K.Muniappan v. The Secretary to Government Home Department

ORDERThe writ petitioner has jointed as Sub Inspector of Police on28.9.1987 and was promoted as Inspector of Police. In this writpetition he challenges the minor punishment imposed on him underRule 3(a) of the Tamil Nadu Police Subordinate Service (Disciplineand Appeal) Rules, 1955. 2.1. While the petitioner was working as a Sub Inspector ofPolice at Ammapet Police Station, on 22.2.1996, he was served with acharge memo under the Tamil Nadu Police Subordinate Service(Discipline and Appeal) Rules, 1955 and the charge relates to hisinvestigation in Crime No.815 of 1991 on the file of the AmmapetPolice Station under Section 302 of the Indian Penal Code.2.2. As Sub Inspector of Police, the petitioner has nojurisdiction to investigate an offence under Section 302 of theIndian Penal Code and it is only the Inspector of Police who iscompetent and therefore, according to the petitioner the very chargethat the petitioner has done perfunctory investigation is notcorrect.2.3. The petitioner has submitted his explanation for thecharge on 3.3.1996 stating that originally the case was registeredunder Sections 341 and 325 of the Indian Penal Code and after theinjured person died, it was converted as an offence under Section302 of the Indian Penal Code on 4.8.1994; that since the MedicalOfficer was not present the petitioner has recorded the statement ofthe deceased under Section 161(3) of the Code of Criminal Procedurewhen the injured was in hospital in a stable condition; and that theinvestigation was done only by the Inspector of Police.2.4. It is his further case that while the occurrence tookplace in the year 1991, the charge was framed after five years,namely in the year 1996, and the explanation of the petitioner wasnot properly considered. It is his case that even though Rule 3(a)of the Tamil Nadu Police Subordinate Service (Discipline and Appeal)Rules, 1955 does not contemplate appointment of an Enquiry Officeror furnishing of enquiry report, the Deputy Superintendent ofPolice, Salem Town has prepared the enquiry report holding thecharge against the petitioner as proved and agreeing with the reportof the Enquiry Officer, the disciplinary authority, namely thefourth respondent has passed an order on 29.10.1996 imposing apunishment of postponement of increment for a period of one yearwithout cumulative effect, without application of mind.2.5. On an appeal preferred to the third respondent on25.12.1996, the third respondent has modified the punishment into https://hcservices.ecourts.gov.in/hcservices/ that of censure by order dated 27.3.1997. The further reviewpreferred to the Inspector General of Police on 9.6.1998 wasentertained by the second respondent and the same was rejected on15.12.1998 without assigning any reason. The review petition filedbefore the first respondent under Rule 15-A of the Tamil NaduPolice Subordinate Service (Discipline and Appeal) Rules, 1955 wasrejected on 1.2.2006 without acting as per the Rules. Therefore,none of the orders passed by the authorities are speaking orders.2.6. It is the case of the petitioner that mere omission orcommission or error of judgment or negligence simpliciter is not amisconduct by relying upon the judgment of the Supreme Court inInspector Prem Chand v. Government of NCT of Delhi, [2007] 4 SCC566. Further, the order of punishment has been passed mechanically,without application of mind and no proper enquiry was conducted andthe punishment has been passed in violation of the statutory rulesand the principles of natural justice.3.1. In the counter affidavit filed on behalf of therespondents, while it is admitted that the charge against thepetitioner was issued under Rule 3(a) of the Tamil Nadu PoliceSubordinate Service (Discipline and Appeal) Rules, 1955 for thedelinquency of perfunctory investigation conducted by the petitioneras Sub Inspector of Police in Crime No.815 of 1991 on the file ofthe Ammapet Police Station under Section 302 of the Indian PenalCode, it is stated that as a Sub Inspector of Police, the petitionerhas registered a case under Sections 341 and 325 of the Indian PenalCode on 3.8.1991 at 11 p.m. and investigated; that during the courseof his investigation, he visited the scene of crime, drewobservation mahazar, prepared rough sketch, examined witnesses andrecorded their statements; that he has also recovered the materialobjects from the scene of occurrence; that after the death of thedeceased Kumar, the offence was altered into one under Section 302of the Indian Penal Code and express report was sent to theInspector of Police for further investigation; and that the SessionsJudge, while acquitting the case, has made an adverse remark aboutthe perfunctory investigation on the part of the petitioner andtherefore, the petitioner was inflicted with the charge anddepartmentally punished. 3.2. It is stated that when the statement under Section 161(3)of the code of Criminal Procedure was recorded from the injured hewas in a critical condition from 1.45 p.m. and the same has beenfound by the Sessions Judge in his judgment and there was no adversecomment against the Inspector of Police, since he commencedinvestigation only after the death of the deceased. It is statedthat the petitioner alone was responsible for acquittal of theaccused in the said case due to his improper investigation andtherefore, the charge memo was issued and there was no wilful delay https://hcservices.ecourts.gov.in/hcservices/ in framing charge, since the charge was framed only after thejudgment was pronounced by the Sessions Court. The punishment ofpostponement of increment for a period of one year withoutcumulative effect was passed on 29.10.1996 by the fourth respondenton the proved charge and on appeal it was modified as censure by thethird respondent.3.3. It is stated that the Sessions Court has found flaw in theinvestigation by the petitioner on various counts, including thatthe petitioner has failed to get attestation from the duty MedicalOfficer while recording statement from the injured on 3.8.1991 at 10p.m; that the petitioner has not given satisfactory explanation forthe delay of six days in registering the case; that the murderweapon was not well connected with the accused; that no steps weretaken by the petitioner to record the dying declaration of theinjured; that it was highly improbable of recording statement underSection 162 of the Code of Criminal Procedure from the injured on4.8.1991 at 2 a.m. when his condition was serious. 