Madras High Court
E. Kannan vs The Government Of Tamil Nadu on 12 April, 2006
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 12/04/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.39879 of 2005
W.P.M.P.No.42766 of 2005
E. Kannan ... Petitioner
-Vs-
1. The Government of Tamil Nadu,
rep.by the Secretary to the Government,
Home Department,
Fort St.George,
Chennai 9.
2. The Commandant,
Tamil Nadu Special Police,
X Battalion,
Ulundurpet,
Tamil Nadu.
3. The Principal,
Police Recruits School,
Vellore 4.
Vellore District. ... Respondents
This writ petition has been filed under Article 226 of Constitution of
India, for issuance of a writ of certiorari calling for the records relating
to the impugned order of the second respondent in Rc.No.A1 /4744/05 B.O.No.473
dated 3.12.2005 and quash the same.
!For Petitioner : Mr.R.Subramanian,
Senior Counsel for
Mr.S.Thirunavukarasu
^For Respondents : Mrs.D.Malarvizhi,
Government Adocate
:O R D E R
In this writ petition, petitioner seeks to quash the order of the second respondent dated 3.12.2005 cancelling the appointment of petitioner.
2. Petitioner appeared for selection of Police Constables recruitment conducted during 2001-2003 and the petitioner was placed in the waiting list of MBC at Sl.No.74 vide the list published on 10.6.2003. Since the petitioner was not given appointment order, he appeared for subsequent selection held in the year 2005. On 30.6.2005, petitioner was issued with an appointment order by the second respondent based on the petitioner's placement in the waiting list prepared at the time of selection in 2001-2003. Petitioner was sent to Police Recruit School, Vellore, for training. According to the petitioner, on 10.11.2005, at 8.00 p.m., petitioner was brought to Chennai along with some other Police personnel and on 11.11.2005 he was made to give a statement before the Deputy Commissioner of Police, St.Thomas Mount, Chennai, and thereafter the petitioner was again permitted to resume his training. From 5.12.2005, petitioner was not permitted to continue the training on the basis of the impugned order dated 3.12.2005 wherein the petitioner's appointment was cancelled, against which the petitioner has filed the present writ petition.
3. The learned Senior Counsel appearing for the petitioner submitted that the impugned order cancelling petitioner's appointment was passed in violation of the principles of natural justice as the same was passed without conducting enquiry, informing the charge against the petitioner and without giving opportunity to the petitioner to defend his case against the charges. Learned Senior Counsel contended that the second respondent having found that prior to the date of appointment, petitioner's character and conduct was good, any subsequent allegation against the petitioner, ought to have been enquired into by framing regular charges and hence the action of the second respondent is in violation of Article 311 of the Constitution of India. The learned counsel for the petitioner cited the decisions reported in (200 0) 3 SCC 239 (V.P.Ahuja v. State of Punjab); (2000) 5 SCC 152 ( Chandra Prakash Shahi v. State of U.P. and Others); and (2005) 7 SCC 518 ( State of Haryana and Another v. Satyender Singh Rathore) for the proposition that an order of termination, passed on allegation, shall be passed only after complying with the principles of natural justice.
