R.Muralidurai v. The Secretary to the Government,Home Department,Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14-10-2011CORAM:THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.20942 Of 2007R. Muralidurai... PetitionerVersus1.The Secretary to the Government,Home Department,Chennai – 9.2.The Director General of Police,Chennai – 4.3.The Inspector General of Police,Armed Police, Chennai – 10.4.The Deputy Inspector General of Police,Armed Police, (Modernisation & Welfare),Trichy – 12.5.The Commandant,Tamil Nadu Special Police,IV Battalion,Kovai Pudur,Coimbatore – 42.... RespondentsPRAYER: Writ Petition filed under Article 226 of the Constitution ofIndia, praying for the issuance of writ of certiorarified mandamus,calling for the records in Letter No.83749/Pol.IX/2006-4, dated23.1.2007 passed by the first respondent and G.O.Rt.No.684 dated3.4.2000, order passed by the second respondent in Rc.No.AP.III(2)/767/121141/98, dated 30.6.98, Proceedings in Rc.No.A2/19484/IG/96,dated 29.10.1997 passed by the 3rd respondent, Proceedings of the 4threspondent in C.No.A2/Appeal.17/96, dated 19.11.1996 and the impugnedorder in Na.Ka.No.405/E3/95, dated 25.9.1995 passed by the 5threspondent to quash the same and direct the respondents to reinstatethe petitioner in service with all consequential benefits.For Petitioner:Mr.M.S.SoundarrajanFor Respondents:Mr.V.Jayaprakashnarayanan,Additional Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe prayer in the writ petition is to quash the order of thefirst respondent dated 23.1.2007 issued in G.O.Rt.No.684 dated3.4.2000 confirming the order of the second respondent dated30.6.1998, which in turn confirms the order of the 3rd and 4threspondent passed in their proceedings dated 19.11.1996 and 25.9.1995and direct the respondents to reinstate the petitioner in servicewith all consequential benefits.2.The petitioner was enlisted as Police Constable in TamilNadu Special Police, 4th Batallion on 16.3.1994. It is the case ofthe petitioner that after joining the police force, due to sicknessviz., jaundice, he could not continue the training and absented fromduty on eight occasions. A criminal case was registered against thepetitioner in Crime No.27 of 1995 on the file of the HasthampattiPolice Station, Salem District under sections 323 and 506(ii) IPC andSection 4(1)(j) of the Tamil Nadu Prohibition Act, read with Section75 of Tamil Nadu City Police Act and he was placed under suspensionby order dated 9.1.1995. A show cause notice was issued on 25.9.1995for the petitioner's unauthorised absence and involvement in thecriminal case seeking explanation as to why petitioner's probationcannot be terminated. Petitioner submitted his explanation andaccording to the petitioner without considering his explanation,order of termination of probation was passed by the 4th respondent on25.9.1995. Petitioner preferred an appeal before the thirdrespondent, which was rejected on 29.10.1997; revision petition filedbefore the second respondent was rejected on 30.6.1998; and the mercypetition filed before the first respondent was also rejected on3.4.2000. The criminal case registered against the petitioner endedin acquittal on 29.3.1996 and a further representation sent to theGovernment on 30.8.2006 was also rejected on 23.1.2007.3.All the above said orders are challenged in this writpetition on the ground that he having affected by jaundice, could notattend the work; that the medical leave applied was accepted by theCommandant; that mere involvement in a criminal case cannot betreated as a misconduct unless he is convicted; that without holdingany enquiry his probation was terminated by specifically holding thatduring the period of probation his conduct was found to beindisciplinary; that the termination of probation having been orderednot on the ground of unsuitability and incapability and based onallegations, the procedures contemplated under Rule 3(b) of the TamilNadu Police Subordinate Services (Discipline and Appeal) Rules, 1955should have been followed and not following the said procedure is notonly in violation of the said rules but also violation of Article 311(2) of the Constitution of India; and that, under Explanation-III toRule 19 of the Special Rules for Tamil Nadu Police Subordinate https://hcservices.ecourts.gov.in/hcservices/ Service, before terminating the probation of a member of the serviceon the ground of a specific charge, the department shall framespecific charge/charges and follow the detailed procedure as laiddown in Rule 3(b) and the said procedure having not been followed,the petitioner is entitled to get the impugned orders set aside andconsequently reinstatement with all benefits.4.The respondents have filed counter affidavit stating thatthe petitioner was enlisted as Police Constable bearing No.1086 on16.3.1994 F.N. and while undergoing training he absented from duty onfour occasions i.e, from 31.3.1994 to 12.4.1994; 11.6.1994 to22.6.1994; 23.6.1994; and 29.9.1994 to 6.10.1994. Petitioner,after completing the training reported for duty in the 4th batallionTSP, Kovaipudur on 29.9.1994. While