SEKAR REPORTER

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THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.19963 of 2014 and Justice means justice between both the parties. The interest of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise. Therefore, in the present case, this court has no hesitation in forming an opinion that principles of natural justice as contemplated under Rule 3(a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules were followed by the Disciplinary Authority and the petitioner also availed the said opportunity and the punishment imposed cannot be said to be disproportionate or otherwise. For Petitioner               : Mr.K.Venkat Ramani                                                     Senior Advocate                                                     For Mr.M.Muthappan                 For Respondents : Mr.P.Kumaresan                                                     Additional Advocate General                                                     Assisted by                                                     Mrs.S.Anitha                                                     Special Government Pleader                                                               ORDER           The order of postponement of one increment for one year without cumulative effect, which was confirmed by the Appellate Authority is under challenge in the present writ petitio

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED  : 11.08.2022

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

W.P.No.19963 of 2014

and

M.P.No.1 of 2014

 

M.Mohamed Iqbal                                                                            …Petitioner

Vs.

 

1.The Deputy Commissioner of Police (L&O)

Madurai City, Madurai.

 

2.The Commissioner of Police/

Inspector General of Police,

Madurai City, Madurai.

 

3.The Director General of Police,

Chennai – 4.

 

4.The Secretary to Government,

Home (Police IV) Department,

Fort St.George, Chennai – 9.                                       ..Respondents

 

Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Certiorari, Calling for the records of the respondents in connection with the impugned orders passed by the 1st respondent in PR No.72/1998 dated 9.7.1998 and by the 2nd respondent in C.No.D1(4)/Appeal No.12/1998 dated 26.10.1998 and by the 3rd respondent in C.No.AP3(1)/264609/98 dated 3.3.1999 and C.No.24223/AP II(3)2001 dated 2.3.2001, RC No.249937/AP2(3)/08 dated 9.4.2010 and by the 4th  respondent in GO (2D) No.346 Home (Pol IV) Department dated 25.7.2013 and quash the same.

 

For Petitioner               : Mr.K.Venkat Ramani

Senior Advocate

For Mr.M.Muthappan

 

For Respondents : Mr.P.Kumaresan

Additional Advocate General

Assisted by

Mrs.S.Anitha

Special Government Pleader

 

ORDER

The order of postponement of one increment for one year without cumulative effect, which was confirmed by the Appellate Authority is under challenge in the present writ petition.

 

  1. The writ petitioner states that he was directly recruited as Sub-Inspector of Police in the year 1976 and promoted to the post of Inspector of Police in the year 1988. He was further promoted as Deputy Superintendent of Police in the year 2003 and to the post of Additional Superintendent of Police during the eve of his retirement. The petitioner was allowed to retire from service on attaining the age of superannuation on 30.04.2010.

 

  1. A charge memorandum under Rule 3 (a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 was issued against the writ petitioner and the charges against the writ petitioner was that “Gross neglect of duty and failure to take action in preferring an appeal against the acquittal in Madurai City Sellur Police Station Crime No.803/1989 under Section 302, 34, 109, 307 and 342 IPC in time”. The petitioner submitted his explanation, denying the charges. The petitioner has stated that Crime No.803/1989 Sellur Police Station was investigated by Thiru Babu Rajendraprasad, Inspector of Police, Thallakulam Circle. He laid the charge sheet and gave evidence to the said case. However, the case ended with an order of acquittal on 20.04.1990. The Thallakulam Circle Inspector was looking after Sellur Police Station, Madavalayam Police Station and Government Rajaji Hospital OP. After the formation of the Commissionerate at Madurai, the Sellur Circle was newly formed on 20.05.1990, consisting of Sellur L&O Police Station, Madavalayam Police Station and Government Rajaji Hospital OP, leaving Thallakulam L&O Police station alone as Thallakulam Circle. The petitioner joined the Sellur Station subsequently on 01.05.1990 after the acquittal of the criminal case in Crime No.803/1989. The petitioner did not know about the case and his predecessor neither handed over the CD file in Crime No.803/1989 nor explained about the acquittal of the case. The petitioner states that Thiru.Babu Rajendraprasad, who had investigated the case, laid the charge sheet and gave evidence to the Court has made to follow up action by preferring an appeal against the acquittal. It is further contended that the copy of the judgment was received by the DPO only on 28.10.1992 and there was a delay. The explanation submitted by the writ petitioner was not considered properly by the Disciplinary Authority and the punishment of postponement of increment for one year with cumulative effect was imposed on the writ petitioner in proceedings dated 09.07.1998. The petitioner preferred an appeal on 03.09.1998 and the second respondent/Appellate Authority rejected the same on 26.10.1998. The Review Petition filed by the writ petitioner was also rejected by the third respondent on 03.03.1999 and thereafter, the petitioner submitted a Mercy Petition on 19.01.2001, which was rejected by the third respondent on 02.03.2001 and the final Petition before the Government was also rejected.

