IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 24-07-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.49448 of 2006 (O.A.No.664 of 2001) K.Selvaraj .. Petitioner. Versus 1.Secretary to Government, Home (Police V) Department, Fort St. George, Chennai-9. 2.Director General of Police, Chennai-4. .. Respondents. Prayer: Original Application No.664 of 2001 filed before the Tamil Nadu Administrative Tribunal, on abolition, transferred to the file of this Court and renumbered as Writ Petition No.49448 of 2006, seeking for a writ of Certiorarified Mandamus to call for the records of the second respondent herein passed in Rc.No.126034/Con 3(1)/87, dated 27.8.1999 and the orders passed by the first respondent herein in his G.O.Ms.3(d) No.90 Home (Pol.V) Department, dated 19.6.2000 and quash the same and consequently direct the respondent to reinstate the petitioner in service with all consequential monetary and service benefits. For Petitioner : Mr.S.Ravi For Respondents : Mr.V.Arun Additional Government Pleader O R D E R Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 2. The petitioner had joined the police service, as a Grade-II Police Constable, on 16.8.1978. He had received 20 rewards for his efficient service. There was only one minor punishment in his entire period of service. While so, the petitioner was served with a charge memo in P.R.205/PRII(1)/87, under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, alleging that, on 25.8.1984, he had attempted to rape one Ms.Subaidabee. An oral enquiry was conducted by the Assistant Commissioner of Police, Royapuram. https://hcservices.ecourts.gov.in/hcservices/ 3. On 28.10.1988, the enquiry officer had held that the charges had been proved. Based on the departmental proceedings, a criminal complaint had been registered against the petitioner, in Crime No.712/1984. The petitioner had been charge sheeted in the Sessions Court, Chennai, in S.C.No.159/91. On 10.2.1992, the petitioner had been acquitted by the Criminal Court. However, the Deputy Commissioner of Police, Flower Bazaar, Chennai, had passed final orders, on 24.7.1998, in P.R.205/87, imposing the punishment of compulsory retirement from service, holding that the charges had been proved. However, the disciplinary authority, had not considered the petitioner's further explanation and the acquittal by the Criminal Court. 4. Aggrieved by the punishment of compulsory retirement imposed on the petitioner, he had preferred an appeal to the Commissioner of Police, Chennai, on 17.8.1998. The appellate authority had passed an order on the appeal petition, on 30.11.1998, modifying the punishment of compulsory retirement to that of reduction of time scale of pay in three stages, for four years, with cumulative effect. Accordingly, he had directed that the petitioner should be reinstated in service. 5. Aggrieved by the modified punishment of reduction in the time scale of pay, the petitioner had preferred an appeal to the Director General of Police, Chennai, on 25.12.1998. Nso orders had been passed on the said appeal. However, without considering the appeal petition filed by the petitioner, the Director General of Police had issued a show cause notice, on 5.7.1999, proposing to impose a major penalty, contrary to Rule 15A of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. As per Rule 15A of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, the Head of the Department, cannot exercise the power of review, under Sub Rule 15A(ii), when an appeal is pending against the punishment imposed on the person who had preferred the appeal. Accordingly, the Director General of Police can exercise the power of review, under Rule 15A (ii), only in cases, where no appeal is pending and when an appeal does not apply to the appellate authority. Therefore, the show cause notice issued by the Director General of Police, is contrary to law and therefore, it is liable to be quashed. 6. It has been further stated that the petitioner had submitted his explanation to the show cause notice, on 27.7.1999. Thereafter, on 27.8.1999, the Director General of Police, without considering the petitioner's further explanation and without having jurisdiction, had passed final orders, imposing the punishment of compulsory retirement from service on the petitioner. Aggrieved by the said order, the petitioner had preferred an appeal to the Government, on 11.10.1999. On 19.6.2000, the first respondent had rejected the petitioner's appeal petition, by a non-speaking order, in G.O.3(d) No.90, Home (Police.V) Department, dated 19.6.2000. The said order of the appellate authority is contrary to Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. Once the petitioner had been acquitted by the Criminal Court, on the same set of facts, he cannot be compulsorily retired from service, by the https://hcservices.ecourts.gov.in/hcservices/ second respondent herein. The second respondent had passed the impugned order without holding a fresh oral enquiry, contrary to the proviso to Rule 15A of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. Since there was no evidence to substantiate the charge levelled against the petitioner, it is a case of no evidence. As such, the order of the second respondent, dated 27.8.1999, and the order of the first respondent, dated 19.6.2000, are illegal and void. 7. In the reply affidavit filed on behalf of the respondents, the allegations made by the petitioner had been denied. It has been stated that the petitioner was serving in N3, Muthialpet Police Station, Chennai. He was arrested, on 26.8.1984, in N1, Royapuram Police Station, in Crime No.712/1984, under Section 376 of the Indian Penal Code, for having outraged the modesty and for having raped Ms.Subaidabee, on 25.8.1984. Based on the enquiry conducted by the revenue authorities and in view of their findings, the Government had ordered, both disciplinary action, as well as criminal prosecution, to be initiated against the petitioner, vide G.O.Ms.No.857, Public (Law and Order), dated 8.6.1987. While so, the criminal prosecution initiated against the petitioner, in S.C.No.159/1991, under Section 354 and 376 of the Indian Penal Code, ended in acquittal, on 10.2.1992, due to the delay of seven years in charging the case and on the benefit of doubt being given to the accused. However, the disciplinary proceedings, under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, were pursued. Based on the findings of the Assistant Commissioner of Police, Royapuram, who was the enquiry officer, the Deputy Commissioner of Police, Flower Bazaar, who was the disciplinary authority, had awarded the punishment of compulsory retirement to the petitioner, vide orders in City Police Order No.459/98, dated 24.7.1998, in PR.No.205/PRII(1)/ 87. 