working in the said station, heagain absented on four occasions. Apart from that he was arrested on5.1.1995 for his involvement in Cr.No.27 of 1995 on the file of SalemHasthampatty Police Station and was remanded for 15 days at CentralPrison, Salem. Petitioner was suspended on 5.1.1995 and as hisconduct having been found to be quite indisciplinary during theperiod of probation, show cause notice was issued under Rule 3(b) ofthe Tamil Nadu Police Subordinate Services (Discipline and Appeal)Rules, 1955 calling for explanation, which was acknowledged by thepetitioner on 28.8.1995 and the petitioner submitted his explanationon 1.9.1995. The explanation having been found not satisfactory,petitioner's probation was terminated by order dated 29.9.1995. Theappeal, revision, mercy petition and further representation were alsorejected by the respective authorities. Petitioner being a chronicabsentee and involved in a criminal case during the probation period,service of show cause notice and considering explanation issufficient. In the criminal case the petitioner got acquittal due tocompromise. For termination of the probation, procedure contemplatedunder Rule 3(b) need not be followed.5.The learned counsel for the petitioner submitted that thepetitioner's probation having been terminated due to misconduct,regular enquiry is to be held, particularly when show cause noticewas issued calling for explanation, which shows that it is nottermination of probation simplicitor and the order passed is penal innature. The order was passed by invoking Rule 17(b) of the TamilNadu Civil Services (Discipline and Appeal) Rules was not applicableto the petitioner, who was a member of the Police force. ExplanationIII of Rule 19 of the Special Rules for Tamil Nadu Police SubordinateService, which is bound to be followed by the respondents was notfollowed and therefore the termination of probation of the petitioneris in violation of the said rule and Article 311(2) of theConstitution of India. The learned counsel also cited the judgmentof the Supreme Court reported in (2010) 13 SCC 88 (Davinder Singh v.State of Punjab) and an order passed by this Court in W.P.Nos.23044and 24473 of 2006 etc., dated 12.1.2011 (Chitra Venkataraman,J.) insupport of his contentions and prayed for setting aside the orders https://hcservices.ecourts.gov.in/hcservices/ impugned in this writ petition and also prayed for reinstatementwithout backwages and continuity of service. Petitioner also filedan affidavit of undertaking dated 8.8.2011 praying for reinstatementwith service benefits, but without backwages.6.The learned Additional Government Pleader on the basis ofthe counter affidavit submitted that during the probation period, thepetitioner absented several times and his conduct was also found tobe not satisfactory due to involvement in criminal case and thereforethe department terminated the probation of petitioner by issuing showcause notice and considering the explanation, which is in compliancewith the principles of natural justice and therefore the orderspassed by the respective respondent, which are challenged in thiswrit petition are just and proper and no interference is called for.7.I have considered the rival contentions of the learnedcounsel for the petitioner as well as learned Additional GovernmentPleader.8.The above referred pleadings establish the undisputed factregarding the appointment of the petitioner as Grade-II PoliceConstable on 16.3.1994 and while he was on probation, he was issuedwith show cause notice seeking explanation for his unauthorisedabsence as well as his involvement in Cr.No.27 of 1995 on the fileof Hasthampatty Police Station, Salem District. The petitioner hassubmitted a reply which was received by the disciplinary authority on1.9.1995. In the said reply petitioner has denied the charge ofunauthorised absence and explained the circumstances under which hewas made as an accused in the above criminal case. The petitionerhaving denied the allegations and he being a police personnel, he canbe issued with a charge memo under Rule 3(a) or 3(b) of the TamilNadu Police Subordinate Services (Discipline and Appeal) Rules, 1955.Petitioner has not completed probation in the cadre of Grade-IIPolice Constable.9.The probation of a police personnel how to be declared orterminated is dealt with under Rule 19 of the Special Rules for TamilNadu Police Subordinate Service. The said rule was issued by theGovernment of Tamil Nadu on 30.9.1953. The said rule is applicableto the persons, who have commenced probation on his appointment inthe Police service.10.The word 'probationer' is defined in Rule 1(9) of theSpecial Rules for Tamil Nadu Police Subordinate Service, which statesthat probationer means a member of the service, who has not completedhis probation. Rules 17 and 19 deal with probation and completion ofprobation, which read as follows:"Rule 17.Probation – Suspension, termination orextension at any time before the expiry of the https://hcservices.ecourts.gov.in/hcservices/ prescribed period of probation, the appointingauthority may(a)suspend the probation of