{"id":255764,"date":"2010-09-03T00:00:00","date_gmt":"2010-09-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/g-anbazhagan-vs-the-director-general-of-police-on-3-september-2010"},"modified":"2014-12-19T00:54:13","modified_gmt":"2014-12-18T19:24:13","slug":"g-anbazhagan-vs-the-director-general-of-police-on-3-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/g-anbazhagan-vs-the-director-general-of-police-on-3-september-2010","title":{"rendered":"G.Anbazhagan vs The Director General Of Police on 3 September, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
G.Anbazhagan vs The Director General Of Police on 3 September, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 03\/09\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE S.MANIKUMAR\n\nW.P.(MD).No.765 of 2005\nand\nW.P.(MD).No.5837 of 2005\n\n\n1.G.Anbazhagan\t\t... \tPetitioner in W.P.765\/05\n\n2.Paulraj Jones\t\t... \tPetitioner in W.P.5837\/05\n\n\n\nVs\n\n\n1.The Director General of Police,\n  Mylapore, Madras -4.\n\n2.The Additional Director General,\n  of Police (Law and Order),\n  Mylapore, Madras - 4.\n\n3.The Commissioner of Police,\n  Trichy City, Trichy.\n\n4.The Deputy Commissioner of Police,\n  (Law and Order), Trichy City,\n  Trichy.\t\t\t...\tRespondents in both W.Ps\n\n\nPRAYER IN W.P.765\/05\n\nPetition filed under Article 226<\/a> of the Constitution of India, praying for the\nissuance of Writ of Certiorarified Mandamus, calling for the records pertaining\nto the impugned orders of the 1st respondent in his proceedings\nRc.No.167536\/PRI(3)\/2004, dated 07.10.2004 and quash the same consequently\ndirect the respondents to reinstate the petitioner into service as Police\nConstable with all attendant benefits and back wages.\n\nPRAYER IN W.P.5837\/05\n\nPetition filed under Article 226<\/a> of the Constitution of India, praying for the\nissuance of Writ of Certiorarified Mandamus, calling for the records pertaining\nto the impugned orders of the 1st respondent in his proceedings\nRc.No.167536\/PRI(3)\/2004, dated 09.12.2004 and quash the same consequently\ndirect the respondents to reinstate the petitioner into service as Police\nConstable with all attendant benefits and back wages.\n\n\n!For Petitioners  ... Mr.G.Thalaimutharasu\n^For Respondents  ... Mr.Pala.Ramasamy,\n\t\t      Special Government Pleader\n\n\n:ORDER\n<\/pre>\n
\tBy exercise of suo-motu power under Rule 15-A of the Tamil Nadu Police
\nSubordinate Service (Discipline and Appeal) Rule, 1955, the Director General of
\nPolice, the first respondent herein, has upheld the punishment of dismissal from
\nservice imposed on the petitioners.  The said orders dated dated 07.10.2004 and
\n09.12.2004, are under challenge in these writ petitions.\n<\/p>\n
\t2.According to the petitioners, while working as Police Constables, they
\nwere issued with charge memorandum under Rule 3-b of the Tamil Nadu Police
\nSubordinate Service (Discipline and Appeal) Rule, 1955,  by the Director General
\nof Police, Chennai-4, dated 13.12.2002,  based on a criminal case registered
\nagainst the petitioners in Crime No.295\/2002, dated 27.09.2002, for the ofences
\nunder Sections 341<\/a>, 353<\/a>, 294-B<\/a> and 506(i)<\/a> I.P.C., on the file of the K.K.Nagar
\nPolice Station, Trichy.  Thereafter, the action against the petitioners for
\nprosecution, was dropped by the learned Judicial Magistrate No.2, Trichy.\n<\/p>\n
\t3.It is the case of the petitioners that the Assistant Commissioner of
\nPolice, attached to City Armed Reserve, Trichy, was appointed as Enquiry Officer
\nto conduct enquiry into the charges, though, there was no substantive evidence
\nagainst the petitioners. P.Ws.2 and 7 examined on behalf of the prosecution and
\ndeposed that they have not seen the occurrence alleged to have been taken place
\non 27.09.2002 and when no prosecution witness has  established the charge
\nlevelled against the petitioners, the Enquiry Officer has erroneously held that
\nthe charges as proved.  On receipt of the enquiry Officer’s Report dated
\n22.09.2003, the petitioners submitted detailed written explanations to the
\nCommissioner of Police, Trichy City, Trichy and the Deputy Commissioner of
\nPolice (Law and Order), Trichy City, Trichy, the respondents 3 and 4, in these
\nwrit petitions.\n<\/p>\n
\t4.The Deputy Commissioner of Police (Law and Order), Trichy City, Trichy,
\nthe 4th respondent herein, without due application of mind to the facts of the
\ncase, evidence let in during the departmental enquiry, by order dated
\n04.12.2007, dismissed the petitioners from service.  Aggrieved by the same, the
\npetitioners have preferred appeals on 13.12.2007, before the Commissioner of
\nPolice, Trichy City, Trichy, the 3rd respondent herein, and the said appeals
\nwere rejected.\n<\/p>\n
\t5.Being aggrieved by the above said orders, the petitioners preferred
\nrevision petitions before the Additional Director General of Police, (Law and
\nOrder), Chennai, to set aside the same. The revisional authority, passed orders
\ndated 12.06.2004, modifying the punishment of dismissal from service into that
\nof reduction in time scale of pay by two stages for one year.  In view of the
\nmodification of the punishment, the petitioners were taken back to the duty by
\nthe Commissioner of Police, Trichy City, Trichy,  vide order dated 17.07.2004.\n<\/p>\n
\t6.While that be so, the Director General of Police, Chennai, the first
\nrespondent herein, issued  show-cause notices, dated 12.08.2004, to the
