IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14-10-2011 CORAM: THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.20942 Of 2007 R. Muralidurai ... Petitioner Versus 1. The Secretary to the Government, Home Department, Chennai – 9. 2. The Director General of Police, Chennai – 4. 3. The Inspector General of Police, Armed Police, Chennai – 10. 4. The Deputy Inspector General of Police, Armed Police, (Modernisation & Welfare), Trichy – 12. 5. The Commandant, Tamil Nadu Special Police, IV Battalion, Kovai Pudur, Coimbatore – 42. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of certiorarified mandamus, calling for the records in Letter No.83749/Pol.IX/2006-4, dated 23.1.2007 passed by the first respondent and G.O.Rt.No.684 dated 3.4.2000, order passed by the second respondent in Rc.No.AP.III(2)/ 767/121141/98, dated 30.6.98, Proceedings in Rc.No.A2/19484/IG/96, dated 29.10.1997 passed by the 3rd respondent, Proceedings of the 4th respondent in C.No.A2/Appeal.17/96, dated 19.11.1996 and the impugned order in Na.Ka.No.405/E3/95, dated 25.9.1995 passed by the 5th respondent to quash the same and direct the respondents to reinstate the petitioner in service with all consequential benefits. For Petitioner : Mr.M.S.Soundarrajan For Respondents: Mr.V.Jayaprakashnarayanan, Additional Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R The prayer in the writ petition is to quash the order of the first respondent dated 23.1.2007 issued in G.O.Rt.No.684 dated 3.4.2000 confirming the order of the second respondent dated 30.6.1998, which in turn confirms the order of the 3rd and 4th respondent passed in their proceedings dated 19.11.1996 and 25.9.1995 and direct the respondents to reinstate the petitioner in service with all consequential benefits. 2. The petitioner was enlisted as Police Constable in Tamil Nadu Special Police, 4th Batallion on 16.3.1994. It is the case of the petitioner that after joining the police force, due to sickness viz., jaundice, he could not continue the training and absented from duty on eight occasions. A criminal case was registered against the petitioner in Crime No.27 of 1995 on the file of the Hasthampatti Police Station, Salem District under sections 323 and 506(ii) IPC and Section 4(1)(j) of the Tamil Nadu Prohibition Act, read with Section 75 of Tamil Nadu City Police Act and he was placed under suspension by order dated 9.1.1995. A show cause notice was issued on 25.9.1995 for the petitioner's unauthorised absence and involvement in the criminal case seeking explanation as to why petitioner's probation cannot be terminated. Petitioner submitted his explanation and according to the petitioner without considering his explanation, order of termination of probation was passed by the 4th respondent on 25.9.1995. Petitioner preferred an appeal before the third respondent, which was rejected on 29.10.1997; revision petition filed before the second respondent was rejected on 30.6.1998; and the mercy petition filed before the first respondent was also rejected on 3.4.2000. The criminal case registered against the petitioner ended in acquittal on 29.3.1996 and a further representation sent to the Government on 30.8.2006 was also rejected on 23.1.2007. 3. All the above said orders are challenged in this writ petition on the ground that he having affected by jaundice, could not attend the work; that the medical leave applied was accepted by the Commandant; that mere involvement in a criminal case cannot be treated as a misconduct unless he is convicted; that without holding any enquiry his probation was terminated by specifically holding that during the period of probation his conduct was found to be indisciplinary; that the termination of probation having been ordered not on the ground of unsuitability and incapability and based on allegations, the procedures contemplated under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 should have been followed and not following the said procedure is not only in violation of the said rules but also violation of Article 311 (2) of the Constitution of India; and that, under Explanation-III to Rule 19 of the Special Rules for Tamil Nadu Police Subordinate https://hcservices.ecourts.gov.in/hcservices/ Service, before terminating the probation of a member of the service on the ground of a specific charge, the department shall frame specific charge/charges and follow the detailed procedure as laid down in Rule 3(b) and the said procedure having not been followed, the petitioner is entitled to get the impugned orders set aside and consequently reinstatement with all benefits. 