IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.07.2011 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.No.49514 of 2006 (O.A.No.4288 of 2001) R.Padmavathy ... Petitioner vs. Deputy Commissioner of Police, Head Quarters, Office of the Commissioner of Police, Egmore, Chennai – 600 008. ... Respondent PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.4288 of 2001 to issue a writ of Certiorari to call for the records in connection with the orders of the second respondent in 1) Order Tha.Ko.No.33/Tha.PiI(2)/94 Thu.Pi.3(2), Na.Ka.Tha.Order No.407/2000 dated 23.02.2000 and 2) Order No.Tha.Ko.No.33/Tha.PiI(2)/94 Thu.Pi 3(2) dated 23.02.2000, consequent order (3) Na.Ka.No.Tha.Pi(2) / 38/16803/2000 Nagara Kaval Aanai No.1422/2000 dated 08.08.2000 issued by the second respondent and quash the said orders of the second respondent. For Petitioner : Mr.V.Prakash, Sr.Advocate for Mr.T.Ramkumar For Respondent : Mr.R.Ravichandran Additional Government Pleader O R D E R The petitioner was employed as a female warder (Ayah) from 1978. The petitioner was absorbed as regular warder along with others 125 Women warder by way of G.O.Ms.No.2677, Home (Police) Department, dated 07.12.1988. 2. The petitioner was placed under Suspension from 19.11.1994. She filed an Original Application in O.A.No.5895 of 1994 to set aside the suspension order. The Tribunal granted stay of suspension. Thereafter, a charge memo dated 28.12.1994 was issued under Rule 17(b) https://hcservices.ecourts.gov.in/hcservices/ of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. The allegation against the petitioner was that when a circular describing the duties and responsibilities of Ayah was served on the petitioner, she refused to sign the circular for having received the same. An enquiry was held. The petitioner sought for assistance of an advocate to represent her in the enquiry. The same was denied. Hence, she approached the Tribunal by filing an Original Application in O.A.No.1710 of 1995 and the Tribunal passed an order dated 24.03.1995 directing the respondents to permit the petitioner to have the assistance of an advocate. 2. According to the petitioner, the order was not complied with and the Enquiry Officer refused to permit the petitioner to bring her lawyer. The enquiry was also conducted for four years as the witness did not turn up. Ultimately, the Enquiry Officer gave a report and based on the report, the impugned order dated 23.02.2000 was passed by the respondent, imposing the punishment of reduction of pay by one stage for one year without cumulative effect. Thereafter, the petitioner has filed an Original Application in O.A.No.4288 of 2001 before the Tamil Nadu Administrative Tribunal to quash the same. On abolition of the Tamil Nadu Administrative Tribunal, the matter has been transferred to this Court and renumbered as W.P.49514 of 2006. 3. The main contention raised in the writ petition is that the impugned order was passed in violation of the order of the Tribunal dated 24.03.1995 in O.A.No.1710 of 1995. It is also pleaded that when the petitioner made a representation dated 28.01.2000 pointing out that she was not permitted to have the assistance of an advocate, the same was not at all considered. 4. The respondent filed a counter affidavit denying all the allegations. It is stated that the representation made by the petitioner on the report of the Enquiry Officer was considered by the disciplinary authority before passing the impugned order. It is further stated that the petitioner did not make representation to the Enquiry Officer to engage a lawyer during the enquiry. 5. Heard both sides. 6. The learned counsel appearing for the petitioner has usefully relied on the order of the Tribunal dated 24.03.1995 in O.A.No.1710 of 1995 and submits that the impugned order is in contravention of the aforesaid order of the Tribunal passed earlier. The learned counsel has taken this Court through the lengthy representation made by the petitioner, complaining that she was not permitted to have the assistance of Advocate. In the representation, she also pointed out that there was no legal evidence in support of the charge. She also dealt with the deposition of the witnesses in the enquiry and pointed https://hcservices.ecourts.gov.in/hcservices/ out that the charge was not established. But the disciplinary authority passed a cryptic order without even referring to the representation dated 28.01.2000. Therefore, the reply filed by the respondent before this Court should be rejected as false. 7. On the other hand, the learned Additional Government Pleader has vehemently argued that the petitioner was given all the opportunities and there is no infirmity in the impugned order. 