R. KrisnaswamyS/o. Ramaswamy Thevar v. The Director General of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.02.2005CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE S. ASHOK KUMARWRIT PETITION NO.17263 OF 2004andWPMP.No.35852 OF 2004R. KrisnaswamyS/o. Ramaswamy Thevar.. PetitionerVs.1. The Director General of Police, Chennai 4.2. The Registrar, Tamil Nadu Administrative Tribunal, Chennai Bench, Chennai 600 104... RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of Writ of Certiorarified Mandamus to call forthe records of the 1st Respondent in connection with the impugnedorder passed in RC.No.174966/Conf.3(i)/97, dt.25.1.00 andconfirmed by the order dated 12.5.2004 in O.A.No.1846/2000, on thefile of Tamil Nadu Administrative Tribunal and quash the same.For Petitioners : Mr.K. VenkataramaniFor Respondent-1: Mr.S. Gomathinayagam Special Govt. Pleader - - -J U D G M E N TP.K. MISRA, JThe facts giving rise to the present writ petition are asfollows :-The petitioner entered service as Police Constable Grade IIand was subsequently promoted as Police Constable Grade I in theyear 1992. While he was so functioning as Grade I Police https://hcservices.ecourts.gov.in/hcservices/ Constable, on the basis of a complaint filed by one Murugesanregarding assault by the present petitioner, a case was registeredby the Inspector of Police and the matter was referred to theRevenue Divisional Officer. On the basis of the findings of theR.D.O., departmental enquiry was initiated against the petitionerunder Rule 3(b) of Tamil Nadu Police Subordinate Service(Discipline & Appeal) Rules. The petitioner denied the charges.The Assistant Commissioner of Police, Flower Bazaar, was appointedas the Enquiry Officer. The Enquiry Officer found the delinquencyof the petitioner and submitted a report to the disciplinaryauthority. The disciplinary authority, namely, the DeputyCommissioner of Police, accepting the findings of the enquiryofficer awarded the punishment of reduction in the time scale ofpay by one stage for a period of one year without cumulativeeffect as per order dated 10.8.1999. The petitioner claims thatthe punishment was reviewed by the Commissioner of Police whoagreeing with the findings of the disciplinary authority and theenquiry officer, confirmed the order of punishment. Thereafter,the Director General of Police, in exercise of his suo motu powerof review, came to the conclusion that the punishment awarded wasgrossly inadequate compared to the seriousness of charge ofassault and awarded the punishment of compulsory retirement withimmediate effect by order dated 25.1.2000. The said order wascommunicated on 10.2.2000. Thereafter the petitioner filedO.A.No.1846 of 2000 before the Tamil Nadu Administrative Tribunal.At the time of entertaining the Original Application, an interimorder of stay was passed and by virtue of such order, thepetitioner was reinstated in service and continued to serve in thesaid capacity. Ultimately, the Original Application was heard onmerits and dismissed by order dated 12.5.2004. This order of theTribunal is under challenge in the present writ petition.2. While entertaining the writ petition, initially, aninterim order of stay was passed and subsequently such stay hasbeen vacated. 3. Learned counsel for the petitioner has raised twocontentions. The first contention is to the effect that the orderof punishment passed by the disciplinary authority was reviewed bythe higher authority and on such review, the order of punishmentwas found to be proper and therefore, there was no scope for asecond review in view of the provisions contained in Rule 15-A(4)of the TNPSS (D&A) Rules. The alternative contention of thepetitioner is to the effect that even assuming that second reviewis permissible in law, the Reviewing Authority has arbitrarilyreviewed the order of punishment and has imposed the punishment ofcompulsory retirement, which is grossly disproportionate to thenature of delinquency. In this context, it has been submitted bythe learned counsel for the petitioner that if the originalpunishment of stoppage of one increment was found to be https://hcservices.ecourts.gov.in/hcservices/ inadequate, any other suitable punishment, short of compulsoryretirement, could have been imposed.4. Learned counsel appearing for the State has submittedthat the question now raised by the petitioner regardinginapplicability of Rule 15-A(4) of TNPSS (D&A) Rules had not beenraised before the Tribunal as such and cannot be permitted to beraised. It is also submitted that at any rate the provisionscontained in Rule 15-A(4) do not de-bar higher authorities frominvoking the review power. It has been submitted by him that theconclusion of the enquiry officer and the disciplinary authoritythat the petitioner had caused a grievous hurt to a privatecitizen without