(Prayer: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.3451 of 2003 from the file of Tamil Nadu Administrative Tribunal praying to call for the records relating to the orders of the respondent herein passed in his PR 20/2001, dated 23.07.2003 and in Rc.No.C2/PR 20/2001, D.O.No.606/2003, dated 06.08.2003, dismissing the petitioner from service with effect from 02.08.2003, quash the same and consequentially direct the respondent herein to reinstate the petitioner back in service with all consequential monetary and service benefits.)
1. The Original Application in O.A.No.3451 of 2003 before the Tamil Nadu Administrative Tribunal (hereinafter referred to as the "Tribunal") is the present Writ Petition.
2. On 05.03.1979 the petitioner was appointed as Grade II Police Constable. From 05.09.1983, he was transferred to Police Telecommunication Branch. On 17.01.1990 he was promoted as Grade I Police Constable. On 15.07.1996 he was further promoted as Head Constable.
3. While so, on 28.09.2001 a case was registered in Crime No.453/2001 against the petitioner under Section 420 of IPC on the file of Ukkadam Police Station, Coimbatore. The compliant was against the petitioner and six others. The Complainant was one Thiru.Venugopal, who is a Goldsmith. The complaint was that the petitioner cheated along with others to the tune of Rs.1,80,000/-. Based on the said complaint, the petitioner was arrested on 01.10.2010 and later, he came out on bail.
4. While so, the respondent issued a charge memo dated 24.10.2001 under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 (hereinafter referred to as the "Rules") against the petitioner for his absence for two days without permission and also for having involved in a criminal case in Crime No.453/2001 on the file of Ukkadam Police Station, Coimbatore.
5. The petitioner submitted an explanation dated 26.01.2002 denying the allegations. However, an enquiry was ordered and the Deputy Superintendent of Police (Communication), Police Telecom Branch, Chennai - 4, was appointed as Enquiry Officer, who conducted an enquiry, wherein, four witnesses were examined on behalf of the Department. He submitted a report dated 24.04.2002, holding that the charges were proved. Based on the findings after receiving further representation on the findings, the petitioner was removed from service by order dated 23.07.2003 and 06.08.2003 by the respondent. Aggrieved by the same, the petitioner filed O.A.No.3451 of 2003 (W.P.No.14381 of 2007) to quash the proceedings dated 23.07.2003 and 06.08.2003 of the respondent and for a direction to reinstate him with all consequential, monetary and service benefits.
6. The respondent filed a reply affidavit before the Tribunal, refuting the allegations. It is stated that since the petitioner involved himself in a criminal case, registered in Crime No.453/2001 under Section 420 of IPC on the file of Ukkadam Police Station, Coimbatore, he was dismissed from service.
7. On abolition of the Tribunal, the Original Application transferred to this Court and re-numbered as W.P.14381 of 2007.
8. Heard both sides.
9. Learned counsel for the petitioner submits that the involvement of the petitioner in criminal case would not be a ground for issuing a charge memo and dismissing a Government employee. According to him, the petitioner could be placed under suspension under Rule 3(e) of the Rules. If the Government employee is convicted, then, based on the conviction, the Government employee could be proceeded with and appropriate punishment could be imposed under Rule 3(c) of the Rules. The Department also could take departmental action based on the similar set of facts, for which, criminal action is pending. But, according to the petitioner, if a Government employee is made an accused in a criminal case that itself could not be a ground for issuing a charge memo and dismissing the said Government employee for involvement in the criminal case.
10. Learned counsel for the petitioner further submits that for the absence of two days, the punishment of dismissal is too excessive. He has also relied upon a Judgment of this Court in R.Ramesh Vs. The Deputy Inspector General of Police, Kancheepuram and Another (W.A.No.58 of 2011) in this regard.
11. On the other hand, the learned Special Government Pleader appearing for the respondent seeks to sustain the dismissal order based on the reply affidavit.
12. I have carefully considered the submissions made on either side.
13. The following charges were framed under charge memo dated 24.10.2001:-
Highly reprehensible conduct in absenting from duty without obtaining leave on 29.09.2001 and 30.09.2001
Highly reprehensible conduct by invoking himself in a criminal case registered in Coimbatore Ukkadam PS. Cr.No.453/2001 U/S.420 IPC. Registered on 28.09.2001 and thereby violating Section 3 - Discreditable Conduct enshrined in G.O.Ms.No.479, Home Department, dated 25.03.1997."
