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2014 DIGILAW 395 (MAD)

Karunanidhi v. Director General of Police

2014-02-18

R.SUBBIAH

body2014
JUDGMENT 1. Since the issues involved in both the above writ petitions are one and the same, they are disposed of by way of this common order. 2. The case of the petitioner in brief is as follows:- 2(1) The petitioner is a directly recruited Sub-Inspector of Police. He entered the service through the selection conducted in the year 1984 and he was appointed on 28.09.1987. Subsequently, he was promoted as Inspector of Police in January-1999, by including his name in the panel for the year 1998-99. During the period 2000-2002, he has served as Inspector of Police, NIB, CID at Chennai. The Police use to get information regarding the offences only through the informants. During the relevant period, the petitioner had also a police informant by name Vijayan @ Viji, a Ceylon National, who was helping the Narcotic Wing Department in making seizure of huge quantities of narcotic substances. After serving in NIB, CID, the petitioner was transferred and posted as Inspector of Police, Special Branch CID (Intelligence), wherein he was in-charge of Bulletin. But, all of a sudden, the petitioner was directed to report before the Chief Office vacancy reserve on 28.08.2003 and before he could report, he was arrested in connection with Crime No.947/2003 under Section 41(d) Clause 2 r/w 102 Cr.P.C., of Thiru Vi.Ka.Nagar Police Station and remanded to judicial custody on 29.08.2003. It is learnt that the said police informant Vijayan was arrested, when he was found in possession of a stolen car. The said Vijayan was arrested in connection with Crime No.947/2003 on the file of the Thiru Vi.Ka.Nagar Police Station and on his confession, the petitioner herein was also falsely implicated at the instance of some police personnel, who are inimical to him. The petitioner was served with an order of suspension on 05.09.2003, while he was in judicial custody, suspending him from service with effect from 29.08.2003, the date on which he was arrested, until further orders. 2(2) The case registered in Crime No.947/2003 of Thiru Vi.Ka.Nagar Police Station was dropped against the petitioner and the entire properties were entrusted to some other cases at Pune, Maharashtra and Andhra Pradesh. The Judicial Magistrate No.V, Egmore in his order dated 31.10.2003 ordered the petitioner to be released from the judicial custody. 2(2) The case registered in Crime No.947/2003 of Thiru Vi.Ka.Nagar Police Station was dropped against the petitioner and the entire properties were entrusted to some other cases at Pune, Maharashtra and Andhra Pradesh. The Judicial Magistrate No.V, Egmore in his order dated 31.10.2003 ordered the petitioner to be released from the judicial custody. As the criminal case registered in Madras has been dropped, the petitioner was ordered to be released from the judicial custody by the Magistrate. But, the petitioner was falsely implicated in three others cases in Andhra Pradesh and Maharashtra. In C.C.No.305/2003 on the file of the Additional District Munsif-cum-Magistrate, Sattanapalli, Andhra Pradesh, after a trial, the petitioner was acquitted on 25.10.2004. Similarly, in the case filed in Satra Police Station, the petitioner filed a criminal revision petition No.15/2005 to discharge him from the charges and the petitioner was discharged from the said criminal case by the Court. Further, the criminal case filed against the petitioner before the Additional Sessions-cum-Fast Tract Court, Pune, Maharastra, in connection with Crime No.132/2003 of Band Garden Police Station, the same was taken on file in C.C.No.364/2004, and after a hot trial, the criminal case ended in acquittal on 29.02.2012. After acquittal in the criminal case, the petitioner made a representation to revoke the order of suspension and the order of suspension was also revoked on 06.02.2013 and the petitioner has been posted to serve at present station in the in-service training center at Vellore. 2(3) During the pendency of the false criminal case, the petitioner was issued with a charge memo under Rule 3(b) of the TNPSS (D & A) Rules for the following delinquencies:- i) Highly reprehensible conduct in having engaged himself as an Agent in illegal trade of Cars and thereby failed to maintain absolute integrity and devotion to duty which resulted in his arrest in a criminal case on 29.08.2003 at 01.45 am at his quarters, Mandaveli. ii) Highly reprehensible conduct in having engaged himself in the activities, as a go-between one Govardhan of MG Road, Chennai and one Viji of KK Nagar, Chennai and iii) Failure to inform his arrest in Thiru Vi.Ka.Nagar PS Crime No.947/2003 under Section 41(ii) & 102 of Cr.P.C and in the Bundgarden PS (Pune City) Crime No.132/2003 under Sections 328, 379 IPC on 29.08.2013 and 11.09.2003 respectively and in two other criminal cases. iv) acted in a manner which resulted in the incitement to an offence. The petitioner submitted a representation denying the charges. The Additional Superintendent