P. Sakkarapani vs The Director General of Police, The Deputy Inspector General of Police, Dindigul Range and The Superintendent of Police

G. Rajasuria, J.—The petitioner filed Original Application in O.A. No. 522 of 2004 before the Tamil Nadu Administrative Tribunal.

Consequent to its abolition, the said Original Application was transferred to this Court and re-numbered as W.P.(MD) No. 9410 of 2006.

Heard both sides.

The facts giving rise to the filing of this Writ Petition as stood exposited from the records could be portrayed thus:

The petitioner was initially appointed as Grade II Police Constable in the year 1982; subsequently he was promoted as Grade I Police Constable.

While so, on 31.08.2001, the Superintendent of Police, Theni District issued a 3(b) Charge Memo under Tamil Nadu Police Subordinate Service

Rules, 1995 in P.R. No. 45 of 2001. The following charges were levelled as against him:

Highly reprehensible in having absented himself from 08.07.2001 (F.N.) to 05.08.2001 without getting any permission, not reported for his duty

and he was declared as a deserter. Further the delinquent has reported for duty on 06.08.2001 F.N. before the Superintendent of Police and the

same is an offence.

On 21.09.2001, the Deputy Superintendent of Police, Bodi was appointed as an enquiry officer. After conducting enquiry, the enquiry officer,

submitted the enquiry report to the Disciplinary Authority namely, the Superintendent of Police, Theni District, who without furnishing a copy of the

enquiry report to the charged official calling for explanation/remarks/objections, simply imposed the punishment order of ""Compulsory retirement

from service"", w.e.f. 18.12.2001. Whereupon, on 31.12.2001, the petitioner filed appeal before the Deputy Inspector General of Police, Dindigul

Range, Dindigul, who rejected the appeal. The petitioner''s wife also filed a mercy petition on 02.04.2002, which was also rejected nine months

later. Thereupon, the petitioner filed O.A. No. 522 of 2004 before the Tamil Nadu Administrative Tribunal, challenging the order of compulsory

retirement from service on the following grounds:

The order of ''compulsory retirement from service'' is not a speaking order. The copy of the enquiry officer''s report was not given to the petitioner.

The previous bad antecedents referred to in the order, were not communicated to the petitioner before passing order by the Disciplinary Authority.

Even though, the petitioner wanted to join the service, yet he was not allowed to join.

Per contra, the Superintendent of Police, Theni District filed the counter with the averments which would run thus:

The petitioner was a deserter from the Police Force with effect from 09.01.2001. Since for twenty one days, he was continuously absent from

service, charge memo was issued under 3(b) of the Tamil Nadu Police Subordiante Service Rules, 1995 in P.R. No. 45 of 2001. Adhering to the

procedures contemplated under the law, the enquiry was conducted and he was compulsorily retired from service. Justifying the action taken by

the Disciplinary Authority and the appellate authority, the Superintendent of Police, Theni District would pray for dismissal of the writ petition.

The points for consideration are (i) whether the Disciplinary Authority was justified in not furnishing the copy of the enquiry officer''s report to

the petitioner calling for his explanation/ remarks/objection as per law? (ii) whether the Disciplinary Authority was justified in not communicating the

alleged bad antecedents of the petitioner before relying upon them for imposing the punishment of compulsory retirement? and (iii) whether the

authorities concerned were justified in not permitting the petitioner to rejoin the duty?

The learned Counsel for the petitioner would convincingly and correctly placing reliance on the decisions of the Hon''ble Apex Court in Union of

India and others Vs. Mohd. Ramzan Khan, and this Court in R. Krishnadevan v. The Asst. General Manager, I.O.B., Industrial Relations Dept.,

Madras-2 and Anr. reported in 2001 (3) CTC 385 would develop his arguments that the non-communication of the enquiry officer''s report to the

charged official calling for his explanation is fatal to the enquiry. An excerpt from the decision of the Hon''ble Apex Court in Union of India and

others Vs. Mohd. Ramzan Khan, would run thus:

Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report

to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by

amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges

are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the

recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have

the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law

application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out

of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by

the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the

matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the

supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position.

The learned Counsel for the petitioner would also highlight that in accordance with the principles of natural justice, the petitioner is entitled to

know about his alleged previous bad antecedents being in operation as against him and he ought not to have been prevented from joining the

service.

The learned Additional Government Pleader would submit that the authorities followed the procedures properly.

10.Point (i):

The Hon''ble Apex Court in Union of India and others Vs. Mohd. Ramzan Khan, clearly and categorically held that communication of the enquiry

officer''s report to the charged official and calling for his explanation/objection is part of complying with the principles of natural justice and it

cannot be dispensed with. Here, in this case, admittedly, the charged official, viz., the petitioner herein was not supplied with a copy of the enquiry

officer''s report and he was not called upon to furnish his explanation also before passing the impugned order. As such, it is apparently and glaringly

clear that such non-compliance with the procedure is fatal to the final order passed and on that ground itself the order could be quashed.

Point (ii):

The non-communication of the previous bad antecedents, which the Disciplinary Authority relied on for imposing the punishment of compulsory

retirement from service, is once again a violation of the principles of natural justice. After getting explanation/objection relating to the enquiry

officer''s report, if the Disciplinary Authority is satisfied that punishment has to be imposed than before imposing such punishment, the alleged bad

antecedents of the petitioner should be communicated to him, calling upon him to furnish his views, if any, with regard to the factual correctness of

those previous bad antecedents operating as against him. Only thereafter, he could rely upon such previous convictions. Accordingly, on this

ground also, the order could be quashed.

Point (iii):

Since the petitioner expressed his desire to rejoin the duty irrespective of the fact that he was a deserter, the authorities should have permitted him

to join duty subjected to the proposal to take action for his unauthorized absence. But in this case, they have not done so. Hence, under this count

also, the authorities committed error.

In the result, this petition is allowed by ordering thus:

The orders passed in Proceedings No. PR.45/2001, under Rule 3(b) of Tamil Nadu Police Subordinate Services (D&A) Rule, 1955 dated

18.12.2001 by the third respondent, Rc. No. A2/2587/243/2002 dated 17.04.2002 by the second respondent and Rc. No. 89950/APII(3)/2002

dated 04.01.2003 by the first respondent are set aside and the disciplinary authority concerned is directed to furnish the copy of the enquiry

officer''s report to the charged official, viz., the petitioner herein, calling upon him to furnish his explanation/objection within a period of twenty one

days from the date of receipt of a copy of this order, after getting his explanation/objection, if any, if the authority desires to proceed further as

against him, the disciplinary authority is also further expected to furnish the alleged bad antecedents calling upon him to express his view on the

factual correctness of those previous bad antecedents operating as against him and only thereafter he has to choose the final course of action and

pass suitable orders.

In the meanwhile, if the petitioner expresses his desire to rejoin duty, he shall be allowed to rejoin duty subject to the ultimate outcome of the

proceedings, which this Court directed the authority to follow.

With the above observations, this Writ Petition is disposed of. Consequently, connected Miscellaneous Petitions is closed. No costs.