2.The Secretary to Government, Home (Police-IX) Department, Fort St. George, Chennai 9.
3.The Director General of Police, Mylapre, Chennai 600 004.
4.The Inspector General of Police, Armed Reserve Police, Chennai 600 010. ... Respondents in W.P.No.28267 of 2013 PRAYER in W.P.No.34160 of 2012: Petition filed under
Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records relating to the respondent herein in C.No.205/10/A2/2012 dated 31.10.2012; P.R.No.30/2012 U/r 3 (b) dated 30.10.2012 and quash the same.
PRAYER in W.P.No.28267 of 2013: Petition filed under
Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records relating to the first respondent in G.O.(D) No.299 Home (Pol.IX) Department dated 10.05.2013 and quash the same and consequently direct the first respondent to regularize the period of out of employment of the petitioner from 10.07.1992 to 26.03.2006 as duty for all purposes as per Fundamental Rules 54 and to refix the pay on par with petitioner's batch mates and with due regards to petitioner's seniority within a reasonable time.
The Charge memo issued to the writ petitioner in C.No.205/10/A2/2012 dated 31.10.2012; P.R.No.30/2012 U/r 3 (b) dated 30.10.2012 of the Tamil Nadu Police Discipline and Appeal Rules is under challenge in W.P.No.34160 of 2012 and to call for the records relating to the first respondent in G.O.(D) No.299 Home (Pol.IX) Department dated 10.05.2013 and quash the same and consequently direct the first respondent to regularize the period of out of employment of the petitioner from 10.07.1982 to 26.03.2006 as duty for all purposes as per Fundamental Rules 54 and to refix the pay on par with petitioner's batch mates and with due regards to petitioner's seniority within a reasonable time is under challenge in W.P.No.28267 of 2013.
2.The learned counsel appearing on behalf of the writ petitioner made a submission that the writ petitioner was appointed as Police Constable in Tamil Nadu Special Police in 1982. Further, he was promoted to the post of Head Constable and on account of certain allegations a charge memo was issued against the writ petitioner in proceedings dated 30.10.2012. The charges against the writ petitioner are extracted hereunder:
jtwhd elj;ij my;yJ bewpjtwp ele;Jf;bfhs;Sjy; mog;gilapy; j/rp/fh/2?k; mzp. *v* epWk mtpy;jhh; 5511 N.S.rf;jpntyd; (Kd;dhy; ehaf; 540 j/rp/fh gilg;gapw;rp ikak;) vd;tUf;F vjpuhf Rkj;Jtjw;F fUjg;gl;Ls;s Fiw Twy;fspd; rhuk; ml;ltiz/ Fw;wr;rhl;L?
@hpl;kD vz;15213/2008?y; 04/08/2009 md;W brd;id cah; ePjpkd;wk; gpwg;gpj;j Mizapd; go jFjpfhz; gUtk; epiwt[ bra;J Mizaplg;gl;L ehaf; gjtp cah;t[k; tH';fg;gl;l epiyapy; nkw;go ePjpkd;w Mizia bray;gLj;jtpy;iybad ePjpkd;wj;jpy; jtwhd gpukhz gj;jpuk; rkh;gpj;J mtkjpg;g[ kD (Contempt Petition No.909/2010) jhf;fy; bra;j xH';F Kiwia filgpof;fj;jtwpa kpft[k; fz;of;fjf;f xH';fPd elj;[email protected]
3.On a perusal of the impugned charge memo Annexure-I denotes the nature of the charges and Annexure-II states about the Statement of imputation and Annexure-III states about the list of documents and further Annexure-IV states about the list of witnesses. Thus, there is no infirmity in the impugned charge memo and it is capable of proceeding with in accordance with the Discipline and Appeal Rules.
4.The learned Additional Government Pleader appearing on behalf of the respondents states that the writ petitioner on receipt of the charge memo submitted his explanation and on 20.11.2012 and after submitting his explanation, denying the charges and he has filed this writ petition and the Disciplinary Authorities have already appointed an Enquiry Officer and the learned Additional Government Pleader on instruction informed this Court that the writ petitioner is not co-operating for the conclusion of the Enquiry Proceedings.
