1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:22/07/2011 CORAM THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.7695 of 2011 S.Raman :Petitioner -Vs- 1.The Deputy Inspector General of Police, Dindigul Region, Dindigul. 2.The Deputy Inspector General of Police, Madurai Region, Madurai. :Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari to call for the records relating the impugned charge memo dated 07.07.2011 in C.No.E1/7272/2011 issued by the first respondent and quash the same. For petitioner : Mr.G.R.Swaminathan For respondents : Mr.T.S.Mohamed Mohideen,Addl.Govt.Pleader ORDER An Assistant Commandant-I, who is due to retire on 31.07.2011, on attaining the age of superannuation, has been issued with a charge memorandum, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, (hereinafter referred to as 'the Rules') passed by the Deputy Inspector General of Police, Dindigul Region, Dindigul, on the ground that, while he was serving in Tirupparankundram Sub-Division, Madurai, he contacted Thiru. P.Arumugam, then Additional Superintendent of Police, Prohibition and Enforcement Wing, Madurai District over phone, at 21.15 hrs., on 14.07.2005 and threatened him, that he would send anonymous allegations against him to the Vigilance and Anticorruption Wing and to other higher officials, if he sends a report against the petitioner in the enquiry made by the said Officer, on a pseudonymous petition, purported to have been sent by one Sivakumar of Thirupparankundram. 2.Short facts as deduced by the support of the affidavit are as follows: The petitioner has joined the Police Department as Sub Inspector of Police in the year 1976 and gradually promoted to the post of Deputy Superintendent of Police on 10.07.2003. He was due for promotion for to the post of Additional Superintendent of Police in the year 2009-2010 itself. However, his probation was not declared during the relevant time. Though there was no impediment whatsoever, for declaring his probation, the authorities did not do so. An order of suspension came to be passed on unsustainable grounds. Even after reinstatement, the period of suspension continued to be unregularised. Therefore, to redress the grievance of not declaring his promotion in the post of Deputy Superintendent of Police and for regularising the period of suspension from 26.11.2005 to 07.12.2006, the petitioner filed two writ petitions before this Court in W.P.(MD)Nos.3208 and 3209 of 2010 respectively. This Court, after considering the rival submissions, passed a common order on 12.08.2010, and allowed the writ petitions and further directed the Director General of Police, Chennai, the second respondent therein, to declare the petitioner's probation as on 22.01.2006. Similarly, the suspension period was directed to be regularised. https://hcservices.ecourts.gov.in/hcservices/ 2 3.The petitioner has further contended that in order to frustrate implementation of the orders state supr and with a mala fide intention, a charge memorandum was issued on 22.12.2010 pertaining to on allegation of the year 2004-2005. The allegation related to the alleged lack of supervision on the part of the writ petitioner. Being prejudiced by the belated action, the petitioner was constrained to file another writ petition in W.P.(MD)No.130 of 2011 and this Court, by order dated 22.03.2011, allowed the same. On account of the delay in declaring probation, pendency of the charge memo dated 22.12.2010 and for other reasons, the case of the petitioner was not considered for promotion to the post of Additional Superintendent of Police Category-I for the year 2009-2010, though on the crucial date, there was no impediment. However, as the impediment stated supra were cleared by the orders of this Court, the petitioner once again approached this Court by filing another writ petition in W.P.(MD) No.4517 of 2011 for a direction to the respondents therein to promote the petitioner as Additional Superintendent of Police, Category I, for the year 2009-10. Having regard to the date, on which, the petitioner attains the age of superannuation, i.e. on 31.07.2011, this Court, by an order dated 15.06.2011, directed the authorities to pass suitable orders on or before 30.06.2011. It is submitted that to frustrate the career opportunity of the petitioner and contrary to the directions stated supra, the impugned charge memorandum dated 07.07.2011, has been issued. 4.It is his further contention that earlier, in respect of the very same subject matter, the petitioner was issued with a show-cause notice, dated 13.11.2009, under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. As the allegations required examination of witnesses, the petitioner thought it fit that a regular departmental enquiry should be conducted. Though, while denying the charge levelled against him, without prejudice to the above, by way of reply, dated 22.04.2010, to the memorandum, he requested the authorities to conduct a regular enquiry, so as to enable him to cross-examine the witnesses. Though the Superintendent of Police, Madurai District, has forwarded the explanation of the petitioner to the Director General of Police, Chennai on 27.04.2010, no orders were passed on the proceedings initiated under Rule 17(a) of the Rules. But to the surprise and shock of the writ petitioner, the disciplinary action initiated for imposing a minor penalty under Rule 17(a) of the Rules, has been converted to Rule 17(b) of the Rules, in respect of the very same subject matter. 