CoramThe Honourable Mr v. G. Anandan

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 19-9-2007CoramThe Honourable Mr.Justice S.J.MUKHOPADHAYAandThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.A.No.668 of 2007M.P.No.2 of 20071.The Joint Commissioner of Police,Traffic Zone, Vepery, Chennai - 7.2.The Deputy Commissioner of Police,Traffic (North), Vepery,Chennai - 7....AppellantsVs.G. Anandan, PC 12163...RespondentThis Writ Appeal has been filed under Clause 15 of Letters Patentagainst the order of the learned single Judge in W.P.No.27930 of 2006dated 4.1.2007 to issue a Writ of Certiorarified Mandamus or any otherwrit, order or direction in the form of writ to call for the recordsinconnected with the proceedings issued in C.No.15/PR/SRP/99 TZO.No.266/06C.No.158/9036 - A/TR.PR (N)/06 dated 20.07.2006 and Tha.Pa.No.15/99 Rule 3(Aa) passed by the 2nd respondent and C.No.5/AP/TR.PR(N)/2006 dated12.08.2006 passed by the Ist respondent and quash the same andconsequently direct the respondent to reinstate the petitioner intoservice with all benefits.For Appellants:Mr.D.Srinivasan,Addl. Government PleaderFor Respondent:Mr.S.IlamvaluthiJ U D G M E N TN. PAUL VASANTHAKUMAR, J.This writ appeal is directed against the order passed by the learnedsingle Judge in W.P.No.27630 of 2006 dated 4.1.2007, setting aside theorder of dismissal from service and remitting the matter with a directionto give strict warning to the writ petitioner/respondent herein. https://hcservices.ecourts.gov.in/hcservices/

2.The brief facts necessary for disposal of the writ appeal arethat the writ petitioner/respondent herein was appointed as Grade-IIPolice Constable on 30.8.1988 and he served in Chennai City Police, ArmedReserve, SRP and Traffic Zone. While he was working in the Control roomtraffic on 3.11.1998 due to his ill-health, he went on leave for 60 daysand he joined duty before the expiry of 60 days. A charge memo was issuedin PR.No.15/99 under Rule 3(b) of the Tamil Nadu Police SubordinateService (Discipline and Appeal) Rules, 1955, by the Superintendent ofPolice. The respondent herein submitted his explanation on 22.5.1999 andthe explanation having been found not satisfactory, the DeputyCommissioner of Police, Railway Police, Central Madras, was appointed asEnquiry Officer. The Enquiry Officer found that the charge of absentingfrom duty from 3.11.1998 was proved and thereafter the second petitionerherein, by order dated 20.7.2006 dismissed the respondent from service.The appeal filed by the respondent before the first respondent was alsodismissed on 12.8.2006. The said orders of removal from service,confirmed by the appellate authority was challenged before this Court inW.P.No.27930 of 2006 by contending that the respondent was permitted tojoin duty by the Superintendent of Police, before expiry of 60 days on31.12.1998, after satisfying with the medical certificate produced by himand therefore he could not be treated as deserted from duty as per Rule 88(1) of the Police Standing Orders and the circular issued by the DirectorGeneral of Police dated 5.10.1990 states that for desertion, charge memoshould not be issued under Rule 3(b) and it could be issued only underRule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline andAppeal) Rules, 1955. The other reason given to challenge the order isthat the punishment is disproportionate to the delinquency and theappellate authority has not passed a speaking order and the same is inviolation of Rule 6 of the Tamil Nadu Police Subordinate Service(Discipline and Appeal) Rules, 1955.3.The appellants herein filed counter affidavit by contending thaton earlier 12 occasions the respondent was adversely noticed and was dealtwith PR and on 15.10.1999 for similar charge, he was dismissed fromservice. The appeal filed by him was also rejected on 26.11.1999 and hefiled O.A.No.5357 of 2000 before the Tamil Nadu Administrative Tribunal.The Tribunal by order dated 4.4.2002 set aside the order of dismissal andordered to reinstate the respondent herein in service relying on the abovereferred circular issued by the Director General of Police. Consequentlythe respondent herein was reinstated in service on 26.4.2002. The impugnedpunishment with reference to PR.No.15/99 was pending when the otherproceeding was finalised and based on the latest instructions of theDirector General Of Police dated 2.11.2005, the respondent was removedfrom service on 20.7.2006 wherein it is stated that the desertion once maybe accepted and if repeated should not be accepted. It is further statedin the counter affidavit that instructions issued on 2.11.2005 supercededall the instructions issued earlier including the one issued by theDirector General of Police on 30.10.1990. It is further stated in the https://hcservices.ecourts.gov.in/hcservices/ counter affidavit that the contention that he was continuously doing dutyis not correct as he was dismissed from service and he remained out ofemployment from 