IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 19.01.2010 CORAM THE HONOURABLE MR.JUSTICE D. HARIPARANTHAMAN W.P. No.33098 of 2006 (O.A.No.5956/1998) 1. P.J. Kennedy – deceased 2. Dissy 3. Alex Kennedy (minor) 4. Ashika Kennedy (minor) ... Petitioners Minors are rep by Natural Guardian & Mother as next friend B1/3, D1 Police Quarters Alandur, Chennai-16. (P2 to P4 are substitute as legal heirs and deceased petitioner as per order dated 12.1.2010 in M.P.1/2010 in W.P.33098/2006) -vs- 1. The Superintendent of Police, Chengalpattu East District, St. Thomas Mount, Chennai - 600 016 2. The Deputy Inspector General of Police, Chengalpattu Range, Teynampet, Chennai – 600 018 ... Respondents Prayer: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A. No.5956 of 1998 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records on the file of the second respondent herein connection with the order passed by him in Na.Ka.A3/4746/96 dated 08.07.1998 and quash the same and direct the respondents herein to reinstate the petitioner into service with all consequential service and monetary benefits. For Petitioners : Mr. K. Venkatraman, Senior Counsel for M. Muthappan For Respondents : Mr. S. Shivashanmugam, Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R The Original Application in O.A. No.5956 of 1998 before the Tamil Nadu Administrative Tribunal is the present Writ Petition. 2. The first petitioner was appointed as Grade I Police Constable. The first respondent issued a charge memo dated 30.12.1996 in P.R. No.415/96 under Rule 3(b) of Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 for the following delinquencies: (1) Gross misconduct and dereliction of duty in having friendship and good relationship with a notorious rowdy late Veeramani S/o. Srinivasan, No.258, 4th Street, Venkataraman Nagar, Hasthinapuram who was concerned in Chittalapakkam PS Cr.No.949/95 u/s.341, 324, 326 and 307 IPC altered into Section 302 IPC. (2) Gross dereliction of duty in not reporting the case of murder of Veeramani to the Inspector, Chittalapakkam PS. though he accompanied with the deceased Veeramani at the time of occurrence on 06.12.1996 at 17.30 hours in a motor cycle. (3) Failure to take treatment at Government Hospital, Chrompet as per the police hospital, Memo No.14/Hos/C4/95 dated 06.12.1995 of Chittalapakkam PS for the injuries sustained by him at the time of murder of rowdy Veeramani and had treatment in private hospital." 3. An enquiry was conducted and the enquiry officer held the charges were proved, in his findings dated 06.12.1997. Based on the findings, the first respondent passed an order dated 31.03.1998 imposing the punishment of reduction in the time scale of pay by two stages for two years with cumulative effect. While so, the second respondent, the appellate authority issued a show cause notice dated 19.05.1998 proposing to modify and award the major punishment by exercising suo moto power of review under Rule 15-A of the TNPSS(D&A) Rules and directed the petitioner to submit his reply. The petitioner submitted reply on 16.06.1998. The second respondent passed the impugned order dated 08.07.1998 imposing the punishment of dismissal from service. 4. The first petitioner filed O.A. No.5956 of 1998 (W.P. No.33098 of 2006) to quash the order dated 08.07.1998 of the second respondent and to direct the respondents herein to reinstate the petitioner into service with all benefits. https://hcservices.ecourts.gov.in/hcservices/ 5. While admitting the original application, the Tribunal granted interim order on 13.08.1998. In view of the interim order, the petitioner continued in the service till he expired on 16.02.2007. The petitioners 2 to 4 are the legal heirs of the first petitioner. 6. The respondents filed reply affidavit refuting the allegations made in the original application. 7. Heard Mr. K. Venkatraman, learned Senior Counsel for the petitioners and Mr. S. Shivashanmugam, learned Government Advocate for the respondents. 8. The learned senior counsel for the petitioners has made the following submissions: a) No reason was given for exercising suo moto power of review under Rule 15-A of TNPSS(D&A) Rules, 1955. b) Not mentioning specifically of the proposed punishment in the show cause notice is violative of Rule 15-A of TNPSS (D&A) Rules, 1955. c) The second respondent has no jurisdiction to invoke Rule 15-A before the expiry of the limitation period for appeal as prescribed under Rule 9 of TNPSS(D&A) Rules. d) When the major punishment was already imposed, the second respondent without applying his mind, issued the show cause notice proposing to award major punishment as if minor punishment was imposed. e) A new reason is found in the dimissal order which was not found in the show cause notice or in the earlier charge memo that let to the imposition of punishment, which is violative of the principles of natural justice. 