\npetitioners, calling upon to offer their explanations, as to why the quantum of
\npunishment modified by the Additional Director General of Police (Law and
\nOrder),  Chennai,  should not be enhanced.  In response to the same, the
\npetitioners submitted their explanations on 03.09.2004, requesting him to drop
\nfurther action in the above matter. However, not satisfied with the explanation,
\nthe first respondent, confirmed the punishment of dismissal from service imposed
\non the petitioners, by the disciplinary authority.  The said orders are
\nchallenged in these writ petitions.\n<\/p>\n
\t7.At the foremost, referring to Rule 15-A of the Tamil Nadu Police
\nSubordinate Service (Discipline and Appeal) Rule, 1955, and the orders of the
\nAdditional Director General of Police (Law and Order) Chennai, dated 12.06.2004,
\nMr.G.Thalaimutharasu, learned counsel for the petitioners submitted that
\naggrieved by the orders of the Commissioner of Police, Trichy City, Trichy,
\ndated 20.02.2004, the appellate authority, the petitioners have already filed
\nreview petitions on 25.02.2004 and after considering the same on merits and the
\nconnected records, the Additional Director General of Police, (Law and Order),
\nChennai, found that there were contradictions in the evidence regarding
\nintoxication of the petitioners and taking into consideration of the remaining
\nperiod of service for the petitioners observed that ends of justice could be
\nmet, if the petitioners are given a chance.  Accordingly, he modified the
\npunishment into that of reduction in time scale of pay by two stages for one
\nyear and the period of reduction shall not operate to postpone the future
\nincrements.\n<\/p>\n
\t8.He further submitted that the Additional Director General of Police (law
\nand Order), Chennai, the second respondent herein, is not subordinate authority
\nto the first respondent and therefore, the first respondent has no jurisdiction,
\nto exercise the powers under Rule 15-A of the Tamil Nadu Police Subordinate
\nService (Discipline and Appeal) Rule, 1955, to issue show-cause notices and
\nconsequently reverse the orders passed on the review petitions passed by the
\nAdditional Director General of Police.  According to him, once the power of
\nreview had already been exercised by the Additional Director General of Police
\n(Law and Order), Chennai, at the instance of the writ petitioners, suo-motu
\nexercise of the review power by the first respondent on the very same matter, is
\nnot permissible in law.   According to him, the power conferred on the
\nrevisional authority can be exercised only once and in the instant case, when
\nthe same had already been exercised by a competent authority under the statutory
\nrules, at the instance of the writ petitioners, a second review by another
\nauthority viz., the first respondent, is without jurisdiction, and it is nothing
\nbut an arbitrary exercise.\n<\/p>\n
\t9.Learned counsel for the petitioners further submitted that the power of
\nreview under Section 15-A of the Tamil Nadu Police Subordinate Service
\n(Discipline and Appeal) Rule, 1955,  can be exercised by the Head of the
\nDepartment only in a case where the authority to which an appeal would lie,
\nwhere no appeal has been preferred, is subordinate.   In this context, learned
\ncounsel for the petitioners placed reliance on the decision of the Hon’ble
\nSupreme Court in   Shambhu Ram Yadav Vs. Hanuman Das Khatry reported in  (2001
\n(6) SCC 1).\n<\/p>\n
\t10.Learned counsel for the petitioner further submitted that there cannot
\ntwo different views on the same set of facts by two different authorities
\nconferred with the same powers of review.\n<\/p>\n
\t11.On the merits of the case, leaned counsel for the petitioners submitted
\nthat the Director General of Police, (Law and Order), Chennai, the first
\nrespondent herein, ought to have sent the petitioners, to a Medical Officer for
\nexamination to find out as to whether they had consumed alcohol or not.  In the
\nabsence of any medical examination, according to him, the charge of consumption
\nis not established by the Department.\n<\/p>\n
\t12.Taking this Court through the minutes, leaned counsel for the
\npetitioners further submitted that none of the witnesses have established the
\ncharge levelled against the petitioners and therefore, the first respondent has
\nerred in mechanically confirming the order of punishment imposed on the
\npetitioners by the disciplinary authority.\n<\/p>\n
\t13.According to him, when P.Ws 2 and 7, stated to be the eye-witnesses,
\nhave categorically deposed that they have not seen the occurrence alleged to
\nhave been taken place on 27.09.2002 and when the other prosecution witnesses,
\nhave not let in any substantive evidence, to prove the charges, the finding
\nrecorded by the Enquiry Officer on mere surmises, is perverse and in such
\ncircumstances, the disciplinary authority, who is enjoined with a duty to
\nconsider as to whether the facts on which the orders have been passed, has
\nfailed to consider the same and exercise the jurisdiction conferred on him in
\nproper perspective.\n<\/p>\n
\t14.Learned counsel  for the petitioners further submitted that the first
\nrespondent has failed to consider the past services of the petitioners before
\nupholding the orders of dismissal while exercising the suo-motu power under Rule
\n15-A of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rule,
\n1955,<\/p>\n
\t15.Based on the counter affidavit filed by the Additional Director General