4. The respondents have filed counter affidavit stating that the petitioner was enlisted as Police Constable bearing No.1086 on 16.3.1994 F.N. and while undergoing training he absented from duty on four occasions i.e, from 31.3.1994 to 12.4.1994; 11.6.1994 to 22.6.1994; 23.6.1994; and 29.9.1994 to 6.10.1994. Petitioner, after completing the training reported for duty in the 4th batallion TSP, Kovaipudur on 29.9.1994. While working in the said station, he again absented on four occasions. Apart from that he was arrested on 5.1.1995 for his involvement in Cr.No.27 of 1995 on the file of Salem Hasthampatty Police Station and was remanded for 15 days at Central Prison, Salem. Petitioner was suspended on 5.1.1995 and as his conduct having been found to be quite indisciplinary during the period of probation, show cause notice was issued under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 calling for explanation, which was acknowledged by the petitioner on 28.8.1995 and the petitioner submitted his explanation on 1.9.1995. The explanation having been found not satisfactory, petitioner's probation was terminated by order dated 29.9.1995. The appeal, revision, mercy petition and further representation were also rejected by the respective authorities. Petitioner being a chronic absentee and involved in a criminal case during the probation period, service of show cause notice and considering explanation is sufficient. In the criminal case the petitioner got acquittal due to compromise. For termination of the probation, procedure contemplated under Rule 3(b) need not be followed. 5. The learned counsel for the petitioner submitted that the petitioner's probation having been terminated due to misconduct, regular enquiry is to be held, particularly when show cause notice was issued calling for explanation, which shows that it is not termination of probation simplicitor and the order passed is penal in nature. The order was passed by invoking Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was not applicable to the petitioner, who was a member of the Police force. Explanation III of Rule 19 of the Special Rules for Tamil Nadu Police Subordinate Service, which is bound to be followed by the respondents was not followed and therefore the termination of probation of the petitioner is in violation of the said rule and Article 311(2) of the Constitution of India. The learned counsel also cited the judgment of the Supreme Court reported in (2010) 13 SCC 88 (Davinder Singh v. State of Punjab) and an order passed by this Court in W.P.Nos.23044 and 24473 of 2006 etc., dated 12.1.2011 (Chitra Venkataraman,J.) in support of his contentions and prayed for setting aside the orders https://hcservices.ecourts.gov.in/hcservices/ impugned in this writ petition and also prayed for reinstatement without backwages and continuity of service. Petitioner also filed an affidavit of undertaking dated 8.8.2011 praying for reinstatement with service benefits, but without backwages. 6. The learned Additional Government Pleader on the basis of the counter affidavit submitted that during the probation period, the petitioner absented several times and his conduct was also found to be not satisfactory due to involvement in criminal case and therefore the department terminated the probation of petitioner by issuing show cause notice and considering the explanation, which is in compliance with the principles of natural justice and therefore the orders passed by the respective respondent, which are challenged in this writ petition are just and proper and no interference is called for. 7. I have considered the rival contentions of the learned counsel for the petitioner as well as learned Additional Government Pleader. 8. The above referred pleadings establish the undisputed fact regarding the appointment of the petitioner as Grade-II Police Constable on 16.3.1994 and while he was on probation, he was issued with show cause notice seeking explanation for his unauthorised absence as well as his involvement in Cr.No.27 of 1995 on the file of Hasthampatty Police Station, Salem District. The petitioner has submitted a reply which was received by the disciplinary authority on 1.9.1995. In the said reply petitioner has denied the charge of unauthorised absence and explained the circumstances under which he was made as an accused in the above criminal case. The petitioner having denied the allegations and he being a police personnel, he can be issued with a charge memo under Rule 3(a) or 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955. Petitioner has not completed probation in the cadre of Grade-II Police Constable. 9. The probation of a police personnel how to be declared or terminated is dealt with under Rule 19 of the Special Rules for Tamil Nadu Police Subordinate Service. The said rule was issued by the Government of Tamil Nadu on 30.9.1953. The said rule is applicable to the persons, who have commenced probation on his appointment in the Police service. 