Krishnan v. The Joint Commissioner of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:17.12.2009CORAMTHE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.1388 of 2008andM.P.No.2 of 2008Krishnan ...petitioner Vs1.The Joint Commissioner of Police, (South Zone) Saint Thomas Mount, Chennai – 16.2.The Assistant Commissioner of Police, Thuraipakkam Range, Thuraipakkam, Chennai. ...RespondentsPrayer: Writ petition has been filed under Article 226 of theConstitution of India praying to issue a writ of Certiorari to callfor the records pertaining to Tha.Pa.No.146/2007 dated Nil underSec.3b Charge Memo issued by the second respondent, the AssistantCommissioner of Police, Thuraipakkam Range, Thuraipakkam, Chennai andquash the same. For petitioner : M/s.R.Sampath KumarFor Respondents : Mr.T.Sreenivasan Addl.Govt.PleaderORDERThe writ petition challenges the charge memo framed against thepetitioner under 3 (b) of Tamil Nadu Police Subordinate Service(Discipline and Appeal) Rules, 1955. The petitioner is working as aHead Constable in the Police department. It appears that in respectof his tenancy in D.No.11/6 Mahalakshmi street, there are somedisputes between the petitioner's wife Mrs.K.Lakshmi and the landlordregarding rental amount and the landlord is insisting to vacate thepetitioner's wife and the petitioner from the premises. In respectof the said dispute the petitioner's wife has filed a suit in https://hcservices.ecourts.gov.in/hcservices/ O.S.No.444/2007 on the file of the District Munsif, Alandur for aninjunction against the landlord from interfering with herpossession. It is not in dispute that the petitioner is living withher wife in the same premises. But the dispute is purely civil innature in respect of the petitioner and his wife occupying a portionas tenants. The main charge framed against the petitioner showsthat the petitioner is liable for disciplinary proceedings due tothe reason that through his wife while occupying the residentialhouse, he is refusing to vacate the house and failed to pay the rentfor seven months to the landlord and through his wife he has alsofiled a suit in the Civil Court without permission from theDepartment and therefore it is in violation of Rule 111 of the TamilNadu Police Standing Orders and Rule 24 of the Tamil Nadu PoliceConduct Rules.2.The Impugned charge memo is challenged on the ground thatthe same is without jurisdiction and the petitioner being a policeHead constable cannot be expected to get permission from thedepartment when his wife is a tenant in respect of a portionrelating to which, the dispute arose with the landlord and thereforethe question of permission from Higher Authorities does not arise.3.The second respondent, the Assistant Commissioner of Police,Thuraipakkam Range has filed counter affidavit. It is stated thatthe second respondent has been nominated as enquiry officer forproceeding against the petitioner in respect of the charges framedagainst the petitioner under rule 3(b) of Tamil Nadu PoliceSubordinate Service (Discipline and Appeal) Rules, 1955. Admittedlyit is the first respondent, Joint Commissioner, who is the authorityto initiate the proceedings, who by delegation of powers, is statedto have permitted the Assistant Commissioner , Madipakkam Range, toframe the impugned charge. In the counter affidavit, it iscategorically admitted that in respect of the civil dispute betweenthe petitioner's wife and the landlord to the effect that thepetitioner's wife has refused to vacate the premises and has alsothwarted the attempts of the owner in selling the property to thirdparties for that action has been done by the petitioner by way ofinstigation. Strangely, the charge itself shows that the same hasbeen framed on the violation of the above said rules, wherein it ismade clear that the petitioner's wife has refused to vacate thepremises for more than seven months causing disturbance to thelandlord and the petitioner's wife has filed a suit withoutobtaining proper permission from the appointing authority of thepetitioner. The rules which are referred to, nowhere contemplatethat even as a police officer, in respect of the civil dispute whichare not connected with the service conditions, he should obtain priorpermission. If that is so, the question of the petitioner's wifeobtaining prior permission for filing a suit against the landlorddoes not arise. For the purpose of appreciating the above said fact,it is relevant to extract the rules which are quoted in the charges. https://hcservices.ecourts.gov.in/hcservices/