any justifiable reason, calls for properdisciplinary action and the order passed by the Director Generalof Police cannot be said to be arbitrary. He has submitted thatall the relevant aspects had been considered by the Tribunal andthe High Court cannot sit as an appellate authority over the orderpassed by the Tribunal and at any rate the punishment imposed alsocannot be said to be grossly disproportionate so as to warrant anyinterference.5. It is of course true that a perusal of the order ofthe Tribunal does not reflect any submission relating to the scopeof Rule 15-A(4) of TNPSS (D&A) Rules. However, we find that aspecific ground had been taken by the petitioner as ground (a) inthe Original Application filed before the Tribunal and since thequestion raised is more or less a question of law depending uponRule 15-A, we feel inclined to consider such aspect.6. The provisions contained in Rule 15-A are asfollows :-“15-A(1) Notwithstanding anything contained inthese rules--(i) the State Government; or(ii) the Head of the Department directly under theState Government in the case of a Government Servant ina department or office, under the control of such Headof the Department; or(iii) the appellate authority;within six months from the date of the orderproposed to be reviewed; or (iv) any other authority, specified in this behalfby the State Government by a general or special order,and within such time as may be prescribed in suchgeneral or special order may, at any time, either ontheir or its own motion or otherwise, call for therecords of any inquiry and review any order made underthese rules, after consultation with the Tamil NaduPublic Service Commission, where such consultation ifnecessary and may, -- https://hcservices.ecourts.gov.in/hcservices/ (a) confirm, modify or set aside the order; or(b) confirm, reduce, enhance or set-aside the‘penalty’ imposed by the order, or impose any penaltywhere no penalty has been imposed; or(c) remit the case to the authority which made theorder or to any other authority, directing suchauthority to make such further inquiry as it mayconsider proper in the circumstances of the case; or(d) pass such other orders as it may deem fit:Provided that no order imposing or enhancing anypenalty shall be made by any reviewing authority unlessthe Government servant concerned has been given areasonable opportunity of making representation againstthe penalty proposed. Where it is proposed to imposeany of the penalties specified in clauses (d), (e) (3)(h) (i) and (j) of Rule 2 or to enhance the penaltyimposed by the order sought to be reviewed to any of thepenalties specified in those clauses, no such penaltyshall be imposed except after an inquiry in the mannerlaid down in sub-rule (b) of Rule 3 and after giving areasonable opportunity to the Government servantconcerned of showing cause against the penalty proposedon the evidence adduced during the inquiry and exceptafter consultation with the Tamil Nadu Public ServiceCommission, where such a consultation is necessary :Provided further that no power of review shall beexercised by the Head of the Department, unless--(i) the authority which made the order in appeal;or(ii) the authority to which an appeal would be,where no appeal has been preferred, is subordinate tohim.(2) No proceeding for review shall be commenceduntil after --(i) the expiry of the period of limitation for anappeal; or (ii) the disposal of the appeal, where any suchappeal has been preferred;(3) An application for review shall be dealt within the same manner as if it were an appeal under theserules;(4) No application for review shall be preferredmore than once in respect of the same order:Provided that members of the constabulary (PoliceConstables and Head Constables) shall be eligible to https://hcservices.ecourts.gov.in/hcservices/ make one representation to the Government against ordersof dismissal or removal from service after exhaustingthe right of appeal; Provided further that no application for reviewshall be entertained, if it has not been made within aperiod of six months from the date of receipt of theorder on which such application for review isprescribed.”7. The contention of the petitioner is to the effect thatpower of review has been given in alternative to variousauthorities and once any such power of review is exercised by suchauthority, the other authorities are precluded from furtherreviewing the matter. Even though such a contention prima facieappears to be attractive, in our opinion, such contention isunacceptable. 