S. Murugan vs The Director General of Police and The Superintendent of Police

G. Rajasuria, J.—Heard both sides.

The facts giving rise to the filing of this Writ Petition as stood exposited from the records could be portrayed thus:

Admittedly, the writ petitioner is now working as Sub Inspector of Police in Tamil Nadu Police Service. It so happened that the Tamil Nadu Police

Department proceeded as against him by issuing charge memo dated 21.11.1997 by levelling the following charges:

(i) Highhanded action and reprehensible conduct in having tortured and ill-treated on P.Kanna, S/o. Pillappan, Karaikudi on 12.4.95 between

14.30 hrs. to 15.30 hours at Karaikudi North P.S. with the assistance of Inspector Tr. Balakrishnan, Sub-Inspector Thiru. Kannan, Gr.I.P.Cs 976

Muthaiah and 386 Arjunan and thereby caused multiple injuries in his person and put him in the station lock-up.

(ii) Reprehensible conduct in having hand cuffed with leading chain on P.Kannan, a Political prisoner at the Government Hospital, Karaikudi from

22.00 hrs. on 13.4.95 till 09.00 hrs. on 15.4.95.

As per the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, enquiry was conducted by the Enquiry Officer i.e., the

Additional Superintendent of Police, District Crime Records Bureau, Sivaganga District and arrived at the conclusion that charges were not

proved. The Deputy Inspector General, Ramnad Range accepted the findings of the Enquiry Officer and directed to drop the charges against the

petitioner on 09.11.1997. Pursuant to the same, the Superintendent of Police, Sivaganga by his order dated 21.11.1997, dropped the action

against the petitioner on the two charges levelled against him.

However, long after that the Director General of Police by invoking his suo motu power under Rule 15(A)(i)(ii) of the Tamil Nadu Police

Subordinate Services (Discipline and Appeal) Rules, 1955 held that both the charges were proved and called upon the writ petitioner to show

cause as to why he should not be awarded with the punishment of reduction in the time scale of pay for three stages for three years with cumulative

effect.

It appears the writ petitioner submitted his explanation, however the Director General of Police imposed the punishment.

Being aggrieved by and dissatisfied with such procedure adopted by the Director General of Police and the ultimate order passed by him, this

Writ Petition has been filed on the main ground that even before giving opportunity of explaining the defence of the petitioner, the Director General

of Police suo motu held him guilty of the charges.

Heard both sides. No counter has been filed on the respondents'' side.

The point for consideration is as to whether the impugned communication dated 30.12.1997 vide R.C. No. 166454/Con.III(2)/95 and the

subsequent order dated 31.03.2003 are vitiated in view of non-adherence to the principle of ''audi alteram patrem''?

On point:

The learned Counsel for the writ petitioner would convincingly and correctly highlight, by referring to the whole kit and caboodle of facts and

figures as found set out in the records, the legal position that the Director General of Police without adhering to the principles of natural justice

simply by invoking his suo motu power under Rule 15(A)(i)(ii) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules,

1955 found the writ petitioner guilty of both the charges; even before arriving at such a finding, he ought to have called for explanation from the

petitioner concerned and after giving him due opportunity to put forth his defence and giving him personal hearing, the Director General of Police

should have arrived at whatever conclusion he might have deemed fit and proper; but, he failed to do so.

The learned Government Advocate would submit that the Director General of Police strictly adhered to the procedures contemplated under

Rule 15(A)(i)(ii) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955.

For better appreciation, I would like to extract here under the relevant rule:

Rule 15A. (1) Notwithstanding anything contained in these rules:

(i) the State Government or

(ii) the Head of the Department directly under the State Government, in the case of Government servant serving in a department or office under the

control of such Head of Department; or

(iii) the appellate authority, within six months of the date of the order proposed to be reviewed; or

(iv) any other authority specified in this behalf by the State Government by general or special order, and within such time as may be prescribed in

such general or special order; may at any time, either on their or its own motion or otherwise call for the records of any inquiry and review any

order made under these rules, after consultation with the Tamil Nadu Public Service Commission where such consultation is necessary and may.

(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 penalty where no penalty has been imposed; or

(c) remit the case to the authority which made the order or to any other authority, directing such authority to make such further enquiry, as it may

consider 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 any penalty shall be made by any reviewing authority unless the Government servant concerned has

been given a reasonable opportunity of making representation against the penalty proposed....

