IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16/02/2005
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE S. ASHOK KUMAR
WRIT PETITION NO.17263 OF 2004
and
WPMP.No.35852 OF 2004
R. Krisnaswamy
S/o. Ramaswamy Thevar .. Petitioner
-Vs-
1. The Director General of Police,
Chennai 4.
2. The Registrar,
Tamil Nadu Administrative Tribunal,
Chennai Bench,
Chennai 600 104. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorarified Mandamus to call for the records pertaining
to the order dated 12.5.2004 in O.A.No.1846/2000, on the file of Tamil Nadu
Administrative Tribunal and quash the same.
!For Petitioners : Mr.K. Venkataramani
^For Respondent-1 : Mr.S. Gomathinayagam
Special Govt. Pleader
:J U D G M E N T
P.K. MISRA, J
The facts giving rise to the present writ petition are as follows :-
The petitioner entered service as Police Constable Grade II and was
subsequently promoted as Police Constable Grade I in the year 1992. While he
was so functioning as Grade I Police Constable, on the basis of a complaint
filed by one Murugesan regarding assault by the present petitioner, a case was
registered by the Inspector of Police and the matter was referred to the
Revenue Divisional Officer. On the basis of the findings of the R.D.O.,
departmental enquiry was initiated against the petitioner under Rule 3(b) of
Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules. The
petitioner denied the charges. The Assistant Commissioner of Police, Flower
Bazaar, was appointed as the Enquiry Officer. The Enquiry Officer found the
delinquency of the petitioner and submitted a report to the disciplinary
authority. The disciplinary authority, namely, the Deputy Commissioner of
Police, accepting the findings of the enquiry officer awarded the punishment
of reduction in the time scale of pay by one stage for a period of one year
without cumulative effect as per order dated 10.8.1 999. The petitioner
claims that the punishment was reviewed by the Commissioner of Police who
agreeing with the findings of the disciplinary authority and the enquiry
officer, confirmed the order of punishment. Thereafter, the Director General
of Police, in exercise of his suo motu power of review, came to the conclusion
that the punishment awarded was grossly inadequate compared to the seriousness
of charge of assault and awarded the punishment of compulsory retirement with
immediate effect by order dated 25.1.2000. The said order was communicated on
10.2.2000. Thereafter the petitioner filed O.A.No.1846 of 2 000 before the
Tamil Nadu Administrative Tribunal. At the time of entertaining the Original
Application, an interim order of stay was passed and by virtue of such order,
the petitioner was reinstated in service and continued to serve in the said
capacity. Ultimately, the Original Application was heard on merits and
dismissed by order dated 1 2.5.2004. This order of the Tribunal is under
challenge in the present writ petition.
2. While entertaining the writ petition, initially, an
interim order of stay was passed and subsequently such stay has been vacated.
3. Learned counsel for the petitioner has raised two
contentions. The first contention is to the effect that the order of
punishment passed by the disciplinary authority was reviewed by the higher
authority and on such review, the order of punishment was found to be proper
and therefore, there was no scope for a second review in view of the
provisions contained in Rule 15-A(4) of the TNPSS (D&A) Rules. The
alternative contention of the petitioner is to the effect that even assuming
that second review is permissible in law, the Reviewing Authority has
arbitrarily reviewed the order of punishment and has imposed the punishment of
compulsory retirement, which is grossly disproportionate to the nature of
delinquency. In this context, it has been submitted by the learned counsel
for the petitioner that if the original punishment of stoppage of one
increment was found to be inadequate, any other suitable punishment, short of
compulsory retirement, could have been imposed.
4. Learned counsel appearing for the State has submitted that
the question now raised by the petitioner regarding inapplicability of Rule
15-A(4) of TNPSS (D&A) Rules had not been raised before the Tribunal as such
and cannot be permitted to be raised. It is also submitted that at any rate
the provisions contained in Rule 15-A(4) do not de-bar higher authorities from
invoking the review power. It has been submitted by him that the conclusion
of the enquiry officer and the disciplinary authority that the petitioner had
caused a grievous hurt to a private citizen without any justifiable reason,
calls for proper disciplinary action and the order passed by the Director
General of Police cannot be said to be arbitrary. He has submitted that all
the relevant aspects had been considered by the Tribunal and the High Court
cannot sit as an appellate authority over the order passed by the Tribunal and
at any rate the punishment imposed also cannot be said to be grossly
disproportionate so as to warrant any interference.