8. I have considered the submissions made on either side. 9. The petitioner was issued with a charge memo dated 28.12.1994 under Rule 17(b) of the Tamil Nadu Civil Supplies (Discipline & Appeal) Rules. The allegation was that it was an insubordination on the part of the petitioner namely refusing to sign in the circular informing her about her duties and responsibilities. According to the petitioner, she is an illiterate and therefore she is not aware of the circular and therefore, she wanted to take it to her advocate and thereafter, she would sign on the next day. When she came on the next day to sign, she was not permitted to sign the circular. On the other hand, it is stated that she was placed under suspension and thereafter, a charge memo was issued. It is not in dispute that the petitioner approached the Tribunal by filing O.A.No.5895 of 1994, questioning the suspension and the Tribunal granted stay of suspension order dated 19.11.1994. The charge memo dated 28.12.1994 was issued as stated above. The petitioner sought permission to have the assistance of Advocate and the same was refused. Hence, she approached the Tribunal by filing O.A.No.1710 of 1995. The Tribunal passed an order dated 24.03.1995, permitting the petitioner to have the assistance of an advocate. The said order of the Tribunal is enclosed at Page 16 and the same is extracted hereunder: "While admitting the above Original Application this Tribunal made the following order: The learned counsel for the applicant says that the respondents had refused permission to the applicant to engage an advocate. After hearing both sides, we direct the respondents to permit the applicant to be represented by the counsel in the department enquiry, pursuant to the enquiry notice in accordance with law. Two weeks time is given to engage a lawyer. " 10. The enquiry was conducted and the Enquiry Officer found that the charge was proved. Based on the report, the impunged order dated 23.02.2000 was passed, imposing the punishment of reduction of pay by one stage for one year without cumulative effect. 11. The report of the enquiry officer was furnished to the https://hcservices.ecourts.gov.in/hcservices/ petitioner and the petitioner was asked to make further representation thereon. The petitioner made further representation dated 28.01.2000 and the representation is enclosed at page No.17 of the typed set. In the representation, the petitioner has categorically stated that she was not permitted to have the assistance of the lawyer in the enquiry and whenever she took the lawyer, the lawyer was not permitted to participate in the enquiry. The said action of the enquiry officer was in contravention and violative of the order of the Tribunal referred to above. The petitioner also complained that the hearing was conducted many a time. The Department witnesses were not present and she also explained that the charges were not made out in the enquiry. When the respondent passed the punishment order dated 23.02.2000, there was not even a reference about the representation dated 28.01.2000. When the petitioner made a categorical assertion that she was not permitted to have the assistance of the lawyer, the same was not at all dealt with by the respondent in the impugned order dated 23.02.2000. When the petitioner also gave her detailed reply as to how the charge was not made out, the same was not considered by the respondent. On the other hand, the counter affidaivt is filed stating that representation dated 28.01.2000 was considered while passing the punishment order. 12. On a perusal of the punishment order, there is no reference to the said representation dated 28.01.2000. Hence, the averments made in the counter affidavit in para 12 and 13 and 14 cannot be relied on, particularly, when there is nothing stated in the order dated 23.2.2000 about the representation of the petitioner dated 28.01.2000. 13. In these circumstances, I am of the view that the impugned order is liable to be quashed and the same is accordingly quashed. In the normal circumstances, I could have directed the respondent to pass orders after considering the representation dated 28.01.2000. But I am not inclined to do the same in this matter as the petitioner was aged about 59 years even in the year 2001 when she filed the original application in O.A.No.4288 of 2009. 14. In the result, the writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ogy https://hcservices.ecourts.gov.in/hcservices/ To Deputy Commissioner of Police, Head Quarters, Office of the Commissioner of Police, Egmore, Chennai – 600 008. +1cc to Govt. Pleader Sr 41368 VD(CO) km/19.8. W.P.No.49514 of 2006 https://hcservices.ecourts.gov.in/hcservices/