IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.09.2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.41686 of 2006 M.Krishnan ... Petitioner Versus 1. The Secretary to Government, Public (L & O-T) Department, Fort. St. George, Chennai – 600 009. 2. The Deputy Commissioner of Police, Police Commissioner Officer, Madurai City, Madurai ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India for issuance of writ of Certiorarified Mandamus by way of transfer of O.A.No.3528 of 2000, to call for the records relating to G.O.Ms.No.587, Public (L & O-T) Department, dated 08.06.1996 issued by the Secretary to Government, Public Department, Chennai – 9, the first respondent herein in so far as the petitioner is concerned and communicated the same in the proceedings of the Deputy Commissioner of Police, Madurai City, Madurai, the second respondent herein made in Na.Ka.No.S3/8720/2000, Ka.Aa.Aa.No.861/2000 dated 31.03.2000 quash both the orders and forbear the respondents herein from in any manner ordering recovery of the amount mentioned in the above order from the salary of the petitioner. For Petitioner : Mr.K.Rajkumar For Respondents: Mrs.Lita Srinivasan Government Advocate O R D E R The petitioner was employed as a Sub-Inspector of Police in Ambilikai Police Station in Dindigul District, during the year 1992. The petitioner and four others were dealt with departmentally on a charge under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, in sequence of enquiry under PSO https://hcservices.ecourts.gov.in/hcservices/ 145 for having tortured one Chinnan of Idumbakudumbanpatty in police custody on 05.01.1992, which resulted in his death on 08.01.1992. The other four persons were:- 1) Mr.Manoharan, Inspector of Police 2) Mr.Selvaraj, Grade-I Police Constable 3) Mr.Nallusamy, Grade-II Police Constable 4) Mr.Mohan, Grade-I Police Constable 2. The Enquiry Officer held the charge against the petitioner was not proved. But the punishing authority disagreed with the findings of the Enquiry Officer and awarded punishment of removal from service by an order dated 14.01.1995. The petitioner preferred an appeal before the Additional Director General of Police, Chennai. The punishment was modified to that of "Reduction in the time scale of pay by two stages for one year without cumulative effect" by the Additional Director General of Police. Pursuant to the order of the Appellate Authority, the petitioner joined duty and it is also stated that he got promotion as Inspector of Police. 3. The first respondent paid Rs.1,00,000/- as compensation to the wife of Mr.Chinnan, who died in police custody. Thereafter, the first respondent passed the G.O.587, Public (Law and Order A) Department, dated 08.06.1996 and apportioned the compensation amount among the aforesaid five persons, including the petitioner at the following ratio:- 1) Mr.Manoharan, Inspector of Police .. 30% 2) Mr.Krishnan (Petitioner) Sub-Inspector of Police .. 25% 3) Mr.Mohan, Grade-I Police Constable .. 15% 4) Mr.Selvaraj, Grade-I Police Constable .. 15% 5) Mr.Nallusamy, Grade-II Police Constable .. 15% In view of the above said G.O., a consequential order dated 31.03.2000 was passed by the second respondent for recovery of Rs.25,000/- from the salary of the petitioner. 4. In these circumstances, the petitioner has filed the Original Application in O.A.No.3528 of 2000 to quash the aforesaid G.O.587, Public (Law and Order A) Department, dated 08.06.1996 of the first respondent and the consequential order dated 31.03.2000 of the second respondent. 5. On abolition of the Tamil Nadu Administrative Tribunal, the matter stood transferred to this Court and renumbered as W.P.No.41686 of 2006. 6. While admitting the Original Application, stay of recovery was granted on 05.06.2000. 7. The respondents filed reply affidavit. In the reply affidavit it is stated that the petitioner and four others were solely https://hcservices.ecourts.gov.in/hcservices/ responsible for the death of Mr.Chinnan in police custody and that was the finding recorded in the Disciplinary Proceeding initiated under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. The impugned G.O. was the consequential order of the said findings made in the Disciplinary Proceeding. Two among them viz., Mr.Selvaraj and Mr.Nallusamy also filed the Original Applications in O.A.Nos.7125 of 1998 and 5041 of 1998, questioning the recovery orders and also obtained stay. Since the petitioner was also responsible for the death of Mr.Chinnan, he is liable to pay the compensation. 