8. An analysis of the aforesaid provision makes it clearthat the power of review has been given to the State Governmentunder Rule 15(1)(i) or the Head of the Department or the AppellateAuthority or any other authority specified in this behalf by theState Government. So far as the appellate authority is concerned,as contemplated under Rule 15-A(1)(iii) such power is to beexercised within six months from the date of order proposed to bereviewed. So far as any other specified authority contemplatedunder Rule 15-A(1)(iv) is concerned, such power is to beexercised within time as may be prescribed, and so far as theState Government or Head of the Department is concerned, suchpower can be exercised at any time. This power of review can beexercised by the concerned authority on its own motion, i.e., suomotu or otherwise. In other words, such power of review can alsobe exercised on the basis of an application, which is contemplatedin Rule 15-A(3) . If the power is exercised obviously suo motu,there is no filing of any application. Under Rule 15-A(4), noapplication for review shall be preferred more than once inrespect of the same order. Review can be made in respect of anyorder made under these Rules. So far as the Head of theDepartment is concerned, it is contemplated that he shall not havethe power of review unless the appellate authority is subordinateto him. A careful analysis makes it clear that so far as suo motupower is concerned, there is no prohibition for the higherauthority to issue suo motu review proceedings. The only embargois that if the review is based on any application, such applicantcannot have a further right of filing further application forreview.9. For clarification, we may refer to the provisionscontained in Sections 397 and 401 Cr.P.C. giving the power ofrevision to the Sessions Judge as well as the High Court. There https://hcservices.ecourts.gov.in/hcservices/ is a specific prohibition in Section 397 (3) indicating that if apower of revision is exercised by a particular revisionalauthority and the order is confirmed, no further revision would bemaintainable. However, there is no such indication in the presentRule 15. On the other hand, a careful reading of Rule 15indicates that if power of review is exercised by an authority,the higher authority is not precluded from exercising suo motupower of review. If the contention of the learned counsel for thepetitioner would be accepted, the jurisdiction of the higherauthorities would be unduly circumscribed and any inferiorauthority contemplated under Rule 15-A may foreclose thediscretionary power of review of a higher authority by exercisingsuch review power himself. We are therefore unable to accept suchcontention. 10. Moreover, a perusal of the file does not indicateregarding any categorical order of the Commissioner in thepurported exercise of power under Rule 15-A. It merely seemsthat the file had passed through the Commissioner in a routineadministrative manner and the Commissioner of Police seems to haveagreed with the conclusion of the enquiry officer and thedisciplinary authority and thereafter, the file was forwarded tothe higher authority, namely the Director General of Police. Inother words, mere administrative notes have been furnished and byno stretch of imagination it can be said that an order has beenpassed confirming the order of punishment in exercise of powerunder Rule 15-A of TNPSS Rules. 11. Learned counsel for the petitioner then submittedthat at any rate the petitioner, who was a police constable, wastrying to discharge his duty and had assaulted as the person wasinterfering with the discharge of duty, and therefore, the orderof compulsory retirement is grossly disproportionate.12. In (1995) 6 SCC 749 (B.C. CHATURVEDI v. UNION OFINDIA), it was observed :“18. ... The High Court/Tribunal, while exercisingthe power of judicial review, cannot normally substituteits own conclusion on penalty and impose some otherpenalty. If the punishment imposed by the disciplinaryauthority or the Appellate Authority shocks theconscience of the High Court/Tribunal,it wouldappropriately mould the relief, either directing thedisciplinary authority/Appellate Authority to reconsiderthe penalty imposed, or to shorten the litigation, it mayitself in exceptional and rare cases, impose appropriatepunishment with cogent reasons in support thereof.”13. In (1997) 7 SCC 463 (UNION OF INDIA v. G.GANAYUTHAM), it was observed :- https://hcservices.ecourts.gov.in/hcservices/ “31. The current position of proportionality inadministrative law in England and India can besummarised as follows :-(1) To judge the validity of any administrativeorder or statutory discretion,normally the Wednesburytest is to be applied to find out if the decision wasillegal or suffered from procedural improprieties or wasone which no sensible decision-maker could, on thematerial before him and within the framework of the law,have arrived at. The court would consider whetherrelevant matters had not been taken into account orwhether irrelevant matters had been taken into accountor whether the action was not bona fide. The courtwould also consider whether the decision was absurd orperverse. The court would not however go into thecorrectness of the choice made by the administratoramongst the various alternatives open to him. Nor couldthe court substitute its decision to that of theadministrator. This is the Wednesbury test. (2) The court would not interfere with theadministrator’s decision unless it was illegal orsuffered from procedural impropriety or was irrational-in the sense that it was in outrageous defiance oflogic or moral standards. The possibility of othertests, including proportionality being brought intoEnglish administrative law in future is not ruled out.These are the CCSU principles.