3.4. It is also stated that the judgment of the Supreme Courtrelied upon by the learned counsel for the petitioner is notapplicable because that was a case of 11 years delay in framing thecharge sheet. According to the respondents, no principle of naturaljustice has been violated and all opportunities have been granted tothe petitioner. It is stated that copy of minutes has to be givenonly in cases of punishment of reduction, suspension, compulsoryretirement, removal and dismissal and in other cases, copies will begiven only on application. In respect of minor penalties, the rulecontemplates only giving of reasonable opportunity of making anyrepresentation and the petitioner was given reasonable opportunityto defend and there is no violation of the Tamil Nadu PoliceSubordinate Service (Discipline and Appeal) Rules, 1955 or theprinciples of natural justice.4.1. The main point which is raised by Mr.K.Venkataramani,learned senior counsel appearing for the petitioner is that thereport of the Enquiry Officer has not been furnished. For thatproposition, he would rely upon the judgment in Nawabkhan v.Superintendent of Police, [2008] 7 MLJ 1275 which relates to acharge framed under Rule 17(a) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules, which is similar to Rule 3(a) of theTamil Nadu Police Subordinate Service (Discipline and Appeal) Rules,1955.4.2. He would submit that if there is any prejudice that willbe caused if the report of the Enquiry Officer is not submitted, thesame is a violation of principles of natural justice, by relyingupon the judgment of the Division Bench of this Court inC.K.G.Nathan v. Assistant Commandant, CISF, Chennai, [2009] 5 MLJ https://hcservices.ecourts.gov.in/hcservices/

1121. He would also rely upon the judgment of the Supreme Court inManaging Director, ECIL, Hyderabad v. B.Karunakar, AIR 1994 SC 1074,apart from the latest judgment of the Division Bench of this Courtin N.Subramanian v. Group Commandant, CISF and another, 2009 CIJ 739(Madras).5.1. On the other hand, it is the contention of Mr.R.Murali,learned Government Advocate appearing for the respondents that underRule 3(a) of the Tamil Nadu Police Subordinate Service (Disciplineand Appeal) Rules, 1955 there is no enquiry contemplated andtherefore, the question of supply the report of the Enquiry Officerdoes not arise. It is also his case that this point of non supplyof report of Enquiry Officer has not been raised by the petitionerat any point of time throughout. In the circumstances that noenquiry is contemplated under the Rules and that the petitionerhimself has not raised anything about the report of Enquiry Officer,it is his submission that no prejudice is caused by non furnishingthe report of the Enquiry Officer to the petitioner. 5.2. It is his submission that, in fact, the petitioner isaware of the report of the Enquiry Officer as he has filed the samein the typeset of papers which shows, according to him, that by nonfurnishing the report of the enquiry officer no prejudice has beencaused to the petitioner. He would rely upon the judgment of theSupreme Court in State of U.P. v. Harendra Arora and another, [2001]6 SCC 392, apart from the judgment of the Division Bench of thisCourt in Union of India v. C.V.Anantharaghavan, 2007 [3] CTC 337.6. Before going into the merits of the legal submissions madeby the learned Senior Counsel appearing for the petitioner, it isrelevant to consider some of the factual aspects involved in thiscase.7.1. The charge against the petitioner which was framed on10.2.1996 was "gross neglect of duty in having done perfunctoryinvestigation in Ammapet Police Station Crime No.815/1991 underSection 302 of the Indian Penal Code resulting in acquittal on26.3.1993 by the Sessions Judge, Salem". The basis of the chargeis that in respect of an offence in Crime No.815 of 1991, on3.8.1991, when the petitioner was Sub Inspector of Police, he hasregistered a case originally under Sections 341 and 325 of theIndian Penal Code and investigated. He has recorded statement underSection 162 of the Code of Criminal Procedure on 4.8.1991 at 1502hours and it is also not in dispute that on the same day, namely on4.8.1991 the injured died and there was a delay of six days inregistering FIR. In respect of that case, which was tried by theSessions Judge in S.C.No.28 of 1993, since in the meantime theoffence was converted into one under Section 302 of the Indian PenalCode, the accused was acquitted on 26.3.1993. In the judgment, the https://hcservices.ecourts.gov.in/hcservices/ Sessions Court has commented about the way of investigation done bythe petitioner. It was based on the finding of the Sessions Court,the charge came to be framed against the petitioner on 10.2.1996, byinitiating departmental proceedings against him.7.2. The reply given by the petitioner for the charge is thatwhen he was recording the statement under Section 161(3) of the Codeof Criminal Procedure, the injured was conscious and therefore,there was no occasion for him to presume that he would die, so as toget a dying declaration by a Magistrate. It is also his case thatwhen the injured was admitted in the hospital on 3.8.1991 he wasonly treated as an out-patient. In respect of the filing of the FIRwith delay of six days, it was the explanation of the petitionerthat the injured was beaten up on 29.7.1991 at Ammapet and he tookprivate treatment since the individuals who have beaten him are allhis relatives and therefore, immediately when the incident tookplace, namely on 29.7.1991 there was no complaint. It