IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.49373 of 2006 (O.A.No.2816 of 2001) A.Ramachandran ...Petitioner Vs. The Additional Director General of Police and Commissioner of Police, Greater Chennai, Chennai - 08. ...Respondent Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, to call for the records of the impugned order RC.No.113/20419/PR.1 (2)/CPO/2000 and CPO 236/2001 dated 6.2.2001 (signed on 7.2.2001 and served on 8.2.2001) passed by the respondent herein and quash the same as null and void and against the principle of natural justice and consequently direct the respondent herein to allow the petitioner to continue his service with all service and monetary benefits with retrospective effect. For Petitioner : Mr.G.Thangavel For Respondents : Mr.R.Ravichandran,AGP O R D E R The petitioner, at the relevant time holding the post of Inspector of Police filed O.A.No.2816 of 2001 before the Tamil Nadu Administrative Tribunal, seeking to challenge an order dated 06.02.2001 passed by the Additional Director General of Police cum Commissioner of Police, Greater Chennai. 2. The petitioner was convicted for a criminal offence of demanding bribe of Rs.10,000/- for deleting the name of an accused Shanmugasundaram from a case registered by the Prohibition Enforcement Wing Police Station in Crime No.45/87 and accepting the first instalment of Rs.5,000/- on 02.03.1987 from the said accused. The petitioner was charge sheeted subsequently and tried before the Court of Chief Judicial Magistrate cum Additional 1st Additional Sessions Judge cum Special Judge, Tirunelveli in S.C.No.1/89. He was convicted and sentenced to one year R.I. together with a fine of Rs.2,000/- under each count for Section 161 IPC r/w Section 5(2) and 5(1)(d) of Prevention of Corruption Act. The sentences were directed to be run concurrently. The petitioner paid the total fine amount of Rs.5,000/- in the Court on the same day. The petitioner https://hcservices.ecourts.gov.in/hcservices/ thereafter filed an appeal before this Court in Criminal Appeal No.25 of 2001 and this Court on noticing that the fine amount had already been paid suspended the sentence of the Trial Court on furnishing sureties. 3. When the fact of the petitioner's conviction came to the knowledge of the respondents, he was given a show cause notice dated 10.01.2001 by the respondent.By the impugned order, it was informed that the petitioner had been convicted for an offence involving moral turpitude and hence, he had arrived at the provisional conclusion of dismissing the petitioner as per the provisions of Police Standing Order 59(1) of Vol.I. It was recorded by the officer that he had considered all aspects of his conviction and he was of the opinion that it was not desirable to retain him in service. The petitioner was given an opportunity to show cause against the proposed penalty. 4. The petitioner sent a reply dated 22.01.2001 requesting to grant extension of time for submitting his explanation. He had also stated that the case was registered in the year 1987 and he was facing trial from the year 1989 and since his health condition was not good, he was under medical leave. Accepting the petitioner's explanation, further time extension was given by a letter dated 25.01.2001. Thereafter, the petitioner sent a detailed representation dated 29.01.2001. Apart from contending that he had meritorious service, he also submitted that he had challenged the suspension order which was made pending criminal trial. The Tribunal in O.A.No.407 of 1994 by an order dated 16.02.1996 stayed the operation of the suspension order pursuant to which he was restored to duty on 31.12.1996. It was further stated that the trap case against him was made out of vengeance. He had also moved this Court in Criminal Appeal No.25 of 2001 and the sentence made against him was suspended as noted above. However, the respondent rejected the petitioner's case and by an order dated 06.02.2001, he was dismissed from service with effect from 29.12.2000 the day on which he was found convicted. It was also noted that this Court had granted only suspension of sentence. The petitioner, as a responsible officer in a disciplined force had failed to maintain absolute integrity and devotion to duty and he was caught in a trap case where he was convicted and therefore, the only punishment that has to be awarded is dismissal from service. 