4.Rule 111 of Tamil Nadu Police Standing Orders, which is asfollowsPSO 111.Police officers addressing Governmentdirect,etc., prohibited.-(1) Save as provided in rules and orders issued bythe Director-General from time to time, Police Officersshall not correspond direct with Government in anymatter relating to their official duties. They shall onno account address the Government directly on personalmatters. Written representations of this nature shouldbe made only through the proper official channel.(2)(a)Police officers of all ranks areforbidden to approach officials of other departments andnon-officials for support in pressing individual claimsor obtaining redress of grievances of an officialnature.(b)Police Officers are forbidden to approachmembers of the State Legislatures or Members ofParliament with a view to having their grievances madethe subject of interpellations in the Legislatures orParliament.(c)The prohibition in clause 2 (a) above shallapply to the acquisition of certificate or letter ofrecommendation other than certificates or formal lettersaddressed to superintendents concerned bringing to theirnotice specific service rendered to the writer or underthe official cognizance of the writer.(3)Police Officers are prohibited from obtaininginterviews, with Ministers or Secretaries to Governmentwithout the prior sanction of the Director-General.(4)Police Officers of all ranks are prohibitedfrom applying directly or through their superiorofficers for promotion when vacancies occur andofficers are prohibited from recommending subordinatesfor particular posts otherwise than as provided for bythe rules or, if ordered to do so, by the authorityempowered to fill such post.(5)Police Officers are forbidden from bringingany political or outside influence to bear upon anysuperior authority to further their interest in respectof matters pertaining to their service, Any violation https://hcservices.ecourts.gov.in/hcservices/ of this provision will entail disciplinary actionagainst the Police officer concerned and the onus ofproving that he was not responsible for bringing aboutthe influence will lie on him.shows that the Act complained of under the impugned charge memo isnowhere comparable to any one of the instances made in the saidPolice Standing Orders. 5.Again rule 24 of Tamil Nadu Police Conduct Rules, which isas follows,Rule 24.Integrity and devotion to duty:(1)Every Police Officer shall at all timesmaintain absolute integrity and devotion to duty.(2)Every Police Officer, shall take all possiblesteps to ensure integrity and devotion to duty by allsubordinate Police Officer for the time being underhis control and authority.(3)(i)No Police Officer shall, in the performanceof his official duties or in the exercise of powersconferred on him, act otherwise than in his bestjudgement except when he is acting under the directionof his official superior.(ii) The direction of the Official superior shallordinarily be in writing. Oral directions tosubordinates shall be avoided. Where the issue oforal direction becomes unavoidable, the officialsuperior shall confirm in writing immediatelythereafter.(iii)A Police Officer who has received oraldirection from his official superior shall see theconfirmation of the same in writing as early aspossible, where upon it shall be the duty of theofficial superior to confirm the direction in writing.(iv)No Police Officer shall in the performance ofhis official duties or in the exercise of powersconferred on him evade the responsibility devolvinglegitimately on him and seek instruction from, orapproval of a superior authority when such instructionor approval is not necessary in the scheme ofdistribution of powers and responsibilities. https://hcservices.ecourts.gov.in/hcservices/ Explanation:- A Police Officer who habituallyfails to perform a task assigned to him within thetime set for the purpose and with the quality ofperformance expected of him shall be deemed to belacking in devotion to duty within the meaning of sub-rule (1);(5)in rule 36, after the second provision, thefollowing proviso shall be added, namely:-"Provided also that such repeal shall not affectthe previous operation of the rules so repeated and acontravention of any of the said rules shall bepunishable as if it were a contravention of theserules".(G.O.Ms.No.465 Home(Pol.VI) dt 4.5.2001).also does not have any relationship to the charge framed against thepetitioner at all. In fact the integrity and devotion to dutycontemplated under rule 24 of Tamil Nadu Police Conduct Rules,relates to the work assigned to a police officer, during theperformance of his duty as police officer and it has nothing to dowith any civil rights which are otherwise available to the policeofficer. In such circumstances, it has to be held that the chargesare extraneous and the respondents have no jurisdiction to framesuch charges against the petitioner so long as the charge do notrelate to the conduct of the petitioner as a police officer eitherdirectly or remotely and do not cover in any one of the rules quotedin the impugned charge memo. In such view of the matter, I have nohesitation to allow the writ petition quashing the impugned chargememo on the ground that the charges are not prima facie maintainableas per rules quoted in the charge memo. 6.The writ petition stands allowed accordingly. Consequently,connected Miscellaneous Petition is closed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ gvTo1. The Joint Commissioner of Police, (South Zone) Saint Thomas Mount, Chennai – 16.2. The Assistant Commissioner of Police, Thuraipakkam Range, Thuraipakkam,Chennai.1 cc To Mr.R.Sampathkumar, Advocate, SR.693421 CC to the Government Pleader SR No.69544W.P.No.1388 of 2008andM.P.No.2 of 2008GR(CO)sra 11.01.2010