a probationer anddischarge him for want of vacancy, and(b)at its discretion by order, either extend theperiod of probation of the probationer in case theprobation has not been extended under rule 20 orterminate his probation and discharge him fromservice after giving him a reasonable opportunityshowing cause against the proposed termination ofprobation.Provided that where a probationer has beengiven a reasonable opportunity of showing causeagainst the imposition on him of any of thepenalties specified in clause (d)(h) and (j) ofsub rule (1) of rule 2 of the Tamil Nadu PoliceSubordinate Services (Discipline and Appeal)Rules, 1955, and at the conclusion arrived at toterminate his probation, a further opportunity ofshowing cause specifically against termination ofhis probation need not be given to him.Explanation:An opportunity to show causemay be given after the appointing authorityarrives at a provisional conclusion on thesuitability or otherwise of the probationer forfull membership of the service, either by suchauthority himself or by a subordinate authoritywho is superior in rank to the probationer.Rule 19.Completion of Probation(a) At the end of the prescribed or extendedperiod of probation, as the case may be, theappointing authority shall consider theprobationer's suitability for full membership ofthe service in the category for which he wasselected.(b)If the appointing authority decides thata probationer is suitable for such fullmembership, it shall as soon as possible issue anorder declaring the probationer to havesatisfactorily completed his probation. On theissue of such order the probationer shall bedeemed to have satisfactorily completed hisprobation on the date of the expiry of theprescribed period of probation. https://hcservices.ecourts.gov.in/hcservices/ (c)If the appointing authority decides thatthe probationer is not suitable for suchmembership, it shall unless the period ofprobation is extended under rule 20, by order,discharge him after giving him a reasonableopportunity of showing cause against the actionproposed to be taken in regard to him.Any delay in passing orders of completion ofprobation shall not monetarily affect probationersand arrears of increments shall be allowed fromthe date of completion of probation as a matter ofcourse, subject to the following conditions,namely:(i)that the probation would have been declaredto have been satisfactorily completed from thedate ordered even if the question of declarationof probation had been taken up earlier;(ii)that the declaration of satisfactorycompletion of probation was delayed by factorswhich wouldn't in any case change the date of suchcompletion;(iii) that the person whose probation is declaredto have been satisfactorily completed wasqualified on the date ordered(iv) that declaration of satisfactory completionof probation was not the result of any relaxationof rules.In all cases coming under items (i) to (iv)above, orders issued declaring probation orrelaxing statutory rules shall include a provisionin regard to drawal of arrears of increments.Provided that where a probationer has beengiven a reasonable opportunity of showing causeagainst the imposition on him of any of thepenalties specified in clauses (d)(g)(h)(i) and(j) of sub-rule (1) of rule 2 of the Tamil NaduPolice Subordinate Services (Discipline andAppeal) Rules, 1955, and at the conclusion of thedisciplinary proceedings a tentative conclusion isarrived at to discharge him from the service, afurther opportunity of showing cause specificallyagainst such discharge need not be given to him. https://hcservices.ecourts.gov.in/hcservices/ Explanation-I:The decision of the appointingauthority that the probationer is not suitable forfull membership may be based also on his work andconduct till the date of the decision inclusive ofthe period subsequent to the prescribed orextended period of probation.Explanation-II: An opportunity to show causemay be given after the appointing authorityarrives at a provisional conclusion on thesuitability of otherwise of the probationer forfull membership of the service, either by suchauthority himself or by a subordinate authoritywho is superior in rank to the probationer.Explanation-III:Where the competentauthority proposes to terminate the probation of amember of the service for general unsatisfactorywork or incapacity without the need for enquiryinto specific charges he shall do so under Rule 17or rule 19 as the case may be. In cases where heproposes to terminate the probation of such amember for specific charges in addition to ordistinct from general inefficiency or incapacity,he shall frame specific charge and follow thedetailed procedure laid down in rule 3(b) of theTamil Nadu Police Subordinate Services (Disciplineand Appeal) Rules as such termination of probationby way of penalty will attract the provision ofArticle 311(2) of the Constitution of India."As per Rule 17(b) proviso it is evident that if the probationer isimposed with any penalty under Rule 2 of the Tamil Nadu PoliceSubordinate Services (Discipline and Appeal) Rules, 1955, furthernotice for termination