5. It is of course true that a perusal of the order of the
Tribunal does not reflect any submission relating to the scope of Rule 15-A(4
) of TNPSS (D&A) Rules. However, we find that a specific ground had been
taken by the petitioner as ground (a) in the Original Application filed before
the Tribunal and since the question raised is more or less a question of law
depending upon Rule 15-A, we feel inclined to consider such aspect.
6. The provisions contained in Rule 15-A are as follows :-
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 a Government Servant in a department or office, under the control
of such Head of the Department; or
(iii) the appellate authority;
within six months from the date of the order proposed to be reviewed;
or
(iv) any other authority, specified in this behalf by the State
Government by a general or 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 of any inquiry and review
any order made under the se rules, after consultation with the Tamil Nadu
Public Service Commission, where such consultation if 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 where 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 inquiry 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) (3)(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 a
consultation is necessary :
Provided further that no power of review shall be exercised by the
Head of the Department, unless–
(i) the authority which made the order in appeal; or
(ii) the authority to which an appeal would be, where no appeal has
been preferred, is subordinate to him.
(2) No proceeding for review shall be commenced until after —
(i) the expiry of the period of limitation for an appeal; or
(ii) the disposal of the appeal, where any such appeal has been
preferred;
(3) An application for review shall be dealt with in the same manner
as if it were an appeal under these rules;
(4) No application for review shall be preferred more than once in
respect of the same order:
Provided that members of the constabulary (Police Constables and Head
Constables) shall be eligible to make one representation to the Government
against orders of dismissal or removal from service after exhausting the right
of appeal;
Provided further that no application for review shall be entertained,
if it has not been made within a period of six months from the date of receipt
of the order on which such application for review is prescribed.
7. The contention of the petitioner is to the effect that
power of review has been given in alternative to various authorities and once
any such power of review is exercised by such authority, the other authorities
are precluded from further reviewing the matter. Even though such a
contention prima facie appears to be attractive, in our opinion, such
contention is unacceptable.
8. An analysis of the aforesaid provision makes it clear that
the power of review has been given to the State Government under Rule 15(1
)(i) or the Head of the Department or the Appellate Authority or any other
authority specified in this behalf by the State Government. So far as the
appellate authority is concerned, as contemplated under Rule 15-A(1)(iii) such
power is to be exercised within six months from the date of order proposed to
be reviewed. So far as any other specified authority contemplated under Rule
15-A(1)(iv) is concerned, such power is to be exercised within time as may be
prescribed, and so far as the State Government or Head of the Department is
concerned, such power can be exercised at any time. This power of review can
be exercised by the concerned authority on its own motion, i.e., suo motu or
otherwise. In other words, such power of review can also be exercised on the
basis of an application, which is contemplated in Rule 15-A(3) . If the power
is exercised obviously suo motu, there is no filing of any application. Under
Rule 15-A(4), no application for review shall be preferred more than once in
respect of the same order. Review can be made in respect of any order made
under these Rules. So far as the Head of the Department is concerned, it is
contemplated that he shall not have the power of review unless the appellate
authority is subordinate to him. A careful analysis makes it clear that so
far as suo motu power is concerned, there is no prohibition for the higher
authority to issue suo motu review proceedings. The only embargo is that if
the review is based on any application, such applicant cannot have a further
right of filing further application for review.
9. For clarification, we may refer to the provisions
contained in Sections 397 and 401 Cr.P.C. giving the power of revision to the
Sessions Judge as well as the High Court. There is a specific prohibition in
Section 397 (3) indicating that if a power of revision is exercised by a
particular revisional authority and the order is confirmed, no further
revision would be maintainable. However, there is no such indication in the
present Rule 15. On the other hand, a careful reading of Rule 15 indicates
that if power of review is exercised by an authority, the higher authority is
not precluded from exercising suo motu power of review. If the contention of
the learned counsel for the petitioner would be accepted, the jurisdiction of
the higher authorities would be unduly circumscribed and any inferior
authority contemplated under Rule 15-A may foreclose the discretionary power
of review of a higher authority by exercising such review power himself. We
are therefore unable to accept such contention.
10. Moreover, a perusal of the file does not indicate
regarding any categorical order of the Commissioner in the purported exercise
of power under Rule 15-A. It merely seems that the file had passed through
the Commissioner in a routine administrative manner and the Commissioner of
Police seems to have agreed with the conclusion of the enquiry officer and the
disciplinary authority and thereafter, the file was forwarded to the higher
authority, namely the Director General of Police. In other words, mere
administrative notes have been furnished and by no stretch of imagination it
can be said that an order has been passed confirming the order of punishment
in exercise of power under Rule 15-A of TNPSS Rules.
