AI Structured Summary
Not yet generated for this judgment
Judgment
M. Venugopal, J.—The Petitioner has filed W.P(MD) No. 10553 of 2005 seeking a Writ of Certiorarified Mandamus in calling for the
entire records pertaining to the impugned order passed by the third Respondent/Superintendent of Police in D.O. No. 07/2005 C. No.
A4/20617/04 dated 03.01.2005 and to quash the same and also in directing the Respondents to post the Petitioner in the post of Head Constable.
The Petitioner has also filed W.P.(MD) No. 10554 of 2005, seeking a Writ of Certiorari in calling for the entire records relating to the
impugned memo passed by the third Respondent in C. No. A4/P.R. No. 43/2004 dated 26.01.2005 and to quash the same.
The Petitioner joined the service as Constable during the year 1975. He was serving as a Writer at the Office of the Deputy Superintendent of
Police, Kulithalai. At that time, he was served with the suspension order by means of an affixture. Although he was available at the known address
and the records were available at the District Police Office, Karur and house rent allowance was encashed at the Karur address, the third
Respondent/Superintendent of Police served the suspension order by means of an affixture.
According to the Petitioner, he and one Vijayakumar working at the District Police Office, were not in good terms. At the instigation of the said
Vijayakumar (a close relative of the Superintendent of Police, one Thiru. Arun), the said Superintendent of Police was taking vindictive steps and
started issuing relevant charge memos to the Petitioner with the sole intention of punishing the Petitioner without any default on his part.
The case of the Petitioner is that he was served with a charge memo dated 25.05.2003 by means of an affixture at the native village of the
Petitioner. The charge memo was issued to the Petitioner on the basis of the preliminary enquiry report submitted by the Deputy Superintendent of
Police, Karur, to the Superintendent of Police, Karur. The Superintendent of Police, Karur with some ulterior motive, had directed the Deputy
Superintendent of Police to send a preliminary report.
The gist of the preliminary report was that on 28.04.2003, there was a serious crime report and in pursuance of the report, a meeting was
conducted at Kulithalai and the text of the meeting was communicated through Volume High Frequency Mike and that the Petitioner even though
was available there, he had not attended the Mike and therefore, there was a dereliction of duty on his part. The charge memo was served by
affixture had contained three charges. Although the charges were classified as three in number, in substance, it was only a single charge viz., on
28.04.2003, the Petitioner had not attended the V.H.F Mike and thereby, disobeyed the order of superior and also absented himself from duty for
the period from 28.04.2003 to 11.05.2003. A reply was sent by the Petitioner on 12.07.2003 to the second Respondent/Deputy Inspector
General of Police, Trichy Range, Trichy, bringing it to his notice that the third Respondent/Superintendent of Police, Karur, was vindictive and
acted with an ill-motive. In fact, the Petitioner had denied all the charges.
The stand taken by the Petitioner was that as a Writer, it was not his duty to attend the V.H.F communication and there were other persons
available at the Office of the Deputy Superintendent of Police, to attend the V.H.F. Mike. The Petitioner was working as a Writer under the
Deputy Superintendent of Police, Kulithalai and if there was any act of omission or commission, then the Deputy Superintendent of Police,
Kulithalai, is the appropriate authority to bring it to the notice of the third Respondent/Superintendent of Police for taking any action. The Petitioner
appeared before the Enquiry Officer/fourth Respondent to enquire into the charges levelled against the Petitioner. In the enquiry, the Petitioner
asked for a copy of 34 documents. The Petitioner''s request for production of the documents was not acceded to by the Enquiry Officer.
The Petitioner was perforced to file O.A. No. 3348 of 2003 before the State Administrative Tribunal and the Tribunal by its order dated
10.10.2003, had directed the Petitioner to appear before the Enquiry Officer and the Enquiry Officer was directed to permit the Petitioner to
peruse the documents relied upon by the Department in support of the charges and if the Petitioner desires, he may be permitted to take the copies
of those documents, etc.
Furthermore, in the said order, direction was issued to the Respondent therein to revoke the suspension of the Petitioner and reinstate him and
extract work from him and the Department is at liberty to proceed against the Petitioner and pass final orders as early as possible as per Rules.
