M.Khader Mohideen v. The Superintendent of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:20.06.2008CORAM:THE HON'BLE MR.JUSTICE K.VENKATARAMANWRIT PETITION NO.26479 OF 2006M.Khader Mohideen.. Petitionervs. The Superintendent of PoliceNagai Quaid-E-Milleth DistrictNagapattinam... RespondentWrit petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the recordsin PR.No.162/96 dated 21.02.97 on the file of the 1st respondent andquash the same. For petitioner : Mr.K.Venkatramani, Sr.Counsel for Mr.M.MuthappanFor respondents: Mr.S.Gopinathan Addl. Govt. Pleader ORDERThe petitioner had filed O.A.No.2723 of 1997 before the TamilNadu Administrative Tribunal challenging the order of the respondentdated 21.2.1997 imposing punishment of censure. The said O.A. had beentransferred to the file of this Court, on abolition of Tribunal andrenumbered as W.P.No.26479 of 2006.

The short matrix which requires for the disposal of thepresent writ petition is set out hereunder: The petitioner entered service as Sub Inspector of Police in theyear 1966. He was promoted as Deputy Inspector of Police on 1.2.1977.Later, he was promoted as Inspector of Police in the year 1982. Whenthe petitioner was serving as Inspector of Police at Manalmedu PoliceStation from 5.1.1993 to 21.7.1996, there was an unnatural death of oneMalathy and in connection with that, a case in Manalmedu Police StationCrime No.708/93 under section 174 Cr.P.C. was registered on 27.8.1993.The petitioner was proceeded departmentally under Rule 3(a) of Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Police Subordinate Services (Discipline & Appeal) Rules, 1955 bythe Deputy Superintendent of Police, the then Nagai Quaid-E-MillethDistrict, now Nagapattinam District for not having obtained the priorityletter from the Superintendent of Police for the chemical examiner'sreport in Manalmedu Police Station Crime No.708/93. The charges wereframed against the petitioner in the year 1996, however, the charge memowas served on him only in the year 1997. The petitioner submitted areply and the Deputy Superintendent of Police accepted the explanationoffered by the petitioner and held that the charges against thepetitioner were not proved beyond reasonable doubt. He submittedunproved minutes to the respondent on 21.2.1997. While so, thedisciplinary authority, viz., the Superintendent of Police, did notagree with the report of the Enquiry Officer and held that thedelinquency has been established. The disciplinary authority withoutopportunity to the petitioner imposed a punishment of censure by anorder dated 21.2.1997. The petitioner has preferred an appeal againstthe punishment to the Deputy Inspector General of Police, however, noorders have been passed. In the meanwhile, based on the punishmentimposed, the petitioner has been denied promotion to the post of DeputySuperintendent of Police. Hence, the petitioner was constrained to movethe Tribunal for quashing the punishment imposed on him.

A reply affidavit had been filed on behalf of the respondentwherein the following facts have been set out: The petitionerhad been dealt with a charge under Rule 3(a) of Tamil Nadu PoliceSubordinate Services (Discipline & Appeal) Rules, 1955 and the EnquiryOfficer had sent a report stating that the charges have not been proved. The disciplinary authority, the respondent herein, dissenting with thefindings of the Enquiry Officer, awarded a punishment of censure by hisproceedings dated 21.2.1997. The disciplinary authority has every rightto agree or disagree with the findings of the Enquiry Officer and it isfor him either to accept or to deny the findings. The petitioner hadbeen dealt with under Rule 3(a) of Tamil Nadu Police SubordinateServices (Discipline & Appeal) Rules, 1955 based on records andopportunity was given to the petitioner for his reply. No show-causenotice need be issued while imposing punishment. Hence, there is noviolation of the principles of natural justice. The order is not malafide or motivated to prevent the petitioner from being promoted as Deputy Superintendent of Police, as contended by the petitioner. Thereasoned order passed by the disciplinary authority does not require anyinterference by this Court.

On the above pleadings, Mr.K.Venkataramani, learned seniorcounsel appearing for the petitioner and the learned AdditionalGovernment Pleader appearing for the respondent have submitted theirrespective contentions. https://hcservices.ecourts.gov.in/hcservices/

Mr.K.Venkataramani, learned senior counsel appearing for thepetitioner emphasised that the disciplinary authority, if he wants todisagree with the findings of the Enquiry Officer ought to have servedshow-cause notice on the petitioner explaining why he differs from thereport of the Enquiry Officer and calling upon the petitioner to offerhis explanation and failure to do so is totally erroneous and such viewhas been taken not only by this Court, but also by the Hon'ble ApexCourt. The learned senior counsel further submitted that the replyaffidavit of the respondent stating that no show-cause notice need beissued before imposing the punishment shows that the disciplinaryauthority was unaware of the law laid down by this Court as well as the Hon'ble Apex Court. Thus, according to the learned senior counsel, theimpugned order is liable to be set aside. Further, according to thelearned senior counsel, the petitioner was aged about 54 years when hehad moved the Tribunal and he would have retired long back and that nouseful purpose would be served if the matter is remanded to theauthority again for considering the punishment imposed on the petitionerand hence the matter has to be decided by this Court itself.

