IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.08.2010
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.No.40460 of 2006 (T)
O.A.No.2184 of 2000
S.D.Albert Dayakaran ...petitioner
Vs
Deputy Inspector-General of Police,
Chengalpattu Range,
Chennai 16. ...Respondent
Prayer : Writ Petition came to be numbered by transfer of O.A.No.2184 of 2000 on the file of the Tamil Nadu Administrative Tribunal praying to quash the punishment of reduction in time scale of pay by two stages for two years with cumulative effect passed by the respondent herein in his Na.Ka.No.A3/PR.59/99, P.R.No.147/98, dated 31.01.2000 with all consequential monetary and service benefits.
For petitioner : Mr.S.Ramesh
For Mr.M.Ravi
For Respondent: Mr.S.Gopinathan, AGP
O R D E R
The petitioner had approached the Tamil Nadu Administrative Tribunal, by filing Original Application No.2184 of 2000, challenging the punishment order. The said Original Application had been transferred to the file of this Court on abolition of the Tribunal and renumbered as W.P.No.4060 of 2006.
2. The petitioner was served with a charge memo containing nine charges in P.R.No.147/98 under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, which is extracted as under:-
1. Malingering by entering on medical leave from 23.01.98 after reporting sick on 22.01.98 without prior permission while the 12th Lok Sabha Election was on the card and the officers and men have been instructed not to enter on leave, by sending a VHF message 231105, dated 23.01.98 intimating that he entered on 5 days Medical leave from 23.01.98.
2. Gross disobedience in sending telegram for extension of medical leave from 28.01.98, without sending the Medical Leave Certificate for the period from 23.01.98 to 27.01.98.
3. Unbecoming of a police officer in sending the Medical Leave Certificate issued by Dr.C.Chandrasekaran, Civil Assistant Surgeon, Government Hospital, Madurantakam, dated 22.01.98, recommending leave from 23.01.98 to 27.01.98, by tapal without informing the Deputy Superintendent of Police, Madurantakam either over pohone or personally about his proceeding on leave, and in producing the Medical Leave Certificate issued on 22.01.98 with his signature on it on 23.01.98 instead of 22.01.98.
4. Gross disobedience in not sending the medical leave certificate for the extended leave of 5 days from 28.01.98 and refused to return to duty when he was informed by Tr.Narayanasamy, Sub Inspector of Police, over phone 404112 to his house at Kalsa Plots, Block 3, Chrompet, Chennai, that there was law and order problem and that he was to return to duty.
5. Gross neglect of duty in not sending the daily diaries regularly and failed to submit the daily diaries from 01.12.97 to 31.12.97, in not submitting the fitness certificate on 09.02.98 after he returned for duty and in not submitting the itinerary reports for the period from 27.06.97 to 25.03.98.
6. Gross neglect of duty by not investigating the rioting cases in Chunambedu PS Cr.Nos.887/97 sec 147, 148, 324, 323, 506(ii) IPC and Cr.No.888/97 sec 147, 148, 324, 323, 506(ii) IPC in between Adi Draviders and Caste Hindus of Nal Village on 29.12.97, and in not laying information u/s 107 Cr.P.C. to maintain peace in the village.
7. Gross neglect of duty in not investigating the case in Chunambeddu PS Cr.No.5/98 u/s 147, 148, 324, 323, 304 IPC, a case of rioting and attempt to murder occurred in Kadappakkam village on 04.01.98 night at 21.45 hrs which was reported on 05.01.98 at 08.30 hrs and in not taking cognizance of the occurrence though he visited Kadappakkam village on 4/5.1.98 at 03.30 hrs and checked night beat PC 1037 and volentire beat men, and in not arresting the accused but leaving a case triable by sessions to be investigated by the SI.
8. On 01.02.98 at 17.00 hrs and at 17.30 hrs, at Chunambedu Bazar, two occurrence have taken place which were reported in Chunambedue PS Cr.No.78/98 sec 341, 323, 294(b) IPC and 79/98 sec 147, 148, 323, 324, 506 (ii) IPC and 7(1)(a) Crl.Law Amendment Act, Sub Inspector of Police, Chunambedue PS investiaged the case. You have joined duty on 09.02.98 on expiry of ML but you have not taken cognizance of these two rioting cases as a SHO of the Inspector of Station and arrested the remaining accused which led to a communal rioting reported in Cr.No.154/98 sec 147, 148, 341, 324 IPC and 3(1)(x) of SC & ST (PA) Act, and Cr.No.155/98 sec 147, 148, 506(ii) IPC on 26.02.98. Thus you have neglected your duty as SHO of Chunambedu PS.