of Police, SB CID, Chennai was appointed as an Enquiry Officer to conduct the oral enquiry against the petitioner in respect of the above charge memo. The Enquiry Officer, inspite of the fact that there is no evidence available on record, submitted a report holding all the charges against the petitioner as proved by a Proved Minute dated 27.07.2007. But, the disciplinary authority namely, the Deputy Inspector General of Police, CID (Intelligence), Chennai, disagreed with the views of the Enquiry Officer and issued an order to conduct enquiry afresh. Followed by the same, another Enquiry Officer namely the Additional Superintendent of Police, SB CID, Chennai was appointed to conduct the oral enquiry and he had drawn up a Minute holding only 3rd charge has been partly proved and as such he submitted a Minute. But, the punishing authority viz., the Deputy Inspector General of Police, CID (Intelligence) disagreed with the findings of the Enquiry Officer holding the 3rd charge partly proved and has issued an order dropping further action on the petitioner by his proceedings in PR.No.8/2004, dated 19.05.2008. 2(4) The said proceedings of the Deputy Inspector of Police, CID (Inteligence) dated 19.05.2008 was taken up for review by the Inspector General of Police, who is the reviewing authority, and he has confirmed the order of the Deputy Inspector of Police, CID (Intelligence) by his order dated 01.06.2008. 2(5) Now, the petitioner was acquitted in all criminal cases and exonerated in the departmental enquiry. Hence, he made a representation requesting the Department to treat the period of his suspension from 05.09.2003 to 06.02.2013 as duty for all purpose and the matter is pending with the department. 2(6) While so, the Director General of Police has taken a suo motu review of the proceedings of the Deputy Inspector of Police, CID (Intelligence), Chennai dated 19.05.2008, after a lapse of 5 years from the date of dropping of further action in the disciplinary proceedings. Now, by way of suo motu review, the Department has issued a show cause notice dated 26.02.2013 under Rule 15(A) of TNPSS (D & A) Rules. 3. Challenging the said show cause notice, the petitioner has filed Writ Petition No.13889 of 2013 seeking to quash the same. 4. Now, by way of suo motu review, the Department has issued a show cause notice dated 26.02.2013 under Rule 15(A) of TNPSS (D & A) Rules. 3. Challenging the said show cause notice, the petitioner has filed Writ Petition No.13889 of 2013 seeking to quash the same. 4. The petitioner has also filed Writ Petition No.34242 of 2013 seeking to direct the respondents to consider his claim for promotion as Deputy Superintendent of Police, Category-I for the panel year 2011-12 published in G.O. (Ms).No.465 Home (Police-2) Department dated 19.06.2012 and promote him as Deputy Superintendent of Police, Category-I without reference to the show cause notice issued by the Director General of Police dated 26.02.2013. It is the contention of the petitioner that since he has been acquitted/exonerated in the criminal cases as well as in the departmental proceedings, his claim for promotion to the post of Deputy Superintendent of Police, Category-I, for which he has become due in the year 2011-12, has to be considered. In this regard, the petitioner has also made a representation to the respondents on 25.11.2013, but there was no response for his representation. But, in the meantime, the Government have published another panel for the year 2012-13, wherein the petitioner's 176 juniors' names have been included and they were promoted as Deputy Superintendent of Police on 06.11.2013 vide G.O.Ms.No.954 and the petitioner is forced to work under them, inspite of the fact that he is fully eligible for consideration for promotion after his exoneration in the departmental enquiry as well as in the criminal cases. Hence, the petitioner has filed W.P.No.34242 of 2013 seeking for the relief as stated supra. 5. I have carefully heard the submissions made by the learned Senior Counsel appearing for the petitioner as well as the learned Government Advocate appearing for the respondents and perused the materials available on record. 6. The submissions of the learned Senior Counsel appearing for the petitioner are on three folds_ i) The Director General of Police has taken up suo motu review of the proceedings of the Deputy Inspector General of Police, CID (Intelligence), after a lapse of five years from the date of dropping of the further action in the disciplinary proceedings. The initiation of suo motu review beyond six months period from the date of exoneration of the petitioner from the charges is barred by limitation. The initiation of suo motu review beyond six months period from the date of exoneration of the petitioner from the charges is barred by limitation. ii) The proceedings of the Deputy Inspector of Police, CID (Intelligence) dated 19.05.2008 was taken up for review by the Inspector General of Police, who is the reviewing authority, and he has confirmed the order of the Deputy Inspector of Police, by his order dated 01.06.2008. While such being the position, the second review proceedings initiated by the Head of the Department viz., Director General of Police is impermissible in law and the Service Rules do not provide for more than one review. iii) The petitioner was acquitted/exonerated from all the criminal cases and the departmental proceedings were also dropped by the Deputy Inspector General of Police, CID (Intelligence), by proceedings in PR.No.8/2004, dated 19.05.2008. Hence, the petitioner has become fully eligible for consideration for promotion, after his exoneration from the criminal cases as well as department proceedings. 