9. The learned senior counsel submits that no reason was adduced by the second respondent for exercising its power of suo motu review under Rule 15-A of TNPSS(D&A) Rules. 10. I have gone through the show cause notice dated 19.05.1998 and I am not in agreement with the submissions made by the learned senior counsel. In para 3, the second respondent has given the reasons for exercising the suo moto review power. Para 3 of the show cause notice is extracted here under: "3. On suo-moto review of this P.R. File, it is found that though the delinquent has committed serious delinquencies which were proved beyond all reasonable doubt by the Enquiry Officer but he was awarded with a lesser punishment by the punishing https://hcservices.ecourts.gov.in/hcservices/ authority. The quantum of punishment imposed on the delinquent for such serious delinquencies is not adequate. Hence it is proposed to impose the major penalty." 11. The learned senior counsel for the petitioners has contended that non mentioning specifically of the penalty proposed would vitiate the entire proceedings as it is mandatory under Rule 15-A of the Rules to specifically put on notice about the penalty proposed. It is stated that the Rule was amended only by G.O. No.930, Home Department, dated 20.07.1998 subsequent to the issuance of the show cause notice dated 19.05.1998, making it not obligatory to specifically state the proposed punishment in the show cause notice. The Rule 15-A that stood prior to amendment is extracted here under: "Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making representation against the penalty proposed. Where it is proposed to impose any of the penalties specified in clauses (d), (e), (f), (h), (i) and (j) of rule 2(1) or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in sub rule (b) of rule (3) and after giving a reasonable opportunity to the Government servant concerned of showing cause against the penalty proposed on the evidence adduced during the inquiry and except after consultation with the Tamil Nadu Public Service Commission where such consultation is necessary." 12. The learned senior counsel has brought to my notice that by way of the amendment, the words "against the penalty proposed" in first proviso to Rule 15-A of the Rules was deleted. Hence as on 19.05.1998, there was a mandate on the part of the Appellate Authority to specifically mention about the proposed punishment in the show cause notice. As the second respondent failed to comply with the Rule 15-A, the impugned order is vitiated. 13. The learned senior counsel has further contended that the second respondent has no jurisdiction to invoke his power under Rule 15-A before the expiry of the period of appeal as provided under Rule 9 of the Rules. The Rule 9 is extracted hereunder: "9. Every appeal preferred under Rule 5 shall contain all material statements and arguments relied on by the appellant shall contain no disrespectful or improper language and shall be complete in itself. Every such appeal shall be https://hcservices.ecourts.gov.in/hcservices/ submitted through the head of the office to which the appellant belongs or belonged and through the authority from whose order the appeal is preferred. No appeal shall be admitted by the appellate authority if it has not been preferred within one month from the date on which a copy of the order appealed against was communicated to the appellant; Provided that if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within the said period, the appeal may be admitted by such authority if it is preferred within two months from the date on which a copy of the order appealed against was communicated to the appellant. Explanation:- Where the person concerned has absconded or where it is for any other reason impracticable to communicate with him, the period of one month referred to in this rule shall be counted from the date of the order appealed against." 14. As per the afore said Rule 9, the delinquent employee could prefer appeal upto two months from the date of the order imposing punishment. The first petitioner was imposed punishment on 30.03.1998. Therefore, the two months period expired only on 29.05.1998. But the second respondent initiated action under 15-A of the Rules by issuing show cause notice dated 19.05.1998. In this connection, Rule 15-A(2) is extracted here under: "(2) No proceeding for review shall be commenced until after., (i) the expiry of the period of limitation for an appeal, or (ii) the disposal of the appeal, where any such appeal has been preferred." 15. As per Rule 15-A(2), no proceeding for review shall be commenced before the period of limitation for appeal. The period for preferring appeal expired only on 29.05.1998. But, before the expiry of the period of appeal, the second respondent issued the show cause notice dated 19.05.1998. Hence, the same is without jurisdiction. 