This writ petition is filed challenging the orders passed by the 1st, 2nd and 3rd respondents, dated 21.08.1997, 13.11.1997 and 23.04.1998, respectively, and for a direction to the respondents herein to reinstate the petitioner into service with all consequential service and monetary benefits.
2. The brief facts leading to the filing of the writ petition are as follows :
(i) The petitioner entered the service as Grade II Police Constable on 01.05.1988 in the District Armed Reserve, Chengalpattu, Chengai MGR (E) District and after having served meritoriously in the Armed Reserve, he was transferred to Law and Order on 01.04.1997. Prior to recruitment as Grade II Police Constable in the Police Department, the petitioner had served in the Prison Department as Grade-II Warden. Due to ill health, he could not continue his service and hence he applied for leave, which was rejected by the Prison Department. But, the petitioner was served with Charge Memo stating that he had committed grave delinquency of helping a prisoner. For the said charge memo, the petitioner submitted an explanation on 18.11.1985. Subsequently, the Enquiry Officer held the petitioner guilty of the charges and the Disciplinary Authority, namely, the Superintendent, Central Prison, Madras issued an order of removal from service vide proceedings in Na.Ka.No.12783 B3/95 dated 27.01.1986.
(ii) Thereafter, the petitioner applied for recruitment of Grade- II Police Constable, which was held in January 1988 at Chengalpattu, Chennai MGR (East) District and he was selected by the Department and he joined the Department on 01.05.1988 as Grade II Police Constable. Whileso, a petition was submitted to the Police Department stating that the petitioner had suppressed the fact of his previous employment in the Prison Department and his removal from service, while entering the Police Department. Following the said petition, a Charge Memo dated 03.12.1996 was issued to the petitioner by the Superintendent of Police, Chengalpattu East District. The petitioner submitted a detailed explanation to the said charge memo stating that there is no willful disobedience or willful negligence on his part in suppressing the fact of his removal from service in the Prison Department.
(iii) On enquiry by the Deputy Superintendent of Police, Mount Sub Division, the charges against the petitioner were proved beyond all reasonable doubts, by his Report dated 21.05.1997. The petitioner made a further representation on the Enquiry Officer's Report. The third respondent, namely, the Disciplinary Authority concurred with the findings of the Enquiry Officer and passed an order of dismissal from service vide proceedings dated 21.08.1997.
(iv) Aggrieved by the order of dismissal dated 21.08.1997, the petitioner preferred an appeal to the second respondent herein and the same was rejected on 13.11.1997. Challenging the said order of dismissal, the petitioner preferred a review petition before the third respondent and the third respondent without considering the case of the petitioner in his review petition, rejected the same on 23.04.1998. According to the petitioner, the order of dismissal from service passed by the 1st respondent and confirmed by the 2nd and 3rd respondents herein, is unjust, illegal and unsustainable in law. Hence, having no other alternative, the petitioner has approached this court.
3. On behalf of the respondents, the first respondent has filed counter affidavit and has stated as follows :
(i) The petitioner was working as Grade-II Police Constable at Armed Reserve, V Platoon, St. Thomas Mount, Chengai East District from 07.11.1998 and got recruited as Grade-II Police Constable on 01.05.1988 by appearing for the Police Constable selection. On 31.01.1988, he was directed to fill up the verification Roll, i.e. at the time of his appointment as Grade-II PC. Columns 10 to 14 of Verification Roll relates to his previous employment. In the said columns of the Verification Roll, the petitioner had willfully mentioned details as 'NIL' and he has suppressed the facts of his earlier service. On an enquiry into the petition of one Thiru R.Ramalingam subsequent to his appointment, it came to light that the petitioner had served as Grade-II PC in the Central Prison, Chennai from 26.12.1984 and he was removed from service on 27.01.1986 for conniving with a convict in disposing of 51 grams of Gold. Even his appeal before the appropriate authority was rejected. Hence, according to the respondents, the petitioner had willfully suppressed the fact of his previous employment in Prison Department in the Verification Roll at the time of his enlistment as Grade II PC in Police Department. For the above delinquency, he was dealt with in P.R.No.404/96 u/r 3(b) of TNPSS (D&A) Rules, 1955 (hereinafter referred to as 'Rules').