\nof Police (Law and Order), Chennai, Mr.Pala Ramasamy, learned Special Government
\nPleader for the respondents submitted that when the petitioners were working as
\nPolice Constable in Armed Reserve, Trichy City, on 27.09.2002 at 21.30 hrs, they
\nreturned from casual leave and reported before Tr.R.Jeganathan, duty Sub-
\nInspector of Police, Armed Reserve, Trichy City, without any uniform.  When the
\nduty Sub-Inspector of Police, questioned the manner of their behavior, the
\npetitioners used filthy and abusive languages and threatened the Sub-Inspector
\nof Police and restrained him to perform his official duty along with another
\nPolice Constable I.Paul Jones.  Hence, a case in Cr.No.295\/2002, was registered
\nagainst the petitioners, in K.K.Nagar Police Station,  for the offences under
\nSections 341<\/a>, 352<\/a>, 294(b)<\/a> and 506(i)<\/a> I.P.C. After registering a criminal case,
\nthe Inspector of Police, K.K.Nagar, Trichy City, has visited the place at 21.45
\nhours on that date and found that the petitioners had already left away from the
\nplace.  In this regard, the petitioners were placed under suspension on
\n29.09.2007. Subsequently, further action in the criminal case was dropped and
\nthe department decided to proceed against the petitioners under the Tamil Nadu
\nPolice Subordinate Service (Discipline and Appeal) Rule, 1955.\n<\/p>\n
\t16.Learned counsel for the respondents further submitted that disciplinary
\naction was taken and  a charge memo, dated 31.01.2001, in PR\/H1\/05\/03 u\/r 3(b)
\nof the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rule, 1955
\nwas framed against the petitioners.  The Assistant Commissioner of Police, Armed
\nReserve, Trichy City, was appointed as Enquiry Officer.  According to the
\nlearned counsel for the State, the charge of misbehavior with a superior
\nofficer, at the working place in front of other colleagues has been proved  in
\nthe departmental enquiry. Only after considering the statement of the
\nprosecution witnesses, the Enquiry Officer has drawn up the minute, holding the
\ncharge as proved.  He further submitted that as the Enquiry Officer has formed
\nhis opinion on the basis of acceptable evidence, adduced during the regular
\ndepartmental enquiry, and when the disciplinary authority, after going through
\nthe entire records and the defence put up by charged officials, has imposed the
\npenalty of dismissal, it is not open to the petitioners to seek for re-
\nappreciation of the evidence in writ proceedings.\n<\/p>\n
\t17.According to the learned counsel, when the Director General of Police
\n(Law and Order) Chennai, the reviewing authority under the statutory rules,
\nafter going through the punishment orders and other records found that the
\npetitioners have conducted themselves in a highly reprehensible conduct, ie.,
\nattending the duty on 27.09.2002,  without wearing uniform and used abusive and
\nvulgar words against a superior officer by pulling his uniform and pushing him
\ndown on the basis of the evidence adduced during the oral enquiry and when the
\nDirector General of Police has further observed that the action of the charged
\npolicemen that even though they were sober their conduct was indisciplined, the
\npunishment of dismissal from service, is commensurate with the gravity of the
\ncharges.\n<\/p>\n
\t18.Learned counsel for the State further submitted that when the
\nprosecution witness No.9,  Inspector of Police, K.K.Nagar, Trichy District,  in
\nEx.No.12, has clearly stated that both the petitioners, ran away from the place
\nof occurrence, the contention that they were not examined by a Medical Officer,
\nto prove the state of drunkenness, cannot be countenanced. He further submitted
\nthat if the petitioners were not drunk and conducted themselves in such a highly
\nindisciplined manner, there is no reason as to why, they should run away from
\nthe place of occurrence.  He also submitted that P.W.1, Mr.Jeganathan, the then
\nSpecial Sub-Inspector on duty during the enquiry has clearly stated that both
\nthe petitioners had abused and pushed him down. Even during the cross
\nexamination, he had confirmed the same. It is also his further evidence that
\nimmediately after the incident he had informed to the Control room through
\nV.H.F. and phoned up K.K.Nagar Police Station, Trichy City, about the incident.\n<\/p>\n
\t19.Therefore, learned counsel for the respondents further submitted that
\nwhen the  prosecution witnesses have not disowned and denied their version as
\nper the statements, the findings recorded by the Enquiry Officer, on the basis
\nof the statements, particularly, P.Ws. 1, 2, 8, and 9 cannot be said to be
\nperverse or without any evidence.\n<\/p>\n
\t20.According to him, when procedural violation causing prejudice to the
\npetitioners has not been pleaded and proved before the fact finding authorities,
\nit is not open to the petitioners, to canvass the same, before this Court,
\nseeking for reversal of finding.  In this context, he submitted that Courts have
\nconsistently held that re-appreciation of evidence is not permissible and
\ntherefore, prayed that the court need not to delve into the said aspect.\n<\/p>\n
\t21.Finally, learned counsel for the respondents submitted that the
\npetitioners attended duty in plain dress during duty hours and when the same was
\nquestioned by the Spl.Sub-Inspector on duty, both the petitioners pulled the