10. The word 'probationer' is defined in Rule 1(9) of the Special Rules for Tamil Nadu Police Subordinate Service, which states that probationer means a member of the service, who has not completed his probation. Rules 17 and 19 deal with probation and completion of probation, which read as follows: "Rule 17.Probation – Suspension, termination or extension at any time before the expiry of the https://hcservices.ecourts.gov.in/hcservices/ prescribed period of probation, the appointing authority may (a) suspend the probation of a probationer and discharge him for want of vacancy, and (b) at its discretion by order, either extend the period of probation of the probationer in case the probation has not been extended under rule 20 or terminate his probation and discharge him from service after giving him a reasonable opportunity showing cause against the proposed termination of probation. Provided that where a probationer has been given a reasonable opportunity of showing cause against the imposition on him of any of the penalties specified in clause (d)(h) and (j) of sub rule (1) of rule 2 of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, and at the conclusion arrived at to terminate his probation, a further opportunity of showing cause specifically against termination of his probation need not be given to him. Explanation: An opportunity to show cause may be given after the appointing authority arrives at a provisional conclusion on the suitability or otherwise of the probationer for full membership of the service, either by such authority himself or by a subordinate authority who is superior in rank to the probationer. Rule 19.Completion of Probation (a) At the end of the prescribed or extended period of probation, as the case may be, the appointing authority shall consider the probationer's suitability for full membership of the service in the category for which he was selected. (b) If the appointing authority decides that a probationer is suitable for such full membership, it shall as soon as possible issue an order declaring the probationer to have satisfactorily completed his probation. On the issue of such order the probationer shall be deemed to have satisfactorily completed his probation on the date of the expiry of the prescribed period of probation. https://hcservices.ecourts.gov.in/hcservices/ (c) If the appointing authority decides that the probationer is not suitable for such membership, it shall unless the period of probation is extended under rule 20, by order, discharge him after giving him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Any delay in passing orders of completion of probation shall not monetarily affect probationers and arrears of increments shall be allowed from the date of completion of probation as a matter of course, subject to the following conditions, namely: (i) that the probation would have been declared to have been satisfactorily completed from the date ordered even if the question of declaration of probation had been taken up earlier; (ii) that the declaration of satisfactory completion of probation was delayed by factors which wouldn't in any case change the date of such completion; (iii) that the person whose probation is declared to have been satisfactorily completed was qualified on the date ordered (iv) that declaration of satisfactory completion of probation was not the result of any relaxation of rules. In all cases coming under items (i) to (iv) above, orders issued declaring probation or relaxing statutory rules shall include a provision in regard to drawal of arrears of increments. Provided that where a probationer has been given a reasonable opportunity of showing cause against the imposition on him of any of the penalties specified in clauses (d)(g)(h)(i) and (j) of sub-rule (1) of rule 2 of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, and at the conclusion of the disciplinary proceedings a tentative conclusion is arrived at to discharge him from the service, a further opportunity of showing cause specifically against such discharge need not be given to him. https://hcservices.ecourts.gov.in/hcservices/ Explanation-I: The decision of the appointing authority that the probationer is not suitable for full membership may be based also on his work and conduct till the date of the decision inclusive of the period subsequent to the prescribed or extended period of probation. Explanation-II: An opportunity to show cause may be given after the appointing authority arrives at a provisional conclusion on the suitability of otherwise of the probationer for full membership of the service, either by such authority himself or by a subordinate authority who is superior in rank to the probationer. Explanation-III: Where the competent authority proposes to terminate the probation of a member of the service for general unsatisfactory work or incapacity without the need for enquiry into specific charges he shall do so under Rule 17 or rule 19 as the case may be. In cases where he proposes to terminate the probation of such a member for specific charges in addition to or distinct from general inefficiency or incapacity, he shall frame specific charge and follow the detailed procedure laid down in rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules as such termination of probation by way of penalty will attract the provision of Article 311(2) of the Constitution of India." As per Rule 17(b) proviso it is evident that if the probationer is imposed with any penalty under Rule 2 of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, further notice for termination of probation need not be given. 