IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.02.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.41586 of 2006 (O.A.NO.7793 of 2000) T.Vellaichamy ... Petitioner Vs. Director General of Police, Chennai-4. ... Respondent O.A.No.7793 of 2000 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.41586 of 2006 praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the order passed by the respondent in Rc.No.273022/API(2)/99, dated 6.3.2000 and to set aside the same and to direct the respondent to restore the pay of the applicant with all consequential benefits. For Petitioner : Mr.S.Mani For Respondent : Miss.C.Devi, GA O R D E R The petitioner filed O.A.No.7793 of 2000 before the Tamil Nadu Administrative Tribunal, seeking to challenge the order dated 06.03.2000 and prays for setting aside the same and also to restore the pay of the petitioner with all consequential benefits. 2. The Original Application was admitted on 31.10.2000. Pending the OA, an interim stay was granted for a limited period. Subsequently, the interim stay was directed to continued by a further order dated 16.11.2000. 3. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.41586 of 2006. The respondent did not not file any counter affidavit till date. 4. The petitioner, who was working as Inspector of Police (Armed Reserve) Chengalpattu East District was imposed with the https://hcservices.ecourts.gov.in/hcservices/ penalty of Deferred Censure for a period of three months in PR.No.167/1997 by an order dated 09.07.1998. Subsequently, the Director General of Police viz., the respondent issued show cause notice dated 28.12.1999 stating that the punishment awarded to the petitioner was inadequate and therefore, by exercising power under Rule 15 A(1)(ii) of the Tamil Nadu Police Subordinate Services (D & A) Rules, he was asked to show cause as to why a higher penalty such as reduction to lower rank in the Seniority List or a lower grade, recovery from the pay, compulsory retirement, removal from service should not be inflicted on him. 5. The petitioner is yet to give his reply. It was stated in the order that he was on medical leave continuously without sending any intimation. Though he was directed to appear before the Medical Board, he turned his ear deaf and disobeyed the instructions of his superiors. The delinquency of the petitioner was clearly proved by the prosecution Exhibits 1 to 13 filed in the oral enquiry. He also did not submit his representation on the enquiry report and remained ex parte. Despite sufficient opportunity was given, it only showed that he was having indifferent attitude and he flouted the lawful orders of the superiors. It is unnecessary to go into the question as to what will be the punishment that ultimately the respondent may impose. 6. It is the contention of the petitioner that since the show cause notice was issued beyond the time limit stipulated in the Rules, it is invalid. The respondent is only an Appellate Authority and not the State Government. A reading of the Rule makes it clear that it is only for the State Government, there is no time limit applicable for suo motu review. But in the case of Appellate Authority, the same should be done within six months. For this purpose, reliance was placed upon an amendment brought to the Rule by G.O.Ms.No.63 P & AR Department, dated 02.02.1996. 7. A perusal of the said Rule does not indicate that the time limit will also apply to the Head of the Department as found in Rule 15 A(1)(ii). In the present case, the respondent is the Director General of Police, who is the Head of the entire police establishment and therefore, he cannot be considered as an Appellate Authority alone. Even assuming that if he is an appellate authority in which cadre the petitioner belongs is also the Head of the Department, therefore, in cases of dual capacity, the respondent can be construed as a Head of Department and he is not entitled to get circumscribed by the limitation pleaded by the respondent. https://hcservices.ecourts.gov.in/hcservices/ 8. Mr.S.Mani learned counsel appearing for the petitioner submitted that in such cases, the second proviso to the Rule clearly mandates that no power of review shall be exercised by the Head of the Department unless the authority which made the order in appeal or the authority to which an appeal would like where no appeal is preferred, who is subordinate to him. 9. In this context, he referred to a direct judgment of a Division Bench of this Court in P.Sabesan v. The State of Tamil Nadu reported in 1984 WLR (125) 557, wherein, an identical Rule was interpreted. It is necessary to refer to the following passages found in paragraphs 3 and 4, which is as follows:- "3. The power of review under the above rules can be exercised by four authorities (1) The State Government, (2) The Head of the Departments; (3) the appellate authority, and (4) any other authority specified in this behalf by the State Government by a general or special order. But the power of review given to the Head of the Department is, however, subject to a restriction under the proviso to the rule. The proviso says that no power of review shall be exercised by the Head of the Department unless the appellate authority, which had passed the appellate order or the authority to which an appeal would be preferred against the original order is subordinate to him. The second respondent herein is the Head of the Department and he also happened to be the appellate authority. As the appellate authority in this case is not subordinate to the Head of the Department the former cannot exercise the power of review under the said proviso. 4.According to the learned Government Pleader, the said proviso can apply only when the Head of the Department and the appellate authority are different. But we do not see any decision to limit the operation of the proviso as suggested by the learned Government Pleader. The proviso is specific and it says that if the authority to which an appeal would lie is not subordinate to the Head of the Department, then the latter cannot exercise the power of review. Admittedly any order passed by the D.I.G. (Food cell) is appealable to the second respondent, who happens to be the Head of the Department. Thus the appellate authority is not subordinate to the Head of the Department, both the powers, that is, the power of the Head of the Department and the appellate authority having vested in the same person. In such a case, the proviso prohibits the Head of the Department from exercising https://hcservices.ecourts.gov.in/hcservices/ the power of suo motu review. Thus, the proviso to R 15-A stands in the way of the second respondent exercising his suo motu review power under that rule as he happens to be the appellate authority, in the case in which he proposes to exercise the power of suo motu review. Thus the show cause notice issued by the second respondent proposing to exercise the power of review under R 15-A of the Rules should be taken to be without jurisdiction. It is significant to note that the learned Judge while passing the order under appeal has not considered the scope and ambit of R.15-A under which the second respondent proposed to exercise his power of review. It appears that this point was not urged before the learned Judge and the same was urged for the first time before us. However having regard to the fact that the point urged is purely a legal point arising out of an interpretation of a statutory provision, we heard both the learned counsel for the appellant and the learned Government Pleader for the respondents on this point." 10. In the light of the above, the contention raised by the petitioner is well-founded. The impugned show cause notice is without jurisdiction and stands set aside. The writ petition stands allowed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. svki To The Director General of Police, Chennai-4. 1 cc to Government Pleader, Sr. 14561 1 cc to Mr.S. Mani, Advocate, Sr. 14392 W.P.No.41586 of 2006 PA (CO) kk 22/3 https://hcservices.ecourts.gov.in/hcservices/