However, the Petitioner was not reinstated and that the suspension order was not revoked either by the Enquiry Officer/fourth Respondent or by
the third Respondent/Superintendent of Police, Karur. The Petitioner was furnished with only four documents and he was prevented from attending
the enquiry. The third Respondent/Superintendent of Police, Karur, as per his order dated 03.01.2005 in D.O.07/2005 C. No. A4/20617/04,
depromoted the Petitioner from the post of Head Constable to the post of Constable. The Enquiry Officer/fourth Respondent rejected the request
of the Petitioner for production of the documents and proceeded with the enquiry and passed an ex-parte order and further, the order was sent to
his native address though he was very much available at the Karur address. In the suspension order, it was mentioned that the Petitioner should
make himself available in Karur and he should not leave the Head Quarters without prior permission.
The learned Counsel for the Petitioner urges before this Court that the order dated 03.01.2005 passed by the third
Respondent/Superintendent of Police, Karur, is an ex-parte order and moreover, the Petitioner had asked for the production of vital documents
and without any basis, the fourth Respondent/Enquiry Officer came to the conclusion that the documents were irrelevant and proceeded with the
enquiry.
The learned Counsel for the Petitioner contends that though the Petitioner filed W.P. No. 30433 of 2004, this Court by order dated
19.10.2004 directed the order passed in O.A. No. 3348 of 2003 to be implemented, but the said orders have not been obeyed by the fourth
Respondent/Enquiry Officer and proceeded further and passed an ex-parte order in the matter in issue.
In short, it is the submission of the learned Counsel for the Petitioner that the order passed by the third Respondent reverting him as Grade II
Constable in P.R.42/03 released from suspension and reinstated into service had not reported to duty so far etc. without prejudice to the
departmental action in P.R.43/04 and moreover, he was directed to report to duty to District Police Office, Karur, for further posting, was liable to
be set aside by means of this Court allowing this petition filed by the Petitioner to promote the substantial cause of justice.
The third Respondent/Superintendent of Police, Karur, had filed the counter stating that the Petitioner, Head Constable of Chinthamanipatti
Police Station, Karur District, was placed under suspension with effect from 23.05.2003 Forenoon as per the Office D.O.344/2003 in C. No.
A4/9104/03, dated 20.05.2003 and he was charged as per Rule 3(b) of T.N.P.S.S.(D&A) Rules 1955, in P.R. No. 42/A4/03 in regard to the
gross neglect of duty inasmuch as he failed to receive the important message conveyed to him through the V.H.F by the Special Branch Office
while he was in charge of V.H.F in the Sub Divisional Officer''s Office, Kulithalai, on 28.04.2003 at 12.00 hours.
That apart, he was charged with the reprehensible conduct of absenting himself from duty for fourteen days from 28.04.2003 without informing
the reasons for his absence and then, sending Medical Leave with Medical Certificate without getting sick passport.
The Enquiry Officer issued the proceedings to the Petitioner to attend the enquiry on 13.11.2003 and that 5 P Ws were examined in the
presence of the Petitioner and the statements were duly recorded. At that juncture, the Petitioner sought for irrelevant documents. The Petitioner
was asked to appear before the Enquiry Officer for further oral enquiry on 17.11.2003. The Petitioner had not attended the oral enquiry on
17.11.2003. He sent a telegram to the Enquiry Officer praying for adjournment to some other date assigning reason that he was suffering from
fever. He submitted a petition dated 29.11.2003 requesting to furnish the irrelevant records which were denied to him on an earlier occasion. The
Enquiry Officer again negatived his request as the records sought for by the Petitioner are not related to the charge memo and issued the charge
memo to that effect in R.C. No. 05-11/ADSP/PEW/KRR/03, dated 01.12.2003 and fixed the further oral enquiry and he was summoned to
appear before the Enquiry Officer on 04.12.2003. The oral enquiry was posted to 12.12.2003, on which date the Petitioner had not turned up and
the oral enquiry was conducted in his absence and 3 P Ws were examined and the oral enquiry again determined on 17.12.2003 which was
informed to the Petitioner. The Petitioner had not turned up and in his absences, the witnesses 2 in number were examined. The Petitioner once
again had not appeared before the Enquiry Officer on that date. The Enquiry Officer, as such, completed the enquiry by examining all the remaining
witnesses in the absence of the Petitioner.
