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2012 DIGILAW 3608 (MAD)

P. Sekar v. Director General of Police

2012-08-16

D.HARIPARANTHAMAN

body2012
Judgment :- 1. The petitioner was serving as Head Constable. Disciplinary action was initiated against the petitioner under Rule 3(b) of the Tamil Nadu police Subordinate Service (Discipline and Appeal) Rules, 1955. I am not going into the details of the charges, in view of the order, that is to be passed hereunder: 2. The charge memo dated 12.5.2007, resulted in passing of the punishment order dated 14.9.2007, imposing the punishment of reduction in time scale of pay by three stages for three years with cumulative effect. The punishment order was passed by the Deputy Commissioner of Police, North Zone, Flower Bazaar Police Station, Chennai City. 3. Whileso, the second respondent, Joint Commissioner of Police, North Zone, Chennai, took suo motu action by issuing show cause notice dated 23.11.2007, directing the petitioner to show cause as to why the punishment shall not be enhanced. He did not give any explanation. Ultimately, the second respondent has passed the dismissal order dated 28.12.2007, dismissing the petitioner from service. 4. Whileso, the petitioner has filed a Review Petition dated 9.3.2011 to the first respondent, to review the order dated 28.12.2007, dismissing the petitioner from service. The review petition is filed, based on the order of acquittal dated 2.11.2010, by the learned 7th Metropolitan Magistrate, Chennai, in C.C.No.8620 of 2007. 5. The first respondent has rejected the review petition, by an order dated 16.11.2011. 6. The petitioner has filed this writ petition to quash the order dated 28.12.2007 of the second respondent and the order dated 16.11.2011 of the first respondent. 7. A detailed counter affidavit has been filed by the second respondent refuting the allegations. 8. Heard both sides. 9. According to the petitioner, the second respondent has initiated suo motu review of the order dated 14.9.2007, while the second respondent is not the competent appellate authority and thus, he is not competent to initiate the review proceeding. According to the petitioner, Commissioner of Police is the appellate authority. Secondly, it is submitted that the punishment order dated 14.9.2007 was served to the petitioner on 3.10.2007. The petitioner could prefer an appeal before the Commissioner of Police, the appellate authority, within two months from the date of receipt of the copy of the punishment order. Before the expiry of the period for preferring the appeal, even the appellate authority could not review the order of the disciplinary authority. 10. The petitioner could prefer an appeal before the Commissioner of Police, the appellate authority, within two months from the date of receipt of the copy of the punishment order. Before the expiry of the period for preferring the appeal, even the appellate authority could not review the order of the disciplinary authority. 10. I have considered the submissions made on either side. 11. The issue is as to whether the second respondent is the appellate authority, so that he could initiate the review proceeding. As per Rule 15 (A) of the Tamilnadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, the Government or Head of the Department, or the appellate authority could take suo motu review proceeding. However, the appellate authority could initiate review proceedings only after the expiry of the prescribed period, for preferring appeal. Neither the Government, nor the Head of the Department initiated review proceedings. According to the petitioner, the second respondent is not the competent appellate authority. Therefore, he lacks jurisdiction to initiate review proceeding. 12. On the other hand, it is the case of the respondents that the second respondent is the appellate authority. 13. I have perused the Tamilnadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 and I have found that the commissioner is the appellate authority in case, the punishment is imposed by the Deputy commissioner of Police. 14. In fact a letter in R.C.No.32850/A&R(1)/2004, dated 28.10.2010, from the Director General of Police, Chennai-4 addressed to the Deputy Secretary to Government, Home (Pol.IV) Department, Secretariat, Chennai-600 009, makes it clear that draft amendment is made providing that the Joint Commissioner, is the appellate authority, in case, the Deputy Commissioner of Police is the disciplinary authority for imposing punishments. However, the amendment is not carried out in the rules. Hence, when the second respondent has passed the order dated 28.12.2007, dismissing the petitioner from service, the second respondent was not the appellate authority. Even as on today, the second respondent is not the appellate authority. 15. Hence, the second respondent, lacks jurisdiction to initiate the suo motu review proceeding. 16. Further more, the second respondent has initiated suo motu review action, even before the expiry of the period of appeal. Even as per the counter affidavit, the punishment order was served on the petitioner on 3.10.2007. 15. Hence, the second respondent, lacks jurisdiction to initiate the suo motu review proceeding. 16. Further more, the second respondent has initiated suo motu review action, even before the expiry of the period of appeal. Even as per the counter affidavit, the punishment order was served on the petitioner on 3.10.2007. Rule 9 of the Tamilnadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, states that a delinquent could prefer an appeal within a period of one month and thereafter, he could prefer with an application to condone the delay upto a period of another month. Thus, two months period is given for preferring appeal. Before the expiry of two months period, the second respondent has initiated suo motu review proceeding, which is illegal. For all the above said reasons, the impugned orders are liable to be quashed. 17. In the normal course, I would have granted the entire relief, but the petitioner has slept over for four years, in filing the review petition before the first respondent. According to the learned counsel for the petitioner, the petitioner filed review petition after acquittal in the criminal case. I am not convinced with the reasons given by the learned counsel for the petitioner, since the dismissal is not based on the order of conviction by the Criminal Court. 18. Since, there was a delay in filing the review petition and thereafter, he has filed the present writ petition before this Court, I am not inclined to grant wages to the petitioner for the period of non-employment. 19. In the circumstances, the writ petition is allowed and the impugned orders are quashed and a direction is issued to the respondents to reinstate the petitioner into service, within a period of four weeks from the date of receipt of a copy of this order. It is made clear that the petitioner is not entitled to wages for the period of non-employment. But, however, he is entitled to all other benefits, such as, notional fixation of pay and counting the service for terminal benefits, etc.. No costs.