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Article 226 in The Constitution Of India 1949

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Madras High Court
Neelamegam vs The Additional Director on 13 September, 2010
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13/09/2010

CORAM
THE HONOURABLE Mr. JUSTICE T.RAJA

Writ Petition (MD)No.9939 of 2005
and
M.P (MD) No.1 of 2008

Neelamegam			 ...	Petitioner

Vs

1.The Additional Director
    General of Police,
  Law & Order, Chennai - 4.

2.The Commissioner of Police,
  Madurai City, Madurai.

3.The Deputy Commissioner of Police,
  Law & Order, Madurai City.	...	Respondents

Prayer

Petition filed under Article 226 of the Constitution of India praying
for the issuance of a writ of Certiorarified Mandamus, calling for the records
relating to the impugned order passed by the first respondent in his proceedings
Rc.No.66225/AP-2(3)/2005 dated 06.08.2005 and quash the same as illegal and
consequently to direct the respondent to reinstate the petitioner with all
attended benefits.

!For Petitioner	... Mr.M.E.Elango for
                    Mr.M.Ajmal Khan
^For Respondents... Mr.D.Sasi Kumar
            	    Government Advocate
	
:ORDER

This writ petition has been filed praying for a Writ of Certiorarified Mandamus, to quash the impugned order, dated 06.08.2005 in RC.No.66225/AP- 2(3)/2005 of the first respondent and to direct the respondents to reinstate the petitioner with all attendant benefits.

2. The petitioner, Neelamegam, while serving as Head-Constable, the third respondent issued a charge-memo under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rule,1955 in his proceedings in T.P.No.124, dated 23.07.2005, framing the following charges which is given under: "gpiHahsp, Iak;khs; vd;w bgz;iz jpUkzk; bra;J mtUf;F fe;jrhkp, rA;fh;, mf;fk;khs; Mfpa "Kd;W FHe;ijfSk;, nuz;lhtjhf byl;Rkp vd;w bgz;iz nuz;lhk; jhukhf jpUkzk; bra;J mtUf;F Kj;J, khhpr;rhkp, ghz;oak;khs; vd;w Kd;W FHe;ijfSk; mjd; gpd;g[ Kd;whtjhf yPyhtjp vd;w bgz;iz jpUkzk; bra;J mtUf;F ghz;oauh$d;, Bufh Mfpa nuz;L FHe;ijfSk; nUg;gJ tprhuizapy; bjhptjhy; muR tpjpfis kPwp gpiHahsp Kd;W jpUkzk; bra;J fhty;Jiwf;F fsA;fk; tpistpj;J xHA;fpdkhft[k; ele;J bfhz;l Fw;wk;"

3. After the receipt of charge-memo, the petitioner has admitted the allegations mentioned in the charge-memo. The third respondent being the Disciplinary Authority having not satisfied with the explanation of the petitioner, by ordering enquiry and apart from that appointed an enquiry officer to go into the allegations, who after giving reasonable opportunity to the petitioner found him guilty of the charge levelled against the petitioner. The Disciplinary Authority after the receipt of the above said report from the Enquiry Officer, issued a second show-cause notice to submit his further representation furnishing along with a copy of the report of the Enquiry Officer. Thereafter, the petitioner has submitted his further representation. The Disciplinary Authority having not satisfied with the further representation, imposed the punishment of 'Postponement of next increment for a period of 2 years with cumulative effect'.

4. Aggrieved by the above said order, the petitioner has also filed an appeal before the Commissioner of Police, Madurai City, who is the second respondent herein. After, considering the nature of the charges came to be proved against the petitioner, the petitioner being the part of Disciplinary proceedings, having repeatedly married three wives during the subsistence of the first and second wife, imposed a punishment, rejecting the appeal, issued another show-cause notice exercising the Suo moto power under Rule 15(A)(1) of Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules 1955, calling upon him to show cause, why the said punishment should not be enhanced.

