A.Ramachandran v. Greater Chennai

thereafter filed an appeal before this Court in Criminal AppealNo.25 of 2001 and this Court on noticing that the fine amount hadalready been paid suspended the sentence of the Trial Court onfurnishing sureties. 3. When the fact of the petitioner's conviction came to theknowledge of the respondents, he was given a show cause noticedated 10.01.2001 by the respondent.By the impugned order, it wasinformed that the petitioner had been convicted for an offenceinvolving moral turpitude and hence, he had arrived at theprovisional conclusion of dismissing the petitioner as per theprovisions of Police Standing Order 59(1) of Vol.I. It was recordedby the officer that he had considered all aspects of hisconviction and he was of the opinion that it was not desirable toretain him in service. The petitioner was given an opportunity toshow cause against the proposed penalty. 4. The petitioner sent a reply dated 22.01.2001 requestingto grant extension of time for submitting his explanation. He hadalso stated that the case was registered in the year 1987 and hewas facing trial from the year 1989 and since his health conditionwas not good, he was under medical leave. Accepting thepetitioner's explanation, further time extension was given by aletter dated 25.01.2001. Thereafter, the petitioner sent a detailedrepresentation dated 29.01.2001. Apart from contending that he hadmeritorious service, he also submitted that he had challenged thesuspension order which was made pending criminal trial. TheTribunal in O.A.No.407 of 1994 by an order dated 16.02.1996 stayedthe operation of the suspension order pursuant to which he wasrestored to duty on 31.12.1996. It was further stated that the trapcase against him was made out of vengeance. He had also moved thisCourt in Criminal Appeal No.25 of 2001 and the sentence madeagainst him was suspended as noted above. However, the respondentrejected the petitioner's case and by an order dated 06.02.2001, hewas dismissed from service with effect from 29.12.2000 the day onwhich he was found convicted. It was also noted that this Court hadgranted only suspension of sentence. The petitioner, as aresponsible officer in a disciplined force had failed to maintainabsolute integrity and devotion to duty and he was caught in a trapcase where he was convicted and therefore, the only punishment thathas to be awarded is dismissal from service.5. It transpires, in the meanwhile after granting timeextension for replying to the show cause notice, the petitionermoved the Tribunal with O.A.No.1103 of 2001 challenging the showcause notice dated 10.01.2001. The Tribunal admitted the OA andgranted interim stay by an order dated 09.02.2001. The petitionerin his reply sent to the respondent dated 29.01.2001 as against thesecond show cause notice did not mention about his moving theTribunal challenging the show cause notice. Therefore, when theimpugned order came to be passed on 06.02.2001, the Tribunal is yetto grant any interim order. It was thereafter, the Tribunal'sinterim order came into existence on 09.02.2001. https://hcservices.ecourts.gov.in/hcservices/

6. The second Original Application (O.A.2816 of 2001) wasadmitted on 23.04.2001 and once again the Tribunal granted interimstay. Even though the respondents have filed a vacate stayapplication in M.A.No.5779 of 2001, the Tribunal did not take upthe same for reasons best known to it. Aggrieved by the grant ofinterim stay, the respondent moved this Court with the writpetition being W.P.No.5439 of 2002 and challenged the order of exparty interim stay. A Division Bench of this Court presided byR.Jayasimha Babu,J. by an order dated 25.02.2002 granted an interimstay of the operation of the interim order granted by the Tribunal.Even before moving the Division Bench, the respondent in order togive effect to the interim stay granted by the Tribunal on23.04.2001 restored the petitioner to service on 27.06.2001. Thepetitioner continued to be in service notwithstanding the DivisionBench had granted stay of the order of suspension by an order dated25.02.2002.7. In the meanwhile, the petitioner had reached the age ofsuperannuation on 29.07.2006. However, the respondent issued anorder of suspension on 29.07.2006 placing the petitioner undersuspension and he was not allowed to retire from service pendingfurther orders on the Original Application.8. In the original application, the respondent had filed adetailed reply affidavit dated 13.06.2001. In view of the abolitionof the Tribunal, the matter stood transferred to this Court and wasre-numbered as W.P.No.49373 of 2006.9. In the reply affidavit, it was stated that thepetitioner while he was working in the Prohibition Exercise Wing atTirunelveli Unit had involved in a criminal case. The Vigilance andAnti Corruption Police caught him in a trap case and he was chargesheeted before the Special Court at Tirunelveli in S.C.No.1/89 andhe was convicted on two counts. The fact that this Court hadsuspended the sentence will not disable the respondent from takingaction against the petitioner. The conduct of the petitioner ingetting convicted in a criminal case involving moral turpitude andnot only sentenced with rigorous imprisonment but also fined, he isunfit