(3)(a) As per Bugdaycay, Brind and Smith as long asthe Convention is not incorporated into English law, theEnglish courts merely exercise a secondary judgment tofind out if the decision-maker could have, on thematerial before him, arrived at the primary judgment inthe manner he has done.(3)(b) If the Convention is incorporated in Englandmaking available the principle of proportionality, thenthe English courts will render primary judgment on thevalidity of the administrative action and find out ifthe restriction is disproportionate or excessive or isnot based upon a fair balancing of the fundamentalfreedom and the need for the restriction thereupon.(4)(a) The position in our country, inadministrative law, where no fundamental freedoms asaforesaid are involved, is that the courts/tribunalswill only play a secondary role while the primaryjudgment as to reasonableness will remain with theexecutive or administrative authority. The secondaryjudgment of the court is to be based on Wednesbury andCCSU principles as stated by Lord Greene and LordDiplock respectively to find if the executive or https://hcservices.ecourts.gov.in/hcservices/ administrative authority has reasonably arrived at hisdecision as the primary authority.(4)(b) Whether in the case of administrative orexecutive action affecting fundamental freedoms, thecourts in our country will apply the principle of‘proportionality’ and assume a primary role, is leftopen, to be decided in an appropriate case where suchaction is alleged to offend fundamental freedoms. Itwill be then necessary to decide whether the courts willhave a primary role only if the freedoms under Articles19, 21 etc. are involved and not for Article 14.”14. In (1987) 4 SCC 611 (RANJIT THAKUR v. UNION OFINDIA), the Supreme Court had interfered with the punishmentimposed after coming to the conclusion that the punishment was inoutrageous defiance of logic and was shocking, and perverse andirrational.15. In (1997) 3 SCC 72 (INDIAN OIL CORPORATION LTD v.ASHOK KUMAR ARORA), the Supreme Court observed that the Courtshould not intervene with the punishment unless the punishment iswholly disproportionate. 16. In the present case, the contention of the petitioneris to the effect that the punishment of compulsory retirement isgrossly disproportionate. Learned counsel for the petitioner hassubmitted that while the petitioner was discharging his duty, athird person had intervened, resulting in the unfortunateincident, and therefore, any other punishment like stoppage ofincrement with cumulative effect could have meet the ends ofjustice. 17. Before the disciplinary authority, the petitioner hadgiven an explanation to the effect that the third person hadabused the petitioner in obscene language and caught hold of thecollar of the petitioner and when the petitioner was trying tofree himself, the third person had fallen down and sustained theinjuries. This explanation does not appear to have been acceptedby the disciplinary authority and it has been found that in factthe petitioner had assaulted that person. In fact a bleedinginjury on the head was sustained and the person had beenhospitalised for few days. It is obvious that the story of thepetitioner that the person had fallen down while the petitionerwas trying to free himself and sustained the injury as suchhaving not been accepted by the disciplinary authority or any ofthe higher authority or the Tribunal, no credence can be given tosuch story at this stage. As a matter of fact, the finding of thedisciplinary authority that the petitioner had assaulted the thirdperson was not challenged by the petitioner by filing any appeal.In view of the factual conclusion that the petitioner assaulted https://hcservices.ecourts.gov.in/hcservices/ and the person had sustained a bleeding injury on the head, thesubmission of the petitioner regarding the proportionality of thepunishment is required to be considered.18. May be, if we would have been called upon to examinethe matter on a clean slate, that is to say, as an “originalauthority”, we would have been in a better position to consider asto whether any lesser punishment would have been more appropriate.In the present case, the Head of the Department had alreadyexamined the matter and has come to a conclusion that thepetitioner having assaulted a citizen, punishment of stoppage ofone increment without cumulative effect was very lenient and suchpunishment was enhanced to one of compulsory retirement. Suchconclusion of the Administrative Head has received judicialapproval at the hands of the Administrative Tribunal, which hasobserved that the punishment does not appear to bedisproportionate. 