of probation need not be given.11.From the perusal of Rule 17 read with Explanation-III toRule 19 it is beyond doubt that for termination of probation of amember of a police force due to specific charges, the authority shallframe specific charge and follow the detailed procedures as laid downunder Rule 3(b) of the Tamil Nadu Police Subordinate Services(Discipline and Appeal) Rules, 1955, and as such termination ofprobation by way of penalty will attract the provision of Article 311(2) of the Constitution of India. Thus, it is a mandatoryrequirement of the authority concerned to frame charges under Rule 3(b) and follow the procedures contained therein in order to satisfythe provision under Article 311(2) of the Constitution of India, ifthe probation is to be terminated on the basis of specific charge orcharges and by way of penalty. https://hcservices.ecourts.gov.in/hcservices/

12.Admittedly, the said procedure is not followed by therespondents in the case of the petitioner while terminating hisprobation by order dated 25.9.1995, which was confirmed in appeal,revision and mercy petition by the appellate authority, revisionalauthority and by the Government respectively. In the light of thestatutory violation committed by the 5th respondent while terminatingthe probation of the petitioner and the same having not beenconsidered by the higher authorities, the impugned orders cannot besustained. The petitioner has got a right under the said statutoryrule to continue in the post unless his probation is terminated byfollowing the said rule and procedures.13.Similar issue was considered by the Honourable SupremeCourt in the decision reported in (2010) 13 SCC 88 (Devinder Singh v.State of Punjab), wherein a Punjab Home-guard was terminated contraryto the statutory rules without following the principles of naturaljustice and the Supreme Court considered the discharge made as apunishment, which was stigmatic, and set aside the order and orderedreinstatement without backwages. In paragraph 29 the Supreme Courtheld thus,"29. In our considered view, even in mattersof discharge, the authority concerned cannot actarbitrarily while discharging an employee.However, in the instant case, the appellants arebeing discharged from service for indiscipline.Therefore, as provided in the proviso to Rule 27of the Rules, the appellants should have beengiven a reasonable opportunity of showing causeagainst the action proposed to be taken againstthem. Admittedly, no such opportunity was givento them. Therefore, we are of the view that theaction of the respondents is contrary to theirown statutory rules and in violation of theprinciples of natural justice."In W.P.No.23044 and 24474 of 2006 etc., by order dated 12.1.2011,this Court (Chitra Venkataraman,J.) following several decisions ofthe Supreme Court, reversed the order of the Labour Court and orderedreinstatement with 50% backwages. In paragraphs 68 to 72 this Courtheld as follows:"68. As rightly pointed out by the learnedcounsel for the dismissed employee - writpetitioner, the Tribunal had not touched on thisaspect of Article 311(2) where the order ispunitive in character, particularly when aspecific issue was made before the Tribunal by thepetitioner. The view of the Tribunal thatcontract labour or temporary employees are https://hcservices.ecourts.gov.in/hcservices/ governed only by the terms of the contract wouldbe acceptable if and only when the termination, asgiven in terms of what is listed in the order ofappointment, is a ground for termination. Thus,if the order made by the second respondent hadmerely rested on the services of the petitionerfound unsatisfactory without attributing any ofthose allegations as found in the show causenotice and even on lifting the veil one finds nosuch allegation that tinkers with the character ofan employee, then, the order of termination wouldpass the test that even without a regulardepartmental enquiry, an order of terminationcould be held as legally valid. However, when onthe face of the order, one finds that misconducthas been the basis of the show-cause notice, theTribunal committed a serious legal flaw inoverlooking the law declared by the Apex Court. Inthe circumstances, the case pleaded by thepetitioner is fully supported by the law laid downby the Apex Court as to what stigma means - (1999)3 SCC 60 (Dipti Prakash Banerjee Vs. SatvendraNath Bose National center for Basic Sciences,Calcutta and Others). The fact that theappointment is for a fixed period, or under acontract, is of no relevance herein, in thecontext of the misconduct alleged. 69. Learned counsel appearing for the secondrespondent pointed out to the decision reported inAIR 2005 SC 4251 (State of Haryana Vs. SatyenderSingh Rathore) that the misconduct alleged mighthave provided only a motive for termination order,but it, by itself, was not a foundation. Thetermination order was the outcome of deliberation.Consequently, learned counsel appearing for theRailway Administration contended that the Tribunalrightly upheld the order of dismissal. He alsopointed out that this Court cannot sit in appealover the order of the Tribunal. I do not agreewith the said submissions. The decision reliedon, reported in AIR 2005 SC 4251 (State of HaryanaVs. Satyender Singh Rathore) does not, in anymanner, advance the cause of the secondrespondent. 