1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.9038 of 2011 S.Sangili : Petitioner Vs. 1.The Commissioner of Police, Chennai Suburban Police, St.Thomas Mount, Chennai-16. 2.The Deputy Commissioner of Police, Chennai Suburban Police, St.Thomas Urban, Chennai-16. : Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Manadamus, to call for the records pertaining to the impugned order dated 28.04.2011 passed by the 1st respondent in PR.No.H2/787/80010/2010 and quash the same and consequently direct the 1st respondent to take the appeal filed by the petitioner dated 09.04.2011 on file and dispose of the same on merits. For Petitioner : Mr.R.Vijayakumar For Respondents : Mr.T.S.Mohamed Mohideen Additional Government Pleader ORDER Rejection of an appeal dated 11.04.2011, against the order of dismissal from the Police Department dated 11.02.2011 passed by the Deputy Commissioner of Police, Head Quarters, Chennai Suburban Police on the ground that the appeal is belated, is challenged in the present writ petition. 2.Pleadings and material on record shows that the petitioner was involved in a criminal case in C.C.No.82/2010 under Sections 341, 294(b) r/w 3 & 4 of Women Harassment Act. In C.C.No.82/2010, the learned Judicial Magistrate, Srivilliputhur, by a judgment dated 21.12.2010, convicted him. Departmental proceedings were also initiated against the petitioner by issuing a charge-memo, for which the petitioner seemed to have submitted an explanation. An enquiry has been conducted. However, pursuant to the conviction recorded by the learned Magistrate, Srivilliputhur dated 21.12.2010, the petitioner has been issued with a show-cause notice by the Deputy Commissioner of Police, Head Quarters, Suburban Police calling for an explanation as to why a punishment of dismissal from service shall not be inflicted on him in accordance with Article 311(2) of Constitution of India. Though the Deputy Commissioner of Police, Head Quarters, Suburban Police issued a show-cause notice calling an explanation, it appears that the petitioner has not submitted any explanation within the stipulated time i.e 7 days in the above said circumstances, the Deputy Commissioner of Police, Head Quarters, Suburban Police has dismissed the petitioner from service by an order dated 11.02.2011 with effect from 21.12.2010. https://hcservices.ecourts.gov.in/hcservices/ 2 3.It is the case of the petitioner that against the order of dismissal, as per Rule (9) of the TamilNadu Police Subordinate Services (Discipline and Appeal) Rules 1955, an appeal has to be preferred within one month from the date of receipt of a copy of this order and an appeal shall not 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 has 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. 4.It is the further case of the petitioner that the dismissal order has been served on him on 16.02.2011. There was a delay in preparing certain copies of documents relied on by the authority, to be heard an appeal and in such circumstances, he preferred an appeal on 09.04.2011. The delay was not wilful. Taking into consideration of the fact that if it is preferred within two months from the date on which a copy of the order appealed against was communicated to the appellant, including the period provided under the proviso, the Commissioner of Police ought to have condoned the delay, though he has powers to condone the delay. But he has not exercised his discretionary power and hence this writ petition. 5.Heard the learned counsel appearing for parties and perused material on record. 6.Considering the limited scope of the writ petition, Mr.T.S.Mohammed Mohideen, Additional Government Pleader was put on notice and heard. 7.Rule 9 of the TamilNadu Police Subordinate Services (Discipline and Appeal) Rules 1955 deals with filing of appeal and the period of limitation, and it reads as follows. “Rule 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 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 prefering 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.” 8.In the case on hand, it could be deduced from the pleadings and supporting affidavit that pursuant to the conviction, the petitioner was https://hcservices.ecourts.gov.in/hcservices/ 3 dismissed from service with effect from 21.12.2010 i.e the date of judgment by the learned Judicial Magistrate, No. I, Srivilliputhur in C.C.No.82 of 2010 vide proceedings Rc.No.H2/787/80010/2010-CSPO No.2633 of 2011 dated 11.02.2011. According to the petitioner, the punishment order has been received on 16.02.2011. Therefore as per Rule 9 of the TamilNadu Police Subordinate Services (Discipline and Appeal) Rules 1955, an appeal ought to have been filed within 15.03.2011. However, the appeal has been received on 11.04.2011. As rightly contended by the learned counsel for the petitioner, there is a proviso to Rule 9 empowering the appellate authority, to consider as to whether the petitioner has shown sufficient reason for not preferring the appeal within the said period, the same ought to have been exercised. The appeal, can be entertained if it is preferred within a period of two months from the date on which a copy of the order appealed against was communicated, if sufficient cause is shown. Hence, this court is inclined to set aside the impugned order. The delay in preferring the appeal is directed to be condoned and that, the Commissioner of Police, Head Quarters, Chennai Suburban Police is directed to pass orders on the appeal dated 09.04.2011, received on 11.04.2011 on merits and in accordance with law, within a period of two months from the date of receipt of a copy of this order. The petitioner may be provided with a reasonable opportunity as per the rules. 9.This Writ Petition is ordered accordingly. No costs. SD/- Assistant Registrar (AS) /True copy/ Sub Assistant Registrar(C.S) To 1.The Commissioner of Police, Chennai Suburban Police, St.Thomas Mount, Chennai-16. 2.The Deputy Commissioner of Police, Chennai Suburban Police, St.Thomas Urban, Chennai-16. +1. CC to Mr.R.Vijayakumar, Advocate, SR.No. 27255 +1. CC to the Special Government Pleader, SR.No. 27432 vs W.P.(MD)No.9038 of 2011 11.08.2011 TR : 23.08.2011 : 3p/5c https://hcservices.ecourts.gov.in/hcservices/