19. While exercising jurisdiction under Article 226 ofthe Constitution, the High Court is expected to correct errors oflaw committed by the lower Tribunal. The High Court is requiredto find out regarding the validity of the decision making processrather than sit as an appellate authority over the decision of thelower authority. As already indicated, the decision of theAdministrative Head, which obviously was better suited to find outthe appropriate punishment, has also received the judicialapproval at the hands of the Tribunal. We do not find any errorin the approach made by the Director General of Police or anyerror in the order passed by the Tribunal so as to substitute ourown views in the matter. 20. Even otherwise, this punishment cannot becharacterised as grossly disproportionate to the nature of thedelinquency. It is no doubt true that onerous duty has been caston the police to maintain law and order in the Society and whiledischarging the duty the police may be required, nay, forced touse force. It is also true that the police personnels,particularly the lower level of the Department face the ire of thepublic and at times of the superior officers as well, but theseaspects cannot be used as excuse for the police officialsincluding at the constable level to severely assault a personcausing grievous injury on the head. It may be that interventionof the third person might have enraged the constable, but being apublic servant the constable was required to act within hislimits. Even though there may be occasions when the police isrequired to use the minimum but requisite force at the time ofcausing arrest or even while preventing a criminal from escaping,in the present case, we do not find any justification for the actcommitted by the petitioner. If such an act is condoned, it wouldgive a wrong signal to the police to behave in unwarranted https://hcservices.ecourts.gov.in/hcservices/ fashion. Moreover, since the Head of the Department hasconsidered the matter and has thought that compulsory retirementwould be proper, it would be impudent on our part to interferewith such punishment. The tenor of several decisions cited at thebar, particularly by the Special Government Pleader, many of whichhave been noticed earlier, is clearly against the contentionraised by the learned counsel for the petitioner.21. Even the punishment of compulsory retirement has theeffect of protecting the pensionary and retirement benefit of thepetitioner. By no stretch of imagination the punishment can becharacterised as grossly disproportionate to the nature of thedelinquency. We therefore express our inability to interfere withthe order passed by the Director General of Police as confirmed bythe Administrative Tribunal.22. The Tribunal while dismissing the O.A., had observedthat the petitioner is deemed to have been retired on the date onwhich he is relieved from the service. It appears that after thepetitioner was relieved from service, he was reinstated by virtueof the interim order passed by the Tribunal and was continuing assuch while the Tribunal passed the order. Subsequently, he hadnot been relieved by the Department and he was relieved only afterthe interim order of stay passed by the High Court wassubsequently vacated. To avoid any confusion in the matter, weobserve that the petitioner shall be deemed to have been inservice till he was relieved pursuant to the vacating of the stayorder passed by the High Court. However, he would not be entitledto any further amount towards salary. His pensionary benefitsshall be calculated and paid on the footing that he had continuedtill he was compulsorily retired with effect from the date onwhich he was actually relieved by the Department after the stayorder was vacated by the High Court.23. Subject to the aforesaid clarification, we do notfind any merit in the writ petition, which is accordinglydismissed. No costs. Consequently, WPMP.No.35852 of 2004 isclosed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dpk https://hcservices.ecourts.gov.in/hcservices/ To1. The Director General of Police, Chennai 4. 2. The Registrar, Tamil Nadu Administrative Tribunal, Chennai Bench, Chennai 600 104.+ 1 CC to Mr.K.Venkataramani, Advocate SR NO 7604+ 1 CC to Govt. Pleader SR NO 7133WP.NO.17263 OF 200416-02-2005smk(vo)gp/28.2.