1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated :: 01..07..2011 Coram:: THE HONOURABLE MS. JUSTICE K. SUGUNA and THE HONOURABLE MR. JUSTICE A.ARUMUGHASWAMY Writ Appeal (MD)No.505 of 2011 Neelamegam ... Appellant - Vs - 1. The Additional Director General of Police, Law & Order, Chennai - 4. 2. The Commissioner of Police, Madurai City, Madurai. 3. The Deputy Commissioner of Police, Law & Order, Madurai City. ...Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 13.09.2010 of the learned Single Judge in W.P.(MD)No.9939 of 2005. Prayer in WP(MD)No.9939 of 2005:- Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the first respondent in his proceedings RC.No.66225/AP-2(3)/2005 dated 6.8.2005 and quash the same as illegal and consequently to direct the respondent to reinstate the petitioner with all attendant benefits. For Appellant :: Mr. P. Natarajan For Respondents:: Mr. K. Mahendran Special Government Pleader - - - - - - - J U D G M E N T (Judgment of the Court was delivered by K. SUGUNA, J.) This Writ Appeal is filed as against the order of learned Single Judge dated 13.09.2010 in W.P.(MD)No.9939 of 2005. 2. The said writ petition has been filed by the appellant herein challenging an order dated 06.08.2005 passed by the Additional Director General of Police, Chennai / first respondent. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The facts of this case are that by a Charge Memo dated 23.07.2004 certain allegations have been levelled against the appellant herein and by an order dated 21.10.2004, the punishment of stoppage of postponement of increment for a period of two years with cumulative effect has been imposed. As against the said order, the appellant herein had filed an Appeal before the Commissioner of Police, Madurai and the said Appeal has been rejected by an order dated 09.12.2004. However, the appellate authority, by invoking the power under Rule 15-A of The Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules 1955 (hereinafter referred to as "the Rules") has issued a show cause notice for enhancement of punishment and the appellant herein had also submitted his reply. However, by an order dated 03.03.2005, the Appellate Authority has rejected the explanation and enhanced the punishment as removal from service. As against the enhancement of punishment, the appellant herein had filed an Appeal to the Additional Director General of Police, Chennai / first respondent. The first respondent has issued a show cause notice dated 16.05.2005, wherein at Paragraph No.5, he has set aside the order of removal from service passed by the Commissioner of Police, Madurai City. The wordings used in paragraph No.5 are as follows:- "5. .....Hence, I set aside the orders of removal from service issued by Commissioner of Police, Madurai City due to procedural lapse." The first respondent, by an order dated 06.08.2005, had imposed the same punishment of removal from service. Challenging the said order, the appellant herein has filed the writ petition. The learned Single Judge, by order dated 13.09.2010 dismissed the writ petition. Hence, this Writ Appeal. 4. The order under challenge in the writ petition is dated 06.08.2005 passed by the first respondent. As per the said order, the Additional Director General of Police, Chennai / first respondent by invoking Rule 6 of the Rules has imposed the punishment of removal from service. Rule 6 of the Rules reads as under:- "Rule 6.(1) In the case of an appeal against an order imposing any penalty specified in rule 2, the appellate authority shall consider : a)Whether the facts on which the order was based have been established; b) Whether the facts established afford sufficient ground for taking action; and c) Whether the penalty is excessive, adequate or inadequate and after such consideration, shall pass orders. (i) confirming, enhancing, reducing, or setting aside the penalty; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction, as it may deem fit in the circumstances of the case: Provided that (a) ..... (b) ..... (c) ..... (2) ....." https://hcservices.ecourts.gov.in/hcservices/ 3 5. As per Rule 6(1)(c)(i) of the Rules, the Appellate Authority can confirm, enhance, reduce or set aside the penalty or remit it back to the lower authority. But, according to the learned counsel appearing for the appellant, the Appellate Authority had done both by setting aside the order passed by the Commissioner of Police, Madurai and also enhanced the punishment to that of removal from service, which is prima facie illegal. 6. On the other hand, it is the stand of the learned Special Government Pleader appearing for the respondents that as far as the petition filed by the appellant before the Additional Director General of Police, Chennai / first respondent is concerned, it can be treated only as a mercy petition and not as an Appeal. The second argument of the learned Special Government Pleader is that the order under challenge dated 06.08.2005 is not passed under Rule 6 of the Rules as contended by the learned counsel appearing for the appellant since there is no whisper in the order dated 06.08.2005 that the same has been passed under Rule 6 of the Rules. Apart from this, according to the learned Special Government Pleader, under Rule 6(2) of the Rules, the power has been given to the Appellate Authority to correct any error and to pass an order. Apart from that, learned Special Government Pleader submitted that the allegations levelled against the appellant are of serious nature and consequently, the appellant is not entitled for the relief sought for. On these grounds, the learned Special Government Pleader has sought for dismissal of the writ appeal. 7. We have heard the submissions of the learned counsel appearing for the appellant and the learned Special Government Pleader appearing for the respondents. 