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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.S. RAMESH, J.
Gurumoorthy - Petitioner
Versus
The Director General of Police, Mylapore, Chennai & Others - Respondents
W.P. No. 2630 of 2017
Decided On : 12-08-2021
Constitution of India,1950 - Article 226 - Member of police service – Imposition of penalty -Penalty is excessive or adequate or inadequate - evidence adduced during such enquiry - Whether the facts on which the order of penalty was based have been established - Whether such established facts afford sufficient grounds for taking action - Whether the penalty is excessive or adequate or inadequate - whether the penalty is excessive or adequate or inadequate - Whether the facts on which the order was based have been established - Whether the facts established afford sufficient ground for taking action - Whether the penalty is excessive, adequate or inadequate; and after such consideration - appeal is provided under Rule 6 of the aforesaid Rules. As per Rule 6, the Appellate Authority is required to consider as to whether the facts on which the order of penalty was based have been established; whether such established facts afford sufficient grounds for taking action; and whether the penalty is excessive or adequate or inadequate. On consideration of the aforesaid three factors, the Appellate Authority is required to pass appropriate final orders in the appeal filed by the members of the Service - appellate authority proposed to impose is one of the penalties specified in clauses (d), (e), (3), (h), (i) and (j) of rule 2 and an enquiry under sub-rule (b) of rule 3 has not already been held in the case - consideration of the proceedings of such enquiry and after giving the appellant a reasonable opportunity of making representation against the penalty proposal on the basis of the evidence adduced during such enquiry, make such order as it may deem fit - If the enhanced penalty which appellate authority proposes to impose is one of the penalties –
Finding of the Court:
, Appellate Authority had not come to the subjective satisfaction that the order of penalty was properly justified by the Disciplinary Authority or that, the facts established therein, afford sufficient grounds for taking action. In the absence of such reasoning, the procedure contemplated under Rule 6 stands violated and therefore the order in appeal, cannot be sustained. Furthermore, the Appellate Authority has also not appreciated the reasoning as to whether the penalty imposed by the Disciplinary Authority was excessive, adequate or inadequate, apart from a general statement that the punishment awarded is proportionate to the delinquency committed by the petitioner - petitioner is at liberty to submit additional grounds of appeal, within 7 days from the date of receipt of a copy of this order. On receipt of such additional grounds, if any, first respondent herein shall consider the petitioner’s original appeal petition dated 07.05.2012, along with the additional grounds of the petitioner, if any, and pass final orders –
Result: Writ Petition stands disposed of
JUDGMENT :
(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records in connection with the charge memo Tha.Pa.No.88/2005 dated August 2005 issued by the Additional Superintendent of Police, PEW, Vellore District, the third respondent herein and the order of punishment Vellore District PR No.88/05 u/r 3(b); C.No.D1./Sec/2433/10 dated 31.01.2012 passed by the Inspector General of Police, Intelligence, Chennai-4, the second respondent herein and the order of rejection on appeal Rc.No.15595/AP IV(2)/2016 dated 12.07.2016 passed by the Director General of Police, the first respondent herein and to quash the same and consequently, direct the respondents to extend all service benefits including annual increment.)
1. This Writ Petition is heard through Video Conferencing on 13.07.2021.
2. Rule 2 of the Tamil Nadu Police Subordinate Services (Discipline & Appeal) Rules, 1955 [hereinafter referred to as ‘Rules’], prescribes various penalties which could be imposed upon the members of the Tamil Nadu Police Subordinate Services and an appeal against in all these penalties would lie before the Appellate Authority as per Rule 5.
3. The procedure for considering the appeal is provided under Rule 6 of the aforesaid Rules. As per Rule 6, the Appellate Authority is required to consider as to whether the facts on which the order of penalty was based have been established; whether such established facts afford sufficient grounds for taking action; and whether the penalty is excessive or adequate or inadequate. On consideration of the aforesaid three factors, the Appellate Authority is required to pass appropriate final orders in the appeal filed by the members of the Service. For the sake of convenience, Rule 6 is extracted hereunder:-
(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) If the enhanced penalty which the appellate authority proposed to impose is one of the penalties specified in clauses (d), (e), (3), (h), (i) and (j) of rule 2 and an enquiry under sub-rule (b) of rule 3 has not already been held in the case, the appellate authority shall, subject to the provisions, of sub rule (c) of rule 3, itself hold such enquiry or direct that such enquiry be held in accordance with the provisions of sub rule (b) of rule 3 and thereafter on consideration of the proceedings of such enquiry and after giving the appellant a reasonable opportunity of making representation against the penalty proposal on the basis of the evidence adduced during such enquiry, make such order as it may deem fit.
(b) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties, specified in clauses (d), (e), (3), (h), (i) and (j) of rule 2 and an enquiry under sub-rule (b) of rule 3 has already been held in the case, the appellate authority shall, after giving the appellant reasonable opportunity of making representation against the penalty proposed to be imposed on the basis of the evidence adduced during the enquiry, make such order as it may deem fit; and
(c) no order imposing an enhanced penalty shall be passed in any other case unless the appellant has been given a reasonable opportunity, as far as may be in such enhanced penalty.
(2) Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if s
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