4. At the time of admission of the writ petition the learned Government Advocate was directed to get instructions and the matter was posted to 16.12.2005. Again the matter was adjourned to 9.3.2006, 20.3.2 006, 24.3.2006 and to 28.3.2006. The learned Government Advocate on instructions submitted that the petitioner gave voluntary statement on 11.9.2005 and also produced copy of the said voluntary statement given by the petitioner, written in his own hand writing. The crux of the statement are as follows, 'Petitioner paid Rs.50,000/- to one Police Constable by name Gurumurthy for getting appointment as Police Constable and deposited the said amount in the joint account in the name of the petitioner and the said Gurumurthy in Indian Bank, Bazaar Street, Vandavasi. Petitioner having not been selected in the selection held during 2003, requested the said Gurumurthy to return the money, for which the said Gurumurthy replied that he will see that the petitioner gets appointment by any means. During 2004 also petitioner applied for and attended the physical test in March, 2005 at Vellore and having been selected in the said test, petitioner attended the written test on 27.3.2005, but the written test was cancelled due to leakage of question papers. The written test was again held on 1.6.2005. On 31.5.2005, the said Gurumurthy contacted the petitioner's uncle through telephone and requested him to inform the petitioner that he wish to contact the petitioner and when the petitioner contacted Gurumurthy over phone, he was informed that the selection held in the year 2003 was cancelled and for the written test to be conducted on 1.6.2005, he is having the question paper and the petitioner was requested to come over to Chennai and he gave his cell No.9444144943. As per his request, petitioner came to Chennai on 31.5.2005 evening and contacted the said Gurumurthy. Petitioner was requested to wait near S.P.Hospital, Adambakkam, and the said Gurumurthy came in a Qualis Car and taken the petitioner to Velacherry and after reaching Velacherry, Gurumurthy gave a hand written question paper consisting 35 Nos. of questions (General Knowledge) with their answers. Petitioner noted the questions and answers and came to Vellore and attended the written test on 1.6.2005. All the 35 questions given by the Gurumurthy found place in the question paper supplied during the written test. Petitioner's register number is 0800730. On 3.7.2005 petitioner received an intimation that he was selected for the Grade-II Constable post and was directed to join in the Police Training College, Vellore on 10.7.2005. Petitioner immediately contacted the said Gurumurthy and informed of his selection. The said Gurumurthy stated that due to his efforts only petitioner got selection and further stated that he is coming to Vandavasi on 4.7.20 05 for transferring the amount deposited in the joint account, in his name. Accordingly Gurumurthy came to Vandavasi and the petitioner went along with him to the Indian Bank, Bazaar Street and signed the statement to transfer the amount of Rs.50,000/- in the joint Account in the name of Gurumurthy."
The said statement was given by the petitioner during the enquiry held on 11.9.2005 and the petitioner has signed in the hand written statement at each pages with date. The learned Government Advocate after furnishing a copy of the said statement argued that the petitioner, in unequivocal terms, admitted the guilt and therefore no further framing of charge or conduct of enquiry arises in this case. Therefore the submission made by the learned counsel for the petitioner is unsustainable.
5. I have considered the submissions made by the respective counsels and also carefully gone through the statement given by the petitioner on 11.9.2005. Even though in the affidavit it is stated that petitioner was forced to give such a statement, though vaguely, no fact is mentioned as to who threatened the petitioner or forced the petitioner to give the statement and what are the steps taken by the petitioner immediately if the said statement was obtained by force or intimidation and in the absence of such materials and pleading, the statement given by the petitioner, above referred, is to be treated as a voluntary statement given by the petitioner. Further it is to be noted that the entire statement is written in his own hand writing and he has signed in each pages of the statement with date and after giving the said voluntary statement he continued the training till the impugned order was served. Therefore the contention of the petitioner that the said statement cannot be relied on for passing the impugned order and the same is unsustainable.
6. In the statement given by the petitioner dated 11.9.2005, he has cogently stated the dates and events, the date of joint deposit; exact amount deposited; the bank in which the amount was deposited; the Cell number of Gurumurthy; his visit to Madras on 31.5.2005; his travel in the Qualis Car to Velachery; his noting down of 35 questions and answers and his appearance in the written test on 1.6.2005; the fact that all the 35 questions given by Gurumurthy found place in the question paper; his immediate contact of Gurumurthy after selection intimation received by him; Gurumurthy's visit to Vandavasi; petitioner's voluntary transfer of amount from the joint account to the account of Gurumurthy, among other things. Hence the voluntary statement given by the petitioner is sufficient to hold that the petitioner illegally tried to get the post of Police Constable in the year 2003 and in the year 2005. Petitioner not only tried to get the post but also deposited the amount towards illegal gratification. Petitioner is a beneficiary to the leakage of question paper for the examination held on 1.6.2005. Hence the reasoning given in the impugned order that petitioner's character and antecedence are not clean and therefore he is unfit to be appointed as Police Constable and that the appointment given to the petitioner being provisional and made by mistake without knowing the correct character and antecedence, which came to light only after the appointment and hence the appointment was cancelled, is proper and there is no illegality in the impugned order. The mistake in not verifying the correct antecedence of the petitioner and subsequent appointment given to him erroneously was set right within five months and therefore no substantial prejudice is caused to the petitioner due to the cancellation of appointment.