5.On the above said pleadings and placing reliance on a Division Bench of this Court in A.Boommusamy Vs. The Government of Tamil Nadu reported in (2007 (3) CTC 518), Mr.G.R.Swaminathan, learned counsel for the petitioner, submitted that the charges initially framed under Rule 17(a) of the said Rules can be altered into that of a charge under Rule 17(b) the said Rules, only after conducting a further enquiry and after giving an opportunity to the charged official and n the absence of following the said procedure, the impugned charge memo is liable to be set aside. In this context, he invited the attention of this Court to the paragraph No.12 of the Division judgment of this Court, cited supra, which reads as follows:- 12. In so far as the evidence of Parthasarathy is concerned, it is seen that when he was examined as P.W- 10, he has categorically stated that it was only at the instance of the third respondent that he gave a statement against the petitioner. Further, in the enquiry proceedings he turned hostile and therefore, whatever evidence he has tender5ed in the enquiry https://hcservices.ecourts.gov.in/hcservices/ 3 proceedings is inadmissible, but can only be considered. The Tribunal, however, has wholly relied on the evidence of P.W.10 while confirming the impugned order passed by the third respondent, which is contrary to law. Therefore, we are of the view that the finding of the Tribunal to that extent is illegal and perverse and the same is liable to be set aside. 6.It is his further contention that if at all the Deputy Inspector General of Police, Madurai Region, Madurai, wanted to convert the disciplinary action initiated under Rule 17(a) of the Rules into 17(b) of the Rules, he should have dropped the proceedings initiated earlier under Rule 17(a) and without doing so, the conversion made is impermissible. Referring to the alleged incident said to have occurred on 14.07.2005, ie., a threat to the Additional Superintendent of Police, who had enquired into a complaint against the writ petitioner and the inordinate delay of nearly three years in initiating disciplinary proceedings under Rule 17(a) of the Rules in P.R.No.17 of 2011, dated 07.07.2011, learned counsel for the petitioner submitted that no valid explanation has been given by the respondents in the counter affidavit and even after the receipt of explanation dated 22.04.2010, the respondents have not immediately and that they have intentionally protracted the disciplinary proceedings, without passing any orders. Though, there was a direction by this Court in W.P.(MD) No. 4517 of 2011, dated 15.06.2011, to consider the case of the petitioner for promotion to the post of Additional Superintendent of Police and pass appropriate orders on or before 30.06.2011, and when the said proceedings under Rule 17(a) of the Rules, is not an embargo for inclusion of the petitioner in the panel for promotion to the post of Additional Superintendent of Police for the year 2009-10, the respondents have deliberately not passed any orders including the petitioner for promotion, within the prescribed time. According to him, if the respondents in W.P. (MD) No.4517 of 2011 had passed appropriate orders before 30.06.2011, as directed by this Court, the petitioner would have been promoted as Additional Superintendent of Police. Instead, without passing orders on the disciplinary proceedings initiated under Rule 17(a) of the Rules, or promoted the petitioner to the post of Additional Superintendent of Police, the second respondent has converted the disciplinary action into that of 17 (b) of the Rules,only to frustrate the orders passed by this Court and therefore,there is a mala fide on the part of the respondents. It is also his contention that though an explanation to the show-cause notice, dated 13.11.2009,was submitted as early as on 22.04.2010, the respondents have taken nearly one year and three months, for converting the charge in to that of 17(b),for which,no explanation whatsoever has been given in the counter affidavit. 7.Placing reliance on the judgment of this Court in S.Rathinavelu Vs. Chairman, Tamil Nadu Water Supply and Drainage Board, Chennai and Another reported in (2009 (3) MLJ 479), learned counsel for the petitioner further submitted that on the whole, there is an inordinate and unexplained delay of five years from the date of the alleged occurrence, which is caused a serious prejudice to the writ petitioner in that, he has not been considered for promotion to the post of Additional Superintendent of Police, though he had put a long number of unblemished service. For the reasons stated supra, he has prayed to set aside the impugned charge memorandum. 