IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:29.09.2008
CORAM:
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
W.P.No.9171 of 2005
M.Murugan ... Petitioner
Vs.
1.The Director General of Police
Chennai-4
2.The Additional Director General of Police (L & O)
Chennai-4.
3.The Deputy Inspector General of Police
Coimbatore Range
Coimbatore
4.The Superintendent of Police
Coimbatore District
Coimbatore. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified mandamus to call for the records relating to the Respondents herein in C.No.J1/PR 105/2001 u/r 3 (b) dated 01.07.2003 awarding the punishment of postponement of increment for two years without cumulative effect by the 4th Respondent herein and the order passed in suo motu review by the 3rd Respondent herein in Rc.No.9791/D1/2003 dated 23.12.2003 and the modified punishment order passed in appeal by the 2nd Respondent herein Rc.No.74959/Ap.I (1) / 2004 dated 16.04.2004 and the rejection order passed in the mercy petition by the 1st Respondent herein in Rc.No.174627/PR.I (1)/2004 dated 18.10.2004 and quash the same and consequently direct the Respondents herein to reinstate the Petitioner back to service with all benefits and with due regards to his seniority and pass further order.
For Petitioner :Mr.R.S.Anand
for M/s.Anand & Suryas
For Respondents :Mr.N.SenthilKumar
Addl.Govt.Pleader
ORDER
Petitioner seeks writ of certiorarified mandamus to quash the various orders passed by the Respondents imposing punishment (compulsory retirement) upon the Petitioner and to seek the Respondents to reinstate the Petitioner back into service with all benefits.
2.The brief facts, which lead to the filing of the Writ Petition are as follows:
(i)The Petitioner was appointed as Police Constable (Grade-II) in Madurai City Armed Reserve on 25.05.1988. The Petitioner was promoted as Naiyak (Grade-I) Police Constable on 03.11.1995. The Petitioner was transferred and posted to Coimbatore Armed Reserve Unit on 29.01.2001. After joining at Coimbatore, the Petitioner submitted a representation dated 07.04.2001 requesting to grant two months time to vacate the quarters. His request was rejected and he was directed by Inspector and Assistant Commissioner, Armed Reserve, through Memos dated 07.04.2001 and 08.04.2001 instructing him to vacate the quarters. Even after receipt of both memorandum, the Petitioner did not vacate the Police Quarters. Hence, as per instruction issued by the Commissioner of Police, Madurai City, in Memo No.T2/19464/2001 dated 09.04.2001, Petitioner was evicted from the Quarters by Police Officials on 10.04.2001, in Madurai City with the assistance of Village Administrative Officer, Madurai North.
(ii)According to the Petitioner he and his family members went to the ACP,AR, Madurai city to make representation about the forcible eviction. But according to the Respondents, the Petitioner and his family members observed "Fasting" in front of the room of ACP,AR Madurai city. A case was registered in Thallakulam P.S. Cr.No.387/2001 under Section 151 Cr.P.C. Hence, the Petitioner was dealt with a charge U/r. 3(b) of Tamil Nadu Police Subordinate Service (D&A) Rules (for Short TNPSS), 1955 in P.R.No.105/01 of Coimbatore District for the delinquency committed by the delinquent viz., highly indisciplinary conduct in having refused to vacate the Government Police quarters even after his transfer from Madurai City and for having observed "fast" with his family members in front of Office of Assistant Commissioner of Police, Armed Reserve, Madurai City.
(iii)The Assistant Superintendent of Police, Tiruppur, who conducted oral enquiry has held the charge against the Petitioner as proved. Based on the findings of the enquiry officer, Petitioner was awarded a punishment of postponement of increment for two years without cumulative effect by the 4th Respondent on 01.07.2003.
(iv)On Suo motu review of the disposal of P.R.No.105/01, the 3rd Respondent found that the punishment awarded to the Petitioner is disproportionate and hence, issued a Show Cause Notice dated 09.12.2003 as per R.15A(iii) of TNPSS (D&A) Rules 1955 calling for explanation, from the Petitioner as to why the punishment of postponement of increment for two years without cumulative effect awarded by the 4th Respondent should not be enhanced. The Petitioner submitted his explanation on 19.12.2003. Thereafter, the 3rd Respondent by proceedings C.No.D1/9791/2003 dated 23.12.2003, enhanced the punishment into that of removal from service. On Appeal, the 2nd Respondent modified the punishment of removal from service into that of Compulsory Retirement of Service by Proceedings C.No.4959/AP.I(1)/2004 dated 14.06.2004. The Mercy Petition filed before 1st Respondent dated 18.10.2004 was also rejected. Alleging that the order of punishment of compulsory retirement is excessive and disproportionate writ petitioner has filed this writ petition challenging the order of compulsory retirement.