(ii) An oral enquiry was conducted by the Deputy Superintendent of Police, St. Thomas Mount Sub-division and 3 witnesses were examined on behalf of prosecution. The Enquiry Officer drew up a proved Minute and the first respondent herein agreed with the findings of the Enquiry Officer and passed an order of dismissal of the petitioner from service with effect from 21.08.1997. His appeal to the 2nd respondent was duly rejected by him in Proceedings Rc.No.B2/AP 55/97 dated 13.11.1997. The petitioner's Review Petition before the 3rd respondent was also rejected by him vide proceedings dated 23.04.1998. Instead of submitting a Mercy Petition to the Government, he has filed O.A.No.7177/1998 before the Tribunal against his dismissal from service.
(iii) The respondents would further state that as the delinquencies committed by the petitioner are grave in nature, he was rightly dismissed from service by the first respondent and the order passed by the first respondent was confirmed by the 2nd and 3rd respondents, as the petitioner has failed to put forth any fresh points to be considered in his favour. As such, the orders of dismissal from service imposed by the 1st respondent and confirmed by the 2nd and 3rd respondents are legal and sustainable in law.
4. Heard Mr.K.Venkataramani, learned Senior Counsel appearing for the petitioner and Mr.V.Viswanathan, learned Additional Government Pleader for the respondents.
5. Learned Senior Counsel for the petitioner would contend that the order passed by the first respondent dismissing the petitioner from service is a non-speaking order and in the impugned order, the first respondent has not taken into consideration the explanation submitted by the petitioner not only for the charge memo but also in the further representation. With regard to the allegation that the petitioner has suppressed the facts while entering the Police Department as Grade II Police Constable, the learned Senior Counsel would submit that it is a well settled law that removal from service is not a bar for fresh employment in Government Service and that the petitioner had not mentioned the details of his previous employment due to ignorance; hence, the same cannot be construed as a grave delinquency which warrants a major punishment of dismissal from service.
6. To substantiate his case, learned Senior Counsel appearing for the petitioner has relied on the following :
(i) a decision of the Supreme Court reported in 2006 (11) SCC 147 (Director, IOC and another vs. Santosh Kumar) "11. A perusal of the order passed by the Appellate Authority would only reveal the total non-application of mind by the Appellate Authority. We, therefore, have no other option except to set aside the order passed by the disciplinary authority and the Appellate Authority and remit the matter for fresh disposal to the disciplinary authority. The disciplinary authority shall consider the detailed representation made by the respondent and also consider the detailed report of the enquiry officer and the records placed before him in its proper perspective and decide the matter afresh on merits. The disciplinary authority is directed to consider the entire case only on the basis of records already on record. The respondent is not permitted to place any further material or record before the disciplinary authority. The order passed by the High Court is set aside for the above reason. We also set aside the direction issued by the High court ordering reinstatement into service with continuity in service and all consequential benefits. The disciplinary authority is also directed to dispose of the matter, within three months from the date of receipt of this order, after affording an opportunity to both the parties. ... "
(ii) a decision of this court reported in 2006 (1) MLJ 48 (RM.Palaniappan vs. The Transport Commissioner, Chepauk, Chennai and others) "25. Further, we do not find any inconsistencies or infirmities in rejecting the case of the petitioner. Therefore, we have no hesitation in affirming the findings of the Enquiry Officer, the order of the first respondent and the order of the Tribunal in so far as proving of the charge. However, we are disinclined to agree with the extreme punishment imposed by the first respondent dismissing the petitioner from service and the confirmation of the same by the Tribunal as the extreme punishment imposed on the petitioner is disproportionate when comparing the gravity of the charge.
