IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.09.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.No.42322 of 2006 ....... R.Sundar ... Petitioner Vs. 1. The Deputy Inspector General of Police, Villupuram Range, Vilupuram. 2. The Superintendent of Police, District Police Office, Cuddalore, Cuddalore District. ... Respondents Prayer: The Writ Petition came to be numbered under Article 226 of the Constitution of India by transfer of O.A.No.45 of 1999 on the file of the Tamil Nadu Administrative Tribunal praying to call for records on the file of 2nd respondent in D.O.547/98 C.No.S2/P.R.103/96, P.R.103/96 u/r 3(b) dated 13.05.1998 and order passed in appeal by the 1st respondent in his proceedings in C.No.B3/A.P.59/98 dated 01.12.1998 and quash the same and consequently directing the respondent to reinstate the applicant into service with all attendent benefits. For Petitioner : Mr.V.Ravi Kumar For Respondents : Ms.C.Devi, Government Advocate ..... https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner was enlisted as Grade-II Constable in the year 1975. In the 1993, he was upgraded as Grade-I Constable. The 2nd respondent issued an order dated 16.11.1993 reposting the petitioner to Cuddalore District from Prohibition Enforcement Wing, Chengai. The petitioner filed O.A.No.7153 of 1993 questioning the order dated 16.11.1993 and that original application was allowed on 26.11.1993. Pursuant to the same, the 2nd respondent cancelled the transfer order on 10.12.1993. 2. The 2nd respondent again by another order dated 26.06.1994 reposted the petitioner to Cuddalore District. According to the petitioner, the said order was not served on him. But he was paid salary upto 30.06.1994. 3. By an order dated dated 19.08.1994, he was declared as a deserter with effect from 26.06.1994. He filed O.A.No.5079 of 1995 against the order of desertion dated 19.08.1994. The order of the Tribunal passed on 22.12.1995 is extracted hereunder: "4.Taking that view of the matter, the following order is passed:- "The 2nd respondent is directed to give the applicants postings by allowing them to join duty or take such disciplinary proceedings against them as deemed fit. The applicants are at liberty to urge other relief, if they are so advised, at any later point of time." 4. In compliance of the said order, he was taken back to duty on 29.01.1996. Thereafter, the 2nd respondent issued a charge sheet dated 05.09.1996 under Rule 3 (b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeals) Rules, 1955. The crux of the allegations therein is: (i)The petitioner refused to receive official communication. (ii)He made false allegations against his superiors in various representations. (iii)The petitioner deserted from duty with effect from 26.06.1994. https://hcservices.ecourts.gov.in/hcservices/ 5. The petitioner gave a detailed explanation denying the charges by letter dated 27.02.1998. 6. While issuing the charge sheet, dated 05.09.1996, by another order dated 05.09.1996 the 2nd respondent appointed an Enquiry Officer, before considering the explanation of the petitioner. 7. The petitioner sent a representation dated 25.02.1997 requesting to furnish him various documents that are relevant to putforth his case. He also made representations dated 17.03.1992 and 20.04.1997 to furnish the documents. But the documents were not furnished. Without furnishing the documents the enquiry was conducted. In the enquiry, five witnesses were examined. The Enquiry Officer gave a report on 15.12.1997 holding that the charges were established . The Enquiry Officer declared that the petitioner was unfit to be in the Police service. He also recommended for punishment. The findings of the Enquiry Officer was furnished to the petitioner. 