11. Learned counsel for the petitioner then submitted that at
any rate the petitioner, who was a police constable, was trying to discharge
his duty and had assaulted as the person was interfering with the discharge of
duty, and therefore, the order of compulsory retirement is grossly
disproportionate.
12. In (1995) 6 SCC 749 (B.C. CHATURVEDI v. UNION OF INDIA), it was observed :
18. … The High Court/Tribunal, while exercising the power of
judicial review, cannot normally substitute its own conclusion on penalty and
impose some other penalty. If the punishment imposed by the disciplinary
authority or the Appellate Authority shocks the conscience of the High
Court/Tribunal,it would appropriately mould the relief, either directing the
disciplinary authority/Appellate Authority to reconsider the penalty imposed,
or to shorten the litigation, it may itself in exceptional and rare cases,
impose appropriate punishment with cogent reasons in support thereof.
13. In (1997) 7 SCC 463 (UNION OF INDIA v. G. GANAYUTHAM),
it was observed :-
31. The current position of proportionality in administrative law in
England and India can be summarised as follows :-
(1) To judge the validity of any administrative order or statutory
discretion,normally the Wednesbury test is to be applied to find out if the
decision was illegal or suffered from procedural improprieties or was one
which no sensible decision-maker could, on the material before him and within
the framework of the law, have arrived at. The court would consider whether
relevant matters had not been taken into account or whether irrelevant matters
had been taken into account or whether the action was not bona fide. The
court would also consider whether the decision was absurd or perverse. The
court would not however go into the correctness of the choice made by the
administrator amongst the various alternatives open to him. Nor could the
court substitute its decision to that of the administrator. This is the
Wednesbury test.
(2) The court would not interfere with the administrators decision
unless it was illegal or suffered from procedural impropriety or was
irrational -in the sense that it was in outrageous defiance of logic or moral
standards. The possibility of oth ests, including proportionality being
brought into English administrative law in future is not ruled out. These are
the CCSU principles.
(3)(a) As per Bugdaycay, Brind and Smith as long as the Convention is
not incorporated into English law, the English courts merely exercise a
secondary judgment to find out if the decision-maker could have, on the
material before him, arrived at the primary judgment in the manner he has
done.
(3)(b) If the Convention is incorporated in England making available
the principle of proportionality, then the English courts will render primary
judgment on the validity of the administrative action and find out if the
restriction is disproportionate or excessive or is not based upon a fair
balancing of the fundamental freedom and the need for the restriction
thereupon.
(4)(a) The position in our country, in administrative law, where no
fundamental freedoms as aforesaid are involved, is that the courts/ tribunals
will only play a secondary role while the primary judgment as to
reasonableness will remain with the executive or administrative authority.
The secondary judgment of the court is to be based on Wednesbury and CCSU
principles as stated by Lord Greene and Lord Diplock respectively to find if
the executive or administrative authority has reasonably arrived at his
decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action
affecting fundamental freedoms, the courts in our country will apply the
principle of proportionality and assume a primary role, is left open, to be
decided in an appropriate case where such action is alleged to offend
fundamental freedoms. It will be then necessary to decide whether the courts
will have a primary role only if the freedoms under Articles 19, 21 etc. are
involved and not for Article 14.
14. In (1987) 4 SCC 611 (RANJIT THAKUR v. UNION OF INDIA),
the Supreme Court had interfered with the punishment imposed after coming to
the conclusion that the punishment was in outrageous defiance of logic and was
shocking, and perverse and irrational.
15. In (1997) 3 SCC 72 (INDIAN OIL CORPORATION LTD v. ASHOK
KUMAR ARORA), the Supreme Court observed that the Court should not intervene
with the punishment unless the punishment is wholly disproportionate.
16. In the present case, the contention of the petitioner is
to the effect that the punishment of compulsory retirement is grossly
disproportionate. Learned counsel for the petitioner has submitted that while
the petitioner was discharging his duty, a third person had intervened,
resulting in the unfortunate incident, and therefore, any other punishment
like stoppage of increment with cumulative effect could have meet the ends of
justice.