26. No doubt, the shameful act committed by the petitioner is so serious in nature. However, the extreme punishment of dismissal from service imposed on the petitioner, in our view, is disproportionate for the reason that the main object and thrust behind awarding of a punishment to an offender is only to mend him and not to strangulate. Otherwise, the very purpose of awarding punishment would not be served. "
(iii) yet another decision of the Supreme Court reported in 1986 (3) SCC 103 (Ram Chander vs. Union of India and others) "25. ... the Appellate Authority must not only give a hearing to the government servant concerned but also pass a reasoned order dealing with the contentions raised by tribunals, such as the Railway Board in the present case, will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the final orders that may be passed on his appeal. Considerations of fair play and justice also require that such a personal hearing should be given. "
(iv) yet another decision of this court reported in 2006 (4) MLJ 1382 in the case of K.Kandasamy vs. Deputy Inspector General of Police, Tiruchirappali Range, Tiruchirappalli and another "7. It is seen from the aforesaid portion of the impugned order that the Appellate Authority did not deal with any of the grounds of appeal raised by the petitioner. A departmental appeal is a continuation of the original proceedings. It is needless to point out that the last opportunity available for a delinquent, to canvass his case on merits, is at the appellate stage. After the appeal, a delinquent loses his right to challenge any disciplinary proceedings on merits, since the scope of interference on a revision or on a writ petition is very limited. Therefore, the rules themselves contemplate Appellate Authorities to go into the factual details and consider all the grounds of appeal before deciding an appeal. Unfortunately, the first respondent has chosen to dismiss the appeal by a non-speaking order and hence the Appellate Authority's order is liable to be set aside.
7. On the other hand, learned Additional Government Pleader appearing for the respondents would contend that nothing prevailed upon the petitioner to furnish the details of earlier employment at least after his joining the force. According to him, though the punishment of removal from service is not a bar for fresh appointment, the suppression of facts while seeking appointment in a disciplined force cannot be of minor nature to be ignored; hence, on this ground alone, the order of punishment is not liable to be quashed. To substantiate his stand, learned counsel has relied on a decision of this court reported in 2007 (1) MLJ 510 (T.Sekar vs. Secretary to Government, Home Department, Chennai and another). Relevant portion of the judgment reads as under :
"10. The present case of the appellant is similar to Delhi Administration through its Chief Secretary and others vs. Sushil Kumar (supra). This apart, if the relevant Rule 14(b) as amended on 30.01.2003 is looked into, it will be evident that the appellant was not entitled for appointment having been discharged on the ground of benefit of doubt. Rule 14(b) originally read as follows:
"14. Qualification :
...
(b) No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the Appointing Authority
(i) that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for that service; and
(ii) that his character and antecedents are such as to qualify him for such service. "
In the said Rules in Rule 14 :
(1) ....
(2) In sub-rule (b), after clause (iii), the following clause shall be added, namely :
(iv) that he was not involved in any criminal case before Police Verification Explanation : (1) A person who is acquitted or discharged on benefit of doubt or due to the fact that the complainant "turned hostile" shall be treated as person involved in a criminal case; ... "
8. A scrutiny of this case would reveal that the petitioner was recruited as Grade-II Police Constable on 01.05.1988 in the District Armed Reserve, Chengalpattu and thereafter he was transferred to Law and Order on 01.04.1997. On receipt of a petition from one Ramalingam stating that the petitioner had suppressed the fact of his previous employment in the Prison Department and his removal from service, while entering the Department as Police Constable, a Charge Memo was issued on 03.12.1996 under Rule 3(b) of the Rules for his highly reprehensible conduct in having enlisted as Police Constable on 01.05.1988 by willfully suppressing the fact of his previous employment in Government Service and subsequent removal from service in the verification Roll filled up by him at the time of his appointment. The petitioner submitted an explanation to the said Charge Memo and an enquiry was conducted by the Deputy Superintendent of Police.