8.Based on the averments made in the counter affidavit filed by the Deputy Inspector General of Police, Dindigul Region, Dindigul, the first respondent herein, and on the supporting documents filed in the typed set of https://hcservices.ecourts.gov.in/hcservices/ 4 papers, Mr.T.S.Mohamed Mohideen, learned Additional Government Pleader submitted, at the threshold that the orders made in earlier writ petitions filed for declaration of probation, for regulating the period of suspension, have no relevance to the impugned charge memorandum, where the adjudication is confined only to the correctness of the charge memorandum issued under 17-b of the Tamil Naud Civil Services (Discipline and Appeal) Rules 1955, by the Deputy Inspector General of Police, Dindigul Region, Dindigul, the competent authority, and therefore, prayed to eschew the said contention. He further submitted that when disciplinary proceedings were initiated against the petitioner under 17(a) of the said Rules in P.R.No.10/2010 by the then Superintendent of Police, Madurai District, the entire records along with the petitioner's explanation, dated 22.04.2010 were forwarded to the Director General of Police, Chennai for passing orders. In his reply, the petitioner himself opted for an oral enquiry, so that he can cross- examine the prosecution witnesses, during the regular departmental enquiry. Accordingly, when the petitioner himself volunteered to have a regular enquiry, the competent authority, after having considered the records and explanation, decided to convert the departmental action initied, under rule 17(a) of the Tamil Naud Civil Services (Discipline and Appeal) Rules 1955 into one of 17(b) of the said rules. Therefore, the conversion of the disciplinary proceedings, under the orders of the Director General of Police, Chennai, cannot be said to be on mala fide grounds. Refuting the contentions of the learned counsel for the petitioner that before conversion of the proceedings from a charge under 17(a) to 17(b) of the above said rules, an enquiry officer has to be conducted, learned Additional Government Pleader further submitted that if the Department had withdrawn or dropped the proceedings initiated under Rule 17(a), then it would pave way for a contention that once action is dropped, it is not open to the respondents to initiate further proceedings, on the same cause of action. He submitted that the procedure contemplated under rule 17(b)of the said rules, contemplate a regular enquiry, where the charged official can have an opportunity to cross-examine the witnesses. According to him, once the petitioner has exercised his option to have a regular enquiry, it is not open to him, to retract, thereafter. Learned Additional Government Pleader further submitted that though the incident of threatening the Additional Superintendent of Police, occurred in 2005, after conducting a preliminary enquiry, and on obtaining a report in the year 2008, charges were framed within a short span of time and that there was no inordinary delay. Learned counsel for the State further submitted that the allegation of non- submission of the hotel bills and other related matters can also be very well discussed in the oral enquiry. Considering all these aspects, Conversion was ordered. According to him, there is no manifest illegality. For the above said reasons, he prayed for dismissal of the writ petition. 9.Heard learned counsel for the parties and perused the materials available on record. 10.The show-cause notice, dated 13.11.2009, issued in P.R.No.10/2010, under rule 17(a) of the said rules issued by the Superintendent of Police, Madurai District, states that when the petitioner was Deputy Superintendent of Police, Thirupparankundram, Special Division Madurai District from 10.07.2003 to 21.02.2005, he has committed certain delinquency. 11.Reading of the charge memo shows that when the petitioner came to know that the preliminary enquiry officer was about to send the enquiry report to the superior officer about the alleged misconduct and corrupt practices, the petitioner was alleged to have contacted Tr.A.P.Arumugam, the then Additional Superintendent of Police, Prohibition Enforcement Wing, https://hcservices.ecourts.gov.in/hcservices/ 5 Madurai District, Madurai, over his residence phone, at 21.15 hrs on 14.07.2005 and threatened that the petitioner would send an anonymous petition against the said Additional Superintendent of Police, to Vigilance and Anti-Corruption and higher officials. Five documents were sought to be filed as prosecution documents. 12.Earlier, the petitioner has been placed under suspension on 15.11.2005, on the basis of contemplation of enquiry and subsequently, the Government, by order in G.O.(D)No.1312, Home (POL-II) Department, dated 07.12.2006, revoked the suspension order. The Director General of Police, Chennai, the second respondent therein, vide his proceedings dated 21.03.2008 has dropped all the departmental proceedings. The Government have also passed G.O.Ms.No.732, Home (SC) Department, dated 27.06.2008, and dropped further action. When declaration of probation in the post of Deputy Superintendent of Police was kept in abeyance with effect from 27.03.2005 AN, under Rule 27(b) of Tamil Nadu State and Subordinate Service Rules, the petitioner has approached this Court, in W.P.