16. It is further contended that when the first petitioner was already imposed a major penalty as contemplated under Rule 3(b)(i), https://hcservices.ecourts.gov.in/hcservices/ the second respondent issued the show cause notice dated 19.05.1998 proposing to modify and impose major penalty. For imposing minor penalties as contemplated under Rule 3(a), no enquiry is necessary. For imposing any of the major penalties mentioned in Rule 3(b)(i), an enquiry is necessary. In this case, an enquiry was held and the reduction of pay by two stages for two years with cumulative effect was imposed. This punishment is one among the major punishments referred to in Rule 3(b). Therefore, the learned senior counsel is correct in his submission that without applying his mind, the second respondent stated that he decided to modify and impose a major penalty, while the first petitioner was imposed already a major punishment. 17. Further, the learned senior counsel has contended that a new allegation was stated in the impugned order, which was not found place in the show cause notice or in the earlier charge memo that let to the imposition of punishment. The learned senior counsel has drawn my attention to para 4 and 5 of the impugned order. This allegation was not stated either in the show cause notice dated 19.05.1998 or in the charge memo. It is an elementary principle of natural justice that no new charge could be made as a first time in the dimissal order. Hence the learned senior counsel is correct in his submission that the second respondent has violated the principles of natural justice in relying on some new facts which were not forming part of the earlier show cause notice or the charge memo. 18. Further the learned senior counsel has brought to my notice, the order dated 30.07.1998. The Tribunal, while granting interim stay, passed a detailed order giving reasons. The same is extracted here under: "Admit. Issue notice returnable by 13.08.1998. The learned counsel for the applicant submits that a charge memorandum dated 30.12.1996 was issued to the applicant on 3 counts, an enquiry was conducted, after considering the report of the Enquiry Officer, the first respondent imposed the punishment of reduction of increment by two stages with cumulative effect, the second respondent took up a suo motu review of the punishment imposed by the first respondent and by the proceedings dated 19.05.1998, the second respondent asked the applicant to show cause as to why a major penalty should not be imposed on the applicant. It is the contention of the learned counsel that in paragraph 4 of the notice dated 19.05.1998, the applicant was asked to show cause as to why the punishment imposed by the first respondent should not be modified and a major punishment awarded, whereas the first proviso to Rule 15-A(1) of the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Police Subordinate Service Rules requires the authority making a suo motu review to indicate the exact penalty proposed to be imposed. But, this was not done in this case and, therefore, the show cause notice issued to the applicant was contrary to the provision of the first proviso to Rule 15-A(1) of Tamil Nadu Police Subordinate Service Rules. The learned counsel also submits that in paragraphs 4 and 5 of the impugned order dated 08.07.1998, by which the second respondent imposed the punishment of dismissal from service on the applicant, the second respondent has taken into account the observations in the respondent in the sessions case with regard to the deposition of the applicant and held inter alia that the applicant had brought disrepute to the Police Department whereas no charge had been issued to the applicant regarding bringing disrepute to the police department and therefore, holding that the applicant had again disrepute to the deponent, amounts to denial of reasonable opportunity to the applicant to state his case and, therefore, the impugned order dated 08.07.1998 violates the principles of natural justice. In the circumstances, there will be an interim stay of the proceedings Na.Ka.No.A3/4746/96 dated 08.07.1998, issued by the second respondent, till 13.08.1998." 19. In view of the interim order, the petitioner served the department until his death and it is stated that the first petitioner died due to motor accident on 15.02.2007. 20. For the afore stated reasons, the impugned order is quashed and the Writ petition is allowed. No order as to costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vga To 1. The Superintendent of Police, Chengalpattu East District, St. Thomas Mount, Chennai - 600 016 https://hcservices.ecourts.gov.in/hcservices/ 2. The Deputy Inspector General of Police, Chengalpattu Range, Teynampet, Chennai – 600 018 1 cc to Mr.T.Ayngaraprabhu, Advocate, Sr.No.3322 1 cc to Government Pleader, Sr.No.3347 W.P. No.33098 of 2006 NSM {CO} TP/1.2.2010. https://hcservices.ecourts.gov.in/hcservices/