@JUDGMENTTAG-ORDER
D. Hariparanthaman, J.@mdashThe Petitioner joined the service as Grade II Police Constable on 30.04.1981. Later he was promoted as Grade I Police Constable. While so, he applied for casual leave for 3 days from 06.02.2000. Thereafter, he applied medical leave from 07.02.2000 to 16.04.2000. The leave was sanctioned and he availed the same. He has to join the duty on 17.04.2000. But, he did not report for duty on 17.04.2000. Hence, the third Respondent issued a charge memo dated 19.06.2000 under Rule 3(b) of Tamil Nadu Police Subordinate Service Rules (Discipline & Appeal) Rules, 1955 (hereinafter referred as the Rules) alleging that the Petitioner was unauthorisedly absent from 17.04.2000. After holding an enquiry, the third Respondent passed an order dated 27.09.2000 imposing a punishment of reduction in pay by two stages for two years without cumulative effect. However, the Petitioner did not report duty even after the aforesaid order, dated 27.09.2000.
2. In these circumstances, the second Respondent, the appellate authority, issued a suomotu notice dated 09.02.2001 seeking to review the punishment order as the Petitioner did not report duty, even after the aforesaid punishment of reduction in pay by two stages without cumulative effect was imposed. The Petitioner did not send any reply. The appellate authority/the second Respondent, passed an order dated 11.04.2001 dismissing the Petitioner from service with effect from 17.04.2000.
3. The Petitioner filed mercy petition dated 21.07.2005 to the first Respondent. The first Respondent passed an order dated 09.10.2005 stating that he did not uphold the order of the second Respondent as he violated the Rules Provisions. But, the first Respondent held that on exercising his review power, he has chosen to modify the order of the second Respondent as removal from service. The Petitioner has filed the writ petition to quash the orders, dated 11.04.2001 of the second Respondent and dated 09.10.2005 of the first Respondent.
4. The first Respondent filed counter affidavit refuting the allegations.
5. The learned Counsel for the Petitioner has made the following submissions. The Petitioner has rendered more than 20 years of service, when the dismissal order was passed. He never unauthorisedly absent from duty and only due to family circumstances, he was not able to attend the duty. The same was accepted and no enquiry was conducted and a minor punishment was given. That is the third Respondent, having taken note of the family circumstances of the Petitioner, imposed the minor punishment. While so, the second Respondent dismissed the Petitioner from service on a new set of charges that the Petitioner failed to join duty after imposition of minor penalty and that he was unauthorisedly absent after the punishment order. On those charges, the Petitioner was not heard and no enquiry was conducted.
6. Further more, it is submitted that when the first Respondent sought to exercise his power under Rule 15(A) of the Rules and did not uphold the order of the second Respondent, he ought to have issued notice on the review. Since no notice was issued, the order of the first Respondent is illegal.
7. On the other hand, the learned Additional Government Pleader has sought to sustain the impugned order based on the counter affidavit.
8. I have considered the submissions made on either side. The Petitioner was enlisted as Grade I Police Constable on 30.04.1981. Earlier he was on causal leave from 04.02.2000 for three days. He extended his leave from 06.02.2000 to 16.04.2000. His leave was sanctioned and he should report duty on 17.04.2000, but he did not do so. Hence, the third Respondent issued a charge memo under Rule 3(b) of the Rules. The Petitioner submitted the written explanation on 20.07.2000 explaining that due to domestic circumstances, he was continuously absent and he also requested not to examine any prosecution witness and to impose minor punishment taking into account his domestic circumstances. This plea of the Petitioner was accepted by the third Respondent. Hence, the second Respondent passed the order, dated 27.09.2000 imposing the punishment of reduction in pay by two stages for two years without cumulative effect.
9. The aforesaid fact is accepted by the Respondents in their counter affidavit. In paragraph 5 of the counter affidavit, it is stated as follows;
When the charge memo has been received by the Petitioner on 07.07.2000, and Petitioner has submitted his written explanation on 20.07.2000, stated that, he agreed the delinquency of the charge memo in PR. No. 96/2000 u/r 3(b) of TNPSS (D&S) Rules 1955, and also stated that due to his domestic circumstances, he was continuously absent. Hence he agreed his absence for the period and he requested not to examine any prosecution witness in this punishment roll and give a minimum punishment to him in the punishment roll. Based on the Petitioner''s request prosecution witnesses have not been examined in the punishment roll and only the prosecution exhibits were filed in this punishment roll on behalf of prosecution side.