16.10.1999 to 26.4.2002. The appellants applied theexisting instructions of the Director General of Police and dismissed therespondent from service. The punishment imposed is also proportionate ashe remained absent on several occasions and he was punished previously.4.The learned single Judge held that the application of thecircular issued on 2.11.2005 to the charge memo issued in the year 1999cannot be sustained and the respondent's case could be considered in thelight of the circular issued in the year 1990. The learned single Judgealso found that the punishment imposed is unproportionate and ultimatelyset aside the order of punishment and remitted the matter to impose strictwarning to the respondent.5.The learned Additional Government Pleader appearing for theappellants contended that framing charge against the respondent fordesertion is in accordance with PSO 95(1) and Tamil Nadu PoliceSubordinate Service (Discipline & Appeal) Rules, 1955, and the learnedsingle Judge was not right in issuing positive direction to impose severewarning.6.The learned counsel appearing for the respondent submitted thatthe respondent having been permitted to join in service on the 59th day,and the charge being absence from duty, the extreme penalty of removalfrom service is highly disproportionate. Learned counsel also submittedthat the appeal filed by the respondent before the first respondent is notdisposed of in accordance with Rule 6 of the Tamil Nadu Police SubordinateService (Discipline and Appeal) Rules, 1955, as it is a non-speaking orderand therefore the learned single Judge is justified in allowing the writpetition and reducing the punishment.7.We have considered the rival submissions made by the learnedcounsel appearing for the appellants as well as respondent.8.It is not in dispute that the respondent absented from duty from3.11.1998 and was permitted to join duty by the Superintendent of Policeon the 59th day i.e., on 31.12.1998, after accepting the medicalcertificate produced by the respondent. The charge against the respondentis unauthorised absence without any leave or permission and deserted thepost with effect from 3.11.1998 at 13.00 hours. The past conduct of therespondent even though is mentioned in the counter affidavit, the same isnot reflected in the order of dismissal. The contention of the learnedcounsel for the respondent that the circular issued in the year 1990 aloneis applicable to deal with the charge framed in the year 1999 cannot besustained in view of the pendency of the proceeding during issuance of thecircular on 2.11.2005. The fact remains that the respondent filed appealbefore the first respondent under rule 5 of the Tamil Nadu PoliceSubordinate Service (Discipline & Appeal) Rules, 1955. The manner in https://hcservices.ecourts.gov.in/hcservices/ which the appellate authority shall dispose of the appeal is mentionedunder Rule 6(1), which reads as follows:"6(1) In the case of an appeal against an orderimposing any penalty specified in rule 2, the appellateauthority shall consider-(a)whether the facts on which the order wasbased have been established;(b)whether the facts established affordsufficient ground for taking action; and(c)whether the penalty is excessive, adequate orinadequate; and after such consideration, shall passorders-(i)confirming, enhancing, reducing or settingaside the penalty; or(ii)remitting the case, to the authority whichimposed thepenalty or to any otherauthority with such direction, as it maydeem fit, in the circumstances of thecase..........."9.The contention of the learned counsel for the respondent is thatthe appellate authority has not passed speaking order by following theabove said rule. For proper appreciation, the order of the appellateauthority is extracted hereunder:"PROCEEDINGS OF THE JOINT COMMR. OF POLICE, TRAFFICZONE, VEPERY, CHENNAI-7Present: Thiru Sunil Kumar, IPS.C.No.5/AP/TR.PR(N)/2006 Dated: 12.08.06 Short Title:Traffic zone - Appealpetition of Ex.PC.12163Anandan, Traffic planningagainst the orders ofremoval from service inSRP/PR.No.15/99 u/r.3(b)of the TNPSS(D&A) Rules,1955, by DC/Traffic(North) - Orders - Issued. Read :His appeal petitiondt.24.7.06.***ORDERS:-I have gone through the representation of theappellant, the minute and the order passed by thepunishment authority. https://hcservices.ecourts.gov.in/hcservices/ 2)I feel the punishment awarded is notexcessive and matches the delinquency committed by thedelinquent. Hence, I would not like to interfere withthe punishment already awarded and would allow thepunishment awarded as suggested by the punishingauthority.Sd/-********* Joint Commr.of Police,Traffic Zone."From the perusal of the above order we could see that the appellateauthority has not disposed of the appeal in terms of Rule 6(1) extractedabove. As per the said rule, the appellate authority shall give a findingwhile considering the appeal as to whether the facts on which the order isbased have been established, among other things. No such finding is givenby the appellate authority, except by stating that he has gone through therepresentation of the appellant, minutes and the order passed by thepunishing authority. Hence we are unable to confirm the order of theappellate authority as it is not a speaking order passed in terms ofsection 6(1) of the Rules.10.