IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.2213 of 2007 (O.A.NO.4690 OF 2001) N.Sengodan .. Petitioner Vs. 1.Deputy Commissioner of Police, Crime & Traffic, Coimbatore City, Coimbatore. 2.Inspector General & Commissioner of Police, Coimbatore City, Coimbatore. .. Respondents Original application was filed before the Tamil Nadu Administrative Tribunal and later it was transferred to this court and renumbered as W.P.No.2213 of 2007 for the issue of a writ of certiorarified mandamus to call for the records of the first respondent in his proceedings No.13603/F1/2001 dated 31.5.2001 imposing a penalty of compulsory retirement from service and the consequential order passed by the second respondent in his C.No.F3/AP30/2001 dated 21.6.2001 confirming the order of the first respondent herein and to quash the same and consequently to direct the respondents to reinstate the applicant in service with all consequential monetary and service benefits. For Petitioner : Mr.S.Ravi for M/s.Sudha Ravi Associates For Respondents : Mr.P.Subramanian, AGP - - - - ORDER The petitioner filed O.A.No.4690 of 2001 before the Tamil Nadu Administrative Tribunal, seeking to challenge the order, dated 31.5.2001, wherein and by which the first respondent Deputy Commissioner of Police, Coimbatore imposed punishment of compulsory retirement on the petitioner. The Tribunal admitted the OA and by an order, dated 24.7.2001, granted an interim stay against the operation of the punishment of compulsory retirement. Subsequently, the interim stay came to be extended until further orders. Thanks to the order passed by the Tribunal, the petitioner is still continuing in service. 2.It is stated that the petitioner is to retire by 31.3.2010. though the respondents filed an application under M.A.No.8807 of 2001 for vacating the interim order, for the reasons best known to it, the Tribunal did not take up that MP. On notice from the Tribunal, they also filed a reply affidavit, dated 14.8.2001. In view of the abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.2213 of 2007. 3.Brief facts leading to the case are as follows: The petitioner was appointed as a police constable on 13.1.1975. He was subsequently promoted as Grade I Constable on 29.5.1993. He was promoted as a Head Constable on 8.1.1998. While the petitioner was attached to B-3 Kattoor Law and Order Police Station on 2.8.1998, he was deputed to picket duty at K.K.Nagar picket point. The Sub Inspector of Police attached to that station went to picket point at 10.00 p.m. and found the applicant in a drunken mood. Therefore, a criminal case was registered against the petitioner in Crime No.770 of 1998 under Section 75(1)(b) of the Tamil Nadu City Police Act. The petitioner was also chargesheeted on 5.10.1998 after investigation. He was tried before the court of Judicial Magistrate-II, Coimbatore. Though the petitioner was convicted on trial, the learned Magistrate let him out on probation under the Probation of Offenders Act, vide order dated 22.12.2000 in STC No.1654 of 1998. 4.Even during the pendency of the criminal trial, the petitioner was placed under suspension on 3.8.1998 and a charge memo, dated 5.8.1998 under Rule 3(b) was framed against the petitioner. The petitioner gave his explanation denying the charges. The petitioner moved the Tamil Nadu Administrative Tribunal with O.A.No.7028 of 1998 challenging the action of respondents proceeding with the departmental enquiry on the ground that since criminal action is pending, they should not proceed with the enquiry. The tribunal granted an interim stay on 11.9.1998. It is during the pendency of the OA, the petitioner was convicted by the trial court and was let out on probation. Therefore, the respondents taking advantage of the conviction, gave a show cause notice, dated 20.3.2001, stating that as to why penalty on the petitioner should not be imposed. 5.The petitioner gave his explanation, dated 3.4.2001 and brought to the notice of the respondents that since he was let out on probation, they should not impose any punishment on him. It was also stated that even if the petitioner was convicted by the trial court, it would have resulted in a penalty of imposition of fine and not imprisonment. Also he was let on probation under Section 3 of the Probation of Offenders Act. 6.However, the first respondent by an order, dated 31.5.2001 compulsorily retired the petitioner. In that order, he had stated as follows: "4.I have carefully gone through the connected records, the judgment copy and the explanation of the HC 700 Sengodan. The Hon'ble JM II, Cbe. in his judgment has convicted the accused HC 700 Sengodan in B3 PS Cr.No.770/98 u/s 75(1) TNCP Act beyond reasonable doubt and also observed if the accused has been punished by awarding sentence of fine, it would affect his official career and hence he has been released u/s 3 of PO Act. 5.In as much as the HC 700 Sengodan was convicted in B3 Kattur PS Cr.No.770/98 u/s 75 (a)(b) of TNP Act and released u/s 3 of PO Act by the Hon'ble JM II, Coimbatore on 22.12.2000, I award him the punishment of compulsory retirement from the date of receipt of this order." 