8. Heard Mr.S.K.Rajkumar, learned counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents. 9. The learned counsel for the petitioner submits that the impugned G.O. is contrary to Rule 2 (e) read with Rule 3 (a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. According to the learned counsel for the petitioner, Rule 3 contemplates reasonable opportunity being given to petitioner before ordering recovery and the impugned order was passed without hearing the petitioner. The learned counsel also relies on a decision of this Court in P.Pichaiya Vs. Government of Tamil Nadu reported in (2009) 6 MLJ 1143. The learned counsel also submits that as per the Division Bench Judgment of this Court in V.Arulkumar Vs. Housing and Urban Development Corporation Limited reported in 2009 (3) CTC 388, the respondents could not impose both major and minor penalties, at the same time against the petitioner. According to the learned counsel for the petitioner, as the petitioner was already imposed the penalty of reduction in the time scale of pay by two stages for one year without cumulative effect, which is major punishment under Rule 2 (d) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, the imposition of minor penalty along with major penalty is opposed to the Division Bench Judgment of this Court in V.Arulkumar Vs. Housing and Urban Development Corporation Limited reported in 2009 (3) CTC 388. The learned counsel relies on para 33 of the order of the judgment in this regard and the same is extracted here-under:- While dealing with mixing of major and minor penalties, the Supreme Court in Union of India and Another v. S.C.Parashar, 2006 (3) SCC 167, has held that the action of the Disciplinary Authority in that regard is illegal and without jurisdiction. The operative portion of the said judgment is as follows: "10. It is not in dispute that sub-rules (iii) and (iii)(a) of Rule II provide for minor penalties whereas clause (v) thereof provides for major penalty. Indisputably the procedure adopted in the departmental proceeding was for imposition of a major penalty. It is trite that even in a case where the procedure followed in the departmental proceedings for imposition of a https://hcservices.ecourts.gov.in/hcservices/ major penalty, having regard to the facts and circumstances of a case, minor penalty can also be imposed. The question is as to whether the penalty imposed by the President upon taking into consideration the report filed by the Enquiry Officer, was under Clauses (iii) and (iii)(a) or Clause (v) of Rule 11 of the CCS Rules. ... ... 12. The penalty imposed upon the respondents is an amalgam of minor penalty and major penalty. The respondent has been inflicted with three penalties: (1) reduction to the minimum of the time-scale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25% of the loss incurred by the Government to the tune of Rs.74,341.89p., i.e., Rs.18,585.54p. on account of damage to the Gypsy in 18 (eighteen) equal monthly instalments. Whereas reduction of time-scale of pay with cumulative effect is a major penalty within the meaning of Clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by Clause (iii) and (iii)(a) thereof. The Disciplinary Authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law". 10. On the other hand, the learned Government Advocate for the respondents submit that the impugned order was only a consequential order to the finding of guilt relating to the responsibility of the petitioner and others in the death of one Mr.Chinnan in police custody and that therefore no further opportunity was required. According to the learned Government Advocate, since the order imposing the penalty of reduction in the time scale of pay by two stages for one year without cumulative effect, became final and the said punishment was based on the finding that the petitioner was also responsible for the death of Mr.Chinnan, no hearing is necessary before issuing the impugned G.O. The learned Government Advocate further submits that all others paid the amount as per the G.O and O.A.Nos.7125 of 1998 and 5041 of 1998 were dismissed by the Tamil Nadu Administrative Tribunal. Hence, those decisions have already upheld the G.O., that is impugned herein. 11. I have considered the submissions made on either side and perused the materials available on record. 12. The main complaint of the petitioner is that the impugned G.O. was issued in violation of principles of natural justice, as the https://hcservices.ecourts.gov.in/hcservices/ same was issued ordering recovery without hearing him. According to the petitioner, the same is also in violation of Rule 2 (e) read with Rule 3 (a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. It is also the case of the petitioner that it is not known as to how the petitioner was apportioned 25% of compensation and apportionment is arbitrary. I could have agreed with the submissions made by the learned counsel for the petitioner, if there was no findings in the proceeding under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules that the petitioner was also responsible for the death of Mr.Chinnan in his custody. The said finding under Rule 3(b) Disciplinary Proceedings attained finality and the petitioner was imposed the penalty of reduction in the time scale of pay by two stages for one year without cumulative effect. 