The Petitioner was issued with the proceedings dated 17.12.2003 by the Enquiry Officer informing him that he might peruse the statements
recorded on 12.12.2003 and 17.12.2003 if he so desired, but the Petitioner refused to received the proceedings. The proceedings were served to
the Petitioner by the Head Constable 443 one Selvaraj on 05.01.2004. The Petitioner failed to submit the further written statement of defence
despite the proceedings calling for it and the Enquiry Officer recorded the minutes ex-parte.
The third Respondent on receipt of the minutes from the Enquiry Officer on 12.01.2004, issued a memo to the Petitioner calling for his further
representation within seven days for passing final orders as per the Office memo dated 14.01.2004 in C. No. A4/PR.42/03. The Petitioner refused
to receive the memo calling for further representation. The Sub Inspector of Police, Chinthamanipatti Police Station, was deputed to serve the
memo calling for further representation and was threatened by the Petitioner who instigated the neighbours against the Sub Inspector of Police to
prevent him from discharging the official duty of pasting the memo on the door of his house on 20.01.2004. Hence, the Sub Inspector of Police
was constrained to seek the help of the Revenue Officials and with their help, he pasted the memo on the door of this house in Gounder Street,
Aanaippatti Village, Dindigul District in the presence of the Village Administrative Officer on 21.01.2004. Thereafter also, the Petitioner had not
submitted his further representation. The third Respondent/Superintendent of Police, Karur passed the final order by awarding the punishment of
reduction in rank by two stages for three years spent on duty, by the Superintendent of Police, Karur, on 29.01.2004 and subsequent to the
passing of this order, he was released from suspension with immediate effect and he was instructed to report to duty at District Police Office,
Karur, for further posting. The aforesaid order was served on the Petitioner on 10.02.2004 by the Sub Inspector of Police, Chinthamanipatty
Police Station and on receipt of the order, the Petitioner submitted a reply to serve the same through the Tamil Nadu Administrative Tribunal or
through his lawyer on the same day viz. 10.02.2004. The order was pasted on the door of the Petitioner on 11.02.2004 in the presence of the
jurisdictional Village Administrative Officer concerned.
The Petitioner had not reported to duty and also not filed any appeal to the higher authorities. He had not reported to duty for more than
twenty one days and he was declared as a deserter with effect from 11.02.2004 and hence, the disciplinary action as per Rule 3(b) in PR.43/04
was initiated against him.
As per the orders passed by this Court in W.P. No. 30433 of 2004 dated 19.10.2004, the Petitioner was taken back for duty with immediate
effect without prejudice to the departmental action in PR.43/04 as per the Office letter dated 03.01.2005. The said order was sent to the
Petitioner through the registered post and he acknowledged the same on 05.01.2005. However, he was not reported to duty though the order was
issued in accordance with the direction of this Court as a remedy to the plea of the Petitioner.
It is significant for this Court to make a mention that in paragraph 12 of the counter filed by the third Respondent/Superintendent of Police,
Karur, it is averred as follows:
With regard to the averment made in para 06 and 07 of the affidavit it is submitted that award of punishment of ""Reduction in rank by two
stages for three years to be spent on duty in PR. No. 42/2003, dt.29.01.04 by the Supdt. of Police, Karur, the Petitioner had sent a number of
petitions to the higher authorities (i.e.,) DIG, IGP, DGP and Home Dept accusing the superior officers Dy. Supdt. of Police and Supdt. of Police.
One of the similar petition was received by the Inspr. Genl. of Police, Central Zone, Trichy and the Inspr. Genl. of Police, Central Zone has
directed the 3rd Respondent (i.e,) the Supdt. of Police to produce the Petitioner in person, in order to consider his grievance. Accordingly, the
Petitioner was produced before Inspr. Genl. of Police, Central Zone, Trichy on 19.07.04 and on receipt of instructions, the 3rd Respondent had
informed to give mercy petition as appeal to Additional Director Genl. of Police L&O, Chennai, who is the competent authority to review the
punishment awarded to the Petitioner. But the Petitioner refused to do it and instead dragged the matter by asking for certain irrelevant documents.