\nuniform of the officer on duty and pushed him down and it is a highly
\nindisciplined conduct, for which appropriate penalty of dismissal has been
\nimposed and the same does not require any interference.  For the above said
\nreasons, he prayed to sustain the impugned orders.\n<\/p>\n
\t22.Heard leaned counsel appearing for the parties and perused the
\nmaterials available on record.\n<\/p>\n
\t23.There is no dispute that initially, against both the writ petitioners,
\na case in Crime No.295\/02, for offences under Sections 341<\/a>, 352<\/a>, 294(b)<\/a> and
\n506(i)<\/a> I.P.C., on the file of K.K.Nagar Police Station was registered and later
\non, both the petitioners were placed under suspension for having used filthy
\nlanguage and threatened the Special Sub-Inspector of Police, Armed Reserve,
\nTrichy City, Trichy District, on 27.09.2002 at 21.30 hrs. in front of other
\ncolleagues and  restrained him from performing his official duty.  The charge
\nagainst the petitioners is as follows:-\n<\/p>\n
\t“fle;j  27.09.2002 md;W Kw;gfy; fhiy 09.30 kzpf;F jw;bray; tpLg;g[[ Koj;J
\ntuBtz;oath; ePh; rPuilapd;wp gzpf;F te;j mwpf;if bra;jJ Kjy; Fw;wkhFk;.  ck;ik
\nVty; mjpfhhp rPUil mzpe;J te;J gzp bra;a tur; brhy;ypa[k; ePh; tuhky; bkj;jdkhf
\nnUe;J te;jJ nuz;lhtJ Fw;wkhFk;.  BkYk; ePh; bjhlh;e;J gzpf;F tuhky; Mg;brd;lhd
\nePh; 27.09.2002 md;W nut[ 21.30 kzpf;F FoBghijapy; ePUk; kw;Wk; fhtyh; 261
\nmd;gHfDk; Brh;e;J te;J Vty; mjpfhhp gzpKoe;J btspBa te;jthpd; rl;ilia gpoj;J
\nnGj;J js;spa[k;, jfhj thh;j;ijfshy; jpl;oapk; kw;Wk; bfhiy kpul;ly; bra;J nUg;gJ
\nfz;of;fj;jf;f ck;kPJ Twg;gLk; Kd;whtJ Fw;wkhFk;.””\n<\/p>\n
\t24.For the highly reprehensible conduct and highhanded action for having
\nchallenged the duty SSI, using vulgar words, pulling the uniform of the officer
\nand pushing him down in drunken mood, on 27.09.2002, the Assistant Commissioner
\nof Police, Armed Reserve, Trichy City, Trichy District, the Enquiry Officer, in
\nhis report dated 24.09.2003, found that both the petitioners were guilty of the
\ncharges.  While agreeing with the enquiry Officer’s report, the Deputy
\nCommissioner of Police (Law and Order), Trichy District, has recorded as
\nfollows:-\n<\/p>\n
\t“I fully agree with the Oral Enquiry Officer who has held the charge as
\n“Proved” from the oral evidence adduced by P.Ws.1, 2, 8 and 9 and supported by
\nthe prosecution exhibits, it is very clear and convincing that the delinquent
\nwho turned up for duty on 27.09.2002 without wearing uniform willfully violating
\nthe provisions, used very abusive and vulgar words against his own officer as ”
\nVz;lh g[z;il kfBd, Bjt[oah kfBd”” and pulling the uniform of the Officer and
\npushed him down and deliberately challenging the SSI of consequences if marked
\nhim “absent”.  Inasmuch as the delinquent has not explanation to offer despite
\ninstructions, it is conspicuous that they admitted their guilty.”\n<\/p>\n
\t25.The Deputy Commissioner of Police (Law and Order) Trichy District, the
\ndisciplinary Authority, has further recorded that “reprehensible and highhanded
\naction committed by the delinquents, the writ petitioners in disciplined force
\ncannot be allowed to drift.  From the oral evidence supported by documents, it
\nis very clear that the delinquents dared to threaten their own officer and when
\nquestioned about their propriety of reporting for duty in plain clothes, they
\nhave held the officers uniform and pushed him down, at the duty place, which
\nclearly exhibited highly indisciplinary and highhanded action, throwing over
\nboard all corporate behavior in the disciplinary force, and that the same cannot
\nbe brushed aside. The disciplinary authority has further recorded that they need
\nnot be given any reprieve or sympathy and allow such elements in Police force
\nwould tantamount to encouraging indiscipline and it would erode very badly the
\ncause of discipline among the rank and file. Any leniency shown to them would
\nresult in other colleagues to follow the suit.\n<\/p>\n
\t26.Thus while agreeing with the enquiry officer’s report, the Deputy
\nCommissioner of Police (Law and Order), Trichy District, the Disciplinary
\nAuthority, has recorded his views on the gravity of the charges and the conduct
\nof the policemen, after recording that the writ petitioners had not given their
\nexplanation despite instructions, and has come to the conclusion that retention
\nof the writ petitioners in the  disciplined police force, would affect the
\nmorale of other policemen in the force and therefore, it would be appropriate to
\ndismiss the petitioners from service.\n<\/p>\n
\t27.The appellate authority viz., the Commissioner of Police, Trichy City,
\nTrichy, after going through the appeal petitions and connected records,  has
\npassed orders on the appeals, by observing that the prosecution witnesses have
\nclearly and adequately deposed against the petitioners and that the conduct of
\nthe writ petitioners, is a very serious matter and such belligerent activity
\ncould not be tolerated.  So saying, the appellate authority has confirmed the
\norder of punishment.  Thereafter, both the petitioners have filed revision
\npetitions, dated 26.02.2004, to the Additional Director General of Police (Law
\nand Order) Chennai, and the said revisional authority, noticed certain
\ncontradictions in the oral evidence particularly in the oral testimony of the
\nInspector of Police, P.W.9, has deposed that the petitioners were not in
\nintoxicated condition and considering the above said aspect and the number of