was only whenthe condition of the injured became serious, he was taking treatmentin the Government Hospital on 3.8.1991 and after receivinginformation, immediately the petitioner has registered the FIR andtherefore, there cannot be delay between the date of occurrencenamely 29.7.1991 and registering dated 3.8.1991, since the incidentitself was brought to the notice of the police only on 3.8.1991 andhence, there was no delay and the acquittal was on the benefit ofdoubt. It is his case that the delinquency was on 3/4.8.1991, thejudgment was pronounced by the Sessions Court on 26.3.1993 and thecharges have been framed on 10.2.1996 and therefore, there is adelay of three years in framing charges, which, according to thepetitioner, is against the circulars issued by the Government aswell as the other judgments.7.3. The Enquiry Officer, in his report dated 26.8.1996, hasfound that when the petitioner has recorded statement of the injuredon 3.8.1991, no attestation was obtained from the duty MedicalOfficer nor any private witness has signed in the statement and itwas in those circumstances, the Deputy Inspector General of Police,Vellore Range has found that the petitioner has committed lapses ininvestigation and suggested to initiate departmental proceedingsagainst him. The Enquiry Officer has also found that the petitionerhas failed to connect the murder weapon (reaper) with the accusedand concurring with the finding of the Enquiry Officer and findingthat obtaining of attestation of the duty Medical Officer whilerecording the statement is mandatory and that the petitioner has nottake efforts to record the dying declaration of the deceased throughthe Magistrate, the fourth respondent has awarded the punishment ofpostponement of increment for a period of one year withoutcumulative effect. https://hcservices.ecourts.gov.in/hcservices/

7.4. On appeal, the third respondent while reducing thepunishment to censure has given the following finding:"2. The appellant was inexperienced Police Officer of 4years standing at the time of commission of theselapses. No bad motive can be attributed to him forthese lapses in investigation and it is only due toinexperience, he has failed to investigate the casethoroughly, fulfilling all legal requirements.Considering these facts, the punishment awarded israther excessive. Therefore, I modify the punishmentof postponement of increment for a period of one yearwithout cumulative effect as "CENSURE"."and that was subsequently confirmed in the review as well as onfurther representation. In fact, while disposing of the reviewpetition, the second respondent has found as follows:"2) I have carefully gone through the petitionalongwith all connected records. There is no merit inthis petition. The charge is rightly held as provedand the modification ordered by the appellate authorityare just and proper. I decline to interfere with thesame in the absence of any valid ground."and ultimately, the petition to the Government was rejected on1.2.2006 with the following finding:"3. The Government have carefully and independentlyexamined the petition of the individual with relevantrecords. He has adduced no fresh points forconsideration and found that no further dilution of thepunishment is required. The Government have decided toreject the petition of the individual as devoid ofmerits. Government accordingly order that the petitionof Thiru K.Muniappan, Inspector of Police against themodified punishment of "Censure" imposed in PR.201/95be rejected as devoid of merits."8.1. Rule 17(1)(a) of the Tamil Nadu Civil Services (Disciplineand Appeal) Rules, 1955 and Rule 3(a) of the Tamil Nadu PoliceSubordinate Service (Discipline and Appeal) Rules, 1955 which arerelating to imposing of minor punishments on the delinquent officersare similar in pari materia. To appreciate the same, the saidrelevant rules are extracted as follows:"Rule 17.(1)(a) of Tamil Nadu Civil Services(Discipline and Appeal) Rules, 1955: In every casewhere it is proposed to impose on a member of a serviceor a person holding a civil post under the State any ofthe penalties specified in items (i), (ii), (iii), (v)and (ix) in Rule 8 or in Rule 9, he shall be given areasonable opportunity of making any representationthat he may desire to make and such representation, if https://hcservices.ecourts.gov.in/hcservices/ any, shall be taken into consideration before the orderimposing the penalty is passed:Provided that the requirements of this sub-rule shallnot apply where it is proposed to impose on a member ofa Service any of the penalties aforesaid on the basisof facts which have led to his conviction by a CourtMartial or where the officer concerned has absconded orwhere it is for other reason impracticable tocommunicate with him:Provided further that, in every case where it isproposed, after considering the representation, if any,made by the Government servant, to withhold incrementsof pay and such withholding of increments is likely toaffect adversely the amount of pension payable to theGovernment servant or to withhold increments of paywithout cumulative effect for a period exceeding 3years or to withhold increment of pay with cumulativeeffect for any period, the procedure laid down in sub-rule (b) shall be followed before making any orderimposing on the Government servant any such penalty.""Rule 3(a) of Tamil Nadu Police Subordinate Servic(Discipline and Appeal) Rules, 1955: In every casewhere it is proposed to impose on a member of a serviceany other penalties mentioned in clauses (a) (b) (c)(e) and (f) of Rule 2, he shall be given a reasonableopportunity of making any representation that he maydesire to make and such representation, if any, shallbe taken into consideration before the order imposingthe penalty is passed:Provided that the requirement of this sub-rule shallnot apply where it is proposed to impose on a member ofa Service any of the penalties aforesaid on the basisof facts which have led to his conviction by a CourtMartial or where the officer concerned has