5. It transpires, in the meanwhile after granting time extension for replying to the show cause notice, the petitioner moved the Tribunal with O.A.No.1103 of 2001 challenging the show cause notice dated 10.01.2001. The Tribunal admitted the OA and granted interim stay by an order dated 09.02.2001. The petitioner in his reply sent to the respondent dated 29.01.2001 as against the second show cause notice did not mention about his moving the Tribunal challenging the show cause notice. Therefore, when the impugned order came to be passed on 06.02.2001, the Tribunal is yet to grant any interim order. It was thereafter, the Tribunal's interim order came into existence on 09.02.2001. https://hcservices.ecourts.gov.in/hcservices/ 6. The second Original Application (O.A.2816 of 2001) was admitted on 23.04.2001 and once again the Tribunal granted interim stay. Even though the respondents have filed a vacate stay application in M.A.No.5779 of 2001, the Tribunal did not take up the same for reasons best known to it. Aggrieved by the grant of interim stay, the respondent moved this Court with the writ petition being W.P.No.5439 of 2002 and challenged the order of ex party interim stay. A Division Bench of this Court presided by R.Jayasimha Babu,J. by an order dated 25.02.2002 granted an interim stay of the operation of the interim order granted by the Tribunal. Even before moving the Division Bench, the respondent in order to give effect to the interim stay granted by the Tribunal on 23.04.2001 restored the petitioner to service on 27.06.2001. The petitioner continued to be in service notwithstanding the Division Bench had granted stay of the order of suspension by an order dated 25.02.2002. 7. In the meanwhile, the petitioner had reached the age of superannuation on 29.07.2006. However, the respondent issued an order of suspension on 29.07.2006 placing the petitioner under suspension and he was not allowed to retire from service pending further orders on the Original Application. 8. In the original application, the respondent had filed a detailed reply affidavit dated 13.06.2001. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.49373 of 2006. 9. In the reply affidavit, it was stated that the petitioner while he was working in the Prohibition Exercise Wing at Tirunelveli Unit had involved in a criminal case. The Vigilance and Anti Corruption Police caught him in a trap case and he was charge sheeted before the Special Court at Tirunelveli in S.C.No.1/89 and he was convicted on two counts. The fact that this Court had suspended the sentence will not disable the respondent from taking action against the petitioner. The conduct of the petitioner in getting convicted in a criminal case involving moral turpitude and not only sentenced with rigorous imprisonment but also fined, he is unfit to be kept in service. Keeping such a person in the police force will spoil the morale of the Department. Since the conviction was on record, there is no impediment for the respondent from passing the impugned order. Reliance was placed upon the judgment of the Supreme Court in Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera reported in (1995) 3 SCC 377. Therefore, it was contended that the suspension of sentence is not a bar for taking further action. 10. However, when the matter came up today, the learned counsel for the petitioner stated that subsequently this Court by a judgment dated 04.12.2008 disposed of the criminal appeal and interfered with the sentenced made by the learned Special Judge. A copy of the said judgment dated 04.12.2008 in Criminal Appeal (MD) No.25 of 2001 was also produced for perusal by this Court. In https://hcservices.ecourts.gov.in/hcservices/ paragraphs 12 and 13, it was observed as follows:- "12. The above principle laid down by the Hon'ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case as in this case also the appellant/accused has undergone the ordeal of criminal proceedings nearly about 22 years and subjected to mental agony, expense and prolonged uncertainty of the result apart from losing his job and as such all these factors cannot be ignored by this Court and the same have to be taken into consideration while reducing the sentence. Therefore, in view of the above said mitigating circumstances, this Court is of the considered view that reducing the sentence of one year rigorous imprisonment for each offence imposed by the trial judge, viz., learned First Additional Sessions Judge-cum-Chief Judicial Magistrate, Tirunelveli in Special Case No.1 of 1989 by judgment dated 29.12.2000 to one of till rising of Court and further imposing a fine of Rs.15,000/- (Rupees Fifty thousand only), in default to undergo one year rigorous imprisonment would meet the ends of justice. The appellant/accused is directed to pay the fine amount of Rs.15,000/- (Rupees fifty thousand only) within a period of four weeks from the date of receipt of a copy of this order. 13. With the above modification in sentence, this appeal is disposed of." (Emphasis added) 11. He submitted that thanks to the order of the interim stay granted by the Tribunal. The petitioner had completed his tenure of service. But because of the pendency of the Original Application, he was not allowed to retire and he had also sent a representation dated 17.11.2009 bringing to the notice of the respondent about the modification of the conviction made by the court. A copy of the said representation was also produced in the form of additional typed set of papers. 