to be kept in service. Keeping such a person in the policeforce will spoil the morale of the Department. Since the convictionwas on record, there is no impediment for the respondent frompassing the impugned order. Reliance was placed upon the judgmentof the Supreme Court in Dy. Director of Collegiate Education(Admn.) v. S. Nagoor Meera reported in (1995) 3 SCC 377. Therefore,it was contended that the suspension of sentence is not a bar fortaking further action.10. However, when the matter came up today, the learnedcounsel for the petitioner stated that subsequently this Court by ajudgment dated 04.12.2008 disposed of the criminal appeal andinterfered with the sentenced made by the learned Special Judge. Acopy of the said judgment dated 04.12.2008 in Criminal Appeal (MD)No.25 of 2001 was also produced for perusal by this Court. In https://hcservices.ecourts.gov.in/hcservices/ paragraphs 12 and 13, it was observed as follows:-"12. The above principle laid down by the Hon'bleApex Court in the decision cited supra is squarelyapplicable to the facts of the instant case as inthis case also the appellant/accused has undergonethe ordeal of criminal proceedings nearly about 22years and subjected to mental agony, expense andprolonged uncertainty of the result apart fromlosing his job and as such all these factors cannotbe ignored by this Court and the same have to betaken into consideration while reducing thesentence. Therefore, in view of the above saidmitigating circumstances, this Court is of theconsidered view that reducing the sentence of oneyear rigorous imprisonment for each offence imposedby the trial judge, viz., learned First AdditionalSessions Judge-cum-Chief Judicial Magistrate,Tirunelveli in Special Case No.1 of 1989 by judgmentdated 29.12.2000 to one of till rising of Court andfurther imposing a fine of Rs.15,000/- (Rupees Fiftythousand only), in default to undergo one yearrigorous imprisonment would meet the ends ofjustice. The appellant/accused is directed to paythe fine amount of Rs.15,000/- (Rupees fiftythousand only) within a period of four weeks fromthe date of receipt of a copy of this order.13. With the above modification in sentence, thisappeal is disposed of."(Emphasis added)11. He submitted that thanks to the order of the interimstay granted by the Tribunal. The petitioner had completed histenure of service. But because of the pendency of the OriginalApplication, he was not allowed to retire and he had also sent arepresentation dated 17.11.2009 bringing to the notice of therespondent about the modification of the conviction made by thecourt. A copy of the said representation was also produced in theform of additional typed set of papers.12. In the typed set, the petitioner has also enclosed theappreciation and rewards received from the superior officers. Inpages 3 to 5 of the additional typed set, he had enclosedphotographs standing next to a judge of this Court while attendinga function organised by the Mylapore Academy during its 49thAnniversary. The attempt made by the petitioner in placing suchphotographs of the petitioner standing on the same dais with ajudge of this court for perusal by this court is a clear attempt tooverreach the Court by illegal means. Such attempt by thepetitioner through his counsel must be condemned as unethical andunwarranted exercise arguing such a writ petition. Even when thiswas pointed out, the learned counsel for the petitioner was notwilling to express any regret and did not retract the photographs https://hcservices.ecourts.gov.in/hcservices/ filed in this regard. This had necessitated this Court for makingcomments on the conduct of the petitioner. It should be known tothe counsel for the petitioner that such exhibits will no wayinfluence the outcome of the decision of this court. 13. In fact the learned Judge's photographs with whom thepetitioner was standing in the same dais in a function held at theMylapore Academy is well known for his integrity, rectitude andstrict views on rule of law. In fact it is the very same judge whohad presided over the Division Bench and who had granted stayagainst the interim order passed by the Tribunal granting an exparte stay in favour of the petitioner even against a show causenotice. Many time when Judges are invited to functions as a ChiefGuest or a speaker, they attend such gatherings under the bonafidebelief that the organisers of the function have contributed to thewell being of the society in some form and therefore, there wasnothing wrong for a Judge to accept a privilege or honour conferredon him while attending those functions. But during such functions,the Judge will be totally unaware of other persons who are invitedto attend or who are likely occupy the stage or who are invited toreceive either awards or momentos. It was one such occasion wherethe petitioner being a police officer of the area was called to thedais in which the Judge also sat as a special guest. The petitionerhad no qualms in using one such photograph to buttress his ownnefarious desires. The counsel appearing had made himself as aninstrument in the hands of the petitioner in passing on suchunwarranted materials for perusal by this court. The Bill relatingto Judicial Standards and Accountability Bill 