\nyears of service rendered by the writ petitioners, deemed it fit that the
\npunishment was excessive and accordingly, modified the punishment of dismissal
\nfrom service into that of reduction in time scale-of-pay by two stages for one
\nyear and further directed that the period of reduction shall not operate to
\npostpone future increments.\n<\/p>\n
\t28.Pursuant to the orders made in the review petitions, the petitioners
\nhave been taken back  to duty. Thereafter, the Director General of Police,
\nChennai, the Head of the Department in exercise of suo-motu power of review,
\nconferred on him under the Tamil Nadu Police Subordinate Service (Discipline and
\nAppeal) Rule, 1955, has issued show-cause notices, dated 12.08.2004, to the
\npetitioners, calling upon them to offer their explanations as to why the
\nmodified punishment of reduction in time scale-of-pay by two stages for one year
\nwithout cumulative effect imposed on them by the Additional Director General of
\nPolice (Law and Order), Chennai, should not be enhanced to that of dismissal.
\nThough the petitioners have offered their respective explanations, after
\nconsidering the records relating to the disciplinary proceedings including their
\ndefence, the Director General of Police (Law and Order), Chennai, the Head of
\nthe Department, has rejected the same as false.  The Head of the Department has
\nrecorded as follows:\n<\/p>\n
\t“Though drunkenness has not been proved, the highhandedness of the
\ndelinquents is proved and that both the petitioners did not submit any written
\nexplanation though reasonable opportunities were given. The disciplinary
\nauthority, the Deputy Commissioner of Police (Law and Order), Trichy District,
\nhas rightly awarded the extreme punishment of dismissal from service, so that
\nsuch elements are removed from the force or otherwise they would have a negative
\ninfluence on other members of the force.  The appellate authority also did not
\ninterfere with the punishment given by the disciplinary authority.  But the
\nreviewing authority, the Additional Director General of Police (Law and Order),
\nChennai, based on his decision only on the point that the petitioners were not
\nproved to have been in an intoxicated condition.  I feel that this strengthens
\nthe case against the delinquents as it demonstrated that even when sober they
\nwere capable of such indisciplined conduct. Further, the delinquents did not
\nsubmit any written explanation to the Oral Enquiry Officer though time was
\ngiven.  In view of the circumstances, the punishment of dismissal from service
\nimposed on the petitioners, by the disciplinary authority viz., the  Deputy
\nCommissioner of Police (Law and Order) Trichy City, Trichy, is upheld”.\n<\/p>\n
\t29.In these above factual background  and arguments advanced on either
\nside, it is necessary to examine the preliminary issue as to whether the Head of
\nthe Department, viz., the Director General of Police, Chennai, has jurisdiction
\nto exercise suo-motu power of review conferred on him under Rule 15-A of the
\nTamil Nadu Police Subordinate Service (Discipline and Appeal) Rule, 1955.
\nWhether he can review the decision of the Additional Director General of Police,
\n(Law and Order), Chennai, the second respondent in these writ petitions, who had
\nalready exercised the power of review under Section 15-A<\/a> of the rules, at the
\ninstance of the writ petitioners.  Yet another aspect to be considered is
\nwhether statutory rules empower, a second review by the Head of the Department
\nof the orders of an authority, who is not subordinate to him.  Suo-motu power of
\nreview is exercised by the appellate\/head of the department\/ Government and
\nother Authorities under special or general orders.  Rule 15-A of the Tamil Nadu
\nPolice Subordinate Service (Discipline and Appeal) Rule, 1955, is extracted
\nhereunder:-\n<\/p>\n
\t“15-A. (1) Notwithstanding anything contained in these rules:\n<\/p>\n
\t(i) the State\n<\/p>\n
\t(ii) the Head of the Department directly under the State Government, in
\nthe case of Government servant serving in a department or office under the
\ncontrol of such Head of Department; or\n<\/p>\n
\t(iii) the appellate authority, within six months of the date of the order
\nproposed to be reviewed; or\n<\/p>\n
\t(iv) any other authority specified in this behalf by the State Government
\nby general or special order, and within such time as may be prescribed in such
\ngeneral or special order; may at any time, either on their or its own motion or
\notherwise call for the records of any inquiry and review any order made under
\nthese rules, after consultation with the Tamil Nadu Public Service Commission
\nwhere such consultation is necessary and may\n<\/p>\n
\t(a) confirm, modify or set aside the order; or\n<\/p>\n
\t(b) confirm, reduce, enhance or set aside the penalty imposed by the
\norder, or impose any penalty where no penalty has been imposed; or\n<\/p>\n
\t(c)  remit the case to the authority which made the order or to any other
\nauthority, directing such authority to make such further enquiry, as it may
\nconsider proper in the circumstances of the case; or\n<\/p>\n
\t(d) pass such other orders as it may deem fit.\n<\/p>\n
\tProvided that no order imposing or enhancing any penalty shall be made by
\nany reviewing authority unless the Government servant concerned has been given a
\nreasonable opportunity of making representation against the penalty proposed.
