K. Chidambaram v. Govt. of Tamil Nadu — 1988 DIGILAW 420 (MAD)

ORDER 1. This writ petition has been filed under Article 226 of the Constitution of India for the issuance of a writ, quashing the order of the third respondent dated 11th September 1978, dismissing the petitioner from service and orders of respondents 2 and 1 dated 19th July 1979 and 1st December 1982 respectively, confirming the said order of the third respondent and pass such further or other order as this Court may deem fit and proper in the circumstances of the case. 2. The petitioner entered the Tamil Nadu Police Subordinate Service as Sub Inspector of Police in 1976. A charge memo was served on him, cataloguing eight charges and a departmental enquiry was held. On the basis of the report of the Enquiring Officer, the third respondent by his memo dated 4th July 1978 informed the petitioner that charges 1 to 6 and 8 were proved and the petitioner was called upon to show cause why the punishment of dismissal should not be inflicted on him. The petitioner was granted time and it was further extended upto 31st August 1978. On 29th August 1978 he sent his representation through the Deputy Superintendent of Police, Mettur. There was some delay on the part of the Deputy Superintendent of Police in forwarding the petitioner's representation. As a result, the third respondent passed an order of dismissal by his order dated 11th September 1978 in his Reference C. No. PR. 14/78 without considering the representation of the petitioner. The petitioner preferred an appeal to the second respondent, the Inspector General of Police, but it was dismissed in his proceedings C. No. 2323/AP-1/79 dated 19th July 1979. The petitioner preferred a revision before the first respondent, the Government of Tamil Nadu, which dismissed the same in G.O. Rt. No. 5401 dated 1st December 1982. Hence, this writ petition. 3. The petition is resisted by the respondents and a counter affidavit has been filed by the Deputy Secretary to Government, Home Department. 4. The first ground urged by Mr. S. Sunder learned counsel for the petitioner, is that the representation made by the petitioner to the second show cause notice, proposing the punishment of dismissal, has not been considered by the punishing authority and hence the order of dismissal passed by him is bad in law. The petitioner has been granted time till 31st August 1978 to send his further representation. The petitioner has been granted time till 31st August 1978 to send his further representation. According to the petitioner, he sent his representation on 29th August 1978 through the Deputy Superintendent of Police, Mettur; but because of some delay on the part of the Deputy Superintendent of Police, Mettur, it has not reached the third respondent, the punishing authority, in time. It is seen from the Government file that the petitioner's further representation has been received by the Superintendent of Police. Salem, on 4th September 1978 and it was forwarded by the Superintendent of Police, Salem, on 12th September 1978 and received by the third respondent, the Deputy Inspector General of Police, on 14th September 1978. It is obvious that the petitioner has submitted his further representation through the Deputy Superintendent of Police, Mettur, on 29th August 1978 itself and the delay has been on the part of the Deputy Superintendent of Police, Mettur and Superintendent of police, Salem, in forwarding the same to the Deputy Inspector General of Police before he passed the impugned order of dismissal on 11th September 1978. It cannot, therefore, be said that there was any default on the part of the petitioner. 5. The question now is whether the failure to consider the further representation made by the petitioner vitiates the order of dismissal. Under Article 311(2) of the Constitution of India, as it stood prior to the amendment introduced on 3rd January 1977, the delinquent must be given a reasonable opportunity of making representations on the penalty proposed. This clause has been deleted by the 42nd Amendment, which came into force on 3rd January 1977. The disciplinary enquiry against the petitioner has been started on 25th July 1976 with the issue of charge memo and the provisions of Constitution, as then stood, have to be applied. The second show cause notice is, therefore, mandatory and the representation made by the petitioner in response to the second show cause notice ought to have been taken into consideration by the punishing authority before imposing the punishment. He has not been done in the instant case. The order of dismissal cannot, instant case. 6. The second show cause notice is, therefore, mandatory and the representation made by the petitioner in response to the second show cause notice ought to have been taken into consideration by the punishing authority before imposing the punishment. He has not been done in the instant case. The order of dismissal cannot, instant case. 6. The next point urged by the learned counsel for the petitioner is that the petitioner applied to the Enquiring Officer for copies of a number of documents, in order to enable him to meet the charges framed against him and establish his innocence, but that those documents were not furnished to the petitioner, who has thereby been denied the reasonable opportunity of meeting the charges. In his letter dated 3rd September 1976 the petitioner has requested the Enquiring Officer to send for and make available as many as 20 documents. They are, Inspector's visiting note book, daily diary of the Circle Inspector of Police. P.R. file, T.A. Bill of the Circle Inspector of Police, crime memo book of the Circle Inspector of Police, Village Roster of the Circle Inspector of Police, pocket note book of the Circle Inspector of Police, report submitted by the Circle Inspector of Police, report forwarded by the Collector, Salem report of the petitioner and visiting note book of the Sub Divisional Officer, etc., Again, on 15th September 1976 the petitioner has asked for 8 more documents. According to the petitioner, all these documents were relevant to show that the charges framed against him are nor true. These documents have not been furnished to the petitioner and the explanation offered by the Department is that these documents are not available. It is not stated how these documents became unavailable. It is not known whether these documents were destroyed or whether they are missing. All these document are of the years 1974 and 1975. They could not have been destroyed in 1976 when the petitioner has called for these documents. It is also difficult to believe that all these documents together are lost. The only reasonable inference is that the Enquiring Officer has deliberately withheld from the petitioner these documents. The petitioner has, therefore, been deprived of a very valuable opportunity of meeting the charges framed against him in an effective manner. It is also difficult to believe that all these documents together are lost. The only reasonable inference is that the Enquiring Officer has deliberately withheld from the petitioner these documents. The petitioner has, therefore, been deprived of a very valuable opportunity of meeting the charges framed against him in an effective manner. The impugned order of dismissal is violative of Article 311(2) of the Constitution of India, in as much as the delinquent officer has been denied the reasonable opportunity of defending himself. The order of dismissal has, therefore, to be struck down. 7. In the result, the writ petition is allowed and the impugned orders are quashed. The petitioner shall be reinstated in service within eight weeks from the date of receipt of this order and be conferred all the attendant benefits, as if he had never been suspended or dismissed. Taking into Taking account the circumstances of the case and the long lapse of time, the State Government is not permitted to hold a fresh enquiry against the petitioner on the charges in question. There will, however, be no order as to costs.