5. On receipt of the above said show-cause notice issued by the second respondent under Rule 15(A)(1) of Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955, the petitioner again submitted a detailed representation. Dismissing the said representation, the second respondent imposed the enhanced punishment of 'postponement of next increment for a period of 2 years with cumulative effect' into one of 'removal from service'. Aggrieved by the above said order, the petitioner preferred a revision petition before the first respondent. After the receipt of the revision memorandum filed by the petitioner the first respondent, set aside the order of removal from service imposed by the Authority below on the ground that the second respondent failed to follow the procedure contemplated under the Rule. After setting aside the punishment of removal from service by once again exercising the power conferred under Rule 3(b) of Tamil Nadu Subordinate Service (Discipline & Appeal) Rule 1955, issued another show-cause notice calling upon the petitioner to submit his detailed explanation as to why the postponement of next increment for two years should not be enhanced. Thereafter, the petitioner has also submitted his explanation and then the first respondent by complying all the formalities and the procedures contemplated under Rule 3(b) of Tamil Nadu Subordinate Service (Discipline & Appeal) Rules, 1955, re-imposed the punishment of removal from service as against the petitioner for marrying for the third time. The petitioner has come forward with this present writ petition, after his mercy petition failed to revoke any mercy.

6. The learned counsel appearing for the petitioner has submitted that the first respondent after setting aside the order passed by the second respondent exercising the power of the Appellate Authority, thereby, deprived of the revisional remedy which is otherwise available with the first respondent. Secondly, in his further submission, he has also argued that Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955 specifically contemplates holding of a proper enquiry in the event of the Appellate Authority being not satisfied with the lesser punishment, therefore, at the time of enhancing the lesser punishment into one of removal from service, one another enquiry as contemplated under Rule 3(b) had not been held, failure of holding fresh enquiry by the respondent No.1 under Rule 3(b) ex facie vitiates the entire proceedings. As in the present case, since the first respondent has not conducted a second enquiry as contemplated under Rule 3(b) of the said Rule, the enquiry proceeding stands vitiated and on that basis he prayed for setting aside the impugned order by allowing the present writ petition.

7. Per contra, the learned counsel appearing for the respondents filed a counter affidavit stating that the petitioner while serving as a Head Constable, he married three persons, namely, Ayyammal, Lakshmi and Leelavathy and he is having eight children from all the three wives. In the service book of the petitioner, it is revealed that the petitioner mentioned his second wife, namely, Lakshmi as his nominee and the same was cancelled by the third respondent in his proceedings in C.No.K4/52070/2004, dated 10.05.2005, as his first wife Ayyammal is living with the petitioner. In that view of the matter, since the petitioner has illegally contracted three marriages repeatedly one after another and as it is against the conduct of Rules, the third respondent initiated proceedings under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955 in proceedings in C.No.D1(3)/PR.No.172/04 for his trigamous marriage in violation of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964. Though the third respondent imposed a lesser punishment of postponement of increment for a period of two years with cumulative effect on 21.10.2004, the petitioner challenged the correctness of the impugned order passed by the third respondent, but the same was dismissed on 09.12.2004. The second respondent after finding inadequate punishment by exercising suo moto power enhanced the punishment into one of removal from service. Aggrieved by this punishment review was filed before the first respondent who after seeking non-complaints of rules by setting aside the said punishment, once again enquiry proceedings by setting aside the punishment imposed against the petitioner, the order of removal by exercising the power conferred under Rule 15(A), since the petitioner has married three wives and committed serious violation of Rule 23(a)(b) of Tamil Nadu Subordinate Police Officers Conduct Rules, 1964 for the purpose of sending a strange message to the police personnel working in the department and on that basis it was submitted that the impugned punishment was imposed in proper compliance of all the rules and thus prayed for dismissal of this writ petition.

8. Heard the submissions made on both sides.

9. Prima facie, it is a case, whether the petitioner had committed a serious violation of Rule 23(a)(b) of Tamil Nadu Subordinate Police Officers Conduct Rules, 1964 by marrying three persons, namely, Ayyammal, Lakshmi and Leelavathi during the subsistence of the first marriage? In the service book of the petitioner, it was also recorded that the petitioner had mentioned his second wife as a legal nominee and he was living with third wife only during the life time of the first wife who was responsible for initiation of the disciplinary proceedings under Rule 3 (b) of Tamil Nadu Police Subordinate Services (Discipline & Appeal) Rules, 1955 in punishment Rule. One Muthu, Police Constable, 1691, of Tamil Nadu Special Police 11th Battolion, Rajapalayam, son of the petitioner had submitted a petition to the commandant, Tamil Nadu Special Police 11th Battalion against his father about the offence of trigamous marriage committed by the petitioner. On the complaint made by his own son as well the records indicating that the petitioner has nominated only his second wife as a nominee in Punishment Roll No.172/04 for his trigamous marriage for the violation of Rule 23(a)(b) of Tamil Nadu Subordinate Police Officers Conduct Rules, 1964, disciplinary proceedings were initiated against the petitioner.