9. Gross dereliction of duty and malingering for duty in not preferring complaint about the occurrence that took place on 26.02.98 at 15.00 hrs at Chunambedu East Bypass junction which was reported by SI of Police, Chithamur and registered as Cr.No.156/98 sec 147, 148, 332, 307 IPC and sec 2, 3 of TNP (PDL) Act 1992 and pretended to have sustained injury but the medical officer found no external injury and treated him as OP, he had not returned to duty instead went on his own accord to Chennai on the pretext of taking treatment.
On receipt of the above said charge memo, the petitioner submitted his detailed explanation to disciplinary authority denying the entire charges as vague and motivated. But, the disciplinary authority, dissatisfying with the explanation offered by the petitioner, ordered for enquiry. The enquiry officer, on completion of the enquiry, submitted his report holding the petitioner guilty of all the charges. Thereupon, the disciplinary authority, by sending one more notice, called upon the petitioner to submit his further explanation. Though the petitioner submitted his further explanation denying all the charges with all supporting documents, he was imposed with a punishment of reduction in time scale of pay by two stages for two years with cumulative effect. Aggrieved by the said order, the present OA came to be filed.
3. Learned counsel appearing for the petitioner submits that the Deputy Superintendent of Police was aware of the petitioner’s medical leave through the Sub-Inspector of Police. In spite of that, he has given a false report against the petitioner. Secondly, it was contended that the petitioner, as per the procedure, made entries in the General Diary of the station and informed his leave by message. Therefore, there is no violation of Police Standing Orders and the charges framed against the petitioner ought not to have been held as proved. Thirdly, it was further contended that the Deputy Superintendent of Police had a malafide intention against the petitioner. Though the petitioner has submitted his explanation satisfactorily, the disciplinary authority, without even considering the explanation offered by the petitioner, by accepting the findings of the enquiry officer, erroneously imposed the punishment impugned herein and on that basis, prayed for setting aside the impugned order.
4. Heard the learned counsel appearing on either side and perused the materials available on record.
5. Let me deal with each and every charge alleged to have been committed and the explanation given by the petitioner to the said charge as well as the evidence adduced in the enquiry by the witnesses appeared from both sides.
With regard to the first charge, when there is a general announcement that in view of 12th Lok Sabha Election, which was on the card, instructions were issued not to enter on leave, by sending a VHF message, the petitioner wrongly entered medical leave for 5 days from 23.01.98. The explanation given by the petitioner before the enquiry officer states that even prior to the relevant date, the petitioner was unwell with stomach pain with ulcer complaint and the same was also known to the Deputy Superintendent of Police. Further, on 22.01.98, the petitioner, having suffered aggressive stomach pain, went to Madurantakam Government Hospital and the Doctor also after examing the petitioner, recommended 5 days leave from 23.01.98. The petitioner, after receiving medical leave certificate, after 12’o clock in the mid night, signed the same on 22.01.98 and communicated the message of sickness and the same communication was also marked as Ex.P1. The Deputy Superintendent of Police-PW2, has admitted the fact that the petitioner was not on duty, even a week prior to the Parliament Election and the petitioner was not aware of the fact that there was a general announcement not to go for medical leave, in view of Parliament Election. The prosecution witness also admitted the fact that there is no official information to the fact that even people having ailment, should avoid applying for medical leave. This deposition clearly goes to show that a person who is already having sickness either prior or during the Lok Sabha Election, can go on medical leave. It is also relevant to keep it in mind that even prior to the date of election, the petitioner was unwell with ulcer complaint and also stomach pain, which is communicated to the Deputy Superintendent of Police. Therefore, the first charge should not have been held proved.