\nWhere it is proposed to impose any of the penalties specified in clauses (d),\n<\/p>\n
(e), (f), (h), (i) and (j of rule 2 or to enhance the penalty imposed by the
\norder sought to be reviewed to any of the penalties specified in those clauses,
\nno such penalty shall be imposed except after an inquiry in the manner laid down
\nin such rule (b) of rule (3) and after giving a reasonable opportunity to the
\nGovernment servant concerned of showing cause against the penalty proposed on
\nthe evidence adduced  during the inquiry and except after consultation with the
\nTamil Nadu Public Service Commission, where such consultation is necessary.
\n\tProvided further that no power or review shall be exercised by the Head of
\nDepartment, unless:\n<\/p>\n
\t(i) the authority which made the order in appeal or\n<\/p>\n
\t(ii) the authority to which an appeal would lie where no appeal has been
\npreferred, is subordinate to him.\n<\/p>\n
\t(2) No proceeding for review shall be commenced until after,\n<\/p>\n
\t(i) the expiry of the period of limitation for an appeal, or\n<\/p>\n
\t(ii) the disposal of the appeal, where any such appeal has been preferred.
\n\t(3) An application for review shall be dealt with in the same manner as if
\nit were an appeal under these rules.\n<\/p>\n
\t(4) No application for review shall be preferred more than once in respect
\nof the same order.\n<\/p>\n
\tProvided that members of the constabulary (Police Constables and Head
\nConstables) shall be eligible to make on representation to the Government
\nagainst the orders of dismissal or removal from service after exhausting the
\nright of appeal.\n<\/p>\n
\tProvided further that no application for review shall be entertained if it
\nhas not been made within a period of six months from the date of receipt of the
\norder on which such application for review is preferred.”\n<\/p>\n
\t 30.In P.Sabesan Vs. State of Tamil Nadu reported in (1984 W.L.R. 557), a
\nPolice Officer was exonerated of the charges on 19.05.1977, by the D.I.G (Food
\nCell), the appointing authority therein.  Thereafter,  a show cause notice,
\ndated 25.09.1977 was issued under Rule 15(A) of the Tamil Nadu Police
\nSubordinate Service (Discipline and Appeal) Rules, by the Inspector General of
\nPolice, Madras.  Writ of Prohibition filed for restraining the I.G. of Police,
\nMadras from passing any order under Rule 15(A), was dismissed.\n<\/p>\n
\t31.On appeal, it was contended by the appellant, Police Officer that the
\npower of review under Rule 15-A of the Tamil Nadu Police Subordinate Service
\n(Discipline and Appeal) Rules, can be exercised by four authorities: viz., (1)
\nThe State Government; (2) the Head of the Departments; (3) the Appellate
\nauthority, and (4) any Other authority specified in this behalf by the State
\nGovernment, by a general or special order.  But, the power of review given to
\nthe Head of the Department is however, subject to the restriction placed under
\nproviso to the rule.  It was further contended that as per the proviso to the
\nrule, no power of review shall be exercised by the Head of the Department,
\nunless the appellate authority, which passed the appellate order or the
\nauthority to which an appeal would be preferred against the original order is
\nsubordinate to him.  At the relevant point of time, the Inspector General of
\nPolice was the Head of the Department and he also happened to be the appellate
\nauthority.  It was contended before the Division Bench that as the appellate
\nauthority was not subordinate to the Head of the Department and  the former
\ncannot exercise the power of review in view of the prohibition under the proviso
\nto the rule.  On careful consideration of the rule position, on the facts of the
\nabove case, the Division Bench held that exercise of suo motu review power as
\nbad. The operative portion of the order is extracted in the latter part of this
\njudgment.\n<\/p>\n
\t32.For better regulation of the police force within the State of Tamil
\nNadu, the Tamil Nadu District Police Act, 1869, Central Act<\/a> No.XXIV of 1859 has
\nbeen enacted.  As per Section 5<\/a> of the said Act, the Administration of the
\nPolice throughout the General Police District shall be vested in an officer to
\nbe styled the Director General of Police for the State of Tamil Nadu, and in
\nsuch superior Police Officers, as to the State Government shall deem it.\n<\/p>\n
\t33.Admittedly, the first respondent is the Head of the Department.  In the
\ncase on hand, the Additional Director General of Police (Law and Order),
\nChennai, the second respondent herein, in exercise of the powers under Section
\n15-A  of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rule,
\n1955, had already exercised the power of review, at the instance of the
\npetitioners, and modified the penalty of dismissal from service into that of
\nreduction in time scale-of-pay by two stages for one year. As per proviso to
\nRule 15-A of the said rules, no power of review shall be exercised by the Head
\nof the Department in which (i) the authority which made the order in appeal or\n<\/p>\n
(ii) the authority to which an appeal would lie, where no appeal has been
\npreferred, is subordinate to him and (2) No proceedings for review shall be
\ncommenced until after (i) the expiry of the period of limitation for an appeal,
\nor (ii) the disposal of the appeal, where any such appeal has been preferred.\n<\/p>\n
\t34.As per the Discipline and Appeal Rules, an application for review has
\nto be dealt with in the same manner as if it is an  appeal under the said rules.