3.The Respondents have filed counter stating ASP, Tiruppur was appointed as enquiry officer and after conducting oral enquiry, enquiry officer has held the charge against Petitioner as proved. Based on the findings of enquiry officer 4th Respondent has passed the punishment of postponement of increment for two years without cumulative effect. According to the Respondents the delinquency committed by the Petitioner was grave nature punishment of postponement of increment for two years was enhanced in to that of removal from service by the 3rd Respondent. On appeal 2nd Respondent has modified the punishment as that of compulsory retirement in the proceedings C.No.74951/Ap-1(1)/04, dated 16.04.2004. According to the Respondents the enquiry was held in accordance with rule 15 A (1) (iii) of TNPSS (D&A) Rule 1955 and observed principles of natural justice. According to Respondents delinquency committed by the Petitioner was grave nature, therefore punishment of postponement of compulsory retirement is commensurate with gravity of the charge.
4.Challenging the impugned order learned counsel for the Petitioner inter-alia made following submissions:
As per existing procedure if any person failed to vacate the quarters even after sufficient time after transfer to any district penalty alone can be charged at the prevailing rate of rent and while so forcible eviction from quarters is arbitrary and inhuman.
Petitioner and his wife, children went to represent to the ACP, AR, Madurai and since ACP was not available they were waiting there and while so a false case has been registered against the Petitioner as if he was fasting in front of the office of the ACP.
In any event, the criminal case in Cr.No.387/2001 u/s 151 Cr.P.C has ended in acquittal.
Without any justifiable reason the punishment of stoppage of increment for two years has been enhanced as dismissal from service.
5.The learned Additional Government Pleader, Mr.N.Senthilkumar, has submitted that delinquency held proved against the Petitioner was serious in nature and the punishment of postponement of increment for two years without cumulative effect awarded by the 4th Respondent was enhanced to removal from service. Invoking rule 15 A (1) (iii) of TNPSS (D&A) Rule 1955 and the same was modified as compulsory retirement by 2nd Respondent. The learned Addl.Govt.Pleader further submitted that the impugned punishment cannot be said to be disproportionate or harsh warranting interference.
6.The Petitioner was transferred to Coimbatore on his request on 29.01.2001. Immediately on his relief from Madurai AR, the Petitioner ought to have vacated the Government Police quarters in Madurai. Inspite of sufficient time given to him the Petitioner did not vacate the quarters. Petitioner has submitted a petition dated 07.04.2001 requesting two months time to vacate the quarters and his request was rejected. Through memo dated 07.04.2001 and 08.04.2001 Petitioner was directed to vacate Police quarters. Since the Petitioner did not vacate Police quarters, it is stated that the Petitioner and his family members were evicted with the help of Village Administrative Officer. The Petitioner and his family members are alleged to have observed "Fasting" in front of office of the ACP regarding which criminal was registered in Cr.No.387/2001 u/s 151 Cr.PC.
7.The following charge was framed against the Petitioner:
"Highly indisciplinary conduct in having refused to vacate the Government Police quarters Madurai City Armed Reserve even after his transfer from Madurai City and observed fast with his family members in front of Office of Assistant Commissioner of Police Armed Reserve, Madurai City on 10.04.2001 at 12.30 hrs. and there by involved in criminal case in Cr.No.387/2001 u/s 151 Cr. PC of Thallakulam P.S.Madurai City".
8.Enquiry Officer-ASP Tiruppur who conducted oral enquiry has held that the charges against the Petitioner is proved. Based on the findings of enquiry officer, petitioner was awarded punishment of postponement of increment for two years without cumulative effect by the 4th Respondent on 01.07.2003, which was acknowledged by the Petitioner on 10.07.2003. Petitioner did not prefer any appeal against the said punishment.
9.Under Rule 15 A(1) (iii) of TNPSS (D&A) Rule 1955 , the appellate authority has power of Suo-motu to enhance the punishment invoking Rule 15 A(1) (iii) of TNPSS (D&A) Rule 1955. 3rd Respondent has enhanced the punishment as removal from service by the order dated 23.12.2003. In the appeal preferred by the Petitioner to the 2nd Respondent the punishment was modified as compulsory retirement.
10.Learned counsel for the Petitioner Mr.R.S.Anand has contended that the basis for the charge is the alleged misconduct of fast regarding which criminal case was registered in Cr.No.387/2001. Though the alleged occurrence was in 2001, Thallakulam police did not file charge sheet in the said case Cr.No.387/2001. Because of non-filing of charge sheet, court has closed the case u/s.468(2) Cr.P.C. on 27.09.2005. There is no inflexible rule that the finding of a criminal court is conclusive upon administrative authorities if it is technical acquittal not on merits, the administrative authority may conceivably punish on the same facts. The question calling for consideration is when no charge sheet was filed against the Petitioner whether the Petitioner can still be dealt with sternly. The crux of the charge is that the Petitioner has not vacated the quarters even after sufficient time being given after transferred to Coimbatore and in protest of the eviction Petitioner and his family members observed fasting.
11.Placing reliance upon 1992 (4) SCC 54 (State of Punjab & Others v. Ram Singh, X-Constable), learned AGP has contended that Petitioner being part of disciplinary force was expected to maintain strict discipline and the punishment imposed by the Appellate Authority cannot be said to be disproportionate.