absconded orwhere it is for other reasons impracticable tocommunicate with him:Provided further that in every case where it isproposed, after considering the representation, if any,made by the member of the Service to withholdincrements of pay and such withholding of increments islikely to affect adversely the amount of pensionpayable to the member of the Service or to withholdincrement of pay without cumulative effect for a period https://hcservices.ecourts.gov.in/hcservices/ not exceeding 3 years or to withhold increment of paywith cumulative effect for any period, the procedurelaid down in such rule (b) shall be followed beforemaking any order imposing on the member of the Serviceany such penalty."8.2. The above said Rules contemplate a reasonable opportunityto make a representation to be given to the delinquent and in caseswhere the punishment is sought to be imposed in respect of retiredgovernment servant or retired member of service which is dealt withunder the Tamil Nadu Pension Rules, which would adversely effect onthe amount of pension, the procedure contemplated under Rule 17(1)(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules,1955 and Rule 3(b) of the Tamil Nadu Police Subordinate Service(Discipline and Appeal) Rules, 1955 are to be followed. Theprocedure under the said Rules 17(1)(b) and 3(b) respectivelyinclude framing of charges, giving opportunity to file writtenstatement of defence, conducting of enquiry with oral evidence,recording the same and preparing a report of enquiry, furnishing thesame, etc., while such rigorous procedure is not contemplated underRule 17(1)(a) of the Tamil Nadu Civil Services (Discipline andAppeal) Rules, 1955 and Rule 3(a) of the Tamil Nadu PoliceSubordinate Service (Discipline and Appeal) Rules, 1955.8.3. On the facts and circumstances of the present case,originally, the petitioner was inflicted with a punishment ofpostponement of increment for a period of one year withoutcumulative effect, which was subsequently reduced to that of censureand therefore, no enquiry is contemplated as per Rule 3(a) of theTamil Nadu Civil Services (Discipline and Appeal) Rules, 1955.8.4. The contention of Mr.K.Venkataramani, learned seniorcounsel for the petitioner is that the accident register shows thaton 3.8.1991 at 11.30 a.m., the injured was conscious and his pulserate was normal and therefore, there was no occasion for thepetitioner to suspect the death of the injured on the next day, soas to obtain dying declaration through the Magistrate. A referenceto the accident register shows as follows:"11.30 AM 3-8-91....O/E Pt is conscious, restless Pulse 80/mt. V&T fairAbdomen: DistendedTenderness over whole abdomen"8.5. However, the charge is not only relating to the failure toobtain dying declaration through Magistrate, but also that thestatement obtained from the injured under Section 161(3) of the Code https://hcservices.ecourts.gov.in/hcservices/ of Criminal Procedure was without the attestation of the MedicalOfficer and the same stood uncontroverted and therefore, on fact, itis not possible to accept the contention of the learned seniorcounsel for the petitioner that there is no ground for passing anyorder of punishment against the petitioner or that the punishment isperverse.8.6. Even though under Rule 3(a) of the Tamil Nadu CivilServices (Discipline and Appeal) Rules, 1955 no enquiry iscontemplated, since only a reasonable opportunity is required, thefact remains that in this case the Deputy Superintendent of Police,Salem Town was appointed as the Enquiry Officer and he has, in fact,conducted an enquiry and prepared a report. A reference to theimpugned order of the fourth respondent imposing the punishment alsoshows that he has referred to the report of the Enquiry Officerwhich is evidenced from the portion of the impugned order dated29.10.1996 which is as follows:"2. I concur with the findings of the enquiry officerand award the punishment of postponement of incrementfor a period of one year without cumulative effect."8.7. It also remains a fact that the report of the EnquiryOfficer has not been furnished to the petitioner. The stand takenby the respondents for that is that under Rule 3(a) of the TamilNadu Civil Services (Discipline and Appeal) Rules, 1955 no enquiryhas been contemplated and therefore, the delinquent has no right tohave the report of the Enquiry Officer and the non production of thereport of the Enquiry Officer is not fatal to the disciplinaryproceedings. It is relevant to point out at this stage that theEnquiry Officer appointed in this case is different from thedisciplinary authority, namely the fourth respondent. 9.1. In the above said backdrop, the question to be decided iseven in respect of imposing of minor penalties, the report of theEnquiry Officer is to be furnished to the delinquent or not?9.2. Under such circumstances, it was held by this Court inNawabkhan v. Superintendent of Police, [2008] 7 MLJ 1275, whiledealing with a charge under Rule 17(1)(a) of the Tamil Nadu CivilServices (Discipline and Appeal) Rules, by relying upon thejudgments of the Supreme Court in Union of India v. Mohd. RamzanKhan, [1991] 1 SCC 588:AIR 1991 SC 471 and Managing Director, ECILv. B.Karunakar, [1993] 4 SCC 727, that if the Enquiry Officer is notthe disciplinary authority, the delinquent has got a right to havethe report of the Enquiry Officer supplied. The operative portion ofthe judgment is as follows:"11. The above rulings will make it very clear thatwhen the enquiry officer is not the disciplinary https://hcservices.ecourts.gov.in/hcservices/ authority, the petitioner delinquent has got a right tohave a copy of the report of the enquiry officer beforethe disciplinary authority arrives at a conclusion withregard to the guilt or innocence of the delinquent withregard to the charges levelled against him. A denialof the report is a denial of reasonable opportunity.It is a right of an employee to have the report of theenquiry officer to defend himself effectively,otherwise he would not know in advance