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2018 DIGILAW 2985 (MAD)

A. Alexander v. Principal Secretary to Government

2018-09-17

J.NISHA BANU

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JUDGMENT : J. Nisha Banu, J. This writ petition is directed against the impugned Government Order passed by the first respondent in G.O.(2D).No.165 dated 07.04.2010, in and by which, the Government rejected the petition filed by the petitioner against his 'dismissal from service' passed by the fourth respondent dated 02.02.2000, as confirmed by the third and second respondents vide orders dated 20.09.2008 and 01.11.2008, respectively. 2. The facts of the case, in nutshell, are as follows: 2.1. The allegation against the petitioner is that he along with his family members, owing to some personal dispute, on 10.12.1994, have trespassed into the house of the defacto complainant and damaged the articles therein. Therefore, a case was registered in Crime No.579 of 1994 before the Murappanadu Police Station, under Sections 457, 427, 436 and 380 IPC. Since the petitioner, by means of his gross misconduct, has brought discredit to the police force, charge under Rule 3(b) of Tamil Nadu Police Subordinate Services (Discipline & Appeal) Rule, 1955, was initiated and a charge memo dated 29.09.1998, was issued. Thereafter, enquiry was conducted, wherein the petitioner remained absent and the enquiry officer, viz., Deputy Superintendent of Police, Valliyoor, has set the petitioner ex-parte and has found the petitioner guilty, followed by which, the fourth respondent passed the order dated 02.02.2000, thereby dismissed the petitioner from service right from 31.01.2000. 2.2. Aggrieved by the order of dismissal, the petitioner approached Tamil Nadu Administrative Tribunal in O.A.No.1680 of 2000, wherein, an order of interim stay was granted. Therefore, the petitioner was reinstated in service, vide order dated 06.04.2000. In the meantime, the criminal case registered against the petitioner in S.C.No.189 of 1997 ended in acquittal on 18.06.2002. Alleging that his name was not considered for promotion stating that he was reinstated in service only on the strength of the interim order passed in O.A.No.1680 of 2000, the petitioner filed another application in O.A.No.2763 of 2003. The Tribunal, by common order dated 25.08.2003, dismissed both the Original Applications, followed by which, the fourth respondent has passed an order dated 12.01.2004, dismissing the petitioner from service with immediate effect. 2.3. Aggrieved by the order of the Tribunal dismissing the Original Applications, the petitioner has preferred W.P.Nos.2533 and 2534 of 2004 before this Court. The Tribunal, by common order dated 25.08.2003, dismissed both the Original Applications, followed by which, the fourth respondent has passed an order dated 12.01.2004, dismissing the petitioner from service with immediate effect. 2.3. Aggrieved by the order of the Tribunal dismissing the Original Applications, the petitioner has preferred W.P.Nos.2533 and 2534 of 2004 before this Court. Since the petitioner has approached the Tribunal, without exhausting the statutory remedy of appeal, this Court, by common order dated 19.06.2008, directed the petitioner to file an appeal. This Court has further directed the appellate authority to decide the appeal, to be filed by the petitioner, on its own merits without being influenced by any observation made by the Tribunal. 2.4. Subsequent thereto, the petitioner has preferred an appeal before the third respondent, who, in turn, vide order dated 20.09.2008, dismissed the appeal petition. Aggrieved over the same, the petitioner has preferred a review petition before the second respondent and the second respondent also, vide order dated 01.11.2008, dismissed the review petition. Aggrieved thereby, the petitioner has filed a petition before the Government, which was also dismissed by way of the impugned Government Order and hence, the petitioner is before this Court with the aforesaid prayer. 3. Heard the learned Counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents. 4. After elaborately hearing the learned Counsel on either side, this Court is of the view that the impugned order is liable to be set aside for more than one reasons. 5. Firstly, the disciplinary authority, viz., Superintendent of Police, Tirunelveli, who passed the order of dismissal from service dated 02.02.2000, decided the appeal petition, on 20.09.2008, as Deputy Inspector General of Police, Tirunelveli. The learned Government Advocate did not deny the fact that the disciplinary authority and appellate authority are one and the same. In other words, the person who passed the dismissal order in the original side has reviewed his own order by sitting as an appellate authority, which is not sustainable in the eye of law. 6. Secondly, it is seen that when the petitioner filed W.P.(MD)Nos.2533 and 2534 of 2004 challenging the dismissal of Original Applications, this Court, while declining to interfere with the impugned orders therein, has directed the petitioner to file an appeal. 6. Secondly, it is seen that when the petitioner filed W.P.(MD)Nos.2533 and 2534 of 2004 challenging the dismissal of Original Applications, this Court, while declining to interfere with the impugned orders therein, has directed the petitioner to file an appeal. While directing so, this Court has specifically directed the appellate authority to decide the appeal, purely on merits, without being influenced by any of the observations made by the Tribunal. This is because the petitioner, instead of exhausting the statutory appeal, has straightaway approached the Tribunal. But, on a perusal of the appeal order dated 20.09.2008, I am of the view that the spirit of this Court's order was not followed by the appellate authority, which is very unfortunate. For better understanding, the operative portion of the appeal order dated 20.09.2008 passed by the third respondent is extracted hereunder: "5. I have perused the entire file and the appeal petition carefully. There is no merit to revive the orders issued earlier. Hence I decline to interfere and the appeal is rejected accordingly." This is nothing but a cryptic order. The authority, who passed the original order, has reviewed his own order and that too, in such a cryptic format. This Court has specifically directed the appellate authority to decide the case, uninfluenced in any manner, which was not dealt with by the authority. 