11. From the perusal of Rule 17 read with Explanation-III to Rule 19 it is beyond doubt that for termination of probation of a member of a police force due to specific charges, the authority shall frame specific charge and follow the detailed procedures as laid down under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, and as such termination of probation by way of penalty will attract the provision of Article 311 (2) of the Constitution of India. Thus, it is a mandatory requirement of the authority concerned to frame charges under Rule 3 (b) and follow the procedures contained therein in order to satisfy the provision under Article 311(2) of the Constitution of India, if the probation is to be terminated on the basis of specific charge or charges and by way of penalty. https://hcservices.ecourts.gov.in/hcservices/ 12. Admittedly, the said procedure is not followed by the respondents in the case of the petitioner while terminating his probation by order dated 25.9.1995, which was confirmed in appeal, revision and mercy petition by the appellate authority, revisional authority and by the Government respectively. In the light of the statutory violation committed by the 5th respondent while terminating the probation of the petitioner and the same having not been considered by the higher authorities, the impugned orders cannot be sustained. The petitioner has got a right under the said statutory rule to continue in the post unless his probation is terminated by following the said rule and procedures. 13. Similar issue was considered by the Honourable Supreme Court in the decision reported in (2010) 13 SCC 88 (Devinder Singh v. State of Punjab), wherein a Punjab Home-guard was terminated contrary to the statutory rules without following the principles of natural justice and the Supreme Court considered the discharge made as a punishment, which was stigmatic, and set aside the order and ordered reinstatement without backwages. In paragraph 29 the Supreme Court held thus, "29. In our considered view, even in matters of discharge, the authority concerned cannot act arbitrarily while discharging an employee. However, in the instant case, the appellants are being discharged from service for indiscipline. Therefore, as provided in the proviso to Rule 27 of the Rules, the appellants should have been given a reasonable opportunity of showing cause against the action proposed to be taken against them. Admittedly, no such opportunity was given to them. Therefore, we are of the view that the action of the respondents is contrary to their own statutory rules and in violation of the principles of natural justice." In W.P.No.23044 and 24474 of 2006 etc., by order dated 12.1.2011, this Court (Chitra Venkataraman,J.) following several decisions of the Supreme Court, reversed the order of the Labour Court and ordered reinstatement with 50% backwages. In paragraphs 68 to 72 this Court held as follows: "68. As rightly pointed out by the learned counsel for the dismissed employee - writ petitioner, the Tribunal had not touched on this aspect of Article 311(2) where the order is punitive in character, particularly when a specific issue was made before the Tribunal by the petitioner. The view of the Tribunal that contract labour or temporary employees are https://hcservices.ecourts.gov.in/hcservices/ governed only by the terms of the contract would be acceptable if and only when the termination, as given in terms of what is listed in the order of appointment, is a ground for termination. Thus, if the order made by the second respondent had merely rested on the services of the petitioner found unsatisfactory without attributing any of those allegations as found in the show cause notice and even on lifting the veil one finds no such allegation that tinkers with the character of an employee, then, the order of termination would pass the test that even without a regular departmental enquiry, an order of termination could be held as legally valid. However, when on the face of the order, one finds that misconduct has been the basis of the show-cause notice, the Tribunal committed a serious legal flaw in overlooking the law declared by the Apex Court. In the circumstances, the case pleaded by the petitioner is fully supported by the law laid down by the Apex Court as to what stigma means - (1999) 3 SCC 60 (Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others). The fact that the appointment is for a fixed period, or under a contract, is of no relevance herein, in the context of the misconduct alleged. 