7.Therefore, before imposing punishment, no other independent enquiry was conducted and merely on the strength of the order of the criminal court, the punishment of compulsory retirement was imposed on him. The petitioner preferred an appeal to the second respondent by his appeal, dated 17.6.2001. The appellate authority by an order dated 21.6.2001 rejected his appeal. The appellate authority in paragraph 3 held as follows: "3.I have gone through the appeal petition and the other connected records. Charge has been held proved correctly. The punishment awarded by the Deputy Commissioner of Police, Crime and Traffic, Coimbatore city is proportionate to the delinquency. It meets end of justice. Hence I decline to interfere. Appeal is rejected." 8.It is thereafter, the petitioner moved the Tribunal with the OA and got an interim order. In the reply affidavit of the second respondent, as to the reasons for imposing the penalty and not writing a speaking order, it was averred as follows: "8....The observations made by the Hon'ble Judicial Magistrate while convicting the Applicant will not bind the departmental disciplinary proceedings. So, the Applicant cannot take shelter behind the observations of the Honourable Magistrate to escape from the departmental action. As regards to the punishment awarded to the Applicant, it is submitted that the competent authority has only to decide whether the Applicant deserves the punishment of compulsory retirement and pass the order accordingly. Hence, there is no need for the punishing authority to discuss elaborately as to the reasoning of his decision and write as it were an order of judgment of a Judicial Tribunal. Further it cannot be laid down as a general rule that an order of punishing authority is non speaking order simply because it is brief and not an elaborate one." 9.On orders from this court, the respondents have produced the original file relating to the enquiry proceedings. Since the petitioner had enjoyed stay order from the Tribunal, after his compulsory retirement, OA No.7028 of 1998 filed by him challenging the charge memo in PR No.62 of 1998 was dismissed as infructuous by the Tribunal by an order, dated 29.10.2001. However, the respondents proceeded with the enquiry and found that the petitioner was in drunken stage on the day in question. The Enquiry Officer, i.e. the Assistant Commissioner, Law and Order (West) Coimbatore, found him guilty. On the report of the enquiry officer, the petitioner was directed to give his explanation. It is not clear as to how the respondents could have proceeded with an enquiry when he had already filed an OA before the Tribunal and got the stay of further proceedings. Even when that OA was dismissed, it was on the ground that the petitioner had been compulsorily retired by the department which was pending challenge in the present OA. In such circumstances, the respondents should have taken permission from the Tribunal to proceed with the enquiry. This is because a person cannot be imposed two time punishments in respect of the same misconduct. 10.In the present case, the respondents took advantage of his conduct leading to the conviction and imposed a penalty. Since they have taken a shorter route to impose the penalty taking advantage of conviction and when that order was stayed pending judicial review by the tribunal (and now before this Court), they should not have proceeded with the disciplinary action. Though this is not to suggest that Section 19(4) of the Administrative Tribunals Act will operate as a bar for the department from proceeding with an enquiry. But it will be worthwhile to note that the Supreme Court in Union of India and others Vs. Dipak Mali reported in 2010 AIR SCW 158, in paragraphs 8 and 11 observed as follows: "8.On behalf of the Respondents, it was urged that Section 19(4) of the Administrative Tribunals Act, 1985, did not contemplate stay but abatement of proceedings before other authorities once an application was admitted by the Central Administrative Tribunal. By virtue of sub-section (4) of Section 19, on admission of such application proceedings pending before other Courts and Forums would abate unless otherwise directed by the Tribunal. ..... 11.The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondent's case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted....." 11.Therefore the question of conducting a disciplinary action after a Governments servant ceased to be in service will not arise. It would have been prudent for the department to have proceeded with the disciplinary action instead of taking advantage of the conviction by the criminal court. But, now after having taken advantage of the same, they cannot now fall back of on the disciplinary action, which was conducted even during the pendency of the OA (now transferred and renumbered as W.P.No.2213 of 2007). 