Madras High Court
R.Thirumalai vs The Secretary To Government on 4 August, 2014
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 04.08.2014 CORAM: THE HONBLE MR.JUSTICE S.VAIDYANATHAN W.P.No.19698 of 2009 And M.P.Nos.1 of 2009 and 1 of 2010 R.Thirumalai ..Petitioner Versus 1.The Secretary to Government Home (Police IVA) Departmentm, Fort St.George, Chennai-09. 2.The Deputy Inspector General of Police, Salem Range, Salem. 3.The Commissioner of Police, Thirunelveli City, Thirunelveli. .. Respondents Prayer: This Writ Petition has been filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, to call for the records of the respondents in connection with the impugned order issued by the first respondent in Letter No.10543/Pol.IVA/08-4, dated 20.08.2009, quash the same and direct the 2nd and 3rd respondents to pass orders on the disciplinary proceedings initiated by the second respondent in PR No.26/2004, dated 23.11.2004 within a reasonable time. For Petitioners : Mr.Venkatramani, SC for Mr.M.Muthappan For Respondents : Mr.R.M.Muthukumar, GA ORDER
The petitioner has challenged the orders of the first respondent, dated 20.8.2009, in and by which, while disagreeing with the findings of the Enquiry Officer, the first respondent has held that the charges levelled against the petitioner, were proved and consequently, the petitioner was called for to submit his representation thereof.
2. The petitioner was appointed as Sub Inspector of Police on 02.06.1997 by Direct Recruitment under 20% quota. While he was serving as such in Veeranam Police Station, Salem District, Vigilance and Anti Corruption Officials of Salem Unit, arranged a trap on 10.10.2002 and conducted a detailed enquiry against the petitioner and two others and they were proceeded departmentally for the failure to register cases, despite having received the complaints on six occasions. Accordingly, the petitioner was issued with a charge memo, framing seven charges under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline & Appeal) Rules, 1955, for his negligence of non-registration of congnizable offence and disobedience of directives of law mandated by Sections 154 and 157 of Criminal Procedure Code and for having contravened Rule 24 of the Tamil Nadu Subordinate Police Officers Conduct Rules, 1964.
3. Thereafter, an enquiry was conducted, wherein, 12 witnesses were examined and 8 exhibits were marked. The petitioner submitted his written statement of defence on 21.07.2007. After conclusion of the enquiry, the Enquiry Officer has submitted his report on 8.10.2007 to the disciplinary authority, holding that all the seven charges framed against the petitioner were not proved. While so, after a lapse of two years, the petitioner was served with a show cause notice from the first respondent dated 20.8.2009, stating that the Government has disagreed with the findings of the Enquiry Officer and concluded to hold that all the charges were proved against the petitioner and directed the petitioner to submit his further representation. Aggrieved by the same, the petitioner has come forward with the present writ petition.
4. By order, dated 24.9.2009, while ordering notice to the respondents, this Court granted interim stay though initially for a limited period, but it has been extended from time to time.
5. The respondents have come forward with M.P.No.1 of 2010, praying to vacate interim stay, along with a counter affidavit.
While reiterating the averments of the counter affidavit, the learned Government Advocate would contend that that though there is considerable material available on record clinching the guilt of the petitioner, the Enquiry Officer, contrary to the same, has given clean chit and he is biased. He would contend that on a careful consideration of the evidence both oral and documents, the first respondent has come to the conclusion that the charges against the petitioner were proved and while giving reasons for disagreeing the findings of the Enquiry Officer, the first respondent issued the show cause notice, calling for further representation of the petitioner. The first respondent, being the administrative head of the Police Department, is empowered under the rules, to deviate the findings of the Enquiry Officer and take appropriation action. He pointed out that the petitioner was afforded a reasonable opportunity before awarding punishment based on the proved charges by complying with the principles of natural justice, however, the petitioner without submitting his representation to defend his case, has straight away come forward with the present writ petition, which is not maintainable since it is premature. The petitioner is always having liberty to make a review or revision against the final orders. Since there are sufficient material to establish the charges levelled against the petitioner, the first respondent has rightly deviated the findings of the Enquiry Officer and issued the impugned order. Hence, the learned Government Advocate sought for dismissal of the writ petition.
6. Mr.Venkatramani, learned senior counsel appearing for the petitioner, would vehemently contend that the first respondent, neither the disciplinary authority nor the appellate authority, has jurisdiction to issue show cause notice, disagreeing with the findings of the Enquiry Officer. He pointed out that after conducting the enquiry, the Enquiry Officer has submitted his report to the Disciplinary Authority and final orders are yet to be passed based on the said report of the Enquiry Officer. Therefore, the first respondent cannot usurp the powers of the disciplinary authority as well as the appellate authority. He also pointed out that if the impugned order is sustained and final orders are passed by the first respondent, the petitioner will certainly loose his valuable chance to prefer the appeal, review/revision to the authorities. He also contended that the first respondent has straight away concluded that the charges were proved while deviating the findings of the Enquiry Officer, without issuing a show cause to the petitioner as to why the findings of the Enquiry Officer should not be disagreed. Therefore, the learned senior counsel would contend that issuing the impugned show cause notice is only an empty formula and hence, the same cannot be sustained in law. In support of his contentions, the learned senior counsel relied upon the decision of the Honble Supreme Court reported in 2006 (9) SCC 440 (Lav Nigam versus Chairman & MD, ITI Ltd., and another) and (2001) 10 SCC 43 (Electronics Corporation of India versus G.Muralidhar). With these contentions, the learned senior counsel sought for setting aside the impugned order.
