent policy or action of the Central Government or State Government.
16.A perusal of the paper publication reveals that the petitioner has criticized the department for not providing him lighter duty and for transferring him from one place to another. The petitioner has given an https://www.mhc.tn.gov.in/judis 16/21 W.P(MD).No.23739 of 2022 interview to the effect that he had lodged a complaint to the Chief Minister's Cell. Though the petitioner had challenged the transfer order, ultimately he had chosen to withdraw the same. Therefore, the petitioner cannot be said to have any grievance over his transfer order. The request of the writ petitioner for a lighter duty was rejected by the authorities on 10.07.2013 which the petitioner has not chosen to challenge. However, he has chosen to approach the press on 15.03.2014 making allegation as against the department. Therefore, the contention of the writ petitioner that Rule-16 is not applicable to him or the said Rule has not been properly appreciated by the department is not legally sustainable.
17.Whenever the petitioner has got any grievance, he had approached the Court. Whenever the higher officials rejected the requests, the petitioner has chosen not to pursue the further legal remedy, but has proceeded to criticize the department in the press and published the news item along with his photographs.
18.The learned counsel for the petitioner requested the Court to consider the case of the petitioner sympathetically and alter the punishment to medical invalidation.
https://www.mhc.tn.gov.in/judis 17/21 W.P(MD).No.23739 of 2022
19.Permitting the petitioner to retire on the ground of medical invalidation is not a punishment. Unless the finding regarding the delinquency of the petitioner are set aside, the department cannot be directed to consider the request of the petitioner for retirement under medical invalidation.
20.In the present case, the petitioner has miserably failed to make out any case for setting aside the order of punishment. It is not a case where a misconduct has been committed by a person in Uniformed Service during his discharge of his official duty. In such cases, the Court could exercise its discretion in favour of the petitioner to show some leniency and the order of this Court would be restricted to service condition of the concerned delinquent alone. But in a case where a police officer has approached the press and criticized his department despite being unsuccessful before the Court, this Court is not inclined to exercise its discretion. Any exercise of discretion in favour of the delinquent would only encourage indiscipline and embolden other members of the uniformed service to approach the press in a similar manner. Therefore, any exercise of discretion on the part of this Court would have wider ramification which would affect morale and discipline in the uniformed service.
https://www.mhc.tn.gov.in/judis 18/21 W.P(MD).No.23739 of 2022
21.In view of the above said discussion, this Court is of the considered opinion that there is no irregularity or illegality either in conducting the enquiry or in the quantum of punishment imposed by the Disciplinary Authority. There are no merits in the writ petition. The writ petition stands dismissed. No costs.
16.11.2023
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
https://www.mhc.tn.gov.in/judis
19/21
W.P(MD).No.23739 of 2022
To
1.The Director General of Police
Tamil Nadu, Mylapore
Chennai 600 004
2.The Deputy Inspector General of Police
Tirunelveli, Tirunelveli District
3.The Superintendent of Police
Kanyakumari District, Nagercoil
https://www.mhc.tn.gov.in/judis
20/21
W.P(MD).No.23739 of 2022
R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
W.P.(MD).No.23739 of 2022
16.11.2023
https://www.mhc.tn.gov.in/judis
21/21