12.The question that is left to be decided in the present case is whether the petitioner should be imposed with the major penalty of compulsory retirement. Admittedly, in the present case, the charge against the petitioner arose out of Section 75(1)(b) of the Tamil Nadu City Police Act. The said provision would have resulted in not imposing with a penalty of imprisonment, but only a fine. Even in that case, the learned Judicial Magistrate conscious of the fact that any imposition of penalty may cause his employment and also finding that there was no previous conviction, let him out on probation. This fact was not considered by the respondents when they passed the final orders. Even when such ground was raised, the appellate authority rejected his appeal with a brief order and did not give any reason. 13.As to whether a conviction and the subsequent release on probation, an action can be taken by the authority and whether the court can interfere with such penalty came to be considered in several decisions of the Supreme Court. In Shankar Dass v. Union of India reported in (1985) 2 SCC 358, the Supreme Court in paragraphs 4 and 7 observed as follows: "4. Section 12 of the Probation of Offenders Act must be placed out of way first. It provides that notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or 4 shall not suffer disqualification attaching to a conviction for an offence under such law. The order of dismissal from service consequent upon a conviction is not a disqualification within the meaning of Section 12. There are statutes which provide that persons who are convicted for certain offences shall incur certain disqualifications. For example, Chapter III of the Representation of the People Act, 1951, entitled Disqualifications for membership of Parliament and State Legislatures and Chapter IV entitled Disqualifications for Voting contain provisions which disqualify persons convicted of certain charges from being members of Legislatures or from voting at elections to Legislatures. That is the sense in which the word disqualification is used in Section 12 of the Probation of Offenders Act. Therefore, it is not possible to accept the reasoning of the learned Single Judge of the Delhi High Court. ...... 7. It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him insofar as his service career was concerned. Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service on the ground of conduct which has led to his conviction on a criminal charge. But, that power, like every other power, has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical." 14.Subsequently, the Supreme Court in Karam Singh v. State of Punjab reported in (1996) 7 SCC 748 held in paragraphs 2 and 3 as follows: "2. It is contended by Shri Kapoor, learned counsel for the petitioner, that since the petitioner has been acquitted of the charge for the offence under Sections 302 and 324 IPC and he having been released on probation for offence under Section 323, it cannot be said that there is any impediment in his way for reinstatement and that, therefore, the view of the authorities and the High Court is not valid in law. We find no force in the contention. It is true that this Court in Shankar Dass v. Union of India1 had held that on acquittal and release on probation under Section 12 of the Probation of Offenders Act, 1958, the authorities are entitled to consider on the facts in each case whether the appellant therein could be reinstated into the service. It is to be remembered that conviction is one part of it and release on probation is another. Later part only enables the delinquent not to undergo the sentence on showing his good conduct during the period for which probation was granted. Suppose during the period of probation, he commits another offence, then his probation gets terminated and he would be liable to undergo the sentence....... 3. In Union of India v. Bakshi Ram(1990 (2) SCC 426) this Court considered the effect of Section 12 of the Probation of Offenders Act and of the power to remove a public servant and also the conviction as a disqualification, though he was released on probation. After approving the consistent reasoning given by several High Courts as noted in paragraph 11 of the judgment, this Court held that though Section 12 gives a right to the delinquent, it does not wipe out the offence and it would be a disqualification attached to the conviction. The authorities would be entitled to take that factor into consideration in imposing punishment of removal from service. In that case, the penalty of dismissal from service was altered into one of removal from service." 