12. In the typed set, the petitioner has also enclosed the appreciation and rewards received from the superior officers. In pages 3 to 5 of the additional typed set, he had enclosed photographs standing next to a judge of this Court while attending a function organised by the Mylapore Academy during its 49th Anniversary. The attempt made by the petitioner in placing such photographs of the petitioner standing on the same dais with a judge of this court for perusal by this court is a clear attempt to overreach the Court by illegal means. Such attempt by the petitioner through his counsel must be condemned as unethical and unwarranted exercise arguing such a writ petition. Even when this was pointed out, the learned counsel for the petitioner was not willing to express any regret and did not retract the photographs https://hcservices.ecourts.gov.in/hcservices/ filed in this regard. This had necessitated this Court for making comments on the conduct of the petitioner. It should be known to the counsel for the petitioner that such exhibits will no way influence the outcome of the decision of this court. 13. In fact the learned Judge's photographs with whom the petitioner was standing in the same dais in a function held at the Mylapore Academy is well known for his integrity, rectitude and strict views on rule of law. In fact it is the very same judge who had presided over the Division Bench and who had granted stay against the interim order passed by the Tribunal granting an ex parte stay in favour of the petitioner even against a show cause notice. Many time when Judges are invited to functions as a Chief Guest or a speaker, they attend such gatherings under the bonafide belief that the organisers of the function have contributed to the well being of the society in some form and therefore, there was nothing wrong for a Judge to accept a privilege or honour conferred on him while attending those functions. But during such functions, the Judge will be totally unaware of other persons who are invited to attend or who are likely occupy the stage or who are invited to receive either awards or momentos. It was one such occasion where the petitioner being a police officer of the area was called to the dais in which the Judge also sat as a special guest. The petitioner had no qualms in using one such photograph to buttress his own nefarious desires. The counsel appearing had made himself as an instrument in the hands of the petitioner in passing on such unwarranted materials for perusal by this court. The Bill relating to Judicial Standards and Accountability Bill 2010 which is pending consideration before the Parliament is now attempting to define the standards expected of a judge. It will be a sad day that Judges are to be told about the standards to be adopted in public life by Judges. 14. Leaving this small digression, the other legal contentions of the petitioner can be considered. The Tribunal had granted an ex parte stay in O.A.No.1103 of 2001 and subsequently also granted an interim stay against the dismissal order passed against the petitioner on 23.04.2001. The Tribunal did not give reasons for the grant of stay against the dismissal order. Even though it is well known that once a Government servant is dismissed, the same cannot be stayed by an ex parte interim order and that too without giving strong reasons. The Supreme Court time and again has held that it is only in case of a final order, appropriate relief can be granted because even in cases of dismissal, the loss or damages suffered by a Government servant can be compensated monetarily and if he has still remaining service to go he can be restored with all attendant benefits. Apart from the general Service Law relating to grant of discretionary interim order in the present case, the reasons found in the impugned order dated 06.02.2001 cannot be found fault with by the Tribunal. 15. In fact it is the very same Tribunal's order which went to the Supreme court in Nagoor Meera's Case (cited supra) was reversed by the Supreme Court. The Tribunal and Courts were https://hcservices.ecourts.gov.in/hcservices/ forewarned not to interdict such orders. The Tribunal is fully aware of its own decision was earlier reversed by the Supreme Court, which is also available in the form of a reported decision. But yet it had continued to grant such interim orders as a matter of course. The Tribunal's action is clearly repugnant to rule of law and creates disobedience of the orders passed by the Supreme Court. Now that the Tribunal is abolished and does not exist any more, no strictures can be passed against the conduct of the Tribunal. 16. In any event, the case projected herein has a complete answer in Nagoor Meera's case (cited supra). It is necessary to refer to the following passages found in paragraphs 8 to 10: "8. We need not, however, concern ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the "conduct which has led to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal. 9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this Court in Shankar Dass v. Union of India: (SCC p.362, para 7) https://hcservices.ecourts.gov.in/hcservices/ "Clause (a) of the second proviso to Article 311 (2) of the Constitution confers on the Government the power to dismiss a person from service ‘on the ground of conduct which has led to his conviction on a criminal charge’. But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly." 10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice." 17. From the above passage, it is clear that the competent authority need not wait for the outcome of the criminal appeal and a suspension of sentence does not efface the conviction on record. But in the present case, what was contended before the Tribunal and before this Court was after the removal of provision relating to second show cause notice found under Article 311(2) of the Constitution, the respondent cannot issue a notice in terms of PSO 59(1) of Volume I and inasmuch as show cause notice had already predetermined the imposition of penalty of dismissal, the show cause notice was invalid. 