IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 21.10.2008 Coram THE HONOURABLE Mr. JUSTICE P.JYOTHIMANI Writ Petition Nos.24957 and 25318 of 2008 and M.P.Nos.1 and 1 of 2008 G.Nagarajan, S/o. Ganesan Head Constable 1000 Velipalayam P.S. Nagapattinam District .... Petitioner in both the W.Ps. -Vs.- 1. The Secretary to Government Home (SC) Dept., Fort St George, Chennai 9 2. The Director General of Police, Dr. Radhakrishnan Salai, Mylapore, Chennai 4 3. The Superintendent of Police Nagapattinam District, Nagapattinam .... Respondents in both the W.Ps. PRAYER IN W.P.No.24957 OF 2008.: Writ Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorari to call for the records of the respondents in connection with the impugned order issued by the first respondent in Letter No.SC/2774/22-94 Home (SC) Department dated 13.1.1996 issued along with the findings of the Tribunal for Disciplinary Proceedings in TDP Case No.27/89 dated 15.11.1995 and quash the same and direct the respondents to superannuate the petitioner from service and grant him all consequential service and monetary benefits. PRAYER IN W.P.No.25318 OF 2008.: Writ Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorari to call for the records of the respondents in connection with the impugned order issued by the third respondent in D.O.No.1195/2008 in C.No.A2/21638/2008 dated 10.10.2008 and quash the same. For Petitioner in both the W.Ps. : Mr. K.Venkataramani, Senior Counsel, for Mr. M.Muthappan For Respondents in both the W.Ps. : Mr. Lita Srinivasan, Govt. Advocate - - - https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R Writ Petition No.24957 of 2008 is filed challenging the communication of the Secretary to the Government, the first respondent, dated 13.01.1996. By the said communication, the Secretary to the Government has enclosed the enquiry officer’s report in respect of the disciplinary proceedings initiated against him in T.D.P.Case No.27/89 holding that the charges against the petitioner are proved and directing him to submit his further representation within fifteen days. 2. The petitioner while working in Nannilam, Nagapattinam District, in the year 1988 as Grade II Police Constable attached to the Prohibition Enforcement Wing, there was a raid conducted by the Vigilance and Anti Corruption Department and on the basis that the petitioner and the other three officials were involved in getting mamool from Bootleggers and on the basis of admission of the Head Constable-Ekambaram an amount of Rs.27,154/- have been recovered and in that event nearly twenty-six officers were charged. In the said T.D.P.Case No.27/89, the petitioner, being a delinquent, has arrayed as Delinquent No.39. Subsequently it appears that in the year 1990, he was involved in another case and on 23.05.1990 he was suspended and ultimately there was a criminal case foisted against him and based on the criminal case he was dismissed from service and again an appeal came to be filed before the criminal court was allowed and thereafter the petitioner was reinstated into service on 18.09.2001. In the meantime, in respect of T.D.P.Case No.27/89, which was made in respect of the incident that took place in the year 1988, twenty-six persons, out of whom four are stated to have died in the meantime and the case was proceeded against twenty-two persons with the punishment of compulsory retirement on 05.05.1999. The said order was ultimately set-aside by the Tamil Nadu Administrative Tribunal, Chennai, on 22.03.2002, against which the Government filed a writ petition and the Division Bench while confirming the order of the Tamil Nadu Administrative Tribunal, Chennai, however modified the portion of the order of the Tribunal in respect of the payment of back-wages by reducing the payment of back-wages to fifty per cent and the said order has also been implemented in respect of the said persons which is not in dispute. However in respect of the petitioner inasmuch as he was in the meantime convicted in the criminal case, as stated above, no further proceedings have been initiated and ultimately it was only on 13.01.1996 under the impugned direction, which was received by the petitioner on 27.08.1996, along with the enquiry officer’s report finding him guilty, the petitioner was directed to submit his explanation. 3. It is the case of the learned senior counsel for the petitioner that he was also one among the persons against whom the earlier proceedings were initiated in respect of Nannilam instance, https://hcservices.ecourts.gov.in/hcservices/ but no action was taken against him due to the reason that a criminal case was pending at that time. Now that the criminal case has been completed and the petitioner has been reinstated into service on 18.09.2001 but inspite of that the disciplinary proceedings in respect of the petitioner in T.D.P.Case No.27/89 has not been completed. 4. Learned senior counsel for the petitioner submits that pursuant to the impugned order received from the first respondent the petitioner has infact submitted his detailed representation on 30.11.1996 and inspite of it no final order has been passed. In such circumstances the petitioner has filed the abovesaid W.P.No.24957 of 2008 challenging the impugned notice dated 13.01.1996. 5. Learned senior counsel for the petitioner fairly submits that even though the petitioner has got a good case for the purpose of setting aside the impugned order, he would submit that it would suffice that a direction may be issued by this Court to pass final orders by the respondents, to which course of action the learned counsel for the respondents has no objection. 