8. On the appeal filed before the appellate authority, namely, the Commissioner of Police, Chennai City, the punishment was modified to that of reduction of pay in three stages, for four years, with cumulative effect, vide orders in City Police Order No.2323/1998, in Appeal 32/PRI(3)/98, dated 30.11.1998. However, on suo moto review, the Director General of Police had compulsorily retired the petitioner, vide his proceedings No.126034/Con.3(1)/87, dated 27.8.1999. The mercy petition to the Government had also been rejected, vide G.O.3(d).No.90, Home (Police.V) Department, dated 19.6.2000. The show cause notice issued by the Director General of Police, on his suo moto review, on the punishment roll file, is valid in law. As the head of the Department, he had invoked the powers, under Section 15A(ii) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. 9. The learned counsel appearing on behalf of the petitioner had submitted that once a concerned criminal Court had acquitted the petitioner, the departmental proceedings pending against him, on identical charges, cannot be proceded with. Therefore, the punishment imposed on the petitioner, based on the departmental proceedings, cannot be sustained in the eye of law. As per the Proviso to Rule 15A https://hcservices.ecourts.gov.in/hcservices/ of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, the second respondent has no jurisdiction to impose or enhance the punishment, without disposing of the appeal, which was pending. Therefore, the punishment which has been imposed on the petitioner, by the second respondent, is without jurisdiction and liable to be quashed. Further, there is no evidence to hold that the charge against the petitioner had been proved. The Criminal Court, which had tried the case, had acquitted the petitioner. As such, the petitioner cannot be held to be guilty of the charge alleged against him. Therefore, the impugned orders of the respondents, imposing the punishment of compulsory retirement on the petitioner, is erroneous, illegal and void. 10. In view of the contentions raised by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to quash the impugned proceedings of the respondents, imposing the punishment of compulsory retirement from service imposed on the petitioner. The charge levelled against the petitioner that he had molested and attempted to rape his neighbour's daughter, Ms.Subaidabee, was held to be proved by the enquiry officer, namely, the Assistant Commissioner of Police, Royapuram. Thereafter, a a criminal complaint had been registered against the petitioner, in Crime No.712 of 1984 and he was charge sheeted before the Sessions Court, at Chennai, in S.C.No.159 of 1991, under Section 376 of the Indian Penal Code. Even though the petitioner had been acquitted in the criminal proceedings, on 10.2.1992, as the criminal offence alleged against the petitioner could not be proved beyond doubt. However, the Deputy Commissioner of Police, Flower Bazaar Police Station, Chennai, had passed final orders, on 24.7.1998, in P.R.No.205 of 1987, imposing the punishment of compulsory retirement from service, on the petitioner. On the appeal filed by the petitioner, the appellate authority, namely, the Commissioner of Police, Chennai City, has modified the punishment of compulsory retirement imposed on the petitioner into that of reduction of pay by three stages, for four years, with cumulative effect, by his order, dated 30.11.1998. However, on a suo moto review, the Director General of Police has compulsorily retired the petitioner from service, vide his orders, dated 27.8.1999, on the ground that an attempt to rape a woman by a person duty bound to uphold the rule of law, is a serious delinquency and therefore, no leniency can be shown in favour of the petitioner. Thereafter, the Government had rejected the mercy petition of the petitioner, vide G.O.3(d) No.90, Home (Police.V) Department, dated 19.6.2000. 11. In view of the facts and circumstances of the case, the contentions raised on behalf of the petitioner cannot be countenanced. The charge alleged against the petitioner is serious in nature and since it has been found to have been proved by the enquiry officer, who had conducted the enquiry into the charges, no leniency can be shown to the petitioner. The petitioner being a police man, should have been a protector rather than being the perpetrator of a heinous crime. Even though he had been acquitted by the Sessions Court, in the https://hcservices.ecourts.gov.in/hcservices/ criminal case, in S.C.No.159 of 1991, it was not a Honourable acquittal, as it was based on the benefit of doubt being given in favour of the petitioner. 12. The contention of the learned counsel for the petitioner that the second respondent ought not to have imposed the punishment of compulsory retirement from service on the petitioner, by invoking the power of suo moto review, cannot be accepted. On the appeal filed by the petitioner, the appellate authority, namely, the Commissioner of Police, Chennai City, had modified the punishment of compulsory retirement into reduction in pay by three stages, for four years, with cumulative effect, vide his orders, dated 30.11.1998. However, the Director General of Police, invoking his power of suo moto review, had ordered the imposition of punishment of compulsory retirement on the petitioner. The said punishment had been imposed on the petitioner, only after a show cause notice had been issued to him, in accordance with law, by invoking his powers, under Section 15A(ii) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. As such, there is no illegality in the impugned order of the Director General of Police, dated 27.8.1999. Therefore, the mercy petition filed by the petitioner had also been rejected by the Government, in G.O.3(d) No.90, Home (Police.V) Department, dated 19.6.2000. In such circumstances, it is clear that the writ petition is devoid of merits. Hence, it stands dismissed. No costs. csh Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Secretary to Government, Home (Police V) Department, Fort St. George, Chennai-9. 2.The Director General of Police, Chennai-4. + 1 cc to Mr. S. Ravi, Advocate, SR No.34441 + 1 cc to the Government Pleader, SR No.34828 Writ Petition No.49448 of 2006 DM(CO) SR/14.8.2009 https://hcservices.ecourts.gov.in/hcservices/ 24-07-2009 https://hcservices.ecourts.gov.in/hcservices/