7. With regard to the contention that suo motu review beyond six months period from the date of exonerating the petitioner from the charges is barred by limitation, the learned Senior counsel appearing for the petitioners invited the attention of this Court to Rule 15-A(1) of the Tamil Nadu Police Subordinate Services (Disciplinary and Appeal) Rules, which runs as follows:- Rule 15-A(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 of office under the control of such Head of Department; or (ii) the appellate authority, within six months of the date of the order proposed to be reviewed; or (iii) the appellate authority, within six months of the date of the order proposed to be reviewed; or (iv) any other authority specified in this behalf of the State Government by general of 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 or 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 whether 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.” From a reading of the above said Rule, it is clear that the period of limitation for reviewing the order by the appellate authority is within six months from the date of order proposed to be reviewed. In the instant case, the petitioner was exonerated from the charges by order dated 19.05.2008 passed by the Deputy Inspector General of Police, CID (Intelligence). Whereas, the Director General of Police has taken up the matter by suo motu review on 29.02.2013, i.e., after lapse of five years from the date of dropping of further action in the departmental proceedings. As per Rule 15-A (1) of the Tamil Nadu Subordinate Services (Disciplinary and Appeal) Rules, the suo motu review made by the Director General of Police beyond six months period of limitation cannot be sustainable in law. In this regard, a reference could be placed in the judgment, relied upon by the learned senior counsel appearing for the petitioner, delivered by this Court in W.P.Nos.34143 & 39895 of 2006, dated 14.07.2009, [R.Neelamegam Vs. In this regard, a reference could be placed in the judgment, relied upon by the learned senior counsel appearing for the petitioner, delivered by this Court in W.P.Nos.34143 & 39895 of 2006, dated 14.07.2009, [R.Neelamegam Vs. Director General of Police, Chennai and two others], wherein it has been held as follows:- “the fact that the Director General of Police, Chennai has issued the show cause notice on 17.04.1997, beyond the prescribed period of limitation for six months under rule 15-A of the Tamil Nadu Subordinate Services (Disciplinary and Appeal) Rules is not disputed. The Judgment relied on by the learned counsel for the petitioner is applicable to the limited extent of the period initiation of suo-motu review proceedings. As the initiation of suo-motu review proceedings is beyond the prescribed period, as rightly contended by the learned counsel for the petitioner, the same is without jurisdiction and consequently, the enhanced penalty is set aside.” A reading of the above said judgment, I find that in an identical set of facts this Court has set aside the suo-motu review on the ground of limitation. Therefore, considering the above said Rule and also taking note of the above said judgment delivered by this Court, I am of the opinion, the impugned order is liable to be set aside. 8. That part, it is yet another submission of the learned senior counsel appearing for the petitioner that the order of the Deputy Inspector of Police, CID (Intelligence) dated 19.05.2008 has already been reviewed by the Inspector General of Police and he has confirmed the order of the Deputy Inspector of Police, by his order dated 01.06.2008. The second review by the Director General Police is not permissible under the Service Law and Service Rules. In support of this contention, the learned counsel for the petitioner also relied upon the judgment passed by this Court in W.P.No.13611 of 2011, dated 12.07.2013, [C.Vijya Baskar Vs. Director General of Police and others], wherein it has been held as follows:- “4. The question as to whether a second show cause notice in exercise of suo-motu power under Rule 15(A)(1)(ii) of TNPSS (D&A) Rules is sustainable as per law was considered by this Court in W.P.No.13541 of 2007, decided on 14.10.2009, and held thus: “16. I have considered the submissions made on either side. The submissions of the learned counsel for the petitioner are well founded. I have considered the submissions made on either side. The submissions of