The Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus calling for records pertaining to the order passed in PR.No.22/03 dated 31.01.2005 by the 2nd respondent and the order in appeal in C.No.B1/Ap.05/2005 dated 30.06.2005 and the Show cause notice issued by the 1st respondent in C.No.B1/Ap.05/2005 dated 30.06.2005 and quash the same and direct the respondents to award all consequential benefits.
2. The brief facts of the case is as follows:- The writ petitioner was enlisted as a police constable, Grade II on 15.11.1975. He was promoted as Grade-I Police Constable in the year 1994. He was further promoted as Head Constable in the year 1999. While the petitioner was working as Head Constable in Vandavasi South Police Station, a charge memo in PR.22/2003 dated 9.6.2003 was issued under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. The misconduct alleged is illicit intimacy, moral turpitude and the misconduct at a police station in Vadavasi. The details of the charge memo are not relevant for the adjudication of the present case. An oral enquiry was conducted by the Deputy Superintendent of Police, and the charges were held to be proved. Petitioner made a representation to the Superintendent of Police, Thiruvannamalai, the punishing authority. The punishing authority imposed the punishment of reduction in rank from the post of Head Constable to Grade-I Police Constable for a period of three years to be spent on duty and such order was passed on 31.1.2005. Petitioner received the order on 7.2.2005. On 7.3.2005 petitioner preferred an appeal to the Deputy Inspector General of Police, Vellore Range, the first respondent. On 30.6.2005, the said appeal was rejected by the Deputy Inspector General of Police, Vellore Range, the first respondent on the ground of delay. While dismissing the appeal, the first respondent was of the view that the punishment imposed on the petitioner, the delinquent police officer, was too lenient and observed as follows:-
"3. I have gone through the appeal petition with connected records. The appeal is time bared by one day and the punishment awarded is too lenient as such, the appeal is rejected and the appellant is informed that the punishment awarded is taken up for review invoking the provision under rule 15(A)(i)(iii)of TNPSS (D & A) Rules 1955 and orders will be passed separately."
The order rejecting the appeal was passed on 30.6.2005 and signed on 1.7.2005. On the same day, a show-cause notice dated 30.6.2005 in C.No.B1/Ap.05/2005 was issued and signed by the first respondent on 1.7.2005. The said show-cause notice was issued in terms of Rule 15(A) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955 calling upon the petitioner to give his explanation as to why the punishment should not be enhanced. Challenging the said show-cause notice, present writ petition has been filed. The Rule 15(A) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955 reads as follows:-
"Rule 15A. (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 serving in a department or office under the control of such Head of Department, or
(iii) 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
(c) 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 an 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.
(3) An application for review shall be dealt with in the same manner as if it were an appeal under these rules.
(4) No application for review shall be preferred more than once in respect of the same order.
Provided that members of the constabulary (Police Constables and Head Constables) shall be eligible to make one representation to the Government against the orders of dismissal or removal from service after exhausting the right of appeal.
Provided further that no application for review shall be entertained if it has not been made within a period of six months from the date of receipt of the order on which such application for review is preferred."
(emphasis supplied)
3. The contention of the learned counsel for the petitioner is that in terms of Rule 15(A)(2)(ii) no review shall be commenced till the disposal of the appeal. The first respondent cannot issue the show-cause notice for review on the same day while dismissing the appeal. Therefore, the show-cause notice issued in this case is contrary to the above said rules and therefore, the impugned proceedings has to be set aside.
4. Heard the learned Government Advocate, appearing for the respondent, who stated that on dismissing the appeal, for whatever reason, the authority who is appraised of the facts is entitled to form an opinion and proceed further for review and accordingly in terms of Rule 15(A) show-cause notice was issued then and there after disposal of the appeal, based on the material already available on record. The power of review was not exercised keeping the appeal pending. Therefore, there is no infirmity as alleged by the learned counsel for the petitioner.
5. Rule 15(A) provides for review of the department proceedings. The authority can review either on own motion or otherwise call for records of any enquiry and pass appropriate orders as provided under Rule 15(A)(1)(iv) (a), (b), (c) and (d). However, proviso to the rule states that reasonable opportunity should be given to the concerned Government servant against penalty to be imposed. Rule 15A(2) speaks as to when power of review should be exercised.
6. In so far as the present case is concerned, an appeal has been filed by the petitioner and that has been disposed off by the first respondent on 30.6.2005. Therefore, on that date there cannot be any impediment to initiate review proceedings. Sub clause (ii) to Rule 15A(2) says that no review shall be commenced before disposal of the appeal. On 30.6.2005, the appeal in this case was dismissed on the ground of limitation and that has been clearly indicated in the order. This court is unable to accept the stand of the petitioner that immediately on dismissing the appeal, the reviewing authority has no power to review the punishment by invoking Rule 15A(1). In this case, based on the materials available on record, the first respondent while dismissing the appeal on limitation, having gone through the order has exercised the power of review and communicated to the petitioner that the review proceedings will be initiated according to the rules. The order of dismissal of appeal is not the show-cause notice, but only an intimation of the proposed action to be taken by the reviewing authority. The fact is that a separate show-cause notice was prepared on 30.6.2005 and signed on 1.7.2005 (i.e.) in terms of the proviso to rule 15A(1) and was served on the petitioner. The dismissal of the appeal and the issuance of the show-cause notice are two independent acts and therefore, there is no question of violation of Rule 15A(2) as contended by the counsel for the petitioner.
7. I find no infirmity in the proceedings initiated by the first respondent for enhancement of the penalty. Insofar as the merits of the case is concerned, since the show-cause notice has been issued by the authority, the petitioner can agitate the factual plea with regard to the delinquency or the penalty before the appropriate authority. This court is not inclined to go into the factual matter and disputes at this point of time. Accordingly, the writ petition stands dismissed. No order as to costs.
ts To
1.The Deputy Inspector General of Police, Vellore Range, Vellore.
2.The Superintendent of Police, Thiruvannamalai