The second charge deals with the extension of leave from 28.01.98 by sending telegram, without sending medical leave certificate. When the Deputy Superintendent of Police-P.W.2 had admitted before the enquiry officer, in his evidence, that it is general practice that the medical leave is always extended by the telegram and the same practice was also accepted in all the police stations. Particularly, when a person goes on leave, he has to get a fitness certificate at the time of joining duty on expiry of medical leave and all the papers with leave application form for sanction/approval and the fitness certificate submitted to the DPO. Therefore, it is not known as to how the petitioner’s act of intimation of leave by telegram can be viewed as disobedience of orders. Therefore, the second count of charge of sending telegram for extension of medical leave also is not maintainable, because, the petitioner has properly extended the medical leave by telegram, which is also generally an accepted practice in the Department.
With regard to the third charge, the petitioner was found fault with for sending the medical certificate for 5 days without informing the Deputy Superintendent of Police in person or by phone. To disprove the above said third charge, Dr.Chandrasekar, Civil Assistant Surgeon, Madurantakam-P.W.5 was also produced in the enquiry, who has also stated that the petitioner was examined on 22.01.98 and thereafter, by giving treatment for his illness, he admitted that as a Doctor, he has recommended for 5 days leave from 23.01.98. When the Deputy Superintendent of Police has also admitted the fact that he has received the petitioner’s report dated 30.01.98 with medical certificate through tapal, the findings of the enquiry officer that the petitioner is guilty for sending the medical certificate through tapal, cannot be said to be violation of Government Service Rules. For instance, when a person is having Jaundice or any serious physical ailment, the department cannot expect the said government employee to visit the department in person or cannot expect the ailing person to speak to the higher official over phone. The rule requires, to prove the sickness, with supported medical certificate duly authorised by the Government Medical Officer. When this was duly complied with, by sending medical leave application by tapal, the enquiry officer cannot view this as misconduct. Accordingly, the third charge is also not maintainable.
In respect of fourth charge, it is alleged that the petitioner committed disobedience in not sending the medical leave certificate for the extended leave of 5 days and refused to return for duty when there was a law and order problem. The evidence deposed by the Deputy Superintendent of Police-PW2 states that when a person is on medical leave, no one could be compelled to attend duty. Hence, the petitioner only on completion of the medical leave and after receiving fitness certificate from the medical officer, could join duty. Therefore, even before the expiry of the medical leave, though the petitioner was informed about the law and order problem, the failure of the petitioner to come to the police station, cannot be found fault with, because, he was already undergoing treatment for his ailment. Therefore, prima facie, the 4th count of charge also cannot be found against the petitioner.
The fifth charge says that the petitioner committed gross neglect of duty in not sending the daily diaries regularly from 01.12.97 to 31.12.97 and also not submitting the fitness certificate on 09.02.98 after he returned for duty. The petitioner was able to extract an acceptable answer through cross-examination from the Deputy Superintendent of Police, who was produced as one of the prosecution witnesses, that it is usual practice to handover the diary at the monthly meetings as per the instructions. It was also admitted by the prosecution witness in the enquiry that the petitioner had despatched the records and the same was also recorded in the despatch register, but the despatch register was not made available due to shifting of the Station. Therefore, the daily diary relates to the period from 01.12.97 to 31.12.97 and the report for the period from 27.08.97 to 25.03.98 were also duly submitted by the petitioner. If that be the case, the enquiry officer wrongly held that the charge is proved. Such a wrong recording also was not properly considered by the disciplinary authority. This indicates non application of mind of both enquiry officer as well as disciplinary authority. Therefore, the fifth charge also is not maintainable.
The sixth charge states that the petitioner was not investigating the rioting cases in Soonambedu Crime Nos.887, 888/97 of Nallur Village and was not laying information under Section 107 Cr.P.C. and that there is no entry about any clash at Nallur Village and The Deputy Superintendent of Police has further admitted that no memo was issued by the petitioner. Therefore, the petitioner was not at fault in any way. The Inspector of Police, Cheyyur police station, who was incharge of the station or the next Inspector of Police or Sub-Inspector of Police should have filed the charge sheet in these cases. Further, it was also submitted that the petitioner was on medical leave, in his absence, the above said two cases were investigated by the SHO, Sub-Inspector of Police, Narayanasamy. Therefore, the charge no.6 is also not maintainable.
The seventh count of charge states that the petitioner was not investigating the case in Cr.No.5/98 of Soonambedu Police Station, which occurred on 04.01.98 at Kadappakkam village. The petitioner, both in his explanation as well as in the enquiry, has clearly come out with an acceptable explanations that the Sub-Inspector of Police was the officer, who registered the case and therefore