 

  1. The learned Senior counsel appearing on behalf of the writ petitioner mainly contended that the copy of the judgment in the Criminal Case was delivered belatedly to the writ petitioner, more so, even before the joining of the petitioner at Sellur Police Station. The said Criminal Case in Crime No.803/1989 ended with an order of acquittal on 20.04.1990 and the Police Inspector, who dealt with the case Thiru.Babu Rajendraprasad had not provided any information to the writ petitioner, enabling him to follow up the matter.

 

  1. The learned Senior counsel contended that no enquiry was conducted. Even in respect of disciplinary proceedings initiated under Rule 3(a) of the Discipline and Appeal Rules, enquiry is to be conducted, when the delinquent denied the allegations. In the present case, the petitioner denied the allegations and thereafter, no enquiry was conducted and therefore, the impugned punishment order and the Appellate order, confirming the same are to be set aside.

 

  1. That apart, the third respondent / Reviewing Authority passed a Non-Speaking order and failed to take into consideration the grounds raised by the writ petitioner in the Review Petition. Both the Appellate order and the Revisional order are Non-Speaking and on that ground also, the punishment is liable to be set aside. The authorities have failed to consider that the petitioner joined as Inspector of Police in Sellur Police Station only on 01.05.1990 and the judgment in the Criminal Case in Crime No.803/1989 was delivered on 20.04.1990. Thus, the petitioner cannot be held liable for not preferring an appeal against the said judgment, acquitting the accused persons. The earlier Inspector of Police Mr.Babu Rajendra Prasad, who was present throughout the trial, did not follow up the case for the purpose of getting the copy of the judgment in time for further action. Therefore, the petitioner cannot be blamed for the lapses committed by the previous Inspector Mr.BabuRajendra Prasad.

 

 

  1. The Additional Government Pleader appearing on behalf of the respondents objected the contentions raised by the petitioner by stating that the lapses noticed against the writ petitioner was based on the records available. There was no violation of Rule 6(c) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955. His review petition was considered by the 3rd respondent and rejected on merits so also the mercy petition was also rejected. The 1st respondent’s order is a Speaking order. The respondents have discussed explanations submitted by the writ petitioner and thereafter, passed the final orders. It is incorrect to state that no action was taken against the previous Inspector Mr.Baburajendra Prasad, in fact, a charge memo was issued against the said Mr.Baburajendra Prasad in PR.73/98 under Section 3(a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 and his explanation was examined and further action was dropped against the Inspector Mr.Baburajendra Prasad. Thus, the authorities formed an opinion that the said Inspector has followed the case properly and the petitioner, who committed the lapses in not filing an appeal. The appeal petition of the writ petitioner dated 03.09.1998 was duly considered by the second respondent and it was observed that the petitioner, who took charge of the Police Station after a month, did not go through the F.I.R. Index or other important records of the Police Station. If he would have done so, he would have known the fact of acquittal and could have preferred the appeal against acquittal in time. Hence, the appeal petition was rightly rejected.