(a)Similar issue with regard to Rule 23 of the Tamil naduCivil Services (Discipline and Appeal) Rules, was considered by a DivisionBench of this Court in the decision reported in (1983) 2 MLJ 513(G.Srinivasan v. The Government of Tamil Nadu, represented by theCommissioner and Secretary to Government, Revenue Department, Madras-9 andothers) and in paragraph 8 the Division Bench held as follows:"8.Coming to the second question as to whetherthe Board of Revenue has acted in accordance with rule23 of the Tamil Nadu Civil Services (Classification,Control and Appeal) Rules, we feel that the Board ofRevenue has not kept in mind the requisites necessary,under rule 23. The order of the Board of Revenuedismissing the appeal has been extracted above. Theorder does not give any reason as to why it confirmedthe order of dismissal except saying that it did notsee any reason to interfere with the order of theCollector. We are of the view that having regard tothe language used in rule 23, the dismissal of theappeal by the Board of Revenue is not a proper disposalas contemplated by rule 23. Rule 23 provides as towhat the appellate authority should do whileconsidering the appeal filed by a delinquent officeragainst the penalty imposed on him. Rule 23(1) gives amandate to the appellate authority to consider: (a)whether the facts on which the order was passed havebeen established; (b) whether the facts establishedafford sufficient ground for taking action; and (c) https://hcservices.ecourts.gov.in/hcservices/ whether the penalty is excessive, adequate orinadequate. Thus it is clear from the perusal of rule23 that the appellate authority is enjoined to considerwhether the facts on which the order of dismissal waspassed had been established and the facts establishedafford sufficient grounds for taking action and whetherthe penalty is excessive or adequate. Rule 23 directsthe appellate authority to consider certain mattersbefore passing the appellate order. The order of theappellate authority must therefore ex facie show thatthe matters referred to in rule 23 have been consideredby the appellate authority before it passed its order.In this case, the order of the appellate authoritymerely says that it sees no reason to interfere withthe order of the Collector and it does not indicatethat it took all the matters referred to in rule 23into consideration before rejecting the appeal.Obviously, the appellate authority the Board of Revenuein this case, appears to have overlooked the criteriareferred to in rule 23, as otherwise, it would have atleast referred to the relevant matters contained inrule 23 in its order. Dealing with this ground ofattack, Mohan, J., has stated that according to therecent trend of opinon, if the appellate authorityconfirms the order in appeal, the appellate authorityneed not give reasons. It may be that in a case wherethere is no statutory provision dealing with theexercise of power by the appellate authority we have tofall back to the general principle as to whether theappellate authority is found to give reasons for hisaffirmation of the order of dismissal; but where thepower of the appellate authority is circumscribed by astatutory provision such as rule 23 as in this case,the appellate authority should act within the confinesof that rule and he cannot pass an order arbitrarilywithout considering the matters referred to in rule 23.We are therefore of the view that the order of theBoard of Revenue, dated 4th September, 1976, standsvitiated for violation of Rule 23. On this ground, theorder of the Board of Revenue which confirms the ordersof dismissal passed against the appellant will standquashed and the Board of Revenue has to pass a freshorder on the appeal filed by the appellant which shouldbe treated as pending."(b)The Supreme Court in the decision reported in AIR 1986 SC 1040 =(1986) 2 SCC 651 (R.P.Bhat v. Union of India) considered similar provisioni.e, Rule 27(2) of the Central Civil Services (Classification, Control andAppeal) Rules, 1965. In paragraphs 3 to 5 the Supreme Court held thus:"3. Having heard the parties, we are satisfied https://hcservices.ecourts.gov.in/hcservices/ that in disposing of the appeal the Director Generalhas not applied his mind to the requirements of Rule 27(2) of the Rules, the relevant provisions of which readas follows: “27. (2) In the case of an appeal against an orderimposing any of the penalties specified in Rule 11or enhancing any penalty imposed under the saidRules, the appellate authority shall consider: (a) whether the procedure laid down in these ruleshas been complied with and if not, whether suchnon-compliance