2010 which is pendingconsideration before the Parliament is now attempting to define thestandards expected of a judge. It will be a sad day that Judges areto be told about the standards to be adopted in public life byJudges.14. Leaving this small digression, the other legalcontentions of the petitioner can be considered. The Tribunal hadgranted an ex parte stay in O.A.No.1103 of 2001 and subsequentlyalso granted an interim stay against the dismissal order passedagainst the petitioner on 23.04.2001. The Tribunal did not givereasons for the grant of stay against the dismissal order. Eventhough it is well known that once a Government servant isdismissed, the same cannot be stayed by an ex parte interim orderand that too without giving strong reasons. The Supreme Court timeand again has held that it is only in case of a final order,appropriate relief can be granted because even in cases ofdismissal, the loss or damages suffered by a Government servant canbe compensated monetarily and if he has still remaining service togo he can be restored with all attendant benefits. Apart from thegeneral Service Law relating to grant of discretionary interimorder in the present case, the reasons found in the impugned orderdated 06.02.2001 cannot be found fault with by the Tribunal. 15. In fact it is the very same Tribunal's order which wentto the Supreme court in Nagoor Meera's Case (cited supra) wasreversed by the Supreme Court. The Tribunal and Courts were https://hcservices.ecourts.gov.in/hcservices/ forewarned not to interdict such orders. The Tribunal is fullyaware of its own decision was earlier reversed by the SupremeCourt, which is also available in the form of a reported decision.But yet it had continued to grant such interim orders as a matterof course. The Tribunal's action is clearly repugnant to rule oflaw and creates disobedience of the orders passed by the SupremeCourt. Now that the Tribunal is abolished and does not exist anymore, no strictures can be passed against the conduct of theTribunal. 16. In any event, the case projected herein has a completeanswer in Nagoor Meera's case (cited supra). It is necessary torefer to the following passages found in paragraphs 8 to 10:"8. We need not, however, concern ourselves any morewith the power of the appellate court under the Code ofCriminal Procedure for the reason that what is relevantfor clause (a) of the second proviso to Article 311(2)is the "conduct which has led to his conviction on acriminal charge" and there can be no question ofsuspending the conduct. We are, therefore, of theopinion that taking proceedings for and passing ordersof dismissal, removal or reduction in rank of agovernment servant who has been convicted by a criminalcourt is not barred merely because the sentence ororder is suspended by the appellate court or on theground that the said government servant-accused hasbeen released on bail pending the appeal.9. The Tribunal seems to be of the opinion that untilthe appeal against the conviction is disposed of,action under clause (a) of the second proviso toArticle 311(2) is not permissible. We see no basis orjustification for the said view. The more appropriatecourse in all such cases is to take action under clause(a) of the second proviso to Article 311(2) once agovernment servant is convicted of a criminal chargeand not to wait for the appeal or revision, as the casemay be. If, however, the government servant-accused isacquitted on appeal or other proceeding, the order canalways be revised and if the government servant isreinstated, he will be entitled to all the benefits towhich he would have been entitled to had he continuedin service. The other course suggested, viz., to waittill the appeal, revision and other remedies are over,would not be advisable since it would mean continuingin service a person who has been convicted of a seriousoffence by a criminal court. It should be rememberedthat the action under clause (a) of the second provisoto Article 311(2) will be taken only where the conductwhich has led to his conviction is such that itdeserves any of the three major punishments mentionedin Article 311(2). As held by this Court in ShankarDass v. Union of India: (SCC p.362, para 7) https://hcservices.ecourts.gov.in/hcservices/ "Clause (a) of the second proviso to Article 311(2) of the Constitution confers on theGovernment the power to dismiss a person fromservice ‘on the ground of conduct which has ledto his conviction on a criminal charge’. Butthat power like every other power has to beexercised fairly, justly and reasonably. Surely,the Constitution does not contemplate that agovernment servant who is convicted for parkinghis scooter in a no-parking area should bedismissed from service. He may, perhaps, not beentitled to be heard on the question of penaltysince clause (a) of the second proviso toArticle 311(2) makes the provisions of thatarticle inapplicable when a penalty is to beimposed on a government servant on the ground ofconduct which has led to his conviction on acriminal charge. But the right to impose apenalty carries with it the duty to act justly."10. What is really relevant thus is the conduct of thegovernment servant which has led to his conviction on acriminal charge. Now, in this