17. Before the disciplinary authority, the petitioner had
given an explanation to the effect that the third person had abused the
petitioner in obscene language and caught hold of the collar of the petitioner
and when the petitioner was trying to free himself, the third person had
fallen down and sustained the injuries. This explanation does not appear to
have been accepted by the disciplinary authority and it has been found that in
fact the petitioner had assaulted that person. In fact a bleeding injury on
the head was sustained and the person had been hospitalised for few days. It
is obvious that the story of the petitioner that the person had fallen down
while the petitioner was trying to free himself and sustained the injury as
such having not been accepted by the disciplinary authority or any of the
higher authority or the Tribunal, no credence can be given to such story at
this stage. As a matter of fact, the finding of the disciplinary authority
that the petitioner had assaulted the third person was not challenged by the
petitioner by filing any appeal. In view of the factual conclusion that the
petitioner assaulted and the person had sustained a bleeding injury on the
head, the submission of the petitioner regarding the proportionality of the
punishment is required to be considered.
18. May be, if we would have been called upon to examine the
matter on a clean slate, that is to say, as an original authority, we would
have been in a better position to consider as to whether any lesser punishment
would have been more appropriate. In the present case, the Head of the
Department had already examined the matter and has come to a conclusion that
the petitioner having assaulted a citizen, punishment of stoppage of one
increment without cumulative effect was very lenient and such punishment was
enhanced to one of compulsory retirement. Such conclusion of the
Administrative Head has received judicial approval at the hands of the
Administrative Tribunal, which has observed that the punishment does not
appear to be disproportionate.
19. While exercising jurisdiction under Article 226 of the
Constitution, the High Court is expected to correct errors of law committed by
the lower Tribunal. The High Court is required to find out regarding the
validity of the decision making process rather than sit as an appellate
authority over the decision of the lower authority. As already indicated, the
decision of the Administrative Head, which obviously was better suited to find
out the appropriate punishment, has also received the judicial approval at the
hands of the Tribunal. We do not find any error in the approach made by the
Director General of Police or any error in the order passed by the Tribunal so
as to substitute our own views in the matter.
20. Even otherwise, this punishment cannot be characterised
as grossly disproportionate to the nature of the delinquency. It is no doubt
true that onerous duty has been cast on the police to maintain law and order
in the Society and while discharging the duty the police may be required, nay,
forced to use force. It is also true that the police personnels, particularly
the lower level of the Department face the ire of the public and at times of
the superior officers as well, but these aspects cannot be used as excuse for
the police officials including at the constable level to severely assault a
person causing grievous injury on the head. It may be that intervention of
the third person might have enraged the constable, but being a public servant
the constable was required to act within his limits. Even though there may be
occasions when the police is required to use the minimum but requisite force
at the time of causing arrest or even while preventing a criminal from
escaping, in the present case, we do not find any justification for the act
committed by the petitioner. If such an act is condoned, it would give a
wrong signal to the police to behave in unwarranted fashion. Moreover, since
the Head of the Department has considered the matter and has thought that
compulsory retirement would be proper, it would be impudent on our part to
interfere with such punishment. The tenor of several decisions cited at the
bar, particularly by the Special Government Pleader, many of which have been
noticed earlier, is clearly against the contention raised by the learned
counsel for the petitioner.
21. Even the punishment of compulsory retirement has the
effect of protecting the pensionary and retirement benefit of the petitioner.
By no stretch of imagination the punishment can be characterised as grossly
disproportionate to the nature of the delinquency. We therefore express our
inability to interfere with the order passed by the Director General of Police
as confirmed by the Administrative Tribunal.
22. The Tribunal while dismissing the O.A., had observed that
the petitioner is deemed to have been retired on the date on which he is
relieved from the service. It appears that after the petitioner was relieved
from service, he was reinstated by virtue of the interim order passed by the
Tribunal and was continuing as such while the Tribunal passed the order.
Subsequently, he had not been relieved by the Department and he was relieved
only after the interim order of stay passed by the High Court was subsequently
vacated. To avoid any confusion in the matter, we observe that the petitioner
shall be deemed to have been in service till he was relieved pursuant to the
vacating of the stay order passed by the High Court. However, he would not be
entitled to any further amount towards salary. His pensionary benefits shall
be calculated and paid on the footing that he had continued till he was
compulsorily retired with effect from the date on which he was actually
relieved by the Department after the stay order was vacated by the High Court.
23. Subject to the aforesaid clarification, we do not find
any merit in the writ petition, which is accordingly dismissed. No costs.
Consequently, WPMP.No.35852 of 2004 is closed.
Index : Yes
Internet: Yes
dpk
To
1. The Director General of Police, Chennai 4.
2. The Registrar,
Tamil Nadu Administrative Tribunal,
Chennai Bench, Chennai 600 104.