8. Now, the order under challenge in the writ petition is dated 06.08.2005 passed by the Additional Director General of Police, Chennai / first respondent. As far as the submission of the learned Special Government Pleader what is filed by the appellant before the Additional Director General of Police, Chennai / first respondent is only a mercy petition since there is no provision for second appeal is concerned, we are not able to accept the said stand for the reason that originally, the punishment of stoppage of postponement of increment for a period of two years with cumulative effect has been imposed. For the first time, for the disciplinary proceedings initiated as against the appellant, the Appellate Authority viz., the Commissioner of Police, Madurai City has enhanced the punishment to that of removal from service by order dated 03.03.2005. Consequently, the appellant had preferred an appeal to the Additional Director General of Police, Chennai / first respondent as against the said punishment of removal from service. Hence, the question of second appeal does not arise. It is only an Appeal under Rule 6 of the Rules. The appellate authority viz., the Additional Director General of Police, Chennai / first respondent has issued a show cause notice dated 16.05.2005 and as per Paragraph No.6 of the said notice, the same has been issued under Rule 6 of the Rules. The stand of the learned Special Government Pleader that since in the impugned order dated 06.08.2005, there is no mention of Rule 6 of the Rules and therefore, it cannot be considered as if the said order has been passed under Rule 6 of the Rules will not hold good for the reason that the https://hcservices.ecourts.gov.in/hcservices/ 4 impugned order has been passed basing on the show cause notice dated 16.05.2005. As referred to above, at paragraph No.6 of the said order, it has been specifically stated that the same has been issued under Rule 6 of the Rules. Basing on the non-mention of the Rules in the said order, the argument of the learned Special Government Pleader cannot be accepted. As referred to above, as far as Rule 6 of the Rules is concerned, the Appellate Authority has got power to confirm the order, enhance the punishment, reduce the punishment or set aside the penalty or remitting the case back to the Original Authority that is to say either he has to confirm, enhance, reduce or set aside the penalty. But, as per the impugned order in the writ petition, the Appellate Authority viz., Additional Director General of Police, Chennai / first respondent has done both i.e., he had set aside the order of removal from service imposed by the Commissioner of Police, Madurai, and he has also passed an order of removal from service. When the wording used under Rule 6(1) (c)(i) of the Rules is "or" and not "and", we are of the opinion that the order of the Appellate Authority, by which the order of punishment imposed by the Commissioner of Police, Madurai has been set aside and enhanced punishment of removal from service has been imposed, is not in accordance with Rule 6 of the Rules. 9. Apart from this, according to the learned Special Government Pleader, under Rule 6(2) of the Rules, the power has been given to the Appellate Authority to correct any error and to pass an order. Rule 6(2) of the Rules is extracted hereunder:- "6 (2) Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if such authority considers, for reasons to be recorded in writing, that the error of defect was not material and has neither caused injustice to the person concerned nor affected the decision of the case....." From the above, it is clear that if any error or defect in the procedure followed has been committed by the concerned authority in imposing a penalty, that can be disregarded by the Appellate Authority for the reasons to be recorded in writing, if that error or defect was not material or cause injustice to the delinquent that is to say even if an error is committed, the Appellate Authority by disregarding the error can enhance the punishment. But, here is a case where by the impugned order dated 06.08.2005, the Appellate Authority viz., the Additional Director General of Police, Chennai / first respondent on the ground that an error has been committed by the Commissioner of Police, Madurai City has set aside that order. After setting aside the order of removal from service, again he passed an order of removal from service on the ground that he is enhancing the punishment, which in our view is contrary to Rule 6(2) of the Rules. If the Appellate Authority viz., the Additional Director General of Police, Chennai / first respondent by invoking the power under Rule 6(2) of the Rules has either confirmed, enhanced, reduced or set aside the penalty, that could be accepted. But, here is a case where on the technical ground, after setting aside the order of removal from service, the Additional Director General of Police, Chennai / first respondent has passed the order enhancing the punishment to that of removal from service, for which no power has been given either under Rule 6(1) or 6(2) of the Rules. https://hcservices.ecourts.gov.in/hcservices/ 5 10. As far as the submission of the learned Special Government Pleader that the petition submitted by the appellant to the Additional Director General of Police, Chennai / first respondent has to be treated as a mercy petition, as such quoting of a wrong provision of law will not vitiate the order is concerned, the same cannot be accepted for the reason that as referred to above, the appellant had preferred an appeal against the order of removal from service, which has been passed for the first time in the disciplinary proceedings initiated against him by a charge memo dated 23.07.2004. As such, the appeal filed by the appellant before the Additional Director General of Police, Chennai / first respondent has to be treated only as an Appeal and not a mercy petition, as contended by the learned Special Government Pleader. Apart from this, as far as the contention of the learned Special Government Pleader that quoting a wrong provision of law will not vitiate the order is concerned, we too agree with the said submission. But, here is a case where the Authority by invoking the powers under Rule 6(2) of the Rules passed the order and the said provision gives power to the authority. As such, the question of quoting wrong provision of law does not arise at all. For all the above said reasons, we are of the view that the order of the learned Single Judge is liable to set aside. 11. Accordingly, the order of the learned Single Judge dated 13.09.2010 in W.P.(MD)No.9939 of 2005 is set aside and this Writ Appeal is allowed. However, there will be no order as to costs. According to the learned counsel appearing for the appellant, the appellant had already reached the age of superannuation on 31.08.2009. Hence, the respondents are directed to give the consequential benefits of the order passed in the Writ Appeal to the appellant within a period of three months from the date of receipt of a copy of this order. Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar (C.S) To: 1. The Additional Director General of Police, Law & Order, Chennai - 4. 2. The Commissioner of Police, Madurai City, Madurai. 3. The Deputy Commissioner of Police, Law & Order, Madurai City. + 1 cc to The Special Government Pleader, SR No.21328 W.A.(MD)No.505 of 2011 01..07..2011 Dpn RJ/1.11.11 5p/5c https://hcservices.ecourts.gov.in/hcservices/