(MD)No.3208 of 2010. The period of suspension was also not regularised and therefore, he has filed another writ petition in W.P.(MD)No.3209 of 2010. After considering the statutory provisions, under Rule 27(b) of Tamil Nadu State and Subordinate Service Rules and orders passed by the Government stated supra, dropping further action, this Court, by a common order, dated 12.08.2010, directed the Director General of Police, Chennai, the second respondent therein, to declare the completion of probation as on 22.01.2006 and also to regularise the period of suspension. 13.Subsequently, when another disciplinary proceedings was initiated on 22.12.2010, by the Deputy Inspector General of Police, Madurai Range, Madurai, for an allegation in relation to an alleged lack of supervision pertaining to the period of 2004-05, after a lapse of full five years, the said memorandum memo has been challenged in W.P.(MD)No.130 of 2011 and after considering the nature of the charges and delay in initiation, this Court has set aside the disciplinary proceedings. 14.Perusal of the order made in W.P.(MD)No.4517 of 2011, dated 15.06.2011 shows that when the petitioner has approached this Court for a direction, the Principal Secretary to Government, Home Department, Chennai and the Director General of Police, Law and Order and Administration, Chennai, respondents 1 and 2 therein, to promote the petitioner to the post of Additional Superintendent of Police, (Category-I) for the year 2009-10, this Court, after considering the fact that though the petitioner was facing a disciplinary proceedings, under rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, the same is not a bar for further promotion and considering the date on which he attains the age of promotion that is 31st July 2011, directed the respondents therein to pass suitable orders on or before 30.06.2011. It is evident that paragraph No.7, the order, learned Additional Government Pleader appearing for the respondents himself also admitted that because the petitioner was facing charges, under Rule 17(a) of the Tamil Naud Civil Services (Discipline and Appeal) Rules 1955, promotion could not be given to the writ petitioner. This Court more than one occasion has categorically held that pendency of the disciplinary proceedings under rule 17(b) of the Tamil Naud Civil Services (Discipline and Appeal) Rules 1955 is not a bar for promotion. At this juncture, it would be relevant to extract paragraph No.7 of the judgment made in W.P.(MD)No.4517 of 2011, dated 15.06.2011. “7. It is not in dispute that the petitioner was facing certain charges and this Court, by an order dated 22.03.2011, in W.P.(MD)No.130 of 2011, has quashed the https://hcservices.ecourts.gov.in/hcservices/ 6 charge memo on the ground that there is inordinate delay in issuing the charge memo. Thereafter, no appeal has been filed against the said order. In such circumstances, the petitioner should have been conferred the further promotion as Additional Superintendent of Police (Category I). However, it is contended by the learned Additional Government Pleader appearing for the respondents that since the petitioner is facing charges under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, such promotion was not given to the petitioner. However, mere pendency of charges under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 may not disentitle the petitioner to get further promotion. This fact could not be disputed by the learned Additional Government Pleader appearing for the respondents. It is stated that the petitioner is retiring on 31st July, 2011.” 15.Perusal of the orders made by this Court in various proceedings, challenged before this Court, shows that for pendency of minor charges under rule 17(a) of the said rules, for not declaring the probation of the petitioner, not regulating the period of suspension, the case of the petitioner has not been considered for promotion to the post of Additional Superintendent of Police. Though there was a specific direction from this Court in W.P.No.4517 of 2011, dated 15.06.2011, to pass orders for promotion to the said post, promotion has been denied to the petitioner, on the ground that certain charges are pending against him, the petitioner has been issued with a show-cause notice dated 02.02.2010 from which he has submitted an explanation dated 22.04.2010, wherein has has stated that unless an oral enquiry is held and witnesses are produced for his cross-examination, even though the proceedings are only for imposition of minor penalty and where the statements of the persons recorded behind his back are not admissible, relying on the judgment of the Supreme Court in K.Bharwaj Vs. Union of India reported in reported in (2001 (9) SCC 180), the petitioner has sought for a regular enquiry. In his explanation, the petitioner has also assailed initiation of disciplinary proceedings on the ground of delay. The occurrence is alleged to have taken place in the year 