10. It is true that the Petitioner did not join the duty on 17.04.2000.In these circumstances, the second Respondent issued a notice dated 09.02.2001 under Rule 15(A)(1)(iii). Rule 15(A)(1)(iii) of the Rules is as follows:-
(1) Notwithstanding anything contained in these rules:
(i) the State Government or
(ii)the Head of the Department directly under the State Government, in the case of Government servant serving in a department or office under the control of such Head of Department; or
(iii) the appellate authority, within six months of the date of the order proposed to be reviewed; or
(iv) any other authority specified in this behalf by the State Government by 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 these rules, after consultation with the Tamil Nadu Public Service Commission where such consultation is necessary and may.
The second Respondent sought to exercise his review power under Rule 15(A) of the Rules. According to the second Respondent, the Petitioner was guilty in not reporting to duty after the punishment order dated 27.09.2000. Hence, the Petitioner does not deserve for a minor punishment. Ultimately, the second Respondent passed the order, dated 11.04.2001 dismissing the Petitioner from service on the ground that the Petitioner did not report duty after the dismissal order, dated 27.09.2000.
11. According to the learned Counsel for the Petitioner, the absence of the Petitioner after 17.04.2000 weighed with the second Respondent for passing the dismissal order. In these circumstances, the second Respondent was not justified in dismissing the Petitioner from service without any charge memo being issued by the disciplinary authority/the third Respondent, and without holding an enquiry thereon. According to the learned Counsel for the Petitioner, the second Respondent exceeded his jurisdiction by dismissing the Petitioner on new charges for which no punishment was imposed. The punishment was imposed for absence after the punishment order dated 27.09.2000. In my view, the aforesaid submissions of the Petitioner has some force.
12. The Petitioner filed a mercy petition to the first Respondent. The first Respondent passed the impugned order, dated 09.10.2005 setting aside the order of the second Respondent. para 6 of the said order is extracted hereunder:
I have gone through the petition and other connected records carefully. The charge against the delinquent is rightly held proved. Commissioner of Police, Madurai City has taken Suo-Motu review and passed orders after the period of six months which is in violation of the rules provisions. Though I do not uphold the orders of the Commissioner of Police, Madurai City, as he violated the rule position. I have taken review independently, invoking my powers, I modify the punishment as Removal from Service.
While setting aside the order of the second Respondent, the first Respondent stated that he exercised his review power independently under Rule 15(A) of the Rules. As rightly contended by the learned Counsel for the Petitioner, while six months limitation is there, for the second Respondent for review, there is no time prescribed under Rule 15(A) for the first Respondent. But, if the first Respondent sought to exercise his review power, the first Respondent should issue notice and hear the Petitioner. Further more, the first Respondent should exercise his review power, within a reasonable time, though limitation is not prescribed.
13. In my view, the learned Counsel for the Petitioner is correct in his submission that the first Respondent is not correct in exercising his review power under Rule 15(A) of the Rules, without issuing notice to the Petitioner and hearing his views. Hence, the impugned order dated 09.10.2005 of the first Respondent is violative of principles of natural justice. Hence, the order dated 09.10.2005 of the first Respondent is set aside and the matter is remanded back to the first Respondent to pass appropriate orders after hearing the Petitioner. The first Respondent shall complete the exercise, within a period of four months from the date of receipt of a copy of this order. The Petitioner is at liberty to urge all the points which he has urged before this Court such as the length of service of the Petitioner from 03.04.1981; he was never unauthorisedly absent before this event; the fact that the third Respondent took into account the domestic circumstances and imposed the minor punishment; the absence after the order dated 27.05.2000 would not form part of the review; there should be an independent enquiry; and also he could seek for modification of punishment such as compulsory retirement so as to get the pensionary benefits before the first Respondent while seeking mercy. The writ petition is disposed of in the above terms. No costs.