69. Learned counsel appearing for the second respondent pointed out to the decision reported in AIR 2005 SC 4251 (State of Haryana Vs. Satyender Singh Rathore) that the misconduct alleged might have provided only a motive for termination order, but it, by itself, was not a foundation. The termination order was the outcome of deliberation. Consequently, learned counsel appearing for the Railway Administration contended that the Tribunal rightly upheld the order of dismissal. He also pointed out that this Court cannot sit in appeal over the order of the Tribunal. I do not agree with the said submissions. The decision relied on, reported in AIR 2005 SC 4251 (State of Haryana Vs. Satyender Singh Rathore) does not, in any manner, advance the cause of the second respondent. 70. The decision reported in AIR 2005 SC 4251 (State of Haryana Vs. Satyender Singh Rathore) has to be understood on the strength of the facts found therein and hence, has no relevance to the https://hcservices.ecourts.gov.in/hcservices/ case on hand. As pointed out by the Apex Court in a series of decisions which are referred to in the preceding paragraphs, what amounts to stigma or whether the order of dismissal is an order simpliciter, has to be looked at from the facts placed for consideration. The order is not on an outcome of a deliberation on the suitability or performance of the petitioner in a particular post for a particular work. On the other hand, the second respondent made no secret of its mind as to the grounds for dismissing the petitioner from service. Having made allegations of a serious nature that touches on the character of the person, the present contention of the second respondent that the order is a simple order of termination, is too far fetched to accept the plea that Article 311(2) has no relevance. The contention of the Railway Administration as to the scope of interference by this Court also deserves to be rejected straight away, when the impugned order is contrary to the law declared by the Apex Court on the subject under consideration. 71. In the light of the above, I have no hesitation in accepting the plea of the dismissed employee, the writ petitioner in W.P.No.24473 of 2006, thereby allowing the writ petition and setting aside the order of the Tribunal. Consequently, the order of dismissal, as confirmed by the Tribunal in its order dated 12.06.2001 in I.D.No.28 of 2001, stands set aside. 72. In the above circumstances, the writ petition is allowed and the first respondent in W.P.No.24473 of 2006 is directed to reinstate the petitioner therein in service. He is entitled to all other attendant benefits. However, as regards the back-wages, although the petitioner contended that he was out of employment eversince the date of termination, in the absence of any evidence, in fairness to the claim of both the parties herein, this Court feels that the petitioner is entitled to 50% of the back-wages from the date of termination on 28.8.1992 till the date of this order." (Emphasis Supplied) Applying the principles contained in the above decisions to the facts of this case and having regard to the statutory provisions extracted supra, I am of the view that the impugned orders are liable to be set https://hcservices.ecourts.gov.in/hcservices/ aside and the petitioner is entitled to be reinstated in service. 14. The petitioner herein is out of employment from 1995 to till date and the petitioner has also filed an affidavit of undertaking that he will not claim any backwages in case he is reinstated in service. Petitioner is now aged 42 years. In the criminal case also petitioner was acquitted as early as on 29.3.1996 by the Judicial Magistrate Court No.III, Salem, in C.C.No.68 of 1996. Since 16 years have passed from the date of termination of probation to this date, I am of the view that it is not proper to set aside the matter and remand the same to pass fresh orders following the statutory rules. The petitioner has pointed out the illegality before the appellate authority, revisional authority and also before the Government and none of the authorities have applied their mind and verified as to whether Rules 17 and 19 referred above was followed by the disciplinary authority while passing the order terminating the probation of the petitioner. Therefore the petitioner cannot be blamed for the illegality committed by the respondents. 15. Taking into consideration all the above facts, this writ petition is ordered on the following terms: (a) The impugned orders are set aside. (b) The respondents are directed to reinstate the petitioner without backwages and with continuity of service only for the purpose of terminal benefits. I am not inclined to grant all other service benefits other than continuity of service for the purpose of terminal benefits due to the fact that the petitioner also kept quiet for