12.The Petitioner is alleged to have protested against the eviction. To substantiate the charges that the Petitioner has not vacated the quarters and that he protested the eviction, on behalf of prosecution PW1-Inspector Mokkaraj, PW2-Inspector Jeyapaul, PW3-Village Administrative Officer Ravindran, PW4-Sub Inspector Balamurugan,PW5-Palanisamy, PW6-Sub Inspector Kumar and PW7-Sub Inspector Kanakaraj were examined. All of them have spoken about eviction of the Petitioner and his family from the quarters and that the Petitioner has raised voice at the time of eviction. In his evidence PWS1 and 2 have also stated that Petitioner refused to sign in the list and Petitioner and his family observed fasting in front of the office of ACP. Thallakulam police have registered the case in Cr.No.387/2001 u/s 151 Cr.P.C. Upon analysis of evidence, the enquiry officer held that charges against the Petitioner are proved. Based upon evidence, enquiry officer concluded that the Petitioner refused to vacate the house and therefore steps have been taken to evict the Petitioner, resisting the same the Petitioner protested.
13.As rightly observed by the Disciplinary Authority that the observance of fasting is indiscipline conduct on the part of delinquent. Learned counsel for the Petitioner tried to persuade the court that the charges framed against the Petitioner and conclusion of the enquiry officer are perverse. It is relevant to note that as against the punishment imposed by the Disciplinary Authority/4th Respondent, petitioner himself has not preferred any appeal. While so, it is not open to the Petitioner to challenge the findings of the enquiry officer and finding of guilt.
14.With a view to give opportunity to the Petitioner to correct himself, the 4th Respondent has taken a lenient view and imposed punishment of postponement of increment for two years without cumulative effect.
15.Invoking Rule 15 A(1) (iii) of TNPSS (D&A) Rule 1955 the 3rd Respondent issued show cause notice for suo motu enhancing the punishment the 3rd Respondent observed that the misconduct is very serious in nature and chosen to impose punishment of dismissal from service. In my considered view, 3rd Respondent did not keep in view the facts and circumstance of the case. On the early hours of 10.04.2001, the Petitioner's wife and three female children were forcibly evicted from police quarters. Though the Petitioner is a part of disciplinary force basically he is a human having family bonds. Seeing his wife and children in the streets, the Petitioner must have been mentally disturbed in which the Petitioner might have retorted to the same by raising his voice. In fact before the enquiry officer the Petitioner has explained his conduct as in the following:-
Vernacular (TAMIL) Portion Deleted
16.In such circumstance raising protest by observing fasting before office of ACP cannot be said to be such a serious misconduct imposing extreme punishment of removal from service modified as compulsory retirement. It is fairly well settled that in service matters, the scope of judicial review is limited to the deficiency in decision making process and not the decision.
17.Normally exercising jurisdiction under Article 226 of the Constitution of India the court will not go into the quantum of punishment. However if extreme punishment is imposed without any justification the High Court in its writ jurisdiction would certainly interfere. Unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court, High Court would not normally interfere with the quantum of punishment.
18.In (2007) 2 MLJ 278 (SC), [Union of India and others v. Dwarka Prasad Tiwari], the Supreme Court has held as follows:-
"15. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
"16. To put differently, unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations, it may in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed."
"17. The above position was recently reiterated in Union of India and another v. K.G.Soni 2006 (6) Supreme 389 : 2006 III LLJ 802 (SC) following Damoh Panna Sagar Rural Regional Bank and others v. Munna Lal Jain AIR 2005 SC 584 : (2005) 10 SCC 84 : 2005-I-LLJ-730 (SC)."
Of course being part of Disciplinary force the Petitioner was expected to maintain strict discipline. But does the conduct of the Petitioner warrant imposing extreme penalty of dismissal from service modified as compulsory retirement is the point for consideration.
19.The Penalty imposed must be commensurate with the gravity of misconduct. Any penalty disproportionate to the gravity of misconduct would be violative of Article 14 of the Constitution. The penalty of compulsory retirement for protesting against the forcible eviction is disproportionate and excessive. In my considered view, the order of 4th Respondent imposing punishment of postponement of increment for two years without cumulative effect is just and reasonable and the same has to be restored.
20.In the result the order of 2nd Respondent in Rc.No.74959/Ap.I (1) / 2004 dated 16.04.2004 imposing punishment of compulsory retirement is set aside and this writ petition is partly allowed.
The order of 4th Respondent in C.No.J1/PR 105/2001 u/r 3 (b)dated 01.07.2003 awarding punishment of postponement of increment for two years without cumulative effect is restored;
The Petitioner is ordered to be reinstated into service within a period of four weeks from the date of receipt of a copy of this order;
Punishment of postponement of increment for two years without cumulative effect shall start from the date of Petitioner's rejoining.
Period during which Petitioner was out of service shall be treated as leave on loss of pay. Petitioner shall not be entitled to any salary during that period. However, that period shall be taken into account for continuity of service.
kpr
To
1.The Director General of Police
Chennai-4
2.The Additional Director General of Police (L & O)
Chennai-4.
3.The Deputy Inspector General of Police
Coimbatore Range,Coimbatore
4.The Superintendent of Police
Coimbatore District,
Coimbatore
No comments:
Post a Comment