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Judgment
D. Hariparanthaman, J.—With the consent of both parties, the Writ Petition is taken up for final disposal. The petitioner is a Junior Assistant
in the police department. He was issued with a charge memo dated 20.06.2013 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and
Appeal) Rules (hereinafter referred to as ""the Rules""). The charge memo was issued by the Superintendent of Police. The charge memo is
challenged before this Court on the sole ground that the Superintendent of Police lacks jurisdiction. According to the petitioner, the appointment
order dated 23.10.2006 states that the Director General of Police is the appointing authority and therefore, he is alone competent to issue charge
sheet.
Heard both sides.
I have considered the submissions made by the learned counsel for the petitioner.
Rule 8 of the Rules prescribes various penalties, both minor and major. Those penalties are, (i) Censure; (ii) Fine; (iii) Withholding of increments
or promotion; (iv) Reduction to a lower rank in the seniority list or to a lower post; (v) Recovery from pay; (vi) Compulsory retirement; (vii)
Removal from service; (viii) Dismissal from service; and (ix) suspension. The penalties mentioned in item Nos. (i) to (iii), (v) and (ix) are deemed as
minor penalties and the penalties mentioned in item Nos. (iv), (vi) to (viii) are deemed as major penalties.
Rule 9(c)(2) is relevant for the purpose of this case and the same is extracted as hereunder:
9(c)(2). The Authority competent under these Rules to impose any of the penalties specified in items (i) to (iii) and (v) of Rule 8 may institute
disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in items (iv) and (vi) to (viii) of Rule 8
notwithstanding the fact that such Authority is not competent under these Rules to impose any of the latter mentioned penalties.
The learned counsel for the petitioner heavily relied on Article 311 of the Constitution of India and has submitted that no authority less than the
rank of the appointing authority could initiate disciplinary proceedings by issuing the charge sheet.
I am not impressed with the submission made by the learned counsel for the petitioner. Rule 9(c)(2) makes it very clear that it is not necessary
that the appointing authority shall initiate disciplinary proceedings. Article 311 of the Constitution only put a restriction that the punishment
mentioned therein shall not be imposed by an authority less than the rank of appointing authority.
In fact Rule 3(b) of the Tamil Nadu Police Subordinate Service Rules, which is similar to Rule 9(c)(2), came for consideration before the Apex
Court in Inspector General of Police and another Vs. Thavasiappan, In the said case, the following passage in paragraphs 7 and 9 are extracted
hereunder:
Before we consider the requirement of Rule 3(b) we will refer to the three decisions cited by the learned counsel for the appellant. He first
invited our attention to the decision of this Court in State of Madhya Pradesh and Others Vs. Shardul Singh, 5). In that case a departmental
enquiry was initiated against a Sub-Inspector of Police by Superintendent of Police who after holding an enquiry sent his report to the Inspector
General of Police who ultimately dismissed the Sub Inspector of Police from service. The order of dismissal from service as challenged before the
High Court of Madhya Pradesh on the ground that the enquiry held by Superintendent of Police was against the mandate of Article 311(1) of the
Constitution as he was incompetent to conduct the enquiry. The Sub Inspector of Police was appointed by the Inspector General of Police. The
High Court allowed the petition. The State preferred an appeal to this Court. Rejecting the contention that the guarantee given under Article 311(1)
includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should be initiated or
conducted by the authorities mentioned in that article, this Court held as under:
This Article does not in terms require that the authority empowered under that provision to dismiss or remove an official should itself initiate or
conduct the enquiry preceding the dismissal or removal of the officer or even that enquiry should be done at its instance. The only right guaranteed
to a civil servant under that provision is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed.
This Court further held that ""we are unable to agree with the High Court that the guarantee given under Article 311(1) includes within itself a further
guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the
authorities mentioned in that Article.
....
As to who shall initiate and conduct a disciplinary proceeding, the Rules are silent. Rule 2A which provides that the Governor or any other
authority empowered by him may institute disciplinary proceedings is an enabling provision. From the way it is worked it is not possible to infer that
the rule making authority intended to take away the power of otherwise competent authorities, like the appointing authority, disciplinary authority or
controlling authority and confine it to the authorities mentioned in Rule 2A only. Moreover, it is difficult to appreciate how this provision can be
helpful in deciding whether the charge should be framed and the enquiry should be held by that authority only which is competent to impose the
penalties mentioned in Rule 3(b)(i). An act of instituting a disciplinary proceeding is quite different from conducting an enquiry. Rule 3(b)(i)
provides how an enquiry should be held in a case where it is proposed to impose on a member of the service any of the penalties specified in
clauses (d), (h), (i) and (j) of R. 2. It lays down the different steps that have to be taken in the course of the enquiry proceeding. This Rule is
completely silent as regards the person who should perform those acts except that the report of the enquiry has to be prepared by the authority
holding the enquiry. Rule 3(b)(i) itself contemplates that the enquiry officer may not be the authority competent to impose the penalties referred to
therein and that becomes apparent from the second paragraph of that sub-rule. If it was intended by the rule-making authority that the disciplinary
authority should itself frame the charge and hold the enquiry then it would not have provided that a report of the enquiry shall be prepared by the
authority holding the enquiry whether or not such authority is competent to impose the penalty. Generally speaking, it is not necessary that the
charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority.
We do not find anything in the rules which would induce us to read in Rule 3(b)(i) such a requirement. In our opinion, the view taken by the
Tribunal that in a case falling under Rule 3(b) the charge memo should be issued by the disciplinary authority empowered to impose the penalties
referred to therein and if the charge memo is issued by any lower authority then only that penalty can be imposed which that lower authority is
competent to award is clearly erroneous. We, therefore, allow this appeal. The order passed by the Tribunal is set aside and the case is remitted
back to the Tribunal to consider the other contentions which were raised before it and to dispose of the case in accordance with law.
In view of the same, I am of the view that the second respondent is also competent to issue charge sheet. However, the learned counsel for the
petitioner submitted that a direction could be issued to the respondents to complete the disciplinary proceedings and pass final orders within a
stipulated period. Accordingly, the respondents are directed to expedite the disciplinary proceedings and complete the same and pass the final
orders in accordance with law within a period of nine months from the date of receipt of a copy of this order. With the above directions, this
petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.