Per contra, the learned Additional Government Pleaderappearing for the respondent contended that opportunity has been givento the petitioner before punishment has been imposed and hence, it doesnot require any reconsideration.

I have considered the submissions made by the learned seniorcounsel for the petitioner and the learned Additional GovernmentPleader.

It is the admitted case that charges were framed against thepetitioner on 10.2.1996 and served on him on 10.2.1997. The chargeframed against the petitioner, as set out in the reply affidavit, is asfollows: "Neglect of duty in having not obtained the priority letterfrom Superintendent of Police, Nagai Quaid-E-MillethDistrict for getting Chemical Examiner's report in ManalmeduPolice Station Cr.No.708/93, u/s.174 Cr.P.C. registered on27.8.93".

It is not in dispute that seven days time had been granted tothe petitioner to put forth his explanation and the DeputySuperintendent of Police accepted the explanation of the petitioner andheld that the charges are not proved beyond reasonable doubt andsubmitted unproved minutes to the respondent on 21.2.1997. However, therespondent, without accepting the enquiry report and without affordingan opportunity to the petitioner imposed a punishment of censure by theimpugned order and in the appeal preferred by the petitioner before the Deputy Inspector General of Police, no orders have been passed. On the https://hcservices.ecourts.gov.in/hcservices/ above back drop, the question that arises now for consideration iswhether opportunity has been given to the petitioner before thepunishment being imposed on him. In his original application, thepetitioner had taken a definite stand that no opportunity had beenafforded to him. In the reply affidavit filed by the first respondentit has been stated that no show-cause notice need be issued beforeimposing punishment.

The learned senior counsel appearing for the petitionersubmitted that the respondent, when he differs from the finding of the Deputy Superintendent of Police, should have served a show-cause noticeon the petitioner giving reasons as to why he proposes to differ fromthe findings of the Deputy Superintendent of Police and called upon thepetitioner to offer his explanation for the same and then, afterconsidering the explanation, should have passed orders in one way orthe other. According to the learned counsel, such procedure has notbeen followed by the respondent before imposing punishment referred toabove. While a specific ground to this effect has been taken in theoriginal application, in reply affidavit no where it has been statedthat the respondent had served a show-cause notice on the petitionergiving reasons for differing from the findings of the DeputySuperintendent of Police. When there is no such averment in the replyaffidavit, it is presumed that the disciplinary authority had not servedany show-cause notice on the petitioner calling upon the petitioner toexplain his stand on the differing views of the disciplinary authority.

In this connection, the learned senior counsel appearing forthe petitioner, drew my attention to the judgement reported in 2006 (3)Andhra Law Times 286 (D.B.) [Narinder Kumar vs. Union of India andothers]. Paragraph 30 of the said judgement is usefully extractedhereunder: "30. It is well settled that while the disciplinaryauthority is entitled to disagree with the findings of theenquiry officer, he is required to intimate the delinquentemployee of the reasons which weighed with him in differingwith the conclusions of the enquiry officer and give him anopportunity of submitting his objections thereto. Failureto do so would be in violation of principles of naturaljustice, which would result in the enquiry proceedings andthe order of punishment imposed being vitiated. Thecontention of Sri R.S.Murthy, learned Standing Counsel forthe respondents, based on the judgement of the SupremeCourt in Managing Director ECIL. vs. Karunakar (AIR 1994 SC1074) and State Bank of Patiala v. S.K.Sharma (AIR 1996 SC1669) that no prejudice was caused to the petitioner, cannot also be accepted. As has been held by the ApexCourt in S.K.Sharma (cited supra), the prejudice doctrinehas no application in a case where no opportunity or no https://hcservices.ecourts.gov.in/hcservices/ notice was given to the delinquent employee. In thepresent case the petitioner was not put on notice regardingthe Railway Board's tentative disagreement with thefindings of the enquiry officer and was denied theopportunity of submitting his objections thereto. Since itis a case of no notice and no opportunity, and falls withinthe categories excluded in S.K.Sharma (cited Supra), theprejudice doctrine has no application. "