 

  1. The respondents have stated that the 4th respondent in his order dated in G.O.2(D) No.346, Home (Police.IV) Department, dated 25.07.2013, has examined the mercy petition and stated that the petitioner has not taken any action to prefer the appeal against acquittal. The case in Sellur Police Station in Cr.No.803 of 1992 under Sections 302, 34, 307, 109, 324 India Penal Code ended with an order of acquittal. The judgment was delivered on 20.04.1990. A copy of the judgment was delivered in the City Police Office on 28.10.1990. The petitioner did not take follow up action and obtained a copy of the judgment. If the petitioner would have collected a copy of the judgment within time, action would have been taken to prefer an appeal against the acquittal of the case within the stipulated time. Thus, the contention of the writ petitioner that the order was non-speaking order is incorrect and in the order, the authorities have assigned reasons for rejection of the grounds raised by the writ petitioner.

 

  1. Regarding the ground raised by the petitioner that no enquiry was conducted, despite the fact that the petitioner denied the allegations in the charge memo, it is relevant to consider the scope of charge memorandum issued under Rule 3(a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules.

 

  1. Let us now look into the scope of Rule 3(a) of the Tamil Nadu Police Subordinate Services (Disciplinary and Appeal) Rules, 1955, which contemplates imposition of minor penalties with reference to certain minor misconducts. The Rule reads as under:

“Rule 3. (a) In every case where it is proposed to impose on a member of a service any other penalties mentioned in clauses (a), (b), (c), (e), and (f) of rule2, he shall be given a reasonable opportunity of making any representation that he may desire to made and such representation, if any shall be taken into consideration before order imposing the penalty is passed.”

  1. Perusal of the above Rule reveals that no enquiry has been contemplated. The Rule unambiguously stipulates that a reasonable opportunity of making any representation is to be afforded to the delinquent official and based on such representation, the Disciplinary Authority shall decide the issues on merits and pass final orders.

 

  1. The procedures for enquiry contemplated under Rule 3(b) and the procedures prescribed under Rule 3(a) are different and distinct. Rule 3(a) is summary proceedings. According to Rule 3(b), the enquiry becomes mandatory. In the said enquiry under Rule 3(b), examination of witnesses, cross examination, scrutinisation of documents and procedures are contemplated, which is of trial natured and the charged official has got a right to cross examine the witnesses, scrutinise the documents and defend his case in a full-fledged manner, and it is for imposing major penalty.

 

  1. At the outset, an enquiry contemplated under the Rule 3(b) is a trial natured enquiry, which cannot be compared with the summary proceedings contemplated under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules, 1955.

 

  1. The Courts have to find out, whether the principles of natural justice as contemplated under rules has been complied with or not. The principles of natural justice is a flexible rule in the hands of the judiciary to reach out in fit cases to remedy injustice. Therefore, the principles of natural justice cannot be expanded unnecessarily for the purpose of interfering with the decisions, which is otherwise taken impartially and in accordance with the rules in force. When the rule itself contemplates principles of natural justice, the power of judicial review of the High Court is excepted to be restricted within the ambit of the rule, wherein the principles of natural justice has already been contemplated.

 

  1. In the case of State Bank of Patiala Vs. S.K.Sharma reported in [(1996) 3 SCC 364], the Hon’ble Supreme Court of India, while deciding on the question of whether enquiry was not fair on the ground of non-service of documents on the delinquent officer held as follows:

