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2010 Supreme(Mad) 3376
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. VENKATARAMAN
K. Solomon,
Versus
The Deputy Inspector General of Prison
Writ Petition No.19241 of 2008
Decided on : 10-08-2010
For the Petitioner:R. Krishnamurthy, Senior Counsel for R. Karthikeyan, Advocate.
For the Respondent: R. Neelakandan, G.A.
The central legal point established in the judgment is the mandatory nature of following due process before imposing major penalties, especially in cases involving the security of the State.
Headnote:
Dismissal - Service Suspension - Tamil Nadu Civil Services (Discipline and Appeal) Rules - Section 17(e), Article 311(2)(C) - The court discussed the application of Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and the power vested in Clause (C) of the second proviso to Clause (2) of Article 311 of the Constitution. The court highlighted the mandatory nature of the procedure for imposing major penalties and the exceptions provided under Article 311(2), emphasizing the importance of following due process before dismissal.
Fact of the Case:
The petitioner, a II Grade Warder, was dismissed from service without conducting an enquiry after being suspended on charges of demanding a bribe. The respondent cited the interest of the security of the State as the reason for bypassing the normal procedures.
Finding of the Court:
The court found that the dismissal order bypassed the due procedure and did not have the necessary concurrence or authorization. The court emphasized the importance of following due process, especially in cases involving the security of the State.
Issues: The issues involved the dismissal of the petitioner without following the prescribed procedure, the invocation of Article 311(2)(C) for bypassing the enquiry, and the lack of concurrence or authorization for the dismissal order.
Ratio Decidendi: The court held that the dismissal order was not in accordance with the prescribed procedure and lacked the necessary authorization or concurrence. The court emphasized the importance of following due process, especially in cases involving the security of the State.
Final Decision: The dismissal order was set aside, and the writ petition was allowed.
1. Challenging the order of the respondent dated 04.08.2008 dismissing the petitioner from service without conducting any enquiry, the present writ petition has been filed.
2. The facts that led the petitioner to file the writ petition, as put forth by him in his affidavit in support of the writ petition are stated here under:
.(a) The petitioner was appointed as a II Grade Warder on 25.03.1998. While he was working at Central Prison II, Puzhal, Chennai, the first respondent by his order dated 02.08.2008 placed him under suspension on initiation of Criminal proceedings against him in Crime No.11/2008. It was stated in the order of suspension that he demanded a bribe of Rs.8000/- from Sivashanmugam for arranging separate cell and for providing facilities to his friends. It was stated further that the said Sivashanmugam preferred a complaint before the Deputy Superintendent of Police (Vigilance and anti-corruption) on 01.08.2008 based on which a trap was organised and he was arrested and released on bail on the same day.
.(b) The order of suspension was passed in the public interest under section 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The procedure contemplated under the said Rule has to be followed by issuing charge memo, providing opportunity for giving written statement of defence, Oral enquiry and thereafter the enquiry report should be furnished giving opportunity to make further submissions. Later, the competent authority may impose all the penalties specified under Rule 8 of the Tamil Nadu Civil Service (Discipline and Appeal) Rules.
.(c) The procedure for imposing major penalty is mandatory and it cannot be waived except under Section 311 (2) (C) of the Constitution. It envisages that no person should be dismissed or removed or reduced in rank except after an enquiry. The said Rule shall not apply, where the President or the Governor as the case may be is satisfied that in the interest of the security of a State, it is not expedient to hold such enquiry. While so, the respondent by order dated 04.08.2008 dismissed him from service exercising the power vested in Clause (C) of the second proviso to Clause (2) of Article 311 of the Constitution. Thus, challenging the said order the present writ petition has been filed.
3. Counter affidavit was filed on behalf of the respondent wherein the following facts have been set out:
.(a) The petitioner, when he was a trainee abused the Jailor and hence charges under Rule 17(b) was framed and he was dismissed from service on 05.08.2004 by the Superintendent of Prisons, Central Prison, Vellore. His appeal and revision were rejected. However, the Government considering that the punishment imposed on him was excessive, by an order dated 112. 2006 modified the punishment of "dismissal from service" into that of "Stoppage of increment for a period of five year with cumulative effect".
(b) While, he was working in Central Prison – II, Puzhal, a letter was received from the Inspector of Police, Vigilance and Anti-Corrupation, Chennai by the respondent, which revealed that on 01.08.2008, at 16.30 hrs Thiru.Sivashanmuganathan preferred a complaint before the Deputy Superintendent of Police, Vigilance and Anti Corruption, stating that the petitioner had demanded Rs.8000/- as bribe for arranging separate cell and providing facilities for his friends who are in prison. A case has been registered against the petitioner. A trap was organised and the petitioner was caught red handed. He was arrested and later released on bail. He was kept under suspension under Rule 17(e) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules.
.(c) Bomb blasts took place at Bangalore, Ahmedabad and Surat and therefore precautionary measures have to be taken in the State of Tamil Nadu also. A special drive was conducted in the cell where fundamentalist prisoner Raja Hussain confined in Central Prison – II, Puzhal on 24.07.2008 and during the search, one mobile pho
