A.Arunachalam v. Superintendent of Police District Police Office Perambalur

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.12.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.NO.49499 OF 2006 (T)(O.A.No.1871 of 2001)A.Arunachalam ...Petitioner Vs.1. Superintendent of Police District Police Office Perambalur2. Superintendent of Police District Police Office Trichy – 620 0013. Commissioner of Police City Police Office Trichy – 620 020 ...Respondents(R-1 and R-3 is dismissed as per the order of the Courtin M.A.No.4729 of 2000, dated 11.09.2000)PRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India by way of transfer of O.A.No.1871 of 2001,to call for the records pertaining to the impugned order passed bythe first respondent herein in his proceedings D.O.60/97,C.No.C1/P.R.276/95 dated 13.02.1997 and quash the same with allconsequential service and monetary benefits.For Petitioner: Mr.G.BalaFor Respondents: Mrs.C.K.Vishnu Priya Additional Government PleaderO R D E R The Original Application in O.A.No.1871 of 2001 before theTamil Nadu Administrative Tribunal is the present writ petition. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner joined the service as Grade-II PoliceConstable on 07.12.1970. He was promoted as Grade-I Police Constableon 14.12.1979. He was further promoted as Head Constable in 1993. Itis averred that he received 58 awards for his efficient service,though he was subjected to two minor punishments in his 27 years ofservice. While so, the petitioner was served with a charge memo inP.R.No.58/86 dated 05.06.1986 under Rule 3 (b) of Tamil Nadu PoliceSubordinate Service (Discipline and Appeal) Rules by the DeputySuperintendent of Police, Musiri, alleging certain incident thattook place on 21.01.1986. An enquiry was conducted; witnesses wereexamined and documents were marked as exhibits. The Enquiry Officerseems to have submitted a report. However, a copy of the enquiryreport was not furnished to the petitioner. It seems that the EnquiryOfficer held that the allegations were proved. But the secondrespondent, the Disciplinary Authority passed an order dated09.04.1987 holding that the allegations, which were proved in theminutes, are not substantiated through exhibits. It is stated thatwhen the second respondent held the charges as not proved, he oughtto have dropped further action and on the other hand he ordered a de-nova enquiry.3. When de-nova enquiry was ordered in the aforesaid orderdated 09.04.1987 of the second respondent, a fresh charge memo inP.R.No.276/V4/95 dated 15.08.1995 was issued after eight years.However, no reason was given for issuance of charge memo belatedlyi.e. after a lapse of eight years. Again an enquiry was held. In theenquiry, the Enquiry Officer held that charges were not proved, basedon the materials placed before him. Here again, without furnishing acopy of the enquiry report, the first respondent issued the ShowCause notice dated 06.09.1996 proposing to impose the punishment ofreduction in pay by one stage for one year with cumulative effect,based on his disagreement on the findings as recorded in the saidShow Cause notice. Ultimately the first respondent passed theimpugned order dated 13.02.1997 imposing the punishment ofpostponement of increment for one year with cumulative effect.4. Aggrieved by the same, the petitioner filed OriginalApplication in O.A.No.1871of 2001 (W.P.NO.49499 of 2006) to quash theaforesaid order dated 13.02.1997.5. Heard Mr.G.Bala, learned counsel for the petitioner andMrs.C.K.Vishnu Priya, learned Additional Government Pleader for therespondents.6. The learned counsel for the petitioner submits that theimpugned order is vitiated on various grounds. https://hcservices.ecourts.gov.in/hcservices/ He has made the following submissions:-i) The petitioner was not furnished with a copy of thereport of the Enquiry Officer in the first enquiry.ii) When the second respondent passed an order date09.04.1987 that the allegations made in the charge memo were notsubstantiated through exhibits produced in the enquiry, the secondrespondent was not justified in directing for a de-nova enquiry.iii) After passing an order dated 09.04.1987 for de-novaenquiry, a charge memo in P.R.No.276/V4/95 was issued belatedly aftera lapse of eight years without explaining the reason for the delay.iv) While recording the disagreement on the findings of theEnquiry Officer holding that the petitioner was not guilty of thecharges, the first respondent ought to have furnished a copy of thefindings of the Enquiry Officer.v) Before recording his disagreement on the findings of theEnquiry Officer, the first respondent ought to have recorded only atentative disagreement and only after hearing the petitioner thereon,he should have recorded his disagreement. But the same was notfollowed.It is submitted by the learned counsel for the petitioner that thepetitioner was retired from service in the year 2008 on reaching theage of superannuation.7. The learned Additional Government Pleader for therespondents made her submissions based on instructions.8. As rightly contended by the learned counsel for thepetitioner, when the second respondent has held that the charges werenot made out in the earlier enquiry, he was not justified in orderingde-nova enquiry, in view of the following passage found in the orderdated 09.04.1987. "The allegations which were proved in the minute are alsonot substantiated through exhibits."9. Once the second respondent recorded that the chargeswere not substantiated, it is always open to him to drop furtheraction and not to have order de-nova enquiry. Even assuming that thesecond respondent was correct in his order dated 09.04.1987 inordering a de-nova enquiry, there is no reason for issuing chargememo in the year 1995 for the de-nova enquiry, after eight years. Thereason for the delay was also not explained. Once a de-nova enquirywas ordered, there is no reason to proceed with the matter belatedlyafter eight years. Hence, the delay of eight years would vitiate theentire action. https://hcservices.ecourts.gov.in/hcservices/