The stand of the third Respondent is that adequate opportunities were provided to the Petitioner at each and every stage of the oral enquiry in
PR.42/03 under Rule 3(b) of TNPSS(D&A) Rules, 1955. The Petitioner himself was responsible for the drawal of an ex-parte order passed by
the Enquiry Officer against him. About the refusal of irrelevant documents, the Petitioner was issued with the proceedings in RC. No. 5-
11/ADSP/PEW/Karur, 2003, dated 01.12.2003. The Petitioner refused to co-operate with the oral enquiry and he had not availed the
opportunities provided to him to defend the charges levelled against him. Therefore, the third Respondent prays for the dismissal of this writ
petition filed by the Petitioner.
At this juncture, this Court worth quotes Rule 5 of Tamil Nadu Police (Discipline & Appeal) Rules, 1955, which reads hereunder:
Rule 5. A member of the service shall be entitled to appeal from an order imposing on him any of the penalties specified in Rule 2.
(a) if such order was passed by an authority specified in the relevant column of the Schedule, to the authority specified in the last column thereof;
and
(b) if such order was passed by an authority (other than the State Government) higher than that specified in the relevant column of the Schedule, to
the next higher authority to whom the former authority is administratively subordinate.
A reading of the ingredients of Rule 5 of the Tamil Nadu Police (Discipline & Appeal) Rules, 1955, clearly points out that the Petitioner, as
against the order passed by the third Respondent in D.O. No. 07/2005 C. No. A4/20617/04 dated 03.01.2005 has a statutory alternative and
efficacious remedy of filing of an appeal before the competent authority and also later, if such order was passed by an authority (other than the
State Government) higher than that specified in the relevant column of the Schedule, to the next higher authority to whom the former authority is
administratively subordinate. It is not in dispute that the Additional Director General of Police (Law and Order), Chennai, is the proper and
competent authority to review the punishment awarded to the Petitioner. The Petitioner in the instant case has not availed the remedy of preferring
an appeal before the competent authority as per Rule 5 (a) and (b) of the Tamil Nadu Police (Discipline & Appeal) Rules, 1955.
It is to be noted that when the Petitioner has an effective, efficacious and alternative remedy of filing an statutory appeal as per Rule 5 (a) and
(b) of the Tamil Nadu Police (Discipline & Appeal) Rules, 1955, then it is not open to the Petitioner to bypass the procedure prescribed under the
Rules. The procedures envisaged as per Rule 5 (a) and (b) of the Tamil Nadu Police (Discipline & Appeal) Rules, 1955, cannot be allowed to be
shaked or shackled with, as opined by this Court. Furthermore, the Petitioner has a remedy of preferring an appeal petition to the Additional
Director General of Police (Law and Order), Chennai, who is the competent authority to review the punishment awarded to the Petitioner. Hence,
the Petitioner as per Rule 5 (a) and (b) of the Tamil Nadu Police (Discipline & Appeal) Rules, 1955, is directed to file an appeal before the
competent authority as against the order passed by the third Respondent in D.O. No. 07/2005 C. No. A4/20617/04 dated 03.01.2005.
Likewise, he is also directed to file an appeal as against the order passed by the third Respondent in C. No. A4/P.R. No. 43/2004 dated
26.01.2005 within a period of ten days from the date of receipt of a copy of this order. Since the Petitioner is said to be retiring from service within
four months as informed by the learned Counsel for the Petitioner, this Court directs the competent authority (who has the appeal), to dispose of
the same within a period of three months from the date of filing of the appeal and the said authority is directed to dispose of the appeal in an
dispassionate manner uninfluenced by any of the observations made by this Court in this writ petition, by affording adequate opportunity to the
Petitioner by following the principles of Natural Justice in the manner known to law and in accordance with law.
In the light of the foregoing quantitative and qualitative reasons and on overall analysis of the facts and circumstances of the case, W.P (MD)
Nos.10553 and 10554 of 2005 are dismissed with the aforesaid directions. No costs.