8. The petitioner made a detailed representation dated 27.02.1998, pointing out that the findings were contrary to the evidence on record. But the 2nd respondent accepted the findings of the Enquiry Officer and passed a final order dated 13.05.1998 imposing punishment of dismissal from service, without applying mind. 9. The petitioner preferred an appeal to the 1st respondent and the appeal was rejected in proceeding dated 01.12.1998 by the 1st respondent. The petitioner filed O.A. No. 45 of 1999 (W.P.No.42322 of 2006) questioning the aforesaid order dated 13.05.1998 and 01.12.1998 of the 2nd respondent and 1st respondent respectively. While admitting O.A.No.45 of 1999, the Tribunal granted interim stay of the impugned order on 07.01.1999. Pursuant to the interim order, the petitioner was reinstated into service. He served for about eleven years and retired on 30.06.2010 on reaching the age of superannuation without prejudice to the out come of Writ Petition No.42322 of 2006. 10. The respondents filed reply affidavit refuting the allegations. 11. Heard the submissions made by Mr.V.Ravi Kumar, the learned counsel for the petitioner and Mrs.C.Devi, Government Advocate for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 12. The learned counsel for the petitioner submits that the Disciplinary Authority acted vindictively. Even before getting explanation on the charge sheet, the Disciplinary Authority issued an order dated 05.09.1996 appointing the Enquiry Officer, while issuing the charge memo dated 05.09.1996, in another proceeding. Secondly, the learned counsel for the petitioner submits that the petitioner was not given reasonable opportunity to putforth his case, as he was not furnished with the relevant documents sought for. No order was passed rejecting his request also. Thirdly, the learned counsel for the petitioner submits that when the petitioner made detailed representation pointing out how the Enquiry Officer arrived at conclusions in a perverse manner, the same was not dealt by the 2nd respondent, as the Disciplinary Authority as contemplated under Rule 3 (b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeals) Rules, 1955. Fourthly, the learned counsel for the petitioner submits that the Enquiry Officer exceeded his limit and acted in a biased manner and declared that the petitioner was unfit to be in Police service. Finally, he submits that when the petitioner sought for personal hearing, the 2nd respondent failed to hear him personally under Rule 3 (b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeals) Rules, 1955. 13. On the other hand, the learned Government Advocate submits that there is no infirmity in the impugned order. According to her, the petitioner was given reasonable opportunity in the enquiry. Since the petitioner belongs to uniformed service, the petitioner was dismissed from service as the charges were established in the enquiry conducted. 14. I have considered the submissions made by either side. 15. The petitioner successfully challenged the transfer order. The Tribunal quashed the transfer order. Thereafter, again another order in the same lines was issued. This time the 2nd respondent states that the petitioner refused to receive the same. On the other hand, the petitioner states that no order was communicated to him. The 2nd respondent issued an order dated 26.06.1994 reposting the petitioner to Cuddalore District. The 2nd respondent declared the petitioner as deserter by an order dated 19.08.1994 with effect from 26.06.1994. The petitioner filed O.A.No.5079 of 1995 questioning the aforesaid order dated 19.08.1994. The Tribunal disposed the O.A.No.5079 of 1995 on 22.12.1995 with the direction to the 2nd respondent to reinstate the petitioner in service. Accordingly, he was reinstated on 29.01.1996. Thereafter, the Disciplinary Authority initiated action under Rule 3 (b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeals) Rules, 1955. https://hcservices.ecourts.gov.in/hcservices/ 16. The crux of the allegations are that the petitioner deserted from duty from 26.06.1994. On the other hand he was paid wages upto 30.06.1994. Further, he immediately rushed to the Tribunal and the Tribunal directed the respondent to reinstate the petitioner in service. The desertion in service is the indication of the intention of the employee to leave the service. But the aforesaid facts make it clear that the petitioner had no intention to leave the service. However, I am not going into the merits of the case. 17. As rightly pointed out by the learned counsel for the petitioner, while the 2nd respondent issued a charge sheet dated 05.09.1996, the 2nd respondent issued another order dated 05.09.1996 appointing an Enquiry Officer even before the submission of explanation by the petitioner. Prima Facie this shows the biased attitude of the 2nd respondent. Further more, the 2nd charge is relating to certain allegations made by the petitioner in his representations. I have gone through those representations. Making this type of allegations and appointment of Enquiry Officer on the same day of issuance of charge sheet, indicate the mind of the 2nd respondent Disciplinary Authority. 