18. In answer to this allegation, in paragraphs 12 and 13 of the reply affidavit, it was averred as follows:- "12. Regarding the averments made in ground(a) it is submitted that Art.311(2) (a)(b)(c) provide that holding of enquiry is not necessary in case of person, on the ground of conduct which has led to his conviction, on a criminal charge. Hence the show cause notice was issued as prescribed in Rule 3C(i)(1) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955, just to give an https://hcservices.ecourts.gov.in/hcservices/ opportunity to the delinquent before passing final orders. 13. Regarding the averments made in ground (B) it is submitted that according to Tamil Nadu Police Subordinate Service (D & A) Rules 1955 rule 3c(i) (1), the delinquent Inspector / Applicant was given an opportunity to represent against the punishment proposed to be imposed on him as defined in rule 3 (a) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. Hence it is not correct to say that the punishment was pre- determined and issued without application of mind." 19. The stand of the respondent is fully in consonance with the constitution Bench of the Supreme Court in Union of India and another v. Tulsiram Patel reported in (1985) 3 SCC 398. It is necessary to extract the following passages from the said judgment: "114.So far as Challappan case is concerned, it is not possible to find any fault either with the view that neither clause (a) of the second proviso to Article 311(2) nor clause (i) of Rule 14 of the Railway Servants Rules is mandatory or with the considerations which have been set out in the judgment as being the considerations to be taken into account by the disciplinary authority before imposing a penalty upon a delinquent government servant. Where a situation envisaged in one of the three clauses of the second proviso to Article 311 (2) or of an analogous service rule arises, it is not mandatory that the major penalty of dismissal, removal or reduction in rank should be imposed upon the concerned government servant. The penalty which can be imposed may be some other major penalty or even a minor penalty depending upon the facts and circumstances of the case. In order to arrive at a decision as to which penalty should be imposed, the disciplinary authority will have to take into consideration the various factors set out in Challappan case1. It is, however, not possible to agree with the approach adopted in Challappan case1 in considering Rule 14 of the Railway Servants Rules in isolation and apart from the second proviso to Article 311(2), nor with the interpretation placed by it upon the word “consider” in the last part of Rule 14. Neither Rule 14 of the Railway Servants Rules nor a similar rule in other service rules can be looked at apart from the second proviso to Article 311(2). The authority of a particular officer to act as a disciplinary authority and to impose a penalty upon a government servant is derived from rules made under the proviso to Article 309 or under an Act referable to that article. As https://hcservices.ecourts.gov.in/hcservices/ pointed out earlier, these rules cannot impinge upon the pleasure of the President or the Governor of a State, as the case may be, because they are subject to Article 310(1). Equally, they cannot restrict the safeguards provided by clauses (1) and (2) of Article 311 as such a restriction would be in violation of the provisions of those clauses. In the same way, they cannot restrict the exclusionary impact of the second proviso to Article 311(2) because that would be to impose a restriction upon the exercise of pleasure under Article 310(1) which has become free of the restrictions placed upon it by clause (2) of Article 311 by reason of the operation of the second proviso to that clause. The only cases in which a government servant can be dismissed, removed or reduced in rank by way of punishment without holding an inquiry contemplated by clause (2) of Article 311 are the three cases mentioned in the second proviso to that clause. A rule which provides for any other case in which any of these three penalties can be imposed would be unconstitutional. Service rules may reproduce the provisions of the second proviso authorizing the disciplinary authority to dispense with the inquiry contemplated by clause (2) of Article 311 in the three cases mentioned in the second proviso to that clause or any one or more of them. Such a rule, however, cannot be valid and constitutional without reference to the second proviso to Article 311 (2) and cannot be read apart from it. Thus, while the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules, the source of his power to