The aforesaid Rule 15(A) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 has not yet been amended in

commensurate with the view taken already by the Central Government as well as the State Government. In fact, the power contemplated under

Rule 15(A) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 is nothing but revisional power and not review

power. There was earlier in the CCS & CCA Rules, which was captioned as review and subsequently understanding that it should be named as

revision, it was properly amended by the Central Government. Similarly, the State Government also amended the Tamil Nadu Civil Services

(Discipline and Appeal) Rules and incorporated revisional power under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules

and review power has been incorporated under Rule 37 of the said Rules. But for the reasons best known to the Police Department, they have not

chosen to take steps to get the Rule amended to the effect that what is contemplated therein is only revisional power and not review power. No

doubt, at first blush it might appear as though the Director General of Police in letter and spirit adhered to Rule 15(A) of the Tamil Nadu Police

Subordinate Services (Discipline and Appeal) Rules, 1955, but it is not so.

It is a trite proposition of law that when a procedure envisaged under any rule does not embody in itself the principle of natural justice and

more specifically ""audi alteram partem"", then it should be read into it. I would like to recollect and cite here the decisions of the Hon''ble Apex

Court in Raghunath Thakur Vs. State of Bihar and Others, and in Swadeshi Cotton Mills Vs. Union of India (UOI), . An excerpt from the decision

in Raghunath Thakur Vs. State of Bihar and Others, would run thus:

Even if the rules do not express so, it is an elementary principle of natural justice that parties affected by any order should have right of being heard

and making representations against the order.

An excerpt from the decision in Swadeshi Cotton Mills etc. etc. v. Union of India etc. etc. reported in AIR 1981 Supreme Court 818 would run

thus:

In short, the general principle - as distinguished from an absolute rule of uniform application - seems to be that where a statue does not, in terms,

exclude this rule of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits, then such a

statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the power is

silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil

consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to

construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre-

decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short,

this rule of fairplay ""must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands"". The court must make

every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, to recall the words of Bhagwati, J., the

core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a

genuine hearing and not an empty public relations exercise.

Here, the Director General of Police on 30.12.1997 without calling upon the petitioner to show cause as to why he should be held guilty of the

charges for the reasons set out in his show cause notice simply stated as under:

I therefore, hold the count (i) of the charges - torture in Police custody as proved against you.

Similarly, as regards of the 2nd count of charge i.e., hand cuffing of Tr.Kannan (PW1) - the Political prisoner - evidence of PW1 is corroborated

by the depositions of PW3 Subramanian, PW4 Krishnamoorthy and PW7 Ramanathan. But, DWs 6,10,13,14,15 and 16 (Out of whom, the last

4 are constables) have deposed that Tr.Kannan was not handcuffed. However, neither the OE officer nor the disciplinary authority has explained

as to why the PWs need to be disbelieved and DWs are more trust-worthy before holding the 2nd count of the charge as not proved. Further the

arguments that the station records do not indicate that the leading chin and hand cuff were used does not hold water as none will indulge to create

such records against themselves. The statements which were given before RDO soon after the incident should be given more credence and cannot

be brushed aside without any valid reasons. Hence, I hold the second count of charge also as held proved.

Hence, I by invoking the powers vested with me under Rule 15(A)(i)(ii) of the TNPSS (D&A) Rules 1955, I hold both the counts of the charges

as proved. For the deliquesces proves, you Show Cause as to why you should not be awarded with a punishment of reduction in the time scale of

pay for three stages for three years with cumulative effect.

Not to put too fine a point on it, a fortiori, I could hold that ex facie and prima facie it was an erroneous show cause notice and consequently

the ultimate order passed got vitiated. Carte Blanche was not given to the Director General of Police to reverse any finding suo motto without

adhering to the principles of natural justice. It is the duty of the Director General of Police whenever he suo motu under Rule 15(A)(i)(ii) of the

Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 tentatively proposes to hold the accused guilty of the charges

despite the charged official was exonerated from the charges by the Disciplinary authority, to issue a show cause notice incorporating there in the

reasons for his disagreement with the findings of the enquiry officer as well as the disciplinary authority and call upon the charged official to furnish

his explanation within a period to be fixed therein, as to why he should not be held guilty of the charges and after getting his explanation, if any and

giving personal hearing if the charged official prays so, arrive at a conclusion whether he should hold him guilty or not and there after alone the

question of imposing punishment arises. Precisely the whys and wherefores of his disagreement should found set out in his show cause notice

before holding him guilty. But in this case, the important stage as highlighted supra was skipped over by the Director General of Police, which in my

opinion cuts at the root of his show cause notice as well as the subsequent order of punishment imposed. Hence, while setting aside the show

cause notice dated 30.12.1997 as well as the impugned order of the first respondent dated 31.03.2003, I would like to direct as under:

The Director General of Police is at liberty to issue fresh show cause notice to the petitioner as per the observations made supra and proceed with

matter afresh in accordance with law.

With the above direction, this Writ Petition is disposed of. No costs. Consequently, the connected W.P.M.P. is closed.