1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/06/2011 C O R A M THE HONOURABLE Mr.JUSTICE K.VENKATARAMAN Writ Petition (MD) No.1690 of 2011 V.P.Sureshkumar ... Petitioner Vs 1.The Deputy Inspector General of Police Armed Police, Trichy. 2.The Commandant TSP XI Battalion, Rajapalayam. ... Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records and quash the order of dismissal dated 26th March 2010 in C.No.D1/PR.20/2009, B.O.151/2010 on the file of the second respondent and the order dated 26th May 2010 in C.No.A2/Appeal.8/2010 on the file of the first respondent and direct the respondents to reinstate the petitioner in service with all consequential monetary and service benefits. For petitioner ...Mr.P.Samuel Gunasingh For Respondents ...Mr.T.S.Mohammed Mohideen Additional Government Pleader O R D E R The petitioner has filed the present Writ Petition challenging the order of dismissal passed by the second respondent dated 26.03.2010 and the order passed by the first respondent, the appellate authority, dated 26.05.2010, confirming the order of the second respondent. 2. The petitioner was appointed as a police constable in the year 2008. Certain charges have been levelled against him. After framing charges and after holding enquiry, he was dismissed from service by the order of the second respondent dated 26.03.2010. The petitioner preferred an appeal before the first respondent raising more than nine grounds. While so, without considering the grounds raised by the petitioner, the first respondent has passed the impugned order dated 26.05.2010 confirming the order of the second respondent. Hence, the petitioner has come up with the present writ petition challenging those orders. 3. The learned counsel appearing for the petitioner mainly contended that the appellate authority, namely, the first respondent has passed a non-speaking order without dealing with the grounds raised in the appeal preferred before him. Hence, according to the learned counsel appearing for the petitioner, the impugned order of the first respondent, dated 26.05.2010, is liable to be set aside. He has relied on the decision reported in 2006 (4) MLJ 1382 (K.Kandasamy v. Deputy Inspector General of Police, Tiruchirappalli Range, Tiruchirappalli and Another) and other decisions rendered by this Court. 4. However, the learned Additional Government Pleader contended that the first respondent has considered the grounds raised by the petitioner and thereafter has passed the impugned order confirming the order of the second respondent. https://hcservices.ecourts.gov.in/hcservices/ 2 5. I have considered the submissions made by the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 6. As rightly pointed by the learned counsel appearing for the petitioner, the first respondent has not considered the several grounds raised by the petitioner in his appeal. In order to appreciate the said contention, it would be useful to extract the order that has been passed by the first respondent in paragraph 5. “5.I have carefully gone through the P.R.file, appeal petition on PC 3037 Sureshkumar and other connected records. The appellant has not put forth any fresh points in his appeal petition. The appellant had and illegal intimacy with one Vanitha, D/o.Durai of Athuvali Village, Tirunelveli District. Based on the complaint preferred by Vanitha a case was registered against the PC 3037 Sureshkumar in Vasudevanallur P.S. Cr.No.187 of 2009 u/s.417, 420, 376, 294 (b), 506(ii) IPC and read with 4 of Tamil Nadu Prohibition of Women Harassment Act on 17.08.2009. The appellant has spoiled the image of the police. Hence I agree with the findings of the enquiry officer I declined to interfere in this PR file. Hence, the appeal petition is rejected.” The above extracted order shows that the first respondent has not considered the several grounds raised by the petitioner. In fact, the grounds of appeal enclosed in the typed set of papers reveals that the petitioner has raised more than 9 grounds to set aside the order passed by the second respondent. Thus, I am of the considered view that the first respondent has passed the impugned order without dealing with the points raised by the petitioner. 