2005 and that while refuting the allegation, the petitioner has alleged ill-will and harassment also. Though the allegation pertains to an incident said to have been occurred on 14.07.2005, the Department has taken nearly four years and 6 months for in issuing a charge in PR.10/2010, under Rule 17(a) of the Tamil Naud Civil Services (Discipline and Appeal) Rules 1955, dated 13.11.2009. What is sought for by the writ petitioner, in his explanation, is only a detailed enquiry. When action has been taken under Rule 17(a) no charged official would intentionally seek for conversion of a charge from under Rule 17(a) of the Tamil Naud Civil Services (Discipline and Appeal) Rules 1955 into that of 17(b) of the said rules, which is intended to impose a major penalty against a Government Servant. 16.The contention of the learned State counsel that it is the petitioner, who opted for conversion of the charge into 17(b) of the Tamil Naud Civil Services (Discipline and Appeal) Rules 1955 and that therefore, it is not open to the petitioner to retract and later on contend that, an enquiry ought to have conducted giving opportunity to him before conversion, cannot be countenanced, for the reason that it is evident from the explanation that such conversion sought for, is only for the purpose of having an opportunity to cross-examine the witnesses, whose statements have https://hcservices.ecourts.gov.in/hcservices/ 7 been obtained behind the back of the petitioner. Therefore, it cannot be construed that the charged official has voluntarily come forward to accept the disciplinary action under Rule 17(b) of the Tamil Naud Civil Services (Discipline and Appeal) Rules 1955 rules , which may entail, even major penalty. In that context, as rightly contended by Mr.G.R.Swaminathan, learned counsel appearing for the petitioner, that the Director General of Police, Chennai, to whom the disciplinary proceedings were forwarded has misconstrued the petitioner's request. The contention of the learned Additional Government Pleader that once disciplinary proceedings initiated under rule 17(a) of the above said rule is either dropped or withdrawn by the Department and if fresh proceedings is initiated under rule 17(b) of the rules, it would pave way for a contention that no further proceedings can be initiated and that is why there was mere conversion, also cannot be countenanced, for the reason that, it is always open to the disciplinary/appointing authority to cancel the earlier proceedings and initiate fresh proceedings, depending upon the gravity of the charges. The powers of the appointing/disciplinary authority/Head of the Department is wide enough, even to exercise the suomotu review of any proceedings. 17.Materials on record further shows that though the petitioner submitted his explanation on 22.04.2010, seeking for conversion so as to enable him to cross-examine the witnesses, the Director General of Police, Chennai, has taken nearly one year and three months, in issuing a memo, dated 04.07.2011, instructing urgent action for conversion. Consequently, the Inspector General of Police, South Zone, Madurai, has been directed to the Deputy Inspector General of Police, Dindigul Range, Dindigul, to frame charge memorandum under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules 1955 and that the Superintendent of Police, Madurai District has been nominated as the enquiry officer to conduct an oral enquiry, in the presence of investigating officer of V&AC, on day-to- day basis and send the report on or before 15.07.2011. When department has taken nearly four years in initiating disciplinary proceedings under rule 17 (a) and one year and three months, for conversion of the charge, after receipt of the explanation dated 22.04.2010, the departmental enquiry has been directed to be completed, within a very short period of 10 days. Materials on record shows that pursuant to the instruction dated 05.07.2011 of Inspector General of Police, South Zone, Madurai, to the Deputy Inspector General of Police, Dindigul Range, Dindigul, a charge memorandum, under rule 17(b) of the Tamil Naud Civil Services (Discipline and Appeal) Rules 1955 in PR.No.17/2011 containing the same charges has been issued. On 08.07.2011 in PR No.17/7/2011, the Superintendent of Police, Madurai District, has been nominated as the enquiry officer and submit a report on or before 15.07.2007, without fail, since the charged official is due to retire on 31.07.2011. Thus, hardly seven days time the petitioner, to face the enquiry. 18.Materials on record further shows that the Superintendent of Police, Madurai District, who has been appointed as enquiry officer, has issued a proceedings dated 10.07.2011, informing the petitioner that oral enquiry is proposed to be conducted on 12.07.2011 at 11.00 hrs in the District Police Office, Madurai District, on which day, the department has proposed to examine the Thiru.Arumugam, former Additional Superintendent of Police, now retired as the Superintendent of Police, Prohibition Enforcement Wing, Madurai Disrict. Simultaneously, he has requested the Commandant, TSP-VI Battalion,