70. The decision reported in AIR 2005 SC 4251(State of Haryana Vs. Satyender Singh Rathore) hasto be understood on the strength of the factsfound therein and hence, has no relevance to the https://hcservices.ecourts.gov.in/hcservices/ case on hand. As pointed out by the Apex Court ina series of decisions which are referred to in thepreceding paragraphs, what amounts to stigma orwhether the order of dismissal is an ordersimpliciter, has to be looked at from the factsplaced for consideration. The order is not on anoutcome of a deliberation on the suitability orperformance of the petitioner in a particular postfor a particular work. On the other hand, thesecond respondent made no secret of its mind as tothe grounds for dismissing the petitioner fromservice. Having made allegations of a seriousnature that touches on the character of theperson, the present contention of the secondrespondent that the order is a simple order oftermination, is too far fetched to accept the pleathat Article 311(2) has no relevance. Thecontention of the Railway Administration as to thescope of interference by this Court also deservesto be rejected straight away, when the impugnedorder is contrary to the law declared by the ApexCourt on the subject under consideration.71. In the light of the above, I have nohesitation in accepting the plea of the dismissedemployee, the writ petitioner in W.P.No.24473 of2006, thereby allowing the writ petition andsetting aside the order of the Tribunal.Consequently, the order of dismissal, as confirmedby the Tribunal in its order dated 12.06.2001 inI.D.No.28 of 2001, stands set aside.72. In the above circumstances, the writpetition is allowed and the first respondent inW.P.No.24473 of 2006 is directed to reinstate thepetitioner therein in service. He is entitled toall other attendant benefits. However, as regardsthe back-wages, although the petitioner contendedthat he was out of employment eversince the dateof termination, in the absence of any evidence, infairness to the claim of both the parties herein,this Court feels that the petitioner is entitledto 50% of the back-wages from the date oftermination on 28.8.1992 till the date of thisorder."(Emphasis Supplied)Applying the principles contained in the above decisions to the factsof this case and having regard to the statutory provisions extractedsupra, I am of the view that the impugned orders are liable to be set https://hcservices.ecourts.gov.in/hcservices/ aside and the petitioner is entitled to be reinstated in service.14.The petitioner herein is out of employment from 1995 totill date and the petitioner has also filed an affidavit ofundertaking that he will not claim any backwages in case he isreinstated in service. Petitioner is now aged 42 years. In thecriminal case also petitioner was acquitted as early as on 29.3.1996by the Judicial Magistrate Court No.III, Salem, in C.C.No.68 of 1996.Since 16 years have passed from the date of termination of probationto this date, I am of the view that it is not proper to set aside thematter and remand the same to pass fresh orders following thestatutory rules. The petitioner has pointed out the illegalitybefore the appellate authority, revisional authority and also beforethe Government and none of the authorities have applied their mindand verified as to whether Rules 17 and 19 referred above wasfollowed by the disciplinary authority while passing the orderterminating the probation of the petitioner. Therefore thepetitioner cannot be blamed for the illegality committed by therespondents.15.Taking into consideration all the above facts, this writpetition is ordered on the following terms:(a)The impugned orders are set aside. (b)The respondents are directed to reinstate thepetitioner without backwages and with continuity ofservice only for the purpose of terminal benefits. I am not inclined to grant all other servicebenefits other than continuity of service for the purpose of terminalbenefits due to the fact that the petitioner also kept quiet for about six years after the review petition was dismissed by the Government through G.O.Rt.No.684 Home Department dated 3.4.2000. Thus, there is laches on the part of the petitioner aswell.(c)The respondents are directed to implement this order within a period of four weeks from the date of receipt of copy of this order.(d)There is no order as to costs.Sd/-Asst. Registrar//true copy//Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to the Government,Home Department, Chennai – 9.2.The Director General of Police,Chennai – 4.3.The Inspector General of Police,Armed Police, Chennai – 10.4.The Deputy Inspector General of Police,Armed Police, (Modernisation & Welfare),Trichy – 12.5.The Commandant, Tamil Nadu Special Police,IV Battalion, Kovai Pudur, Coimbatore – 42.1 cc to Mr.M.S.Soundararajan, Advocate, Sr.No.63360 Order inW.P.NO.20942 OF 2007RS {CO}TP/14.10.2011.