7. This Court has held that when an appeal has been preferred questioning the order of the original authority, the appellate authority is expected to pass a speaking order dealing with the grounds raised in the appeal. However, the first respondent has not passed a speaking order. Paragraphs 7,8 and 9 of the order made by this Court in the judgment reported in 2006 (4) MLJ 1382 (K.Kandasamy v. Deputy Inspector General of Police, Tiruchirappalli Range, Tiruchirappalli and Another) is usefully extracted hereunder: “7. It is seen from the aforesaid portion of the impugned order that the Appellate Authority did not deal with any of the grounds of appeal raised by the petitioner. A departmental appeal is a continuation of the original proceedings. It is needless to point out that the last opportunity available for a delinquent, to canvass his case on merits, is at the appellate stage. After the appeal, a delinquent loses his right to challenge any disciplinary proceedings on merits, sine the scope of interference on a revision or on a writ petition is very limited. Therefore, the rules themselves contemplate Appellate Authorities to go into the factual details and consider all the grounds of appeal before deciding an appeal. Unfortunately, the first respondent has chosen to dismiss the appeal by a non-speaking order and hence the Appellate Authority's order is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 3 8. A similar question came up for consideration before this Court in Arokiadoss v. Deputy Commissioner of Police, Law and Order (South) Madras-8 and Another 1989 WLR 274. In the said case also, an identical order similar to the one involved in the present case was passed by the Appellate Authority. Therefore, after considering the scope of the powers conferred upon the Appellate Authority, this Court held as follows in paragraph 3: “3.Rule 6(1) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 reads as follows: “In the case of an appeal against an order imposing any penalty specified in Rule 2, the Appellate Authority shall consider: (a) Whether the facts on which the order was based have been established; (b) Whether the facts established afford sufficient ground for taking action; and (c)Whether the penalty is excessive, adequate or inadequate, and after such consideration shall pass orders as it thinks proper.” The rule enjoins the concerned authority to consider the three aspects set out therein specifically. Unless the Appellate Authority considers them it cannot be said that it has carried out its duties properly. The Supreme Court had occasion to discuss a similar question under Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Dealing with the word 'consider' used in the said rule, the Supreme Court observed that the word 'consider' implies due application of mind - R.P.Bhatt v. Union of India AIR 1686 SC 1040. The following paragraph in the above judgment of the Supreme Court can be usefully referred to with advantage: “The word 'consider' in Rule 27(2) implies 'due application of mind'. It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider: “(1) Whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) Whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) Whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc., the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in Clauses (a), (b) and (c) thereof.” There is no indication in the impugned order that the Director-General was satisfied as to whether the procedure laid down in the Rules had been complied with and if not, https://hcservices.ecourts.gov.in/hcservices/ 4 whether such non-compliance had resulted in violation of any of the provisions of the constitution or in failure of justice. We regret to find that the Director-General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were unwarranted by the evidence on record. It seems that he only applied his mind to the requirement of Clause (2) of Rule 27(2) viz., whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non- compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director-General is liable to be set aside.” 9. Thus, it is clear that the Appellate Authority's order is in violation of the rules relating to disposal of appeals and consequently, it is liable to be set aside. Therefore, the writ petition is allowed. The order passed by the first respondent dated 29.09.1995 is set aside and the matter remitted back to the first respondent for a fresh disposal on merits in accordance with law and the said exercise shall be completed by the first respondent within a period of four months from the date of receipt or production of a copy of this order. No costs.” 8. Considering the above facts and circumstances and considering the order referred to above, I am of the considered view that the impugned order of the first respondent is liable to be set aside and accordingly set aside. The Writ Petition stands allowed and the matter is remitted to the first respondent for passing orders, if he chooses to do so. The said exercise has to be carried out by the first respondent within a period of six weeks from the date of receipt of a copy of this order. No costs. Consequently connected miscellaneous petition is closed. Sd/- Deputy Registrar(Accounts) /True copy/ Assistant Registrar To 1.The Deputy Inspector General of Police, Armed Police, Trichy. 2.The Commandant, TSP XI Battalion, Rajapalayam. ] Copy to : The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai. +1 CC to the Special Government Pleader, SR.No.18509 RR W.P.(MD) No.1690 of 2011 and M.P.No.1 of 2011 14.06.2011 TR : 29.06.2011 : 4p/5c https://hcservices.ecourts.gov.in/hcservices/