5.The learned counsel appearing for the writ petitioner states that the charges itself is untenable on the ground that the respondent has failed to peruse the order passed in a Writ Petition in W.P.No.15213 of 2009 dated 04.08.2009. Further, the said order has not been complied with. Though, the contempt application has been closed as the order has been complied with. The out of employment period of the writ petitioner from 10.07.1982 to 26.03.2006 has not been regularized so far, merely because a contempt application has been closed, it cannot be said that the writ petitioner has filed a false complaint in the Court of Law. It is contended that the impugned charge memo on the face of it is bad in law and amounts to threatening of the petitioner. Further, the writ petitioner states that the fundamental rights to approach the Court of Law in order to redress his grievance cannot be a misconduct. Mere approaching the Court will not constitute a ground for framing of the charges under Rule 3 (b) of the Discipline and Appeal Rules. The writ petitioner proceeds on merits in respect of the allegations set out in the charge memo impugned in this writ petition.
6.This Court cannot adjudicate the merits and demerits set out in the charge memo in respect of the allegations at this point of time.
7.The writ petition against the charge memo can be entertained by this Court if a charge memo is issued by an incompetent authority having no jurisdiction and on the ground of mala fides. Even in the case of rising the allegation of mala fides, the authority, against whom, such an allegation is raised, has to be impleaded as a party in the writ proceedings in his personal capacity. If a charge memo is in violation of statutory rules, then also, a writ can be entertained. In the absence of any one of the grounds, no writ can be entertained challenging the charge memo.
8.Intermittent and intervention in disciplinary proceedings are to be exercised cautiously and Judicial review in this regard is limited and the Courts shall entertain such writ petitions only on exceptional circumstances and not in a routine manner. The Departmental Disciplinary Proceedings initiated against the Government servant shall be allowed to be completed in all respects and the same should reach its logical conclusion. More specifically, the Courts cannot adjudicate the merits of the allegations set out in the charge memo in the writ petition, when the Enquiry Proceedings have not been completed. The legal principles in this regard is settled by the Hon'ble Supreme Court of India long before in the case of Union of India and others -Vs- Upendra Singh reported in (1994) 3 Supreme Court Cases 357 and it is relevant to extract Paragraph No.6 of the same:
6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons5. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus : (SCC p. 317, para 8) Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in Judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.
9.The writ petitioner has made an attempt to solicit this Court on the ground that the allegations set out is untenable. It is left open to the writ petitioner to submit his explanations/objections in this regard and prove his innocence before the Enquiry Proceedings.
10.On a perusal of the nature of the allegation, this Court is of the view that the charge memo was framed against the writ petitioner on the ground that he has filed a false affidavit before the Court of Law. Certainly, if the Department finds that a false affidavit has been filed by the Government Servant before the Court of Law the same amounts to a misconduct and a full fledged enquiry in this regard is certainly warranted.
11.As stated by the writ petitioner approaching the Court of Law is a fundamental right. However, filing a false affidavit before the Court of Law is certainly a misconduct. Mere approaching a Court of Law cannot constitute a ground to frame a charge by the Disciplinary Authority. However, a false affidavit or a bogus documents are filed before the Court of Law by the Government Servant is certainly a misconduct. Enquiry in this regard is to be conducted by examining the documents and witnesses by the Disciplinary Authorities through conducting an Enquiry Proceedings.
12.Thus, this Court is of the view that the allegations on the face of it is to be considered as a misconduct, subject to proving the same in the Enquiry Proceedings. Thus, the writ petition at this stage cannot be considered on merits and it is for the writ petitioner to participate in the Enquiry Proceedings and prove his innocence before the Enquiry Officer as well as the Disciplinary Authorities in accordance with the rules. In this view of the matter no further adjudication is required on merits and on the grounds raised in these writ petitions.
13.Accordingly, the Writ Petitions stand dismissed. However, there is no order as to costs. Consequently, the connected Miscellaneous Petitions are closed.
10.11.2017 Speaking order Index : Yes Internet: Yes ah To
1.The Commandant, Tamil Nadu Special Police II-Battalion, Avadi, Chennai - 600 054.
2.The Secretary to Government, Home (Police-IX) Department, Fort St. George, Chennai 9.
3.The Director General of Police, Mylapre, Chennai 600 004.
4.The Inspector General of Police, Armed Reserve Police, Chennai 600 010.
S.M.SUBRAMANIAM, J.
ah W.P.Nos.34160 of 2012 & 28267 of 2013 10.11.2017