7. The contention of the learned counsel for the petitioner that petitioner's appointment is cancelled without following the principle of audi alteram partem can hold good only if the petitioner has denied his involvement in the above referred episode and the respondent without any materials has chosen to cancel the order of appointment already made. As stated supra the petitioner has given a voluntary statement in an unequivocal term accepting the guilt and corrupt practices not only for getting appointment in the year 2003, but also in the examination written on 1.6.2005.
8. In the light of the clear and categorical admission of the guilt by the petitioner through his above referred statement, no further enquiry is required to be conducted since the same is to be treated as useless formality as declared by the Honourable Supreme Court in the decision reported in AIR 2000 SC 2783 = (2000) 7 SCC 529 (Aligarh Muslim University v. Mansoor Ali Khan). In paragraph 28 of the Judgment, the Honourable Supreme Court held that by issuing notice the respondent therein will not have any acceptable answer and therefore issuance of notice is to be treated as a useless formality. In paragraph 3 4 the Supreme Court held as follows, "34. We may add a word of caution. Care must be taken, wherever the court is justifying a denial of natural justice, that its decision is not described as a "preconceived view" or one in substitution of the view of the authority who would have considered the explanation. That is why we have taken pains to examine in depth whether the case fits into the exception." The said judgment was followed by a Division Bench of this Court in the decision reported in 2002 WLR 876 (L.Justine/V.Haridass v. The Registrar of Cooperative Societies, Chennai, etc. & others). In paragraph 6, the Division Bench held as follows, "6. It is true that termination of services results in civil consequences and that audi alteram partem rule has to be followed. But the theory of principles of natural justice cannot be put in a straitjacket and it is not an absolute rule that in each and every adverse order, there should be a strict adherence to the principles of natural justice. One such exception to audi alteram partem rule is absence of any legal right to defend the impugned action and in fact, such cases are covered by the 'useless formality theory' propounded by the Supreme Court in Aligarh Muslim University v. Mansoor Ali Khan (AIR 2000 SC 2783). Even for availment of the alternative remedy, a legal right should subsist and there may be some cases like the instant one where there is no right accrued even at the time of entry into service and when the top administrative authority, i.e. the Government, has already taken a stand, it serves no purpose to drive a party to avail of the alternative remedy as there is absolutely no discretion for the subordinate officers of the Government to take any decision contra to the view taken by the Government. Further, when interpretation of the provisions of the Statute, Rules frame thereunder and the Governmental Orders are involved, it is for the High Court to embark upon enquiry to adjudicate the matter and cannot be left to the subordinate officers of the Government, who are named as the statutory authorities. Added to that, having regard to the magnitude of the problems and the bulk of cases, it serves no purpose in driving the parties to approach the statutory authorities as it is bound to bounce back again to this Court resulting in multiplicity of proceedings creating a fluid situation without concretisation of the legal principles. Having regard to these factors, we are of the considered view that the matter should be set at rest by laying down the definite and clear-cut legal principles so that the statutory authorities can be left only with the task of fact finding and then give a quietus to the situation. We now proceed to adjudicate."
9. Applying the above principles laid down by the Honourable Supreme Court and the Division Bench of this Court to the facts of this Case, the impugned action of the second respondent in cancelling the appointment of the petitioner is held to be valid and no prejudice is caused to the petitioner due to the violation of audi alteram partem. There is no merit in the writ petition and the same is dismissed. No costs. Connected WPMP No.42766 of 2005 is also dismissed.
vr To
1. The Secretary to the Government, Home Department, Fort St.George, Chennai 9.
2. The Commandant, Tamil Nadu Special Police, X Battalion, Ulundurpet, Tamil Nadu.
3. The Principal, Police Recruits School, Vellore 4, Vellore District.