whether thereport is in his favour of against him and what is heldagainst him. If the report is furnished to him, hecould have persuaded the disciplinary authority thatthe finding arrived at by the enquiry officer isperverse or that the finding is based on no evidence orirrelevant materials and evidence. Definitely it wouldcause prejudice to a delinquent, if the report is notfurnished to him. Hence, for the reasons sated above,I am in full agreement with the learned Senior Counselappearing for the petitioner that non-furnishing of thereport of the enquiry officer has vitiated the entireproceedings."9.3. While dealing with Rule 37 of the Central IndustrialSecurity Force Rules, 2001, which is as follows:"37. Procedure for imposing minor penalties: (1) No order imposing any of minor penalties specifiedin rule 34 shall be made except after-(a) informing the enrolled member in writing of theimputations of misconduct or misbehaviour on which itis proposed to be taken and giving him a reasonableopportunity of making such representation as he wishesto make against the proposal;(b) holding an inquiry, if the disciplinary authorityso desires, in the manner laid down in sub-rules (3) to(22) to rule 36;(c) taking the representation, if any, submitted by theenrolled member under Clause (a) and the record ofinquiry, if any, held under Clause (b) intoconsideration; and(d) recording the findings on each imputation ofmisconduct or misbehaviour.",which again is in pari materia with that of Rule 17(1)(a) of theTamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 andRule 3(a) of the Tamil Nadu Police Subordinate Service (Disciplineand Appeal) Rules, 1955, the Division Bench of D.Murugesan andC.S.Karnan,J.J. in N.Subramanian v. Group Commandant, CISF and https://hcservices.ecourts.gov.in/hcservices/ another, 2009 Current Indian Judgments 739 (Madras) held that evenin cases of imposing minor penalties, the disciplinary authority hasto give opportunity to the delinquent employee, conduct enquiry toprove the charges and indicate reasons for punishment.9.4. Again, while dealing with the same Rule 37(1)(b) of theCentral Industrial Security Force Rules, 2001, the very sameDivision Bench of this Court in C.K.G.Nathan v. AssistantCommandant, CISF, CISF Unit, CPCL, Manali, Chennai and another,[2009] 5 MLJ 1121 has reiterated the same stand holding that enquiryis mandatory when the charges are refuted by the delinquent. Therelevant portion of the said judgment is as follows:"7. When the petitioner specifically refutes thecharges framed against him, it is but proper for thedisciplinary authority to indicate the reasons inwriting as to why the enquiry is dispensed with on thefacts of the given case. This is more so because theauthority is duty bound to consider the imputation ofthe misconduct or misbehaviour committed by thedelinquent officer, the explanation offered by him andthe relevant records to satisfy himself as to whetheran enquiry is necessary or not in terms of Rule 37(1)(b) of the Rules. On the facts of this case, theexplanation of refutal of the charges was not acceptedand findings were rendered in the impugned ordersholding that the charges were proved without assigningany reason. In our considered view, such a procedurallapse would defeat the valuable right of a delinquentemployee to establish his case as to the imputation. Infact, the question of affording opportunity even forimposition of minor penalty came up for considerationbefore this Court in W.P.No.34587 of 2005 dated1.4.2009 and this Court, following the judgment of theSupreme Court in O.K.Bhardwaj v. Union of India andothers, 2002 SCC (L&S) 188 : 2002-IV-LLJ (Suppl) 836,held that such an enquiry is mandatory, where thecharges are refuted by the delinquent, and remitted thematter to the authorities for conduct of enquiry."9.5. However, on the facts and circumstances of the presentcase, it is not in dispute that a detailed enquiry was conducted bythe Enquiry Officer and therefore, the petitioner cannot have anygrievance about the nature of enquiry conducted.9.6. In S.Selvarajan v. The Superintendent of Police, NagaiQuaide-E Milleth District, Nagapattinam (Order dated 28.1.2009 madein W.P.No.29705 of 2006), S.Nagamuthu,J., while dealing with a nonspeaking order of punishment stating "I award him the punishment of https://hcservices.ecourts.gov.in/hcservices/ censure", which was under Rule 3(a) of the Tamil Nadu PoliceSubordinate Service (Discipline and Appeal) Rules, 1955, has heldthat even in respect of minor penalties, the disciplinary authorityhas to pass speaking order and accordingly, set aside the order andremanded the matter.9.7. On the facts of the present case, the fourthrespondent/Original Authority, while concurring with the report ofthe Enquiry Officer, has applied its mind and passed order withreasons, which is as follows:"I have carefully gone through the charge memo and allconnected records. The delinquent has failed to obtainthe attestation of the duty medical officer, whilerecording the statement of the deceased, which is amandatory one. The defence taken by the delinquentthat the duty medical officer was not available at thattime to attest the statement cannot be accepted in theabsence of material evidence. Further, the S.I. OfPolice did not take any effort to record the dyingdeclaration of the deceased through the Magistrate, ashis condition was bad at that time. The delinquentcould not give any satisfactory explanation in hisdeposition in the court for the delay of 6 days inregistering the FIR.2. I concur with the findings of the enquiryofficer and award the punishment of postponement ofincrement for a period of one year without cumulativeeffect."9.8. Therefore, the original order of punishment passed by thefourth respondent cannot be said to be a non-speaking order.10.1. The next point which is to be decided is about thefurnishing of the report of the Enquiry Officer to the delinquentin respect of the minor penalties which has to be decided in thelight of the facts of the present