10. This is not a case, where the petitioner was denied reasonable opportunity before the Disciplinary Authority when the third respondent conducted a detailed enquiry. The petitioner after submitting his detailed explanation in the disciplinary proceedings before the Enquiry Officer he was not having any basis to refute the charges levelled against him. Therefore, the third respondent imposed the punishment of postponement of increment of two years with cumulative effect. Aggrieved by the above said punishment, the second respondent after seeing the nature of allegation and the findings of the Enquiry Officer dismissed the appeal filed by the petitioner. After the dismissal of the first appeal, the second respondent issued a suo moto notice in exercise of the power under Rule 15(A) of Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955 and enhanced the punishment of postponement of increment with cumulative effect into one of removal from service. When the said punishment was challenged before the first respondent, the revisional authority by setting aside the order of removal from service on the ground of non- compliance of certain Rules, once again re-issued a show-cause notice under suo moto provision Rule 15(A) calling upon the petitioner to submit his detailed explanation as to why the lesser punishment should not be enhanced. However, the first respondent being the revisional authority after giving opportunity, by taking into account the offence committed by the petitioner, being a trigamous marriage which is in violation of Rule 23(a)(b) of Tamil Nadu Subordinate Police Officers Conduct Rules, 1964 imposed the above said punishment.

11. Therefore, the contention made by the learned counsel appearing for the petitioner that the petitioner has lost the further revision before the first respondent cannot be acceptable for the reason that even the first respondent who is the revisional authority under Rule has exercised the Appellate power. Still it is open to the petitioner to file a revision before the Government under Rule 15(A)1(iv)(a) which clearly provides further avenue for redressing his grievance if he is aggrieved by any order passed by the Appellate Authority or Revisional authority. It is relevant to extract Rule 15A for the purpose of appreciating the arguments made by the learned counsel appearing for the petitioner.

"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 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 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.

(3) An application for review shall be preferred more than once in respect of the same order.

(4) No application for review shall be preferred more than once in respect of the same order.

Provided that members of the onstabulary (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."

12. A mere reading of the above Rule 15(A)1(iv)(a) clearly goes to show that the contentions made by the petitioner cannot be legally correct. Secondly, the further contention made by the learned counsel for the petitioner that he should be once again subjected to a detailed enquiry under Rule 3(b) of Tamil Nadu Police Subordinate Services (Discipline & Appeal) Rules 1955 is not contemplated anywhere. Therefore, this Court is not inclined to accept the arguments made by the learned counsel appearing for the petitioner giving one more fresh enquiry. It is repeatedly settled by this Court as well as the Apex Court that whenever any suitable punishment has been awarded by the Disciplinary or Appellate Authority, the High Court while exercising the power of judicial review under Article 226 of the Constitution of India cannot as a matter of routine interfere with the quantum of punishment, particularly the impugned one imposed against the present petitioner who married three wives and thus committed trigamous marriage. All the authorities, from the disciplinary authority, the first appellate authority as well as revisional authorities have repeatedly held that the petitioner has committed trigamous marriage which is a violation of Rule 23(a)(b) of Tamil Nadu Subordinate Police Officers Conduct Rules, 1964.

13. Therefore, this Court is not inclined to interfere with the impugned order. Accordingly, the writ petition fails and it stands dismissed. Consequently, connected miscellaneous petition is also closed. No costs.

ps To

1.The Additional Director General of Police, Law & Order, Chennai - 4.

2.The Commissioner of Police, Madurai City, Madurai.

3.The Deputy Commissioner of Police, Law & Order, Madurai City.