B.Balaraman, v. The Superintendent Of Police

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 01.08.2017

CORAM

THE HONOURABLE Mr. JUSTICE S.M.SUBRAMANIAM W.P.No. 3516 of 2015 B.Balaraman .. Petitioner Vs 1.The Superintendent of Police Office of the District Police Office Nagapattinam, Nagapattinam District.

2.P.Pandi The Deputy Superintendent of Police Office of the District Crime Branch Nagapattinam, Nagapattinam District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus or order or direction in the nature of writ, call for the records from the first respondent in his proceedings in C.No.K1/P.R.18/2014 & D.O.No.1442/2014 dated 21.10.2014, and quash the same and consequently direct the respondents to treat the petitioner having retired from service on 31.10.2014.

For Petitioner : Mr.J.Antony Jesus For Respondents: Mr.S.Gunasekaran Addl. Govt. Pleader

O R D E R

The order dated 21.10.2014, not allowing the writ petitioner to retire from service is under challenge in this Writ Petition. 2.The writ petitioner was holding the post of Head Constable and on the date of his retirement a criminal case in Crime No.96 of 2014, under section 294(b), 448, 506(i) IPC and Section 3(1) of PPDL Act was pending. On account of the pendency of the criminal case, the writ petitioner was not allowed to retire on attaining the age of superannuation on 31st October, 2014 and his services were retained under Rule 56(1)(c) of the Fundamental Rules. 3.

Questioning the same, the learned counsel for the petitioner strenuously contended that the departmental disciplinary action was already initiated on the same set of allegations and reduction in pay by 6% (3+3) for one year without cumulative effect was imposed by proceedings dated 21.10.2014. Since the disciplinary proceedings against the writ petitioner was concluded and he was imposed with the penalty contemplated under the Tamil Naud Civil Services (Discipline and Appeal) Rules, there is no further scope for the conduct of the disciplinary proceedings by the Department.

under Rule 56(1)(c) of the Fundamental Rules is unsustainable. 4.Substantiating the said proposition, the learned counsel for the petitioner cited the Judgment of the Hon'ble Division Bench in D.NARAYANAN v.

DISTRICT REVENUE OFFICER, VIRUDHUNAGAR, VIRUDHUNAGA DISTRICT AND ORS. [(2009 4 MLJ 708]. In that case, the departmental proceedings was concluded and the punishment of stoppage of increment was issued during the pendency of the criminal case. But, after the conviction in the criminal case, once again action was initiated under the Discipline and Control Rules and second punishment of dismissal from service was issued. Under those circumstances, the Hon'ble Division Bench held that the second punishment on the same set of allegations are impermissible in law.

5.Certainly, this Court is of the opinion that the Judgment of the Hon'ble Division Bench is binding on this Court. However, the facts in the writ petition on hand is different and not akin to the case before the Hon'ble Division Bench. In the present Writ Petition, no doubt disciplinary proceedings against the writ petitioner was concluded by imposing the punishment as stated supra, but, as on date admittedly, the criminal case is pending and no second punishment has been

imposed. Thus, the reliance placed on the principle laid down by the Hon'ble Division Bench is irrelevant, as far as the facts of the present Writ Petition is concerned.

6.Thereafter, the learned counsel cited the Judgment rendered in the case of C.GOVINDAN v. JOINT DIRECTOR OF AGRICULTURE, DHARMAPURI AND ORS [ (2014) 6 MLJ 489]. Relevant portion of the Judgement viz. paragraph No.12, is extracted hereunder:

"12. Since the Department decided to take departmental action in relation to the incident that took place on 02.03.2009, the pendency of criminal case relating to the said incident has no consequence, in view of the Division Bench judgment of this Court in D.NARAYANAN VS. DISTRICT REVENUE OFFICER, VIRUDHUNAGAR reported in 2009 (4) MLJ 708, i.e., even assuming that the criminal case would result in conviction, the Department cannot proceed against the petitioner, since the department had chosen to take action departmentally on the same incident and also imposed the punishment. It has been by the Division Bench that it is open to the department authorities either to follow the procedure contemplated under Rule 17(b) or the procedure under Rule 17(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. However, when Rule 17(b) has already been followed and a punishment is imposed, it would not be permissible for the department authorities to again subject the very same delinquent to a fresh punishment on the self-sameallegation on the ground that such conduct has led to his 7

conviction in a criminal case, which would amount to double jeopardy. "

7.The learned Judge relying on the Judgment of the Hon'ble Division Bench in D.NARAYANAN, referred supra, made an observation that even assuming that the criminal case would result in conviction, the Department cannot proceed against the petitioner, since, the Department had chosen to take action departmentally on the same circumstances and also imposed punishment. It has been held by the Division Bench that it is open to the department authorities either to follow the procedure contemplated under Rule 17(b) or the procedure under Rule 17(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. However, when Rule 17(b) has already been followed and a punishment is imposed, it would not be permissible for the department authorities to again subject the very same delinquent to a fresh punishment on the self-same-allegation on the ground that such conduct has led to his conviction in a criminal case, which would amount to double jeopardy.