case, namely that even thoughunder Rule 3(a) of the Tamil Nadu Police Subordinate Service(Discipline and Appeal) Rules, 1955 there is no express clauseenabling the delinquent to get the report of the Enquiry Officer orfor conducting an enquiry through an Enquiry Officer, nevertheless,an Enquiry Officer was appointed, who is different from thedisciplinary authority, and he submitted his report to the fourthrespondent, who is the disciplinary authority, who has not, in fact,conducted the enquiry, but passed the order of punishment based onthe report of the Enquiry Officer.10.2. This question came to be elaborately considered by theSupreme Court in State of U.P. v. Harendra Arora and another, [2001] https://hcservices.ecourts.gov.in/hcservices/ 6 SCC 392. The Supreme Court has considered Rule 55-A of the CivilServices (Classification, Control and Appeal) Rules, 1930 in thelight of Article 311(2) of the Constitution of India. The SupremeCourt has traced the origin of Article 311(2) of the Constitution ofIndia on the two requirements of furnishing enquiry report under thestatute and complying of principles of natural justice to the PublicServants (Inquiries) Act, 1850 and subsequent enactment ofGovernment of India Act, 1919, in which Section 96-B(2) authorizedthe Secretary of the State-in-Council to make rules regulating theconditions of service pursuant to which the Civil ServicesClassification Rules, 1920 were framed. It was under Rule 14 ofthe Civil Services Classification Rules, 1920 it provided that theorder of punishment of dismissal, removal or reduction in rank shallnot be passed without a departmental enquiry by framing definitecharge in writing, giving opportunity to adduce evidence andrecording the finding, however without any provision for hearing thedelinquent on the proposed punishment. That was followed by theCivil Services (Classification, Control and Appeal) Rules, 1930wherein Rule 55, which was similar, was incorporated. That wasfollowed by the Government of India Act, 1935. Section 240(3) ofthe Government of India Act provides that a civil servant shall notbe dismissed or reduced in rank unless he had been given reasonableopportunity of showing cause against the action proposed. TheSupreme Court has found that Article 311(2) of the Constitution ofIndia has incorporated the above said provisions of Section 240(3)of the Government of India Act, 1935. By the Constitution (FifteenthAmendment) Act, 1963, the phrase "reasonable opportunity" and itsscope was expanded by substituting "after such inquiry, to impose onhim any such penalty, until he has been given reasonable opportunityof making representation on the penalty proposed". It was by theConstitution (Forty-Second Amendment) Act, 1976, Article 311(2) ofthe Constitution of India was amended expressly dispensing with thenecessity of providing opportunity to the delinquent on the proposedpenalty. The Supreme Court, in that regard, while referring to acontroversy, viz., whether the finding recorded by the EnquiryOfficer is to be communicated to the delinquent before thedisciplinary authority passes final order, which arose in a casewhere the Enquiry Officer was different from the disciplinaryauthority, has referred to its earlier judgment in Union of Indiav. Mohd. Ramzan Khan, [1991] 1 SCC 588:AIR 1991 SC 471, wherein itwas held that the report of the Enquiry Officer in such event shallbe furnished, has held as follows:"6. The provisions of Article 311(2) were furtheramended by the Constitution (Forty-second Amendment)Act, 1976 in which it was expressly stated that “itshall not be necessary to give such person anyopportunity of making representation on the penaltyproposed”. The Forty-second Amendment while retainingthe expanded scope of the “reasonable opportunity” at https://hcservices.ecourts.gov.in/hcservices/ the first stage viz. during the enquiry, as introducedby the Fifteenth Amendment of the Constitution, hadtaken away the opportunity of making representationagainst the penalty proposed after the enquiry. Afterthe Forty-second Amendment, a controversy arose as towhether, when the enquiry officer is other than thedisciplinary authority, the employee is entitled to acopy of the findings recorded by him before thedisciplinary authority applied its mind to the findingsand evidence recorded or whether the employee isentitled to the copy of the findings of the enquiryofficer only when the disciplinary authority hadarrived at its conclusion and proposed the penalty.After the Forty-second Amendment, there wereconflicting decisions of various High Courts on thepoint in issue and in some of the two-Judge Benchdecisions of this Court, it was held that it was notnecessary to furnish copy of the enquiry report. Thusfor an authoritative pronouncement, the matter wasplaced for consideration before a three-Judge Bench inthe case of Mohd. Ramzan in which it was categoricallylaid down that a delinquent employee is entitled to befurnished with a copy of the enquiry report foraffording him a reasonable opportunity as requiredunder Article 311(2) of the Constitution and incompliance with the principles of natural justice, andin case no such report was furnished, the order was fitto be quashed, but it was directed that the judgmentshall be prospective and would have no application toorders passed prior to the date of judgment in Mohd.Ramzan case." 10.3. When there was a conflict between the earlier judgment ofthe Supreme Court in Kailash Chander Asthana v. State of U.P.,[1988] 3 SCC 600 and the judgment in Union of India v. Mohd. RamzanKhan, [1991] 1 SCC 588:AIR 1991 SC 471, in that regard, the matterwas referred to a Constitution Bench in Managing Director, ECIL,Hyderabad v. B.Karunakar, [1993] 4 SCC 727 : AIR 1994 SC 1074, andthe Constitution Bench has formulated seven questions as follows:“(i) Whether the report should be furnished to theemployee even when the statutory rules laying down theprocedure for holding the disciplinary enquiry aresilent on the subject or are against it?