the learned counsel for the petitioner are well founded. The learned counsel for the petitioner is correct in his submissions that once the Head of the Department exercised its suo-motu power of review under Rule 15-A(1)(ii) of the Rules, thereafter the suo-motu power of review is not available to the Government, under the same Rule 15-A(1)(i) of the Rules. As rightly pointed out by the learned counsel for the petitioner, the word "OR" alone is used in Rule 15-A(1) of the Rules, instead of "AND". If the power of the respondent to invoke Rule 15-A(1)(i) of the Rules is accepted, even after the same power of review is exercised by the Head of the Department under Rule 15-A(1) of the Rules, then it makes no sense for using the word "OR" in the Rules. I am also in entire agreement with the submission made by the learned counsel for the petitioner that the word "OR" is used with the laudable objective of the exercises of the power for one time and thereafter the power is dried up. The analogy drawn by the learned counsel for the petitioner by reading Rules 15-A(3) and 15-A(4) deserves acceptance. The Rule permits the delinquent employee to prefer review petition either of the authorities. If the review application of the delinquent has reached finality in view of passing of an order by an authority, thereafter the review power under Rule 15-A(1) before different authority cannot be invoked by the delinquent employee. On the same analogy, the respondent also cannot invoke its suo-motu power, once the Head of the Department had exercised the power of review, under Rule 15-A(1)(ii). 17. The judgment of the Tamil Nadu Administrative Tribunal in K.Palanichamy Vs. State of Tamil Nadu and 4 others, dated 14.11.2002 also squarely applies to the facts of this case. Paragraph 5 of the said judgment, which is relevant to decide this case, is extracted here-under:- "5. Therefore, if the Head of the Department has already taken a review, the State is precluded from taking further review. This is only in consonance with the general principle underlying the procedural law. There cannot be a review of review. Review is provided only to prevent miscarriage of justice and therefore there cannot be a review of review order. Therefore, if the Head of the Department has already taken a review, the State is precluded from taking further review. This is only in consonance with the general principle underlying the procedural law. There cannot be a review of review. Review is provided only to prevent miscarriage of justice and therefore there cannot be a review of review order. Moreover, either the State by itself can review the order if all other authorities mentioned in Rule 15-A failed to review and if review is called for, for rendering justice. If the Head of the Department has done it, the State is precluded from again reviewing the order of the reviewing authority namely the Head of the Department. Moreover Rule 15(A) (3) and (4) provides that no application for review shall be preferred more than once in respect of the same order. A delinquent Government servant who has preferred a review against the punishment to one of the authorities specified in Rule 15-A, cannot prefer a second review to the other authority mentioned in Rule 15-A. So, even delinquent Government Servant cannot prefer two reviews which only stands to the common sense and reason. The authorities also cannot undertake two review of the same order. Therefore, the second review by the State Government after the original order has been reviewed by the Head of the Department will not lie." In view of the aforesaid conclusions, the impugned order is liable to be interfered with. The above said decision is squarely applicable to the facts of this case. Therefore, I am of the opinion that the second review made by the respondent herein is not permissible under the TNPSS (D & A) Rules. 9. On the whole, I am of the opinion that the impugned show cause notice dated 26.02.2013 issued by the Department against the petitioner is liable to be quashed on the grounds that it is hit by limitation and the second review is not permissible under the Rules. Consequently, as the petitioner has been acquitted/exonerated from all the criminal cases as well as departmental proceedings, the petitioner is entitled to be promoted as Deputy Superintendent of Police. In fine, the writ petitions are allowed and the impugned show case notice dated 26.02.2013 is quashed. Consequently, as the petitioner has been acquitted/exonerated from all the criminal cases as well as departmental proceedings, the petitioner is entitled to be promoted as Deputy Superintendent of Police. In fine, the writ petitions are allowed and the impugned show case notice dated 26.02.2013 is quashed. The respondents are directed to consider the claim of the petitioner for promotion and to pass appropriate orders promoting him as Deputy Superintendent of Police, Category-I, and to grant him all consequential service and monetary benefits, within a period of eight weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed No costs.