\nClause 4 of Rule 15-A states that no application for review shall be preferred
\nmore than once in respect of the same order. The condition precedent for
\nexercise of suo-motu power of review by the Head of the Department under Rule
\n15-A of the rules is that when an order of punishment is imposed by the
\ndisciplinary authority, the Head of the Department can exercise such powers
\nafter expiry of the period of limitation for an appeal or after the disposal of
\nthe appeal, where any such appeal has been preferred.\n<\/p>\n
\t35.In the case on hand, the punishment of dismissal was imposed on
\n04.12.2002, by the Deputy Commissioner of Police (Law and Order), Trichy City,
\nTrichy, the 4th respondent herein.  The rejection of appeal by the Commissioner
\nof Police, Trichy City, Tricy, the 3rd respondent was made on 20.02.2004. The
\nreview petitions were filed on 25.02.2004 and the   Additional Director General
\nof Police (Law and Order), Chennai, the Second respondent, has passed orders on
\n12.06.2004.\tUnder Rule 15-A of the Tamil Nadu Police Subordinate Service
\n(Discipline and Appeal Rule, 1955. The Head of the Department directly under the
\nState Government, in the case of Government Servant serving in a department or
\noffice under the Control of such Head of Department may at any time either on
\ntheir or its own motion or otherwise call for records of any inquiry and review
\nany order made under these rules, after consultation with the Tamil Nadu Public
\nService Commission, where such consultation is necessary and may (a) confirm,
\nmodify or set aside the order; or (b) confirm, reduce, enhance or set aside, the
\npenalty imposed by the order, or imposed any penalty where no penalty has been
\nimposed; or c) remit the case to the authority which made the order or to any
\nother authority, directing such authority to make such further enquiry, as it
\nmay consider proper in the circumstances of the case; or (d) pass such orders as
\nit may deem fit.\n<\/p>\n
\t36.As per proviso to the said rule, no application for review shall be
\nentertained if it has not been made within a period of six months from the date
\nof receipt of the order on which such application for review is preferred. The
\nproviso also enables the members of the constabulary (Police constables and Head
\nConstables) to make one representation to the Government against the orders of
\ndismissal or removal from service after exhausting the right of appeal.\n<\/p>\n
\t37.Thus it is evident that a member of the constabulary can prefer a
\nreview to the competent authority within  six months from the date of receipt of
\nthe punishment order and he is also eligible to make a representation to the
\nGovernment against the orders of dismissal or removal from service after
\nexhausting the right of appeal.  Suo-motu power of review can be exercised by
\nthe Head of the Department only if the appellate authority, which had passed the
\nappellate order or after the appeal that would be preferred against the original
\norder, is subordinate to him.\n<\/p>\n
\t38.In P.Sabesan case, reported in (1984 W.L.R. 557) (cited supra) the
\nDivision Bench, after considering the rule position, held as follows:
\n \t“the proviso is specific and it says that if the authority to which an
\nappeal would lie is not subordinate to the Head of the Department, then the
\nlatter cannot exercise the power of review.  Admittedly, any order passed by the
\nDIG (Food Cell), is appealable to the second respondent, who happens to be the
\nHead of the Department.  Thus, the appellate authority is not subordinate to the
\nHead of the Department. Both the powers, that is, the power of the Head of the
\nDepartment and the appellate authority having vested in the same person.  In
\nsuch a case the proviso prohibits the Head of the Department from exercising the
\npower of sum-motu review.  Thus, proviso to Rule 15-A stands in the way of the
\nsecond respondent exercising his suo motu review power under that Rule as he
\nhappens to be the appellate authority, in the case in which he proposes to
\nexercise the power of suo-motu review. Thus, the show-cause notice issued by the
\nsecond respondent proposing to exercise the power of review under R.15-A  of the
\nRules should be  taken to be without jurisdiction”.\n<\/p>\n
\t39.When the rule contemplates exercise of suomotu power of review, by the
\nHead of the Department of an order or any records of any enquiry may under the
\nrules by an authority not subordinate to him, in the case of appeal already
\npreferred or the authority to which an appeal would lie where no appeal has been
\npreferred, then this Court is of the view that rule 15-A does not empower the
\nHead of the Department to exercise the power of suo-motu review of an order
\npassed by an authority of equal rank.\n<\/p>\n
\t40.The condition precedent to exercise the suo-motu power of review is
\nthat the order sought to be reviewed by the Head of the Department should be
\npassed by an authority, who passed the order in appeal or the authority to which
\nan appeal would lie where no appeal has been preferred, is subordinate to him
\nand in these specific cases, the power can be exercised by the Head of the
\nDepartment and not in the case, where an order is passed by an authority, who is
\nconferred with equal powers.  It is also to be noted that the Government have
\nnot any materials to show that the Additional Director General of Police of the
\nState, is subordinate to the Director General of Police.\n<\/p>\n
\t41.Yet another aspect to be noted is that Sub Rule 4 of rule 15-A states
\nthat no application or review shall be preferred more than once in respect of
\nthe same order.  Rule restricts the right of the members of the force to seek