15.In cases where an employer imposes penalty by taking recourse to power under Article 311(2)(a) of the Constitution, the power of the High Court to interfere with that penalty came to be considered by the Supreme Court in Union of India v. Parma Nanda reported in (1989) 2 SCC 177. The following passages found in paragraphs 28 and 29 may be usefully extracted below: "28...It may, be noted that this Court exercised the equitable jurisdiction under Article 136 and the High Court or Tribunal has no such power or jurisdiction. 29. We may however, carve out one exception to this proposition. There may be cases where the penalty is imposed under clause (a) of the second proviso to Article 311(2) of the Constitution. Where the person, without enquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine the adequacy of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty impugned is apparently unreasonable or uncalled for, having regard to the nature of the criminal charge, the Tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent authority for reconsideration or by itself substitute one of the penalties provided under clause (a). This power has been conceded to the court in Union of India v. Tulsiram Patel10 where Madon, J., observed: (SCC pp. 501-02, para 127) [W]here a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be.... The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the government servant concerned. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in. appeal, revision or review. If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the courts power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India11 this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case. 16.The Supreme Court while dealing with the imposition of penalty even for minor offence committed by employees, held in such cases that the court can interfere with the penalty imposed on the employees, vide its judgment in Pawan Kumar v. State of Haryana, reported in (1996) 4 SCC 17. The following passages found in paragraphs 13 and 14 may be usefully extracted below: "13. We had required of the respondents to produce before us the copy of the judgment whereby the appellant was convicted for the offence. As was expected only a copy of the institution/summary register maintained by the Court of the Chief Judicial Magistrate, Bhiwani was placed before us showing that the appellant on 4-6-1980 was imposed a fine of Rs20. A copy of the treasury challan supporting that the fine paid was deposited by the Chief Judicial Magistrate the same day has also been produced. The copy of the summary register neither discloses the substance of the allegations put to the appellant, nor the words in which the plea of guilt was entered. It is of no significance that the appellant treats himself a convict as he had pleaded guilty. Ex facie it only shows that the entry concerns FIR No. 231 of 3-6-1980 under Section 294 IPC. Therefrom it is difficult to discern the steps taken in the summary trial proceedings and what had the appellant pleaded to as guilty, whether to the allegations in the FIR or to the provision of the IPC or any other particular? Mere payment of fine of Rs20 does not go to show that the conviction was validly and legally recorded. Assuming that the conviction is not open to challenge at the present juncture, we cannot but deprecate the action of the respondents in having proceeded to adversely certify the character and antecedents of the appellant on the basis of the conviction per se, opining to have involved moral turpitude, without satisfying the tests laid down in the policy decision of the Government. We are rather unhappy to note that all the three courts below, even when invited to judge the matter in the said perspective, went on to hold that the act/s involved in conviction under Section 294 IPC per se established moral turpitude. They should have been sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294 IPC on todays society and its standards, and its changing views of obscenity. The matter unfortunately was dealt with casually at all levels. 14. Before concluding this judgment we hereby draw the attention of Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine up to a certain limit, say up to Rs2000 or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. This can brook no delay, whatsoever." 17.In the present case, notwithstanding his compulsorily retirement, thanks to the order of the Tribunal, the petitioner has been in service for the last 9 years. He is about to retire in the end of this month. Considering the fact that the petitioner was only charged for an offence under Section 75(1)(b) of the Tamil Nadu City Police Act and that he was also let off by the Magistrate under the Probation of Offenders Act and that the authority have not passed a speaking order while imposing a major penalty and the appellate authority also did not consider these aspects and also the fact that by virtue of the interim order the petitioner has been in service, this court is obliged to interfere with the punishment of compulsory retirement. 18.Though the learned Additional Government Pleader stated that continuance