8.There is no quarrel in respect of the principles laid down in the above referred Judgment. No person can be punished twice for the same set of allegations and such order will certainly in violative of the

principles of doubt jeopardy. However, this Court is of the opinion that there is a provision under Tamil Nadu Civil Services (D&A) Rules to review the order of punishment by the Government. Part VI of Rule 37 deals with Power to Review, which reads as follows: PART VI - REVIEW. 37.

Power to Review The State Government may, at any time, either on their own motion or otherwise, review any order passed by them under these rules, when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to their notice; Provided that no order imposing or enhancing any penalty shall be made by the State Government unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in rule 8 or to enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an inquiry under sub-rule (b) of rule 17 has not already been held in the case, no such penalty shall be imposed except after an inquiry in the manner laid down in the said sub-rule (b) of rule 17 which shall be subject to the provisions of sub-rule (c) thereof, and except after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary.

9.The Government has got a suo motu power to review the order of punishment passed on account of the changing circumstances. This

Court is able to visualise that in the event of getting an order of acquittal in the criminal case, certainly, no further action is required in the case of the writ petitioner. However, in the case of conviction by the Criminal Court, the State Government may review the order of punishment issued earlier on 21.10.2014. The power of review by the Government is unlimited and it can be exercised at any point of time, even after the Judgment delivered in the criminal case. Therefore, there is a possibility of reviewing the order of punishment after the Judgment delivered by the Criminal Court. Such a situation is to be treated as 'changing circumstances', warranting review. 10.When the power of review is available with the Government, it is necessary to keep the employee in service during the pendency of the criminal trial.

The purpose of this power of review and retaining the Government employee in service during the pendency of the criminal case is that the public servants are to maintain absolute integrity and conduct, both inside and outside the Office, when they are in employment. The good conduct of the public servant is the ultimate motto in prescribing such restrictions both in Tamil Naud Civil Services (Discipline and Appeal) Rules and in the Conduct Rules. Thus, an employee, if convicted by the Criminal Court, should not be allowed to escape from the clutches of disciplinary proceedings.

11.This apart, Rule 8 of Pension Rules deals with pension subject to future good conduct. Rule 8, reads as follows: "Rule 8: Pension subject to future good conduct -

(1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules:

(b) the pension sanctioning authority may by order in writing withhold or withdraw a pension or part thereof, when permanently or for a specified period, if the pensioner convicted of a serious crime or is found guilty of grave misconduct;

provided that no such order shall be passed by the authority subordinate to the authority competent to make an appointment to the post held by the pensioners immediately before his retirement from service: provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the limit specified in sub-rule (5) of Rule 43.

(2) Where a pensioner is convicted of a serious crime by a Court, action under sub-rule (1) shall be taken in the light of a judgment of the Court relating to such conviction."

12.Even if a Government employee is allowed to retire from service, in the event of no knowledge about the criminal case, an action can be initiated by the competent authorities under Rule 8 of the Tamil Nadu Pension Rules, 1978. All these Rules are framed in order to maintain the good conduct of the public servants and they have to serve in the interest of public by conducting themselves in accordance with law. With these objects, such restrictions are imposed in the Rules, cited supra.

13.In the light of the provisions contemplated under Rule 56(1)(c) of the Fundamental Rules, the power of Review in Part VI of Rule 37 of Tamil Naud Civil Services (Discipline and Appeal) Rules and Rule 8 of the Pension Rules, 1978, the order passed by the respondents in retaining the services of the petitioner after the date of his superannuation by invoking Rule 56(1)(c) of the Fundamental Rules, is absolutely in order and there is no infirmity in the order impugned in this Writ Petition. Since there is a scope for reviewing the earlier order of punishment imposed on the departmental disciplinary action on receipt of the final Judgment in criminal case, the writ petitioner has to be retained in service necessarily for all purposes both under

TNCSS (D&A) Rules as well as in the Tamil Nadu Pension Rules. 14.This being the legal principles, no further consideration is required to be shown on the grounds raised in this Writ Petition. Accordingly, the Writ Petition stands dismissed. No Costs. 01.08.2017 To 1.The Superintendent of Police Office of the District Police Office Nagapattinam, Nagapattinam District.

2.P.Pandi The Deputy Superintendent of Police Office of the District Crime Branch Nagapattinam, Nagapattinam District.

S.M.SUBRAMANIAM, J.

rpa W.P.No. 3516 of 2015 01.08.2017