10. Further, as rightly contended by the learned counselfor the petitioner when the Enquiry Officer found in the de-novaenquiry that the charges were not established, the petitioner shouldhave been furnished with the enquiry report. Without furnishing acopy of the enquiry report, the first respondent is not correct inrecording his disagreement on the findings of the Enquiry Officer.Further, the first respondent could not record his disagreementstraight away without hearing the petitioner. The principles ofnatural justice requires that before recording disagreement, thefirst respondent should have heard the petitioner on the tentativedisagreement. On the other hand, the first respondent straight awayrecorded his disagreement and issued Show Cause notice dated06.09.1996 and the said Show Cause notice proposed to impose thepunishment based on such disagreement. Such a course adopted by thefirst respondent is in flagrant violation of the principles ofnatural justice. Further, in spite of the request of the petitionerto furnish a copy of the report of the Enquiry Officer that was inhis favour, the same was not furnished. The relevant passage fromthe order dated 12.06.1997 is extracted hereunder:-"2. He is requested to inform the Gr.I PC 2007Arunachalam that copy of Minute will be supplied to him onreceipt of P.R.file from the Chief Office, Chennai as nospare copy is readily available in this office."11. In this regard, the learned counsel relied on ajudgment of the Division Bench of this Court in The General ManagerCanara Bank (Head Officer), Bangalore and the Executive EngineerCanara Bank (Head Office), Bangalore Vs. L.M.V.Devakumar, SeniorManager, Canara Bank, District Co-ordinator, Kancheepuram reported inMANU/TN/0827/2007 wherein, this Court has held that disagreement onthe findings of the Enquiry Officer should be arrived only afterhearing the delinquent. Paragraph 10 of the judgment is extractedhereunder:-10.Regulation 7(2) does not specifically state thatwhen the Disciplinary Authority disagrees with the findingsof the Enquiry Officer and proposes to come to a differentconclusion, opportunity of hearing should be granted to thedelinquent employee. A similar question came up forconsideration before the Supreme Court in Punjab NationalBank v. Kunji Behari Misra (1998 II LLJ 809) and 3-JudgeBench of the Supreme Court, after referring to earlierdecisions, held as follows:Where the Disciplinary Authority differs with the viewof the Inquiry Officer and proposes to come to a differentconclusion there is no reason as to why an opportunity ofhearing should not be granted. It will be most unfair and https://hcservices.ecourts.gov.in/hcservices/ iniquitous that where the charges officers succeed beforethe Inquiry Officer, they were deprived of representing tothe Disciplinary Authority before that authority differswith the Inquiry Officer's report and while recording afinding of guilt, impost punishment on the officer. In anysuch situation, the charged officers must have anopportunity to represent before the Disciplinary Authoritybefore final findings on the charges are recorded andpunishment imposed.The Supreme Court further held:The result of the aforesaid discussion would be thatthe principles of natural justice have to be read intoRegulation 7(2). As a result thereof whenever theDisciplinary Authority disagrees with the Inquiry Authorityon any article of charge then before it records its ownfindings on such charge, it must record its tentativereasons for such disagreement and give to the delinquentofficer an opportunity to represent before it records itsfindings. The report of the Inquiry Officer containing itsfindings will have to be conveyed and the delinquentofficer will have an opportunity to persuade theDisciplinary Authority to accept the favourable conclusionof the Inquiry Officer. The principles of natural justicerequire, the authority which has to take a final decisionand can impose a penalty, to give an opportunity to theofficer charged with misconduct to file a representationbefore the Disciplinary Authority records its findings onthe charges framed against the officer."12. I am of the considered view that the matter is squarelycovered by the judgment of the Division Bench of this Court referredto above. Hence, the impugned order is liable to be quashed andaccordingly, it is quashed. The writ petition is allowed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarr n sTo1. Superintendent of Police District Police Office Perambalur https://hcservices.ecourts.gov.in/hcservices/

2. Superintendent of Police District Police Office Trichy – 620 0013. Commissioner of Police City Police Office Trichy – 620 020+ 1 cc to The Govt., Pleader, SR 71747+ 1 cc to M/s.Bala & Daisy, Advocate, Sr 71164 W.P.NO.49499 OF 2006TS (CO)RH (29.1.10)