M. Boopathy v. Director General of Police & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13.7.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.6670 of 2006 M.Boopathy. ... Petitioner vs.1.The Director General of Police, Chennai-4.2.The Deputy Inspector General of Police, Thanjavur Range, Thanjavur.3.The Superintendent of Police, Nagapattinam District. ... RespondentsWrit Petition is filed under Article 226 of the Constitution ofIndia praying to issue a Writ of Certiorarified Mandamus, call forrecords relating to the 3rd respondent in PR No.2/2005 under rule 17(b) dated 21.9.2005 in awarding the punishment of compulsoryretirement from service and the order passed in appeal by the secondrespondent in C.No.B2/AP 04/2006 dated 3.2.2006 in rejecting theappeal and quash the same and consequently direct the respondents toreinstate the petitioner back to service with all attendant benefitsand with due regards to her seniority.For Petitioner : Mr.Anand For Respondents : Mr.T.Seenivasan, Additional Government Pleader.O R D E RThe Writ Petition is filed praying to issue a Writ ofCertiorarified Mandamus, call for records relating to the 3rdrespondent in PR No.2/2005 under rule 17(b) dated 21.9.2005 inawarding the punishment of compulsory retirement from service and theorder passed in appeal by the second respondent in C.No.B2/AP 04/2006dated 3.2.2006 in rejecting the appeal and quash the same andconsequently direct the respondents to reinstate the petitioner backto service with all attendant benefits and with due regards to herseniority. https://hcservices.ecourts.gov.in/hcservices/

2. The brief facts of the case is as follows:- The writpetitioner joined the services of the respondent department asJunior Assistant under physically handicapped quota in November,1981. Petitioner was promoted as Assistant in the year 1994.Thereafter, she was conferred with Selection Grade Assistant. InNovember 2004, petitioner was transferred and posted to L1 seat fromH1 seat. From 24.11.2004, petitioner was absent. On 18.1.2005,charges were framed on four counts and they are as follows:- "1. Highly reprehensible conduct ofdisobedience of orders of Superintendent ofPolice, in not accepting the orders of transferand handing over and taking over charges in H1seat and L1 seat respectfully as perD.O.No.995/2004 in C.No.A2/31622/2004, dated08.11.2004.2. Highly reprehensible conduct by refusingto meet the Superintendent of Police, with PoliceHousing Board file on 22.11.2004 as instructed.3. Reprehensible conduct by absenting forduty from 24.11.2004 and4. Reprehensible conduct by failure to callfor Priority List and auditing Contingent Billsin H1 seat as instructed by the PersonalAssistant to Superintendent of Police."Notice of enquiry was issued to the petitioner and an enquiry is saidto have been conducted ex parte and the minutes of enquiry was drawnon 4.8.2005. The enquiry officer found that all the charges wereproved against the petitioner. The memo issued by the thirdrespondent on 28.2.2005 enclosing a copy of the minutes of theenquiry was sought to be served on the petitioner through theSuperintendent of the Section. However, the Superintendent hasreturned the memo on 12.9.2005 stating that the petitioner refused toreceive the memo along with the copy of the minutes. TheSuperintendent of Police, Nagapattinam District, the CompetentDisciplinary Authority, passed orders ordering compulsory retirementon 21.9.2005. Against this order of compulsory retirement, an appealwas preferred on 10.10.2005 to the Deputy Inspector General ofPolice, Thanjavur Range, who rejected the appeal on 3.2.2006. Areview was filed before the Additional Director General of Police andit is pending. In the meanwhile, this writ petition has been filed.3. The main contention on behalf of the petitioner is that thecharge memo, notice of enquiry, minutes of enquiry report and thefinal order of the disciplinary authority has not been served on the https://hcservices.ecourts.gov.in/hcservices/ petitioner in the manner known to law. Therefore, there is violationof principles of natural justice and the whole proceedings of thedepartment is arbitrary. 4. The further contention of the petitioner is that the leavetaken from 24.11.2004 on medical grounds has been regularised andthat has not been properly considered by the authority. So far asthe charge relating to refusal to meet higher officer, it is statedthat no memo has been issued for the same. For all these reasons, itis contended that the order of compulsory retirement has to be setaside.5. Heard Mr.T.Seenivasan, learned Additional Government Pleaderappearing for the respondents, who referred to the counter-affidavitand stated that the petitioner deliberately refused to receive allthe proceedings mentioned above and there is no violation ofprinciples of natural justice. Certain endorsement in the file wasshown to the court stating that the petitioner refused to receive thecharge memo. Such endorsement is disputed by the learned counsel forthe petitioner. 6. The appellate authority as pointed out by the learnedcounsel for the petitioner has passed an order as follows:-"5. I have gone through the appeal petition,PR file and other connected records.Disobedience of orders of Superintendent ofPolice in not accepting the orders of transferand handing over and taking over the charges ofseats as per D.O.995/2004 that too refusing tomeet the Superintendent of Police with PoliceHousing Board File for discussion is serious oneand they were rightly held proved. The appellanthas not put forth any valid points forconsideration and the contents in her appealpetition are not convincing. Hence, I decline tointerfere with the award of punishment. Theappeal is rejected." In the above order, there is no mention that service on thepetitioner has been done properly and there is violation ofprinciples of natural justice. There is no discussion with regard tothe regularisation of leave as claimed by the petitioner. 7. From the above, it is clear that the issues raised by thewrit petitioner, viz., dispute with regard to the proper service ofnotice and other proceedings on the petitioner and appreciation ofmaterial on record, particularly, the plea taken with regard toregularisation of the leave taken have not been considered in theproper perspective. All these factors are questions of fact which https://hcservices.ecourts.gov.in/hcservices/ have to be considered by the reviewing authority before whom thereview is pending. The dispute with regard to service of notice andenquiry report and other records of proceedings can be verified bythe reviewing authority. 8. At this stage, this court is not inclined to interfere withthe proceedings of the respondent except to direct the DirectorGeneral of Police, the reviewing authority to dispose of the reviewpetition on merits by a reasoned order touching upon of the issuesraised by the petitioner. The reviewing authority shall also affordan opportunity to the petitioner to appear either in person orthrough counsel. The review petition shall be heard and disposed ofas early as possible preferably within eight weeks from the date ofreceipt of a copy of this order. The relief of certiorari standsrejected, however, there will be a mandamus issued to the DirectorGeneral of Police, the first respondent to dispose of the reviewpetition as indicated above. Writ Petition is ordered on the aboveterms. No costs. Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrartsTo 1.The Director General of Police, Chennai-4.2.The Deputy Inspector General of Police, Thanjavur Range, Thanjavur.3.The Superintendent of Police, Nagapattinam District. + 1 cc to Government Pleader,SR.30926+ 1 cc to M/s.Anand & Suryas,Advocates,SR.30419 W.P.No.6670 of 2006MRD(CO)EM/24.7.09