6. In view of the said submissions made by the learned counsel on either side, the Writ Petition No.24957 of 2008 is disposed of with a direction to the first respondent-Government to pass appropriate final orders on merits and in accordance with law based on the representation given by the petitioner dated 30.11.1996 to the impugned notice dated 13.01.1996 expeditiously in any event within a period of eight (8) weeks from the date of receipt of a copy of this order or on its production. It is needless to state that while passing such final order it is for the first respondent to take into consideration all relevant factors as that are raised in the written representation made by the petitioner dated 30.11.1996 including setting-aside of the compulsory retirement orders in respect of the twenty-one persons who were the co-delinquents along with the petitioner. Even though the petitioner has made a representation based on the impugned notice on 13.01.1996 it is open to the petitioner to make any supplemental representation within one (1) week from today based on the subsequent developments, in which event, the first respondent shall take such representation, if any made by the petitioner, into consideration while passing the order as stated above. 7. It is seen that by taking into consideration the criminal case filed against the petitioner ended in his favour in the appeal, the third respondent, the Superintendent of Police, Nagapattinam, has upgraded the petitioner as Grade I Police Constable from 25.01.1993 and as Head Constable from 09.01.1998. While passing the said order of up-gradation by the third respondent on 04.11.2003, the third respondent has also taken into consideration his earlier proceedings in D.O.No.597 of 2003 dated 04.09.2003 by which the third respondent https://hcservices.ecourts.gov.in/hcservices/ while implementing the order of the Tribunal in O.A.No.3865 of 2000 filed by the petitioner has observed as follows:- “In view of the directions in the above TAT order and as per the provisions laid down in rule 54 (b) of F.R. The period of suspension spent by PC 1000 Nagarajan from 24.5.90 to 31.3.94 and the out of employment spent by him from 1.4.94 to 18.9.2001 in ordered to be treated as duty for all purpose”, Taking into consideration the said proceedings of the third respondent dated 04.09.2003, the up-gradation order dated 04.11.2003 also came to be passed. 8. However in the impugned order which is challenged in W.P.No.25318 of 2008 the third respondent, the Superintendent of Police, Nagapattinam, has chosen to cancel the said up-gradation order dated 04.11.2003. The said order is challenged on various grounds including that the order has been passed without even giving notice to the petitioner. It is not in dispute that on 04.11.2003 when the third respondent has passed the order he has taken into consideration his own proceedings dated 04.09.2003 and also regularised the period of suspension as well as the period of non- employment as the period for duty for all purposes and it was taking into consideration all those aspects only, the up-gradation order was given to the petitioner as stated above. While that is so, in the year 2003 itself, a civil right has occurred to the petitioner and that can be only taken out after giving opportunity to the petitioner. 9. Admittedly, in this case, after the up-gradation order was passed, before the impugned order dated 10.10.2008 is passed by the third respondent, the petitioner was not given any notice about the taking away of the up-gradation order. Therefore on the simple ground of the violation of principles of natural justice the impugned order dated 10.10.2008 passed by the third respondent has to go. Further it does not mean that it is not open to the third respondent to take any action to rectify any mistake if such a mistake has been committed while passing the order earlier on 04.11.2003, but that should be done only after following the principles of natural justice. 10. Be that as it may, this Court has already directed the first respondent to complete the disciplinary proceedings against the petitioner in respect of T.D.P.Case No.27/89 within the stipulated time therein and therefore, after such a decision is passed, it is always open to the first respondent to take any appropriate action, if the first respondent is so advised, against the order of up- gradation passed by the third respondent on 04.11.2003, after giving sufficient opportunity to the petitioner and also depending upon the results of the disciplinary proceedings which is passed as per the directions given above. https://hcservices.ecourts.gov.in/hcservices/ 11. In view of the same, the writ petition No.25318 of 2008 stands allowed and the impugned order of the third respondent dated 10.10.2008 is set-aside, however with liberty to the respondents to take any appropriate action against the order of the up-gradation dated 04.11.2003 after appropriate order is passed in T.D.P.Case No.27/89 and depending upon the result therein and after giving sufficient opportunity to the petitioner. No costs. Consequently the connected MPs are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar srk To 1. The Secretary to Government, Home (SC) Dept., Fort St George, Chennai 9 2. The Director General of Police, Dr. Radhakrishnan Salai, Mylapore, Chennai 4 3. The Superintendent of Police, Nagapattinam District, Nagapattinam 2 ccs To Mr.T.Ayngaraprabu, Advocate, SR.58536, 58537 1 cc To The Government Pleader, SR.58733 W.P.Nos.24957 and 25318 of 2008 and M.P.Nos.1 and 1 of 2008 BS(CO) SRA(24/10/2008) https://hcservices.ecourts.gov.in/hcservices/