(ii) Whether the report of the enquiry officer isrequired to be furnished to the delinquent employeeeven when the punishment imposed is other than themajor punishment of dismissal, removal or reduction inrank? https://hcservices.ecourts.gov.in/hcservices/ (iii) Whether the obligation to furnish the report isonly when the employee asks for the same or whether itexists even otherwise?(iv) Whether the law laid down in Mohd. Ramzan Khancase will apply to all establishments — government andnon-government, public and private sector undertakings?(v) What is the effect of the non-furnishing of thereport on the order of punishment and what reliefshould be granted to the employee in such cases?(vi) From what date the law requiring furnishing of thereport, should come into operation?(vii) Since the decision in Mohd. Ramzan Khan case hasmade the law laid down there prospective in operation,i.e., applicable to the orders of punishment passedafter 20-11-1990 on which day the said decision wasdelivered, this question in turn also raises anotherquestion, viz., what was the law prevailing prior to20-11-1990?.”10.4. While dealing with question No.(v) relating to the effectof non-furnishing of the report on the order of punishment, theConstitution Bench of the Supreme Court, taking note of the factthat the reasonable opportunity and principles of natural justice"are not incantations to be invoked nor rites to be performed on alland sundry occasions", has laid down the theory of "prejudice" to beproved by the employee on account of the denial to him the report ofthe Enquiry Officer and held as follows:“The next question to be answered is what is the effecton the order of punishment when the report of theenquiry officer is not furnished to the employee andwhat relief should be granted to him in such cases. Theanswer to this question has to be relative to thepunishment awarded. When the employee is dismissed orremoved from service and the enquiry is set asidebecause the report is not furnished to him, in somecases the non-furnishing of the report may haveprejudiced him gravely while in other cases it may havemade no difference to the ultimate punishment awardedto him. Hence to direct reinstatement of the employeewith back wages in all cases is to reduce the rules ofjustice to a mechanical ritual. The theory ofreasonable opportunity and the principles of naturaljustice have been evolved to uphold the rule of law andto assist the individual to vindicate his just rights.They are not incantations to be invoked nor rites to beperformed on all and sundry occasions. Whether in fact,prejudice has been caused to the employee or not on https://hcservices.ecourts.gov.in/hcservices/ account of the denial to him of the report, has to beconsidered on the facts and circumstances of each case.Where, therefore, even after the furnishing of thereport, no different consequence would have followed,it would be a perversion of justice to permit theemployee to resume duty and to get all theconsequential benefits. It amounts to rewarding thedishonest and the guilty and thus to stretching theconcept of justice to illogical and exasperatinglimits. It amounts to an ‘unnatural expansion ofnatural justice’ which in itself is antithetical tojustice. Hence, in all cases where the enquiry officer’s reportis not furnished to the delinquent employee in thedisciplinary proceedings, the courts and tribunalsshould cause the copy of the report to be furnished tothe aggrieved employee if he has not already secured itbefore coming to the court/tribunal and give theemployee an opportunity to show how his or her case wasprejudiced because of the non-supply of the report. Ifafter hearing the parties, the court/tribunal comes tothe conclusion that the non-supply of the report wouldhave made no difference to the ultimate findings andthe punishment given, the court/tribunal should notinterfere with the order of punishment. Thecourt/tribunal should not mechanically set aside theorder of punishment on the ground that the report wasnot furnished as is regrettably being done at present.The courts should avoid resorting to short cuts. Sinceit is the courts/tribunals which will apply theirjudicial mind to the question and give their reasonsfor setting aside or not setting aside the order ofpunishment, (and not any internal Appellate orRevisional Authority), there would be neither a breachof the principles of natural justice nor a denial ofthe reasonable opportunity. It is only if thecourt/tribunal finds that the furnishing of the reportwould have made a difference to the result in the casethat it should set aside the order of punishment.” 10.5. That portion of the decision of the Constitution Bench ofthe Supreme Court has been highlighted in paragraph (8) of thedecision in State of U.P. v. Harendra Arora, supra, and ultimately,the Supreme Court in Harendra Arora case, supra, has explained theeffect of the Constitution Bench judgment as follows:"23. Thus, from a conspectus of the aforesaid decisionsand different provisions of law noticed, we hold thatthe provision in Rule 55-A of the Rules for furnishing https://hcservices.ecourts.gov.in/hcservices/ a copy of enquiry report is a procedural one and of amandatory character, but even then a delinquent has toshow that he has been prejudiced by its non-observanceand consequently the law laid down by the ConstitutionBench in the case of ECIL case to the effect that anorder passed in a disciplinary proceeding cannot ipsofacto be quashed merely because a copy of the enquiryreport has not been furnished to the delinquentofficer, but he is obliged to show that by non-furnishing of such a report he has been prejudiced,would apply even to cases where there is requirement offurnishing a copy of enquiry report under the statutoryprovisions and/or service rules." (emphasis supplied)thereby holding that the disciplinary proceedings cannot ipso factobe quashed merely because a copy of the enquiry report has not beenfurnished to the delinquent officer, unless the delinquent provedthe prejudice caused