8a. A report has been submitted on 21.05.1997 giving findings to the effect that the charges framed against the petitioner were proved. Pursuant thereto, the petitioner made a further representation and the Disciplinary Authority after going through the Enquiry Officer's Report, concurred with the findings of the Enquiry Officer and passed an order of dismissal from service vide proceedings dated 21.08.1997, against which the petitioner preferred an appeal before the second respondent; the said appeal was rejected on 13.11.1997. Challenging the said order of dismissal, the petitioner preferred a review petition before the third respondent and the third respondent rejected the same on 23.04.1998. Both the appellate authority and the revisional authority have confirmed the order of the disciplinary authority. The petitioner has challenged the above orders on the grounds that the punishment imposed on him is excessive, disproportionate to the charges and removal from service in the previous employment is not a bar for fresh employment. According to the petitioner, the orders passed by the appellate authority and the revisional authority are non-speaking in nature and are passed without application of mind.
9. A crucial question that arises for consideration in this matter is whether the petitioner's suppression of material facts about his previous employment in his application for recruitment as Police Constable warrants dismissal from service or whether the punishment imposed on the petitioner is disproportionate to the charges levelled against him.
10. It is seen that the petitioner was in employment as Grade-II Warden in the Prison Department prior to his service in the Police Department. Due to ill-health, he could not continue in the Prison Department and hence he applied for leave; his leave application was rejected by the Prison Department. Thereafter, a charge memo was issued to the petitioner on the allegation that he had committed grave delinquency of helping a convict in disposing of 51 grams of Gold. For the said charges, the petitioner submitted an explanation and after conducting enquiry, the disciplinary authority, by order dated 27.01.1986 removed the petitioner from service. Further, it is seen that the petitioner was not involved in any criminal case in his previous employment and the only allegation against him appears that he has helped a convict in disposing of Gold.
11. The strenuous contention of the learned counsel for the petitioner is that removal from service of an employee is not a bar for further employment and that non-disclosure of the fact of his previous employment in the application would not attract serious punishment of dismissal from service. In the case on hand, admittedly, the petitioner has not furnished the particulars regarding his previous employment in the columns provided for in the application for recruitment to the post of Police Constable. He has submitted an explanation to the Charge Memo issued against him and an enquiry has also been conducted on his explanation. A perusal of the material records would also show that the petitioner was being afforded a reasonable opportunity of hearing; but, the Enquiry Officer held the charges against the petitioner proved and the punishment of dismissal from service has also been imposed.
12. It is settled law that when the punishment is excessive or shockingly disproportionate, this court is normally inclined to interfere with the quantum of punishment and this legal position has time and again drawn the attention of the Apex Court. While considering the power to interfere with the order of punishment, it is worth referring to a decision of the Apex Court reported in 2009 (7) SCC 248 in the case of Ramanuj Pandey vs. State of Madhya Pradesh and others. Relevant portion of the said decision would read thus :
"8. In Commr. Of Police vs. Syed Hussain, this court observed that : (SCC pp.176-177, paras 10 & 13) "10. It is one thing to say that order passed by the statutory authority is wholly arbitrary and thus violative of
Article 14 of the Constitution and thus liable to be set aside, but it is another thing to say that the discretionary jurisdiction exercised by such authority should not ordinarily be interfered exercised by such authority should not ordinarily be interfered with by a superior court while exercising its power of judicial review unless one or the other ground upon which and on the basis whereof the power of judicial review can be exercised exists.
13. It is, therefore, beyond any doubt or dispute that the doctrine of proportionality has to be applied in appropriate case as the depth of judicial review will depend on the facts and circumstances of each case. "
9. Admittedly, it is for the disciplinary authority or the administrative authority to decide the quantum of punishment in a case of misconduct and the role of the court is only secondary. But in view of the gravity of the misconduct, namely, the appellant having apprehended Laxmi Narain and registering him under Section 13 of the Lunacy Act, where the disciplinary authority held the appellant guilty for detaining a public servant in police post without any reason and removed him from government service, the interference with the imposition of punishment is necessary.