In yet another decision reported in AIR 1998 SC 2713 [PunjabNational Bank and others vs. Kunj Behari Misra] it has been held that ifthe Enquiry Officer's report is in favour of the delinquent and thedisciplinary authority proposing to differ must give opportunity ofhearing to the delinquent before recording his conclusion. Paragraph 17of the said judgement is usefully extracted hereunder: "17. These observations are clearly in tune with theobservations in Bimal Kumar Pandit's case (AIR 1963 SC1612) quoted earlier and would be applicable at the firststage itself. The aforesaid passages clearly bring out thenecessity of the authority which is to finally record anadverse finding to give a hearing to the delinquentofficer. If the inquiry officer had given an adversefinding, as per Karunakar's case (1994 AIR SCW 1050) thefirst stage required an opportunity to be given to theemployee to represent to the disciplinary authority evenwhen an earlier opportunity had been granted to them by theinquiry officer. It will not stand to reason that when thefinding in favour of the delinquent officers is proposed tobe over-turned by the disciplinary authority then noopportunity should be granted. The first stage of theinquiry is not completed till the disciplinary authorityhas recorded its finding. The principles of naturaljustice would demand that the authority which proposes todecide against the delinquent officer must give him ahearing. When the inquiring officer holds the charges tobe proved then that report has to be given to thedelinquent officer who can make a representation before thedisciplinary authority takes further action which may beprejudicial to the delinquent officer. When, like in thepresent case, the inquiry report is in favour of thedelinquent officer but the disciplinary authority proposesto differ with such conclusions then that authority whichis deciding against the delinquent officer must give him anopportunity of being heard for otherwise he would becondemned unheard. In departmental proceedings what is ofultimate importance is the finding of the disciplinaryauthority. " https://hcservices.ecourts.gov.in/hcservices/

In yet another judgement reported in 2001 (3) AdministrativeTotal Judgements 247 [State Bank of India and others vs. ArvindK.Shukla], the same view had been taken by the Hon'ble Apex Court. Paragraph 2 of the said judgement is usefully extracted hereunder: "2. Mr.Sundravardan, the learned senior counselappearing for the State Bank of India contended before usthat in the case in hand, in fact, there has been nodisagreement with the finding of the enquiring officer bythe disciplinary, and on the other hand, the disciplinaryauthority on the accepted findings of the enquiring officerhas recorded his conclusion differently on the basis of therelevant provisions of the Rules, and therefore thequestion of giving an opportunity to the delinquent thatstage does not arise. To appreciate this contention, wehave been taken through the findings of the enquiringofficer and charges 1(a) and 1(d) as well as the reasoningsand ultimate conclusion of the disciplinary authority onthese two charges.

In yet another decision reported in 2006 (9) SCC 440 [LavNigam vs. Chairman & Managing Director, ITI Ltd., and another] a similarview has been taken and paragraphs 10 and 12 are usefully extractedhereunder: "10. 10. The conclusion of the High Court wascontrary to the consistent view taken by this Court that incase the disciplinary authority differs with the view takenby the inquiry officer, he is bound to give a notice settingout his tentative conclusions to the appellant. It is onlyafter hearing the appellant that the disciplinary authoritywould at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served witha notice relating to the punishment proposed.11. xxxx12. This view has been reiterated in YoginathD.Bagdge vs. State of Maharashtra (1999 (7) SCC 739). Inthis case also Rule 9(2) of the Maharashtra Civil Services(Discipline and Appeal) Rules, 1979 did not specificallyprovide for a disciplinary authority to give an opportunityof hearing to the delinquent officer before differing withthe view of the enquiry officer. The Court said: "para 29: But the requirement of 'hearing' inconsonance with the principles of natural justiceeven at that stage has to be read into Rule 9(2)and it has to be held that before the disciplinaryauthority finally disagrees with the findings ofthe enquiring authority, it would be given anopportunity of hearing to the delinquent officer sothat he may have the opportunity to indicate thatthe findings recorded by the enquiring authority donot suffer from any error and that there was nooccasion to take a different view. Thedisciplinary authority, at the same time, has tocommunicate to the delinquent officer the'TENTATIVE' reasons for disagreeing with thefindings of the enquiring authority so that thedelinquent officer may further indicate that thereasons on the basis of which the disciplinaryauthority proposes to disagree with the findingsrecorded by the enquiry authority are not germaneand the finding of 'not guilty' already recorded bythe enquiring authority was not liable to beinterfered with. " https://hcservices.ecourts.gov.in/hcservices/