to him by non-furnishing of such report.10.6. That was also followed by a Division Bench of this Courtof Dharma Rao Elipe and S.Tamilvanan,JJ. in Union of India v.C.V.Anantharaghavan, 2007 [3] CTC 337, reiterating the law laid downby the Supreme Court in Harendra Arora case, supra, stating that thedelinquent must show prejudice caused to him due to the non-furnishing of the report of the Enquiry Officer.10.7. In this regard, it is relevant to examine on the facts ofthe present case as to whether the petitioner has brought out theprejudice caused to him by non-furnishing of the enquiry report bythe Enquiry Officer, who is different from the disciplinaryauthority. As stated above, based on the report of the EnquiryOfficer dated 26.8.1996, which has not been communicated to thepetitioner, the fourth respondent has passed the original order ofpunishment on 29.10.1996. As against the said order, the petitionerhas filed a statutory appeal before the third respondent on25.12.1996, as it is referred to in the order of the thirdrespondent dated 27.3.1997 in which he has reduced the punishment tothat of censure. Even though that appeal petition dated 25.12.1996filed by the petitioner before the third respondent is notavailable, a reference to the review petition filed by thepetitioner dated 9.6.1998 to the Inspector General of Police, whichis in the typeset of papers, wherein he has referred about hisappeal to the third respondent dated 25.12.1996, shows that nowherehe has explained about any prejudice that has been caused to him bynon-furnishing of the report of the Enquiry Officer. Even in thereview petition filed by the petitioner to the first respondentdated 19.8.2005, the petitioner has not explained anything about theprejudice that has been caused to him by non-furnishing of thereport of the Enquiry Officer, except stating that the punishmenthas affected his future career, which is as follows: https://hcservices.ecourts.gov.in/hcservices/ "G. The punishment imposed has affected my futurecareer and promotional aspects. Actually my promotionto the rank of Inspector of Police was considered aftera period of one year while my juniors have beenpromoted on their due dates. Due to this I have lostmy seniority which would affect all my furtherpromotional aspects."10.8. This cannot be considered as a claim of prejudice againstthe non-furnishing of the report of the Enquiry Officer. Even inthe affidavit filed by the petitioner in support of this writpetition, the petitioner has only chosen to state that as per thedecision of the Supreme Court and order of the Director General ofPolice, copy of report of Enquiry Officer has to be furnished to thedelinquent before imposing punishment under Rule 3(a) of the TamilNadu Police Subordinate Service (Discipline and Appeal) Rules, 1955and has not stated about any prejudice that has been caused to himby non-furnishing of such copy of the report. The ground relatingto the same in the affidavit is as follows:"d) No proper enquiry was conducted before imposing thepunishment order. As per the decision of the SupremeCourt and the order of the Director General of Police,copy of the enquiry report has to be furnished to thedelinquent, before imposing the punishment, even for aminor punishment u/r.3(a)." 10.9. Bereft of such stand taken by the petitioner in respectof prejudice, on the factual matrix of this case, it is not known asto what prejudice has been caused to the petitioner in thedisciplinary proceedings in not receiving the report of the EnquiryOfficer before the original order of punishment was passed againsthim by the fourth respondent on 29.10.1996. The alleged failure ofproper investigation by the petitioner which has been in detailexplained in the report of the Enquiry Officer was admittedly theresult of the judgment of the Sessions Court, in which the accusedwas acquitted and the judgment therein was rendered as early as26.3.1993 in S.C.No.28 of 1993 and therefore, there was no newpoint that was explained in the report of the Enquiry Officer. Thepetitioner, having filed a copy of the report of the Enquiry Officerin the typeset of papers, has not even chosen to explain even atthis point of time as to what is the prejudice caused to him by non-furnishing of the report of the Enquiry Officer.11.1. The only other point which may assume significance isthat when the occurrence of assault in which injury was caused tothe victim has taken place on 29.7.1991 and the same was brought tothe notice of the petitioner only on 3.8.1991, the FIR was https://hcservices.ecourts.gov.in/hcservices/ registered on the same day and there is no delay and that cannot bea ground for disciplinary proceedings. 11.2. In this regard, it is relevant to point out that that wasthe case of the petitioner by way of explanation dated 3.3.1996submitted to the fourth respondent to the charges framed andtherefore, it cannot be stated that any prejudice has been caused tohim in that regard.12. In such view of the matter, I am of the considered viewthat on the facts and circumstances of the case, wherein there is noproof to show that any prejudice has been caused to the petitionernor the petitioner has raised such an issue, it is not possible toaccept the contention of the learned senior counsel for thepetitioner and as stated by the Supreme Court, furnishing of reportof Enquiry Officer, especially when it relates to minor punishment,wherein it requires reasonable opportunity to the delinquent, cannotbe an automatic process in all cases, except in cases of grossprejudice that is proved.For the foregoing reasons, the writ petition fails and the sameis dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.sasiTo:1. The Secretary to Government Home Department Fort St.George, Chennai – 600 009.2. The Director General of Police, Chennai – 600 004.3. The Deputy Inspector General of Police Vellore Range, Vellore.4. The Superintendent of Police District Police Office, Salem.1 cc to M/s. G. Bala and Daisy, Advocate, SR. 59308W.P.No.420 of 2008BVN (CO)kk 7/12