The Original Application in O.A.No.819 of 2002 before the Tamil Nadu Administrative Tribunal is the present writ petition.
2.The petitioner was a Woman Police Constable. She was working in the Tamil Nadu Uniformed Services Recruitment Board, Chennai from October 1999 to January 2001. During the said period, her brother applied for selection to the post of Police Constable. The allegation made against the petitioner was that she tampered the records relating to the selection in favour of his brother. She was issued a charge memo dated 31.05.2001 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, (hereinafter referred to as the "Rules"). An enquiry was conducted on the charge memo. Ultimately, the second respondent, the Disciplinary Authority, passed an order dated 03.12.2001, awarding punishment of reduction of pay by three stages for three years with cumulative effect. The said order was served on the petitioner on 12.12.2001. The petitioner made a representation dated 21.12.2001 to the second respondent to furnish the documents, which were marked as exhibits in the departmental enquiry and also the statement of witnesses that were recorded in the enquiry for preferring an appeal to the first respondent.
3.While so, the first respondent suo motu issued a show cause notice dated 14.12.2001, directing the petitioner to explain as to why the punishment awarded to her in the order dated 03.12.2001, should not be enhanced to that of removal from service.
4.Aggrieved by the same, the petitioner filed an Original Application in O.A.No.819 of 2002 (W.P.No.2957 of 2007) to quash the aforesaid show cause notice dated 14.12.2001.
5.Heard the submissions made by Mr.A.R.Nixon, learned counsel for the petitioner and Mrs.C.K.Vishnupriya, learned Additional Government Pleader for the respondents.
6.The learned counsel for the petitioner contends that though the petitioner gave explanation to the show cause notice, the very show cause notice is without jurisdiction and therefore, the same is liable to be quashed. The learned counsel for the petitioner has brought to my notice Rule 15(A) and more particularly, Rules 9 and 15(A)(2) of the Rules in this regard.
7.On the other hand, the learned Additional Government Pleader for the respondents seeks to sustain the order stating that the petitioner committed grave charges and therefore, the first respondent was perfectly correct in issuing the show cause notice, proposing to enhance the punishment.
8.I have considered the submissions made on either side. I am not going into the merits of the case as the issue has to be decided based on Rule 15(A) of the Rules. Rules 9 and 15(A) of the Rules are usefully extracted here-under:
"Rule 9. - Every appeal preferred under Rule 5 shall contain all material statements, and arguments relied on by the appellant shall contain no disrespectful or improper language and shall be complete in itself. Every such appeal shall be submitted through the head of the office to which the appellant belongs or belonged and through the authority from whose order the appeal is preferred.
No appeal shall be admitted by the appellate authority if it has not been preferred within one month from the date on which a copy of the order appealed against was communicated to the appellant;
Provided that if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within the said period, the appeal may be admitted by such authority if it is preferred within two months from the date on which a copy of the order appealed against was communicated to the appellant.
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Rule15-A.- (1) Notwithstanding anything contained in these rules:
(i) the State Government; or
(ii) the Head of the Department directly under the State Government, in the case of Government servant in a department or office under the control of such Head of the Department; or
(ii) the appellate authority, within six months of the date of the order proposed to be reviewed; or
(iv) any other authority specified in this behalf by the State Government by general or special order, and within such time as may be prescribed in such general or special order; may at any time, either on their or its own motion or otherwise call for the records of any inquiry and review any order made under these rules, after consultation with the Tamil Nadu Public Service Commission where such consultation is necessary and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (e ) remit the case to the authority which made the order or to any other authority, directing such authority to make such further enquiry, as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit.
Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making representation against the penalty proposed. Where it is proposed to impose any of the penalties specified in clauses (d), (e), (f), (h), (i) and (j) of Rule 2 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in sub-rule (b) of rule 3 and after giving a reasonable opportunity to the Government servant concerned of showing cause against the penalty proposed on the evidence adduced during the inquiry and except after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary.
Provided further that no power of review shall be exercised by the Head of Department, unless:-
(i) the authority which made the order in appeal;or
(ii) the authority to which and appeal would lie where no appeal has been preferred, is subordinate to him.
(2) No proceeding for review shall be commenced until after,
(i) the expiry of the period of limitation for an appeal; or
(ii) the disposal of the appeal, where any such appeal has been preferred."
9.As per the aforesaid Rules, the first respondent has powers to suo motu enhance the punishment, imposed by the second respondent, as the first respondent being the appellate authority, under Rule 5 read with Schedule under the Rules. However, the first respondent could not take suo motu action until the expiry of the period of limitation to prefer appeal against the punishment order as per Rule 15(A)(2). As per Rule 9, one month is the period prescribed for preferring appeal.
10.Hence, it is very clear that the first respondent issued the impugned show cause notice before the expiry of one month from 12.12.2001, the date on which the punishment order was served on the petitioner. Hence, the impugned show cause notice is without jurisdiction and is liable to be quashed.
11.In these circumstances, the impugned show cause notice is quashed and the writ petition is allowed. No costs.
TK To
1.The Deputy Inspector General of Police Armed Police Chennai 600 010.
2.The Commandant T.S.P. III Battalian Veerapuram, Chennai 600 055