“28. The decisions cited above make one thing clear, viz., principles of natural justice cannot be reduced to any hard and fast formulae. As said in Russell v. Duke of Norfolk [(1949) 1 All ER 109 : 65 TLR 225] way back in 1949, these principles cannot be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405 : (1978) 2 SCR 272]). The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. (See A.K. Roy v. Union of India [(1982) 1 SCC 271 : 1982 SCC (Cri.) 152] and Swadeshi Cotton Mills v. Union of India [(1981) 1 SCC 664].) As pointed out by this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262], the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable–a fact also emphasised by House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 All ER 935 : (1984) 3 WLR 1174 : 1985 AC 374, HL] where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing–applying the test of prejudice, as it may be called–that any and every complaint of violation of the Rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/hearing may defeat the very proceeding–which may result in grave prejudice to public interest. It is for this reason that the Rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v. Union of India [(1984) 3 SCC 465]. There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the Rule of audi alteram partem altogether [as in the case of situations contemplated by Clauses (b) and (c) of the proviso to Article 311(2)] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between “no notice”/”no hearing” and “no adequate hearing” or to put it in different words, “no opportunity” and “no adequate opportunity”. To illustrate–take a case where the person is dismissed from service without hearing him altogether (as in Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935]). It would be a case falling under the first category and the order of dismissal would be invalid–or void, if one chooses to use that expression (Calvin v. Carr [1980 AC 574 : (1979) 2 All ER 440 : (1979) 2 WLR 755, PC]). But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer’s report (Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704]) or without affording him a due opportunity of cross-examining a witness (K.L. Tripathi [(1984) 1 SCC 43 : 1984 SCC (L&S) 62]) it would be a case falling in the latter category–violation of a facet of the said Rule of natural justice–in which case, the validity of the order has to be tested on the touchstone of prejudice, i.e., whether, all in all, the person concerned did or did not have a fair hearing. It would not be correct–in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a Rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural Rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid.”  

 

  1. It is relevant to rely on the judgment of the Hon’ble Supreme Court of India in the case of State of U.P. Vs. Sudhir Kumar Singh and Others in Civil Appeal No.3498 of 2020 dated 16.10.2020, wherein all the earlier important judgments of Hon’ble Supreme Court on the principles of natural justice have been considered by Hon’ble Mr. Justice R.F.Nariman and the principles are summarised as under:

“39. An analysis of the aforesaid judgments thus reveals:

(1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

(2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.

(3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.

(4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.

(5) The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.”

 

  1. In the above judgment the Hon’ble Supreme Court of India reiterated that where procedural / or substantive provisions of law embody the principles of natural justice, their infractions per se does not lead to invalidity of the orders passed. Therefore, the case is to be considered with reference to the rules and the procedures followed and the principles of natural justice adhered to while taking a decision. In the present case, a charge memorandum under Rule 3(a) was issued to the writ petitioner. He submitted his explanations by availing the opportunity as contemplated under the Rule 3(a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules. Thereafter, the Disciplinary Authority considered the explanation and the materials available on record, passed final orders. Thus, there is no violation of procedures as per the rules in force.

 

  1. Justice means justice between both the parties. The interest of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise. Therefore, in the present case, this court has no hesitation in forming an opinion that principles of natural justice as contemplated under Rule 3(a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules were followed by the Disciplinary Authority and the petitioner also availed the said opportunity and the punishment imposed cannot be said to be disproportionate or otherwise.

 

  1. In view of the facts and circumstances, the petitioner has not established any acceptable ground for the purpose of interfering with the orders passed by the respondents.

 

  1. Accordingly, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.

 

                                                                                11.08.2022

 

 

Index  : Yes

Speaking order:Yes

kak

 

To

1.The Deputy Commissioner of Police (L&O)

Madurai City, Madurai.

 

2.The Commissioner of Police/

Inspector General of Police,

Madurai City, Madurai.

 

3.The Director General of Police,

Chennai – 4.

 

4.The Secretary to Government,

Home (Police IV) Department,

Fort St.George, Chennai – 9.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

S.M.SUBRAMANIAM, J.

 

kak

 

 

 

 

 

 

 

 

 

 

 

W.P.No.19963 of 2014

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11.08.2022

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