case, the respondent hasbeen found guilty of corruption by a criminal court.Until the said conviction is set aside by the appellateor other higher court, it may not be advisable toretain such person in service. As stated above, if hesucceeds in appeal or other proceeding, the matter canalways be reviewed in such a manner that he suffers noprejudice."17. From the above passage, it is clear that the competentauthority need not wait for the outcome of the criminal appeal anda suspension of sentence does not efface the conviction on record.But in the present case, what was contended before the Tribunal andbefore this Court was after the removal of provision relating tosecond show cause notice found under Article 311(2) of theConstitution, the respondent cannot issue a notice in terms of PSO59(1) of Volume I and inasmuch as show cause notice had alreadypredetermined the imposition of penalty of dismissal, the showcause notice was invalid. 18. In answer to this allegation, in paragraphs 12 and 13of the reply affidavit, it was averred as follows:-"12. Regarding the averments made in ground(a) it issubmitted that Art.311(2) (a)(b)(c) provide thatholding of enquiry is not necessary in case ofperson, on the ground of conduct which has led tohis conviction, on a criminal charge. Hence theshow cause notice was issued as prescribed in Rule3C(i)(1) of Tamil Nadu Police Subordinate Service(Discipline and Appeal) Rules 1955, just to give an https://hcservices.ecourts.gov.in/hcservices/ opportunity to the delinquent before passing finalorders.13. Regarding the averments made in ground (B) it issubmitted that according to Tamil Nadu PoliceSubordinate Service (D & A) Rules 1955 rule 3c(i)(1), the delinquent Inspector / Applicant was givenan opportunity to represent against the punishmentproposed to be imposed on him as defined in rule 3(a) of Tamil Nadu Police Subordinate Service(Discipline and Appeal) Rules. Hence it is notcorrect to say that the punishment was pre-determined and issued without application of mind."19. The stand of the respondent is fully in consonance withthe constitution Bench of the Supreme Court in Union of India andanother v. Tulsiram Patel reported in (1985) 3 SCC 398. It isnecessary to extract the following passages from the said judgment:"114.So far as Challappan case is concerned, it isnot possible to find any fault either with the viewthat neither clause (a) of the second proviso toArticle 311(2) nor clause (i) of Rule 14 of theRailway Servants Rules is mandatory or with theconsiderations which have been set out in thejudgment as being the considerations to be takeninto account by the disciplinary authority beforeimposing a penalty upon a delinquent governmentservant. Where a situation envisaged in one of thethree clauses of the second proviso to Article 311(2) or of an analogous service rule arises, it isnot mandatory that the major penalty of dismissal,removal or reduction in rank should be imposed uponthe concerned government servant. The penalty whichcan be imposed may be some other major penalty oreven a minor penalty depending upon the facts andcircumstances of the case. In order to arrive at adecision as to which penalty should be imposed, thedisciplinary authority will have to take intoconsideration the various factors set out inChallappan case1. It is, however, not possible toagree with the approach adopted in Challappan case1in considering Rule 14 of the Railway Servants Rulesin isolation and apart from the second proviso toArticle 311(2), nor with the interpretation placedby it upon the word “consider” in the last part ofRule 14. Neither Rule 14 of the Railway ServantsRules nor a similar rule in other service rules canbe looked at apart from the second proviso toArticle 311(2). The authority of a particularofficer to act as a disciplinary authority and toimpose a penalty upon a government servant isderived from rules made under the proviso to Article309 or under an Act referable to that article. As https://hcservices.ecourts.gov.in/hcservices/ pointed out earlier, these rules cannot impinge uponthe pleasure of the President or the Governor of aState, as the case may be, because they are subjectto Article 310(1). Equally, they cannot restrict thesafeguards provided by clauses (1) and (2) ofArticle 311 as such a restriction would be inviolation of the provisions of those clauses. In thesame way, they cannot restrict the exclusionaryimpact of the second proviso to Article 311(2)because that would be to impose a restriction uponthe exercise of pleasure under Article 310(1) whichhas become free of the restrictions placed upon itby clause (2) of Article 311 by reason of theoperation of the second proviso to that clause. Theonly cases in which a government servant can bedismissed, removed or reduced in rank by way ofpunishment without holding an inquiry contemplatedby clause (2) of Article 311 are the three casesmentioned in the second proviso to that clause. Arule which provides for any other case in which anyof these three penalties can be imposed would beunconstitutional. Service rules may reproduce theprovisions of the second proviso authorizing thedisciplinary authority to dispense with the inquirycontemplated by clause (2) of Article 311 in thethree