13. Hence, the petitioner need not be heard again before ordering recovery of Rs.25,000/-, when the Government paid Rs.1,00,000/- as compensation to the widow of the person who died in the police custody. Since, it was held that the petitioner was also responsible for the death of Mr.Chinnan in the police custody and the said finding attained finality, the consequential payment of compensation by the Government cannot be found fault and also the apportionment by the Government on the Police Personnel could not also be found fault with. On reading the impugned G.O., I find that the apportionment is based on the rank of the police personnel. While the Inspector was apportioned 30% of compensation, the petitioner was directed to pay 25% of compensation, as he is Sub-Inspector and 15% in the case of the Constables. Hence, I do not find such an apportionment based on the rank of the police officials as arbitrary. The petitioner could not ask for opportunity. The technical plea of the order being passed without hearing, could not be applied mechanically. In the facts of the case and more particularly when the petitioner was held responsible for the death of Mr.Chinnan in the police custody and the consequential order of recovery of the compensation could not be faulted with. 14. Therefore, the judgment of this Court in P.Pichaiya Vs. Government of Tamil Nadu reported in (2009) 6 MLJ 1143 is not applicable to the facts of the case. It was a simple case of recovery without hearing the Government employee. In the said circumstances, this Court held that before ordering recovery, the Government Employee should be heard. Hence, the said judgment could not be applied to the facts of the case. The next judgment relied on by the learned counsel for the petitioner in V.Arulkumar Vs. Housing and Urban Development Corporation Limited reported in 2009 (3) CTC 388 is also not applicable to the facts of this case. In the said judgment, a Bank official was imposed both major and minor penalties in one order. In this case, it is not in one order. Further, the proposition held in the case was that the penalty was imposed by the Disciplinary Authority without hearing the delinquent employee, when the https://hcservices.ecourts.gov.in/hcservices/ Disciplinary Authority disagreed with the findings of the Enquiry Officer. After holding so, the Division Bench also held that the imposing of three penalties in the said circumstances of the case was bad. In the said case, the delinquent official was imposed with the following 3 penalties:- (i) reduction to the lower post of Deputy Chief; (ii) reducing the basic pay by five increments in lower scale; and (iii) not to consider for promotion for the next two years. But, in this case, it was only one punishment that too of reduction in the time scale of pay by two stages for one year without cumulative effect was imposed. The submission of the learned counsel for the petitioner that because of the currency of punishment he was denied promotion and that should he also be treated as punishment, has no merit as the penalty of withholding of promotion under Rule 2 (e) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules was not imposed. 15. Furthermore, in the facts and circumstances of the case, the petitioner was already dealt leniently considering the gravity of charges. He has successfully obtained stay, while others paid the amount. At this juncture, the learned counsel for the petitioner submits that the petitioner is willing to remit entire amount in one lumpsum and if it is so, the respondents could receive the same as it is nothing but complying with the impugned order. The statement of the learned counsel for the petitioner is recorded. 16. In the result, there is no merit in the writ petition and the same is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar r n s To 1. The Secretary to Government, Public (L & O-T) Department, Fort. St. George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Deputy Commissioner of Police, Police Commissioner Officer, Madurai City, Madurai. 1 cc To Mr.K.Rajkumar, Advocate, SR.69122 2 cc To The Government Pleader, SR.66619 & 69289 W.P.No.41686 of 2006 BVN (CO) RH (6.10.10) https://hcservices.ecourts.gov.in/hcservices/