14. The crux of the charge No.2 is that the petitioner involved in a criminal case.
15. As rightly contended by the learned counsel for the petitioner, the mere involvement in a criminal case could not be construed as misconduct. It is a different matter, if, a charge memo is issued on the same allegations, for which, a criminal prosecution is also initiated. The allegation in the charge memo is that he was shown as an accused in Crime No.453/2001 under Section 420 of IPC on the file of Ukkadam Police Station, Coimbatore. Among four witnesses examined in the enquiry, the first and fourth witness deposed about the registration of criminal case and the arrest of the petitioner based on the complaint. Both the witnesses 1 and 4 were police officials. The charge was not that the petitioner had cheated one Venugopal to the tune of Rs.1,80,000/- and the said Venugopal was not examined in the enquiry.
16. On the other hand, the charge was that the petitioner was an accused in the criminal case.
17. Therefore, in my considered view that mere involvement in the criminal case could not be made as a charge in a departmental proceeding.
18. As rightly contended by the learned counsel for the petitioner, the Department could place the petitioner under suspension during the pendency of the criminal case. Rule 3(e) (1) of the Rules is extracted in this regard as here-under:-
"3 (e) (1) A member of Service may be placed under suspension from service, where-
(i) an enquiry into grave charges against him is contemplated or is pending, or
(ii) a complaint against him of any criminal offence is under investigation or he is under trial and if such suspension is necessary in the public interest."
19. Further as rightly contended by the learned counsel for the petitioner, if the Government employee is convicted in a criminal case, the Department could proceed against him under Rule 3(c)(i)(1) of the Rules.
20. Rule 3(c) (i) (1) of the Rules is extracted as here-under:-
"The requirements of sub-rule (b), shall not apply where it is proposed to impose on a member of the Service any such penalty as is referred to in the clause (i) of that sub-rule on the basis of facts which have led to his conviction in a criminal Court (whether or not he has been sentenced at once by such Court to any punishment), but he shall be given a reasonable opportunity of making any representation. (G.O.Ms.No.2642, Home, dated 20.10.1982)"
21. As stated above, the Department is not helpless and they could place him under suspension or they could take a departmental action on the alleged charges, for which a criminal case is instituted. In this case, both did not take place. It is stated that the criminal case is still pending. Hence, the dismissal based on the second charge is bad and illegal.
22. As far as the first charge is concerned, the petitioner was absented from duty for two days, without permission. As rightly contended by the learned counsel for the petitioner, dismissing a Government employee for absence from duty for two days is excessive and shockingly disproportionate to the charges. When a Police Constable remained absent for more than 21 days, he was dismissed from service and the same was the issue in W.A.No.58 of 2011. By order dated 27.01.2011, wherein, a Division Bench of this Court, set aside the removal order and remitted the matter to the disciplinary authority, viz. the second respondent therein, to re-consider the matter with regard to the quantum of punishment imposed on the appellant therein and to take a decision within six weeks. Paragraph 3 of the said Judgment is extracted here-under:-
"3. After hearing the learned senior counsel for the appellant and the learned Government Pleader, we are prima facie of the view that the punishment imposed on the appellant is disproportionate to the charge levelled against him and it is in fact, shocking the conscience of this Court. We, therefore, allow this writ appeal, set aside the impugned judgment passed by the learned single Judge and remit back the matter to the disciplinary aut
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hority, viz. the second respondent herein, to re-consider the matter with regard to the quantum of punishment imposed on the appellant and to take a decision within six weeks from today. It is made clear that in the event the quantum of punishment imposed on the appellant is reduced, he shall not make any claim with regard to the wages for the period he has not performed his duty, but the continuity in service will not be affected. There shall be no order as to costs. Consequently, M.P.No.1 of 2010 is closed." 23. In these circumstances, for the reasons stated above, the impugned order is set aside and the matter is remanded to the respondent to reconsider the case of the petitioner and to impose appropriate punishment, in the light of the decision dated 27.01.2011 in W.A.No.58 of 2011, within a period of six weeks from the date of receipt of a copy of this order. 24. The Writ Petition is disposed of on the above terms. There shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.