\nfor review more than once.  However, the members of the Constabulary (Police
\nconstables and Head Constables) are eligible to make one representation to
\nGovernment against the order of removal or dismissal of service, as a matter of
\nright.  As per Rule 15-B of the Tamil Nadu Police Subordinate Service
\n(Discipline and Appeal Rule, 1955, nothing contained in the above rules shall be
\ndeemed to preclude the State Government from reviewing its own orders previously
\npassed.\n<\/p>\n
\t42.It is well settled that the period of limitation of six months for
\nreviewing any order is not applicable to State Government. Notwithstanding
\nanything contained in the above rule, only the prerogative right of the State
\nGovernment to review any order or call for any records at any time including the
\nearlier orders passed by the Government is retained, and whereas, such authority
\nor power is not given to any other authority, including the Head of the
\nDepartment to review an order passed by an authority who is equal in rank and
\nvested with the power of review.\n<\/p>\n
\t43.The contentions of the learned counsel for the petitioners that
\ndifferent views on the same set of facts, by two different authorities,
\nexercising equal powers of review cannot be made either at the instance of the
\naggrieved person or on the own motion of the authority is fortified by the
\nspecific restrictions imposed in the sub rule 4 of the rule 15-A, that no
\napplication for review shall be preferred more than once in respect of the same
\norder.  It is also useful to refer Rule 5 of the Service rules which states that
\na member of the service shall be entitled to appeal from an order imposing on
\nhim any of the penalties specified in Rule 2 other than the State Government, to
\nthe authority higher than that specified in the relevant column of the schedule,
\nto the next higher authority to whom the the former authority is
\nadministratively subordinate.\n<\/p>\n
\t44.As per Rule 10 of the said rules an appeal may be withheld by an
\nauthority not lower than the authority from whose order it is preferred, if it
\nis a repetition of the previous appeal and is made to the same appellate
\nauthority by which such appeal has been decided, and no new facts or
\ncircumstances are adduced which afford grounds for a reconsideration of the
\ncase.  Thus, in respect of the same order, the rule restricts the right of a
\nmember of the service in filing a second appeal or review of an order more than
\nonce, while that be so, when there is no specific power conferred on the Head of
\nthe Department to review its own orders while discharging the powers as an
\nappellate authority, he cannot assure powers acting as a reviewing authority,
\nthat he can suo motu exercise the powers of review of an order passed by a
\nreviewing authority, in the instant case, the Additional Director General of
\nPolice. The said power is conferred only on the State Government.  In view of
\nthe rule position, dealing with appellate power, it has to be necessarily
\ninferred that the Head of the Department is also not empowered to exercise the
\npower of the review more than once, in respect of any order or records of any
\nenquiry,  reviewed earlier, at the instance of the members of the force.\n<\/p>\n
\t45.As stated supra, the powers conferred on the State Government are wide,
\nexclusive and it could be exercised at any time and the Government can review
\nits orders in contradiction to the one conferred on the Head of the Department,
\nwhich is limited and circumscribed subject to the restrictions in Rule 15-A of
\nthe service rules.  When disciplinary proceedings have reached a stage, by
\nexercise of powers by all the statutory authorities, it becomes final.\n<\/p>\n
\t46.In view of the above discussions, this court is of the considered view
\nthat exercise of suo-motu review of power by the first respondent in enhancing
\nthe punishment from reduction in time scale-of-pay by two stages for one year
\ninto that of dismissal, is without jurisdiction. The Discipline and Appeal Rules
\ndo not contemplate two reviews at the instance of a member of service or even by
\nthe reviewing authority, except by the Government. For the foregoing reasons,
\nthe impugned order is liable to be set aside and accordingly set aside on the
\nground of lack of jurisdiction.\n<\/p>\n
\t47.As this Court has come to the conclusion that the impugned order is
\nwithout any jurisdiction, it deems it fit not to delve into other contentions,
\non the merits. In view of the above, both the writ petitions are allowed.  No
\ncosts.\n<\/p>\n
To<\/p>\n
1.The Director General of Police,
\n  Mylapore, Madras -4.\n<\/p>\n
2.The Additional Director General,
\n  of Police (Law and Order),
\n  Mylapore, Madras – 4.\n<\/p>\n
3.The Commissioner of Police,
\n  Trichy City, Trichy.\n<\/p>\n
4.The Deputy Commissioner of Police,
\n  (Law and Order), Trichy City,
\n  Trichy.\n<\/p>\n
\n","protected":false},"excerpt":{"rendered":"
Madras High Court G.Anbazhagan vs The Director General Of Police on 3 September, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03\/09\/2010 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.765 of 2005 and W.P.(MD).No.5837 of 2005 1.G.Anbazhagan … Petitioner in W.P.765\/05 2.Paulraj Jones … Petitioner in W.P.5837\/05 Vs 1.The Director General of Police, Mylapore, Madras […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-255764","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nG.Anbazhagan vs The Director General Of Police on 3 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/g-anbazhagan-vs-the-director-general-of-police-on-3-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"G.Anbazhagan vs The Director General Of Police on 3 September, 2010 - 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