7. Heard the learned senior counsel for the petitioner and learned Government Advocate for the respondents and perused the entire materials.
8. The petitioner was working as Sub Inspector of Police at the material time when he was issued with the charge memo and the then Addl.Superintendent of Police, Prohibition Enforcement Wing, Namakkal District was appointed as Enquiry Officer, who after conducting the enquiry, submitted his report on 8.10.2007 to the disciplinary authority, holding that none charges levelled against the petitioner were proved. It is not in dispute that as the petitioner is appointed as Sub-Inspector by way of Direct Recruitment, the Deputy Inspector of Police, being the appointing the authority, is the disciplinary authority and the Director General of Police is the appellate authority. After receipt of the enquiry report, the disciplinary authority sent the said report to the Director General of Police in order to obtain concurrence from the Vigilance Commission to conclude the proceedings. The Director General of Police, in turn, sent a letter to the first respondent, seeking permission from the Vigilance Commission to drop further action against the petitioner. However, the first respondent, after a lapse of two years, by proceedings, dated 20.8.2009 issued show cause notice to the petitioner while deviating the findings of the Enquiry Officer. The said proceedings are challenged in this writ petition.
9. At the outset, this Court cannot sit as an appellate authority to go into the merits of the findings of the Enquiry Officer vis-a-vis first respondent. A short point involved in this writ petition is, whether the first respondent, admittedly, neither a disciplinary authority nor an appellate authority, can deviate the findings of the Enquiry Officer and issue show cause notice to the petitioner on the provisional conclusion arrived at by the first respondent?
10. Generally, the disciplinary authority if disagrees with the findings of the Enquiry Officer, it is absolutely empowered to record its own findings, however, the principles of natural justice demands that, before recording its findings while deviating the findings of the Enquiry Officer, it should first record its tentative reasons for such disagreement and give to the delinquent officer an opportunity, so that the delinquent officer can persuade the disciplinary authority to accept the favourable conclusion arrived at by the Enquiry Officer. In the present case, it is unfortunate to note that the first respondent, though neither the disciplinary authority nor appellate authority, issued the impugned order, without affording such an opportunity before coming its conclusion holding that all the charges were proved. Therefore, the said order, in my considered view, suffers from legal infirmity and inherent defect and certainly, it cannot be sustained.
11. Even assuming for a moment, the impugned order is entertained, as rightly contended by the learned senior counsel, it would cause great prejudice to the petitioner since he will be certainly deprived of a valuable right of appeal and review thereof. The petitioner cannot be deprived of his substantive right of appeal. In the present, case, the appellate authority is Director General of Police, before whom, the petitioner can make an appeal if any punishment is inflicted against him and thereafter, he can make a review/revision before the first respondent. But unfortunately, the first respondent usurped the powers of the disciplinary authority and the appellate authority. Further, neither in the counter affidavit nor the learned Government Advocate has brought to notice of this Court the Rule under which, the first respondent is empowered to exercise the powers of the disciplinary authority as well as the appellate authority. In this regard, it is worthwhile to refer the decision of the Honble Supreme Court reported in Surjit Ghosh v. United Commercial Bank, (1995) 2 SCC 474, at page 477, wherein, in para 6 it has been held as under:
6. .... It is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality. Hence we are of the view that the contention advanced on behalf of the respondent-Bank that when an appellate authority chooses to exercise the power of disciplinary authority, it should be held that there is no right of appeal provided under the Regulations cannot be accepted.
12. The above said decision was subsequently followed the Honble Supreme Court in Electronics Corporation of India versus G.Muralidhar reported in (2001) 10 SCC 43, wherein, it has been held that since a valuable right of appeal having been denied to the delinquent therein, the order of punishment gets vitiated.
Having regard to the above and for the foregoing reasons, I am of the considered view that the impugned order is liable to be set aside. Accordingly, the Writ Petition is allowed and the impugned order passed by the first S.VAIDYANATHAN, J.
Suk respondent, dated 20.08.2009 is set aside. However, the disciplinary authority is directed to assess the findings of the Enquiry Officer independently without being influenced of the recordings of the first respondent and conclude the proceedings, within a period of two months from the date of receipt of a copy of this order. No costs. Consequently, connected MPs are closed.
Suk 04.08.2014 Note: Issue Order copy by 16.09.2014 Index: yes/No Internet: Yes/No W.P.NO.19698 OF 2009