18. Further more, the learned counsel for the petitioner is also correct in his submission that when the petitioner wrote three letters namely letters dated 25.02.1997, 17.03.1997 and 20.04.1997 requesting documents, but none of those documents were furnished. The 2nd respondent did not give any reply as to why the documents could not be furnished. The petitioner wanted the transfer orders and also other documents. In my view, without giving the documents asked for, the 2nd respondent / Enquiry Officer was not correct in concluding the enquriy. 19. The Enquiry Officer also exceeded his limit, as correctly pointed out by the learned counsel for the petitioner. The Enquiry Officer declared that the petitioner was unfit to be in Police Force and recommended for punishment. "vdnt. fl;Lg;ghL epiwe;j fhty;Jiw m';fj;jpduhf ,Uf;ft [k; jFjpaw;wth; Mfpwhh;/ muRf;F tpRthrkhd CHpauhf ,th; ele;Jf;bfhs;stpy;iy vd;gjhf jz;of;fg;gl ntz;oath; Mfpwhh;/" 20. Further, the petitioner made a detailed representation running to six pages explaining as to how the findings of the Enquiry Officer was perverse. The Rule 3 (b) (2) contemplates that the representations on the findings of the Enquiry Officer shall be taken into consideration before making any penalty. https://hcservices.ecourts.gov.in/hcservices/ 21. I have perused the representation dated 27.02.1998, which is a detailed representation. The petitioner analyzed the deposition of each witness and gave his remarks. But the 2nd respondent did not consider the same. The order of the 2nd respondent is cryptic without containing any reason as to why the representation of the petitioner was not acceptable to him. Hence, it is contrary to Rule 3 (b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeals) Rules, 1955. The impugned order of the 2nd respondent is extracted hereunder: "gpiHahsp kPJ rhl;lg;gl;l Fw;w';fs;. mtw;iw epU:g;gpf;Fk; Mtz';fs;. gpiHahspd; vjph;jug;g[ thjk; kw;Wk; tprhuiz mjpfhhpapd; jPh;g;g[iu Mfpatw;iw ftdkhfg; goj;njd;/ gpiHahspd; kPJ rhl;lg;gl;l Fw;w';fSf;F jFe;j Mtz';fs; cs;sd/ Mdhy; gpiHahspd; rkhjhd tpsf;fk; mtw;iw bka;g;gpg;gjhf ,y;iy/ Fw;w';fs; midj;Jk; bghpa Fw;w';fshf cs;sd/ vdnt tprhuiz mjpfhhpapd; jPh;g;gpid Vw;W gpiHahspia gzpePf;fk; bra;a MizapLfpnwd;/" 22. It is rightly contended by the learned counsel for the petitioner that Rule 3 (b) (i) of the Tamil Nadu Police Subordinate Services (Discipline and Appeals) Rules, 1955 contemplates that if the petitioner sought for personal hearing, the same should be given at any stage before final order is passed. The petitioner wrote a letter dated 15.12.1997 asking for personal hearing, but the petitioner was not given personal hearing. 23. Hence, in my considered view, the impugned orders of the 2nd respondent are not sustainable. The 1st respondent did not look into the aforesaid aspects and he mechanically passed the order simply confirming the order of the Disciplinary Authority. Normally, the matter will be remanded to the 2nd respondent to consider and pass fresh orders, in accordance with law. But I am not inclined to do so, as the petitioner served the department for eleven years and he retired from service on 30.06.2010 on reaching the age of superannuation. In the result, the impugned orders are quashed and the Writ Petition is allowed. No costs. va Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Deputy Inspector General of Police, Villupuram Range, Vilupuram. 2. The Superintendent of Police, District Police Office, Cuddalore, Cuddalore District. + 1 cc to Government Pleader, SR No.70309 + 1 cc to Mr. V. Ravikkumar, Advocate SR No.69833 SSN(CO) SR/6.10.2010 W.P.No.42322 of 2006 https://hcservices.ecourts.gov.in/hcservices/