has resulted in the violation ofany provisions of the Constitution of India or inthe failure of justice; (b) whether the findings of the disciplinaryauthority are warranted by the evidence on therecord; and (c) whether the penalty or the enhanced penaltyimposed is adequate, inadequate or severe; and pass orders— (i) confirming, enhancing, reducing, or settingaside the penalty; or (ii) remitting the case to the authority whichimposed or enhanced the penalty or to any otherauthority with such direction as it may deem fitin the circumstances of the case.” 4. The word “consider” in Rule 27(2) implies “dueapplication of mind”. It is clear upon the terms ofRule 27(2) that the Appellate Authority is required toconsider (1) whether the procedure laid down in theRules has been complied with; and if not, whether suchnon-compliance has resulted in violation of anyprovisions of the Constitution or in failure ofjustice; (2) whether the findings of the disciplinaryauthority are warranted by the evidence on record; and(3) whether the penalty imposed is adequat e; andthereafter pass orders confirming, enhancing etc. thepenalty, or may remit back the case to the authoritywhich imposed the same. Rule 27(2) casts a duty on theAppellate Authority to consider the relevant factorsset forth in clauses (a), (b) and (c) thereof. 5. There is no indication in the impugned orderthat the Director General was satisfied as to whetherthe procedure laid down in the Rules had been complied https://hcservices.ecourts.gov.in/hcservices/ with; and if not, whether such non-compliance hadresulted in violation of any of the provisions of theConstitution or in failure of justice. We regret tofind that the Director General has also not given anyfinding on the crucial question as to whether thefindings of the disciplinary authority were warrantedby the evidence on record. It seems that he onlyapplied his mind to the requirement of clause (c) ofRule 27(2) viz. whether the penalty imposed wasadequate or justified in the facts and circumstances ofthe present case. There being non-compliance with therequirements of Rule 27(2) of the Rules, the impugnedorder passed by the Director General is liable to beset aside." The above decision was followed by the Supreme Court in its latterjudgment reported in (2006) 4 SCC 713 Narinder Mohan Arya v. United IndiaInsurance Company Limited & Others).(c)Another Division Bench of this Court in 2004 (3) LW 32(M.Nagarajan & Others v. The Registrar, High Court, Madras-600 104 andanother) following the above referred decision in AIR 1986 SC 1040 (citedsupra), set aside the order of the appellate authority for non-complianceof Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules,and remitted the matter back to the appellate authority to pass freshorders by following the said rules.11.In the light of the above decisions and having regard to Rule 6(1) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal)Rules, 1955, quoted above to be followed in this case by the appellateauthority, the order of the appellate authority cannot be sustained. Yetanother factor in this case is Chapter X (88)(1) of the Police Standingorder, which reads as follows,"Police Standing Order - Chapter X (88)(1)Provides: Absence without leave for 21 days completesthe offence of desertion, after which the officers'name shall invariably be struck off from the date ofabsence.(2) provides: An application for reinstatement from anofficer who has been struck off as a deserter shall notbe entertained, unless it reaches the Superintendent oran officer of equal rank under whom the subordinateofficer was serving, within two months or the date ofthe commencement of the absence without leave. TheSuperintendent of Police, if he satisfies after such anenquiry as may be necessary, shall reinstate him inservice." https://hcservices.ecourts.gov.in/hcservices/

12.It is also the fact that on the 59th day the respondent appearedbefore the Superintendent of Police with medical certificate and he waspermitted to join duty. We are not expressing any opinion about the saidfactual aspect in this appeal and we leave it open to the appellateauthority to consider the same while passing fresh orders in the appeal.13.In the result, we set aside the order of the appellate authoritydated 12.8.2006 and remit the matter to the first appellant herein to passfresh orders following Rule 6(1) of the Tamil Nadu Police SubordinateService (Discipline and Appeal) Rules, 1955, within a period of four weeksfrom the date of receipt of copy of this order. The order of the learnedsingle Judge is set aside.The writ appeal is disposed of with the above directions. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvrTo1.The Joint Commissioner of Police,Traffic Zone, Vepery,Chennai - 7.2.The Deputy Commissioner of Police,Traffic (North), Vepery,Chennai - 7.1 cc To Mr.S.Ilamvaludhi, Advocate, SR.58341.1 cc To The Government Pleader, SR.58453.W.A.No.668 of 2007 SSV(CO)RVL 28.09.2007