10. In the present matter the appellant, while discharging his duties apprehended Laxmi Narain and registered him under the Lunacy Act without any sufficient reasons. This act of his had indisputably caused harassment to Laxmi Narain and was detrimental to the image of the Police Department, but the same was also not grave enough to punish him with removal from services. The appellant as a Head Constable was bestowed with official duties and while discharging them he went outside its purview, which definitely warrants that his services must be terminated, but as a warning to others and not as a vengeance.
11. While considering the power to interfere with the order of punishment, this Court in Rangaswami vs. State of Tamil Nadu, held that this court while exercising the jurisdiction under
Article 136 of the Constitution, is empowered to alter or interfere with the penalty. Accordingly, the punishment of the appellant of dismissal from services as imposed by the disciplinary authority is substituted to one of compulsory retirement from the date of his dismissal from service i.e. 07.05.1992. "
13. The petitioner has also contended that the appellate authority as well as the revisional authority have not considered his appeal as well as the review petition in the proper perspective; on the contrary, without assigning any reasons or considering his explanation and also without considering the relevant materials, they have passed a non-speaking order.
14. A perusal of the orders of the appellate authority and the revisional authority would reveal that without any discussion, they have only stated that the petitioner has suppressed the fact of his previous employment in the Prison Department, where he was removed from service, which is also established beyond doubt during the oral enquiry and therefore, the appointing authority has dismissed him from service. The same view has also been taken by the revisional authority. Therefore, on the above principle, the orders passed by the respondents herein are non-speaking in nature.
15. Learned counsel for the petitioner has also relied on a decision of the Supreme Court reported in (2006) 11 SCC 147, wherein, it is stated that a perusal of the order passed by the appellate authority would only reveal that there is no application of mind by the appellate authority. Therefore, it was held therein that if the order is passed without application of mind, they have no other option except to set aside the order passed by the disciplinary authority and the appellate authority and remit the matter for fresh consideration.
16. No doubt the petitioner's act of material suppression in giving particulars at the time of applying for the post of Police Constable is a matter of serious concern. However, the extreme punishment of dismissal from service imposed on the petitioner is excessive and is also disproportionate to the charges for the reason that the object and thrust behind awarding of punishment to an offender is only to mend him and not to strangulate him. Otherwise, the very purpose of awarding punishment would not be served. This aspect has to be taken note of by the parties while imposing the punishment. Therefore, I am not agreeable with the extreme punishment of dismissal from service imposed on the petitioner by the first respondent.
17. This court is conscious of the scope of interference in the quantum of punishment decided by the Disciplinary authority and the aggrieved cannot seek indulgence of this court in nullifying the act of the respondents. But, the matter can be re-looked into as per law, when the punishment imposed for the charges is shockingly disproportionate. In the case on hand, the punishment imposed on the petitioner is not proportionate to the charges levelled against him and the non-disclosure of particulars in the relevant format would attract serious punishment of dismissal, which has to be re-looked into.
18. In the light of the above discussion and analysing the ratio laid down by the Supreme Court and on considering the facts and circumstances of the case, the impugned orders passed by the 1st, 2nd and 3rd respondents, dated 21.08.1997, 13.11.1997 and 23.04.1998, respectively, are set aside and the matters are remanded back to the disciplinary authority for fresh consideration. The disciplinary authority is directed to consider the case of the petitioner and pass appropriate orders on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order.
The writ petition is allowed with the above direction. No costs.
abe To :
1. The Deputy Commissioner of Police, (Airport Security and Anti Hijacking), Meenambakkam, Chennai 600 027.
2. The Deputy Inspector-General of Police, Chengalpattu Range, Teynampet, Chennai 600 018.
3. The Inspector General of Police, Law & Order, Admiralty House, Chennai 600 002