cases mentioned in the second proviso to thatclause or any one or more of them. Such a rule,however, cannot be valid and constitutional withoutreference to the second proviso to Article 311 (2)and cannot be read apart from it. Thus, while thesource of authority of a particular officer to actas a disciplinary authority and to dispense with theinquiry is derived from the service rules, thesource of his power to dispense with the inquiry isderived from the second proviso to Article 311(2)and not from any service rules. There is a well-established distinction between the source ofauthority to exercise a power and the source of suchpower. The Court in Challappan case1 was, therefore,in error in interpreting Rule 14 of the RailwayServants Rules by itself and not in conjunction withthe second proviso (at that time the only proviso)to Article 311(2). It appears that in Challappancase1 the Court felt that the addition of the words“the disciplinary authority may consider thecircumstances of the case and make such ordersthereon as it deems fit” warranted an interpretationof Rule 14 different from that to be placed upon thesecond proviso. This is also not correct. It is truethat the second proviso does not contain these wordsbut from this it does not follow that when actingunder the second proviso, the disciplinary authorityshould not consider the facts and circumstances of https://hcservices.ecourts.gov.in/hcservices/ the case or make an order not warranted by them. Itis also not possible to accept the interpretationplaced upon the word “consider” in Challappan case1.According to the view taken in that case, aconsideration of the circumstances of the casecannot be unilateral but must be after hearing thedelinquent government servant. If such were thecorrect meaning of the word “consider”, it wouldrender this part of Rule 14 unconstitutional asrestricting the full exclusionary operation of thesecond proviso. The word “consider”, however, doesnot bear the meaning placed upon it in Challappancase1. The word “consider” is used in Rule 14 as atransitive verb. The meaning of the word “consider”as so used is given in the Oxford English Dictionaryas “To contemplate mentally, fix the mind upon; tothink over, meditate or reflect on, bestow attentivethought upon, give heed to, take note of”. Therelevant definition of the word “consider” given inWebster’s Third New International Dictionary is “toreflect on: think about with a degree of care orcaution”. Below this definition are given thesynonyms of the word “consider” these synonyms being“contemplate, study, weigh, revolve, excogitate”.While explaining the exact different shades ofmeaning in this group of words, Webster’s Dictionaryproceeds to state as under with respect to the word‘consider’:“ ‘Consider’ often indicates little more than thinkabout. It may occasionally suggest somewhat moreconscious direction of thought, somewhat greaterdepth and scope, and somewhat greaterpurposefulness.”It is thus obvious that the word “consider” in itsordinary and natural sense is not capable of themeaning assigned to it in Challappan case1. Theconsideration under Rule 14 of what penalty shouldbe imposed upon a delinquent railway servant must,therefore, be ex parte and where the disciplinaryauthority comes to the conclusion that the penaltywhich the facts and circumstances of the casewarrant is either of dismissal or removal orreduction in rank, no opportunity of showing causeagainst such penalty proposed to be imposed upon himcan be afforded to the delinquent governmentservant. Undoubtedly, the disciplinary authoritymust have regard to all the facts and circumstancesof the case as set out in Challappan case1. Aspointed out earlier, considerations of fair play andjustice requiring a hearing to be given to agovernment servant with respect to the penaltyproposed to be imposed upon him do not enter intothe picture when the second proviso to Article 311 https://hcservices.ecourts.gov.in/hcservices/ (2) comes into play and the same would be theposition in the case of a service rule reproducingthe second proviso in whole or in part and whetherthe language used is identical with that used in thesecond proviso or not. There are a number of orderswhich are of necessity passed without hearing theparty who may be affected by them. For instance,courts of law can and often do pass ex parte adinterim orders on the application of a plaintiff,petitioner or appellant without issuing any noticeto the other side or hearing him. Can it, therefore,be contended that the judge or judges, as the casemay be, did not apply his or their mind whilepassing such an order?115.The decision in Challappan case1 is, therefore,not correct with respect to the interpretationplaced by it upon Rule 14 of the Railway ServantsRules and particularly upon the word “consider”occurring in the last part of that rule and ininterpreting Rule 14 by itself and not inconjunction with the second proviso to Article 311(2). Before parting with Challappan case1, we may,also point out that that case never held the field.The judgment in that case was delivered on September15, 1975, and it was reported in (1976) 1 SCR atpages 783 ff*. Hardly was that case reported then inthe next group of appeals in which the same questionwas raised, namely, the three civil appealsmentioned earlier, an order of reference to a largerBench was made on November 18, 1976. The correctnessof Challappan case1 was, therefore, doubted from thevery beginning.127.Not much remains to be said about clause(a) of the second proviso to Article 311(2). Torecapitulate briefly, where a disciplinary authoritycomes to know that a government servant has beenconvicted on a criminal charge, it must considerwhether his conduct which has led to his convictionwas such as warrants the imposition of a penaltyand, if so, what that penalty should be. For thatpurpose it will have to peruse the judgment of thecriminal court and consider all the facts andcircumstances of the case and the various factorsset out in Challappan case1. This, however, has tobe done by it ex parte and by itself. Once thedisciplinary authority reaches the conclusion thatthe government servant’s conduct was such as torequire his dismissal or removal from service orreduction in rank he must decide which of thesethree penalties should be imposed on him. This too https://hcservices.ecourts.gov.in/hcservices/ it has to do by itself and without hearing theconcerned government servant by reason of theexclusionary effect of the second proviso. Thedisciplinary authority must, however, bear in mindthat a conviction on a criminal charge does notautomatically entail dismissal, removal or reductionin rank of the concerned government servant. Havingdecided which of these three penalties is requiredto be imposed, he has to pass the requisite order. Agovernment servant who is aggrieved by the penaltyimposed can agitate in appeal, revision or review,as the case may be, that the penalty was too severeor excessive and not warranted by the facts andcircumstances of the case. If it is his case that heis not the government servant who has been in factconvicted, he can also agitate this question inappeal, revision or review. If he fails in thedepartmental remedies and still wants to pursue thematter, he can invoke the court’s power of judicialreview subject to the court permitting it. If thecourt finds that he was not in fact the personconvicted, it will strike down the impugned orderand order him to be reinstated in service. Where thecourt finds that the penalty imposed by the impugnedorder is arbitrary or grossly excessive or out ofall proportion to the offence committed or notwarranted by the facts and circumstances of the caseor the requirements of that particular governmentservice the court will also strike down the impugnedorder. Thus, in Shankar Dass v. Union of India464this Court set aside the impugned order of penaltyon the ground that the penalty of dismissal fromservice imposed upon the appellant was whimsical andordered his reinstatement in service with full backwages. It is, however, not necessary that the courtshould always order reinstatement. The court caninstead substitute a penalty which in its opinionwould be just and proper in the circumstances of thecase.147.In all matters before us the challenge to thevalidity of the impugned orders was confined only tolegal grounds, the main ground being based upon whatwas held in Challappan case1 and the application ofprinciples of natural justice. The contentions withrespect to these grounds have been considered by usin the preceding part of this Judgment and have beennegatived. In most of the matters the writ petitionscontain no detailed facts. Several of thepetitioners have gone in departmental appeal butthat fact is not mentioned in the writ petitions northe order of the appellate authority challengedwhere the appeals have been dismissed. Many https://hcservices.ecourts.gov.in/hcservices/ government servants have combined together to fileone writ petition and in the case of such of themwhose departmental appeals have been allowed andthey reinstated in service, the petitions have notbeen amended so as to delete their names and theyhave continued to remain on the record aspetitioners. Several petitions are in identicalterms, if not, almost exact copies of otherpetitions. No attempt has been made in such mattersto distinguish the case of one petitioner from theother. Apart from contesting the legal validity ofthe impugned orders, hardly anyone has even statedin his petition that he was not involved in thesituation which has led to clause (b) or clause (c)of the second proviso to Article 311 being appliedin his case. There is no allegation of mala fidesagainst the authority passing the impugned ordersexcept at times a me re bare allegation that theorder was passed mala fide. No particulars whateverof such alleged mala fides have been given. Such abare averment cannot amount to a plea of mala fidesand requires to be ignored. In this unsatisfactorystate of affairs so far as facts are concerned, theonly course which this Court can adopt is toconsider whether the relevant clause of the secondproviso to Article 311(2) or of an analogous servicerule has been properly applied or not. If this Courtfinds that such provision has not been properlyapplied, the appellant or the petitioner, as thecase may be, is entitled to succeed. If, however, wefind that it has been properly applied, the appealor petition would be liable to be dismissed, becausethere are no proper materials before the Court toinvestigate and ascertain whether any particulargovernment servant was, in fact, guilty of thecharges made against him or not. It is also not thefunction of this Court to do so because it wouldinvolve an inquiry into disputed questions of factsand this Court will not, except in a rare case,embark upon such an inquiry. For these reasons andin view of the directions we propose to give whiledisposing of these matters, we will while dealingwith facts refrain from touching any aspect exceptwhether the particular clause of the second provisoto Article 311(2) or an analogous service rule wasproperly applied or not."20. A reading of the above passage will indicate that afterremoval of second show cause notice under Article 311(2) of theConstitution without any show cause, the competent authority canstraightaway impose the penalty. There is no principles of naturaljustice being in truth therein. As held by the supreme Court, ifany affected government servant wants to contend that the https://hcservices.ecourts.gov.in/hcservices/ punishment is excessive and not warranted based on thecircumstances leading to conviction, he has to state the samebefore the Appellate Authority. The petitioner in his anxiety toget an interim order did not move the Appellate Authority againsthis dismissal order. He went before the Tribunal and got a waiverof exhausting the appellate remedy and also obtained an ex parteinterim stay of his dismissal. 21. The Supreme Court in Union of India v. Parma Nandareported in (1989) 2 SCC 177 had permitted a review of penalty incase the punishment imposed was in terms of Article 311 (2)(a) ofthe constitution. Therefore, the contention that by issuing asecond show cause notice on the penalty was a predeterminedexercise has no valid legal application.22. The last submission based upon the order passed in theCriminal Appeal dated 04.12.2008 is the other issue to beconsidered in the present circumstances. It is noted from the saidjudgment that the Court did not upset the findings of the SpecialJudge relating to the offence of corruption. On the contrary, itonly interfered with the sentence by stating that it was severe andtherefore, converted the punishment of one year R.I. to be goneinto concurrently in two heads into detention of one day till theraising of court together with penalty of Rs.15,000/- as fineamount. Therefore, the effect of conviction still remains. It mustbe noted that as long as the conviction of a Government servantinvolved in a corruption case of taking bribery is found out to betrue by a Special Court specifically constituted under thePrevention of Corruption Act, 1988 the circumstances pleaded by thepetitioner will pale into insignificance.23. Whether the circumstances pointed out by this court inthe criminal side as mitigating factor in reducing the term ofsentence as directed by this Court is not an issue which can betaken note for consideration by this Court. It is suffice to statethat the petitioner had the indulgence by this Court viz., insteadof going behind the four walls of a prison his confinement was fora day in the Court. It is also a punishment not contemplated underCr.P.C. Nevertheless, even payment of fine is a conviction if it isfor an offence involving taking bribery for removing a name of aperson in a criminal case. It is a serious charge and suchmisconduct from a member of police force can never be tolerated.24. The observations made by this Court in the criminalappeal for reducing the sentence are noted in paragraph 9, which isas follows:-"9. As already pointed out, in this appeal thelearned senior counsel appearing for the appellantrestricted his submissions only in respect of thequestion of sentence. The fact remains that thealleged occurrence took place as early as in theyear 1987 and the trial went till the year 2000 andthe accused/appellant had undergone the ordeal of https://hcservices.ecourts.gov.in/hcservices/ trial for a period of 13 years before the trialCourt. It is brought to the notice of this courtthat the appellant already suspended from theservice soonafter the registration of the case andas on date he is out of service. Yet another aspectto be borne in mind by this Court is that theappellant is having a family consisting his wife,three daughters and a son and he is the only bread-winner and they are living as a joint family."(Emphasis added)25. The judgment was rendered on 04.12.2008 and by thetime, thanks to the interim order, the petitioner was restored toduty as early as 27.06.2001 and he had also completed 5 years inservice and reached the age of his superannuation on 31.07.2006.Further an order was passed specifically not to allow him to retirefrom service. Therefore, the counsel appeared before the Judge didnot bring this fact. He had made it appear that the petitioner wasout of service all along even on the date of delivering thejudgment. On the contrary, two years before delivering thejudgment, the petitioner had already reached the age ofsuperannuation and had the benefit of service of five years, thanksto the order of the Tribunal. Infact it is during this period, thepetitioner got himself photographed on the same stage with asitting judge of this Court at the relevant time.26. A Judge dealing with a criminal appeal cannot makeobservations on a service matter and such a question is no longerres integra. The Supreme court in State v. G.Prem Raj reported in(2010) 1 SCC 398 in Paragraph 36, had observed as follows:-"36. ..we are extremely surprised to read the lastportion of the judgment of the High Court, wherein,the High Court has honourably acquitted the accusedand directed his reinstatement as seniormost CivilEngineer, Civil Department, MIDHANI with all usualretiral monetary benefits inclusive of restorationof seniority, etc. with immediate retrospectiveeffect. We wonder as to under what powers the HighCourt has acted. This was certainly not thejurisdiction on the part of the High Court which hadonly to find whether the respondent-accused wasguilty or not of the offence alleged against him. Ithas come in evidence that a full-fledgeddepartmental enquiry was conducted against theaccused, wherein he was found guilty. We are shockedto see the step taken by the High Court instraightaway writing off the findings indepartmental enquiry without any justification. Thisaberration on the part of the High Court speaks ofits wholly incorrect approach."27. The Supreme Court in Southern Railway OfficersAssociation v. Union of India reported in (2009) 9 SCC 24 has held https://hcservices.ecourts.gov.in/hcservices/ that even a subsequent acquittal cannot obliterate earlierdismissal. In Paragraph 37, it was held as follows:-"37. Acquittal in a criminal case by itself cannotbe a ground for interfering with an order ofpunishment imposed by the disciplinary authority.The High Court did not say that the said fact hadnot been taken into consideration. The revisionalauthority did so. It is now a well-settled principleof law that the order of dismissal can be passedeven if the delinquent official had been acquittedof the criminal charge."28. Further in the present case, the finding as noted inparagraph 9 of the order passed in Crl.A.(Md)No.25 of 2001 was onlyfor the purpose of mitigating circumstances in reducing thesentence. Even there was a factual error wherein it was observedthat that the petitioner was not in service. The petitioner beforehis retirement was in service for five years. Even as on the dateof judgment in the criminal appeal, the petitioner even if hewanted he could not have been in service because even two yearsearlier he had reached the age of his superannuation.29. Lastly, the question whether this Court under Article226 of the Constitution can interfere with the penalty imposed onthe petitioner. Considering the fact that the petitioner gotinvolved in a corruption case which was found proved by the SpecialCourt and confirmed by this Court in the Criminal appeal and thepetitioner being a member of the uniformed service he cannot beshown any leniency in such a matter. 30. Further his continuance by an interim order does notenure any right to him. In this context, it is necessary to refer aDivision bench judgment of this court in C.Kamatchi Ammal Vs.Kattabomman Transport Corporation Ltd. and others reported in AIR1987 MADRAS 173, wherein it was held that interlocutory ordersmade in the course of proceedings will necessarily lapse with thedecision of the suit unless the suit is one for permanentinjunction and the interim injunction is made permanent as a partof the decreetal order made by the court. 31. The Bombay High Court vide its decision reported inRamesh Akre and others Vs. Smt.Mangalabai Pralhad Akre and othersreported in AIR 2002 Bombay 487 has held as follows:"21.Similarly, it is also not necessary that suitshould be disposed of only on merits in order tobring an end to interim order. What is contemplatedin law is that such interim order would continue tooperate till suit is disposed of one way or theother and would come to an end on the day suit isdisposed of. Whether suit is disposed of for wantof prosecution or on merits is not the criteria todecide existence of interim orders. These orders by https://hcservices.ecourts.gov.in/hcservices/ their very nature are temporary and remain in forceonly during the pendency of the suit and come to anend when the suit is disposed of one way or theother."Hence, the petitioner's continuance in service due to the interimorder do not come to his rescue.33. In the light of the above, the writ petition deservesto be dismissed. But by virtue of the interim order, if thepetitioner had rendered any service and earned salary, it isneedless to state that no recoveries can be made from thepetitioner. Restoring and continuing the petitioner despite anorder of stay granted by this Court in W.P.No.5439 of 2002 againstthe interim order of the Tribunal even as early as 25.02.2002, therespondent will have to blame themselves. Hence, on that scorealso, no recoveries can be made. The writ petition is dismissedwith the above directions. However, there will be no order as tocosts.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarsvkiToThe Additional Director General of Police and Commissioner of Police,Greater Chennai, Chennai - 08.1 cc to Mr.G.Thangavel, Advocate, Sr.No.561101 cc to Government Pleader, Sr.No.55816ORDER INW.P.No.49373 of 2006SS {CO}TP/22.9.2011.