7. Thirdly, the Hon'ble Supreme Court and this Court time and again insisted on the requirement of recording reasons and that the quasi judicial authority must pass a speaking order, which was not at all followed in this case. The Hon'ble Supreme Court in the case of Mahabir Prasad Santosh Kumar vs. State of U.P., (1970) 1 SCC 764 held that merely giving an opportunity of hearing is not enough and further pointed out that where the order is subject to appeal, the necessity to record reason is even greater. Recording of reasons in support of a decision on a disputed claim ensure that the decision is not a result of caprice, whim or fancy, but was arrived at after considering the relevant law and that the decision was just. 8. Recording of reasons in support of a decision on a disputed claim ensure that the decision is not a result of caprice, whim or fancy, but was arrived at after considering the relevant law and that the decision was just. 8. The Hon'ble Supreme Court in the case of Kranti Associates Private Limited and another vs. Masood Ahmed Khan and Others, (2010) 9 SCC 496, has elaborately discussed with regard to the need for recording reasons by the quasi judicial authority, by relying upon numerous earlier judgments of the Supreme Court and has been pleased to hold as under: "51. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA(Civ) 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process". 9. It is a sorry state of affairs that both the disciplinary authority as well as the subsequent appellate authorities have passed the impugned orders, without any discussions and assigning any reasons therefor, instead have made a single paragraph observation. Therefore, the orders impugned are liable to be set aside and the matter deserves reconsideration. However, this Court is not inclined to remit the matter back to the file of the disciplinary authority, but is inclined to decide the same on its own merits, for the reasons stated infra. 10. The charge against the petitioner is that his gross misconduct, has brought discredit to the police force. However, this Court is not inclined to remit the matter back to the file of the disciplinary authority, but is inclined to decide the same on its own merits, for the reasons stated infra. 10. The charge against the petitioner is that his gross misconduct, has brought discredit to the police force. For better appreciation, the charge is extracted as under: "Highly reprehensible and unbecoming conduct in having involved as an accused in a criminal case of Murappanadu P.S. Cr.No.579/94 u/s 457, 427, 436 and 380 IPC." A bare reading of the above would show that the petitioner is an accused in Crime No.579 of 1994 and therefore, not eligible to be a part of disciplined force. Admittedly, the criminal case, on the basis of which the charge was drawn, ended in acquittal. Whether the acquittal is on merits or on benefit of doubt, acquittal is an acquittal. At the same time, it is not in dispute that in criminal cases, the charge has to be proved beyond any reasonable doubt, which is not the case in disciplinary proceedings. It is seen that the petitioner was dismissed in the year 2000 and was not in service right from the year 2004. Therefore, for the past fourteen years, he is not in service. 11. There is a family dispute between the petitioner's family and the complainant's family, which is the backdrop of the alleged misconduct, based on which, charge was drawn. But, considering the nature of charge, this Court is of the view that the punishment of dismissal from service is disproportionate to the alleged misconduct. 12. Though the charge is not connected with service, moral discipline in such forces should never be compromised, because they are entrusted with maintaining the public law and order. It is to be kept in mind that for the past fourteen (14) years, he is not in service, which itself is a punishment. Further, as stated supra, in my considered view, the punishment of dismissal from service is disproportionate to the alleged misconduct. Therefore, this Court is of the opinion that the petitioner may be given reinstatement with continuity of service, but, without any backwages, which would sub-serve the ends of justice. 13. Further, as stated supra, in my considered view, the punishment of dismissal from service is disproportionate to the alleged misconduct. Therefore, this Court is of the opinion that the petitioner may be given reinstatement with continuity of service, but, without any backwages, which would sub-serve the ends of justice. 13. In view of the foregoing discussions, the impugned Government Order passed by the first respondent in G.O.(2D).No.165 dated 07.04.2010; the orders of the second and third respondents rejecting the petitioner's appeal, dated 01.11.2008 and 20.09.2008, respectively, and the fourth respondent's dismissal order dated 02.02.2000 are all quashed. As stated supra, the petitioner is entitled for reinstatement with continuity of service and is not entitled for any backwages. Therefore, the respondents are directed to reinstate the petitioner with continuity of service and without backwages, within a period of eight weeks from the date of receipt of a copy of this order. 14. This writ petition stands allowed accordingly. No costs. Consequently, connected miscellaneous petition is closed.