K.Selvaraj v. Secretary to Government,Home (Police V) Department,Fort St. George, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 24-07-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.49448 of 2006(O.A.No.664 of 2001)K.Selvaraj.. Petitioner.Versus1.Secretary to Government,Home (Police V) Department,Fort St. George, Chennai-9.2.Director General of Police,Chennai-4... Respondents.Prayer: Original Application No.664 of 2001 filed before the TamilNadu Administrative Tribunal, on abolition, transferred to the file ofthis Court and renumbered as Writ Petition No.49448 of 2006, seekingfor a writ of Certiorarified Mandamus to call for the records of thesecond respondent herein passed in Rc.No.126034/Con 3(1)/87, dated27.8.1999 and the orders passed by the first respondent herein in hisG.O.Ms.3(d) No.90 Home (Pol.V) Department, dated 19.6.2000 and quashthe same and consequently direct the respondent to reinstate thepetitioner in service with all consequential monetary and servicebenefits. For Petitioner : Mr.S.RaviFor Respondents : Mr.V.Arun Additional Government Pleader O R D E RHeard the learned counsel appearing for the petitioner and thelearned Additional Government Pleader appearing for the respondents.2. The petitioner had joined the police service, as a Grade-IIPolice Constable, on 16.8.1978. He had received 20 rewards for hisefficient service. There was only one minor punishment in his entireperiod of service. While so, the petitioner was served with a chargememo in P.R.205/PRII(1)/87, under Rule 3(b) of the Tamil Nadu PoliceSubordinate Services (Discipline and Appeal) Rules, 1955, allegingthat, on 25.8.1984, he had attempted to rape one Ms.Subaidabee. Anoral enquiry was conducted by the Assistant Commissioner of Police,Royapuram. https://hcservices.ecourts.gov.in/hcservices/

3. On 28.10.1988, the enquiry officer had held that the chargeshad been proved. Based on the departmental proceedings, a criminalcomplaint had been registered against the petitioner, in CrimeNo.712/1984. The petitioner had been charge sheeted in the SessionsCourt, Chennai, in S.C.No.159/91. On 10.2.1992, the petitioner hadbeen acquitted by the Criminal Court. However, the Deputy Commissionerof Police, Flower Bazaar, Chennai, had passed final orders, on24.7.1998, in P.R.205/87, imposing the punishment of compulsoryretirement from service, holding that the charges had been proved.However, the disciplinary authority, had not considered thepetitioner's further explanation and the acquittal by the CriminalCourt. 4. Aggrieved by the punishment of compulsory retirement imposedon the petitioner, he had preferred an appeal to the Commissioner ofPolice, Chennai, on 17.8.1998. The appellate authority had passed anorder on the appeal petition, on 30.11.1998, modifying the punishmentof compulsory retirement to that of reduction of time scale of pay inthree stages, for four years, with cumulative effect. Accordingly, hehad directed that the petitioner should be reinstated in service. 5. Aggrieved by the modified punishment of reduction in the timescale of pay, the petitioner had preferred an appeal to the DirectorGeneral of Police, Chennai, on 25.12.1998. Nso orders had been passedon the said appeal. However, without considering the appeal petitionfiled by the petitioner, the Director General of Police had issued ashow cause notice, on 5.7.1999, proposing to impose a major penalty,contrary to Rule 15A of the Tamil Nadu Police Subordinate Service(Discipline and Appeal) Rules, 1955. As per Rule 15A of the Tamil NaduPolice Subordinate Service (Discipline and Appeal) Rules, 1955, theHead of the Department, cannot exercise the power of review, under SubRule 15A(ii), when an appeal is pending against the punishment imposedon the person who had preferred the appeal. Accordingly, the DirectorGeneral of Police can exercise the power of review, under Rule 15A(ii), only in cases, where no appeal is pending and when an appealdoes not apply to the appellate authority. Therefore, the show causenotice issued by the Director General of Police, is contrary to lawand therefore, it is liable to be quashed. 6. It has been further stated that the petitioner had submittedhis explanation to the show cause notice, on 27.7.1999. Thereafter, on27.8.1999, the Director General of Police, without considering thepetitioner's further explanation and without having jurisdiction, hadpassed final orders, imposing the punishment of compulsory retirementfrom service on the petitioner. Aggrieved by the said order, thepetitioner had preferred an appeal to the Government, on 11.10.1999.On 19.6.2000, the first respondent had rejected the petitioner'sappeal petition, by a non-speaking order, in G.O.3(d) No.90, Home(Police.V) Department, dated 19.6.2000. The said order of theappellate authority is contrary to Rule 6 of the Tamil Nadu PoliceSubordinate Service (Discipline and Appeal) Rules, 1955. Once thepetitioner had been acquitted by the Criminal Court, on the same setof facts, he cannot be compulsorily retired from service, by the https://hcservices.ecourts.gov.in/hcservices/ second respondent herein. The second respondent had passed theimpugned order without holding a fresh oral enquiry, contrary to theproviso to Rule 15A of the Tamil Nadu Police Subordinate Service(Discipline and Appeal) Rules, 1955. Since there was no evidence tosubstantiate the charge levelled against the petitioner, it is a caseof no evidence. As such, the order of the second respondent, dated27.8.1999, and the order of the first respondent, dated 19.6.2000, areillegal and void. 7. In the reply affidavit filed on behalf of the respondents, theallegations made by the petitioner had been denied. It has been statedthat the petitioner was serving in N3, Muthialpet Police Station,Chennai. He was arrested, on 26.8.1984, in N1, Royapuram PoliceStation, in Crime No.712/1984, under Section 376 of the Indian PenalCode, for having outraged the modesty and for having rapedMs.Subaidabee, on 25.8.1984. Based on the enquiry conducted by therevenue authorities and in view of their findings, the Government hadordered, both disciplinary action, as well as criminal prosecution, tobe initiated against the petitioner, vide G.O.Ms.No.857, Public (Lawand Order), dated 8.6.1987. While so, the criminal prosecutioninitiated against the petitioner, in S.C.No.159/1991, under Section354 and 376 of the Indian Penal Code, ended in acquittal, on10.2.1992, due to the delay of seven years in charging the case and onthe benefit of doubt being given to the accused. However, thedisciplinary proceedings, under Rule 3(b) of the Tamil Nadu PoliceSubordinate Service (Discipline and Appeal) Rules, 1955, were pursued.Based on the findings of the Assistant Commissioner of Police,Royapuram, who was the enquiry officer, the Deputy Commissioner ofPolice, Flower Bazaar, who was the disciplinary authority, had awardedthe punishment of compulsory retirement to the petitioner, vide ordersin City Police Order No.459/98, dated 24.7.1998, in PR.No.205/PRII(1)/87. 8. On the appeal filed before the appellate authority, namely,the Commissioner of Police, Chennai City, the punishment was modifiedto that of reduction of pay in three stages, for four years, withcumulative effect, vide orders in City Police Order No.2323/1998, inAppeal 32/PRI(3)/98, dated 30.11.1998. However, on suo moto review,the Director General of Police had compulsorily retired thepetitioner, vide his proceedings No.126034/Con.3(1)/87, dated27.8.1999. The mercy petition to the Government had also beenrejected, vide G.O.3(d).No.90, Home (Police.V) Department, dated19.6.2000. The show cause notice issued by the Director General ofPolice, on his suo moto review, on the punishment roll file, is validin law. As the head of the Department, he had invoked the powers,under Section 15A(ii) of the Tamil Nadu Police Subordinate Service(Discipline and Appeal) Rules, 1955. 9. The learned counsel appearing on behalf of the petitioner hadsubmitted that once a concerned criminal Court had acquitted thepetitioner, the departmental proceedings pending against him, onidentical charges, cannot be proceded with. Therefore, the punishmentimposed on the petitioner, based on the departmental proceedings,cannot be sustained in the eye of law. As per the Proviso to Rule 15A https://hcservices.ecourts.gov.in/hcservices/ of the Tamil Nadu Police Subordinate Service (Discipline and Appeal)Rules, 1955, the second respondent has no jurisdiction to impose orenhance the punishment, without disposing of the appeal, which waspending. Therefore, the punishment which has been imposed on thepetitioner, by the second respondent, is without jurisdiction andliable to be quashed. Further, there is no evidence to hold that thecharge against the petitioner had been proved. The Criminal Court,which had tried the case, had acquitted the petitioner. As such, thepetitioner cannot be held to be guilty of the charge alleged againsthim. Therefore, the impugned orders of the respondents, imposing thepunishment of compulsory retirement on the petitioner, is erroneous,illegal and void. 10. In view of the contentions raised by the learned counselsappearing on behalf of the petitioner, as well as the respondents andon a perusal of the records available, this Court is of the consideredview that the petitioner has not shown sufficient cause or reason toquash the impugned proceedings of the respondents, imposing thepunishment of compulsory retirement from service imposed on thepetitioner. The charge levelled against the petitioner that he hadmolested and attempted to rape his neighbour's daughter,Ms.Subaidabee, was held to be proved by the enquiry officer, namely,the Assistant Commissioner of Police, Royapuram. Thereafter, a acriminal complaint had been registered against the petitioner, inCrime No.712 of 1984 and he was charge sheeted before the SessionsCourt, at Chennai, in S.C.No.159 of 1991, under Section 376 of theIndian Penal Code. Even though the petitioner had been acquitted inthe criminal proceedings, on 10.2.1992, as the criminal offencealleged against the petitioner could not be proved beyond doubt.However, the Deputy Commissioner of Police, Flower Bazaar PoliceStation, Chennai, had passed final orders, on 24.7.1998, in P.R.No.205of 1987, imposing the punishment of compulsory retirement fromservice, on the petitioner. On the appeal filed by the petitioner, theappellate authority, namely, the Commissioner of Police, Chennai City,has modified the punishment of compulsory retirement imposed on thepetitioner into that of reduction of pay by three stages, for fouryears, with cumulative effect, by his order, dated 30.11.1998.However, on a suo moto review, the Director General of Police hascompulsorily retired the petitioner from service, vide his orders,dated 27.8.1999, on the ground that an attempt to rape a woman by aperson duty bound to uphold the rule of law, is a serious delinquencyand therefore, no leniency can be shown in favour of the petitioner.Thereafter, the Government had rejected the mercy petition of thepetitioner, vide G.O.3(d) No.90, Home (Police.V) Department, dated19.6.2000. 11. In view of the facts and circumstances of the case, thecontentions raised on behalf of the petitioner cannot be countenanced.The charge alleged against the petitioner is serious in nature andsince it has been found to have been proved by the enquiry officer,who had conducted the enquiry into the charges, no leniency can beshown to the petitioner. The petitioner being a police man, shouldhave been a protector rather than being the perpetrator of a heinouscrime. Even though he had been acquitted by the Sessions Court, in the https://hcservices.ecourts.gov.in/hcservices/ criminal case, in S.C.No.159 of 1991, it was not a Honourableacquittal, as it was based on the benefit of doubt being given infavour of the petitioner. 12. The contention of the learned counsel for the petitioner thatthe second respondent ought not to have imposed the punishment ofcompulsory retirement from service on the petitioner, by invoking thepower of suo moto review, cannot be accepted. On the appeal filed bythe petitioner, the appellate authority, namely, the Commissioner ofPolice, Chennai City, had modified the punishment of compulsoryretirement into reduction in pay by three stages, for four years, withcumulative effect, vide his orders, dated 30.11.1998. However, theDirector General of Police, invoking his power of suo moto review, hadordered the imposition of punishment of compulsory retirement on thepetitioner. The said punishment had been imposed on the petitioner,only after a show cause notice had been issued to him, in accordancewith law, by invoking his powers, under Section 15A(ii) of the TamilNadu Police Subordinate Service (Discipline and Appeal) Rules, 1955.As such, there is no illegality in the impugned order of the DirectorGeneral of Police, dated 27.8.1999. Therefore, the mercy petitionfiled by the petitioner had also been rejected by the Government, inG.O.3(d) No.90, Home (Police.V) Department, dated 19.6.2000. In suchcircumstances, it is clear that the writ petition is devoid of merits.Hence, it stands dismissed. No costs.cshSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to Government,Home (Police V) Department,Fort St. George, Chennai-9.2.The Director General of Police,Chennai-4.+ 1 cc to Mr. S. Ravi, Advocate, SR No.34441+ 1 cc to the Government Pleader, SR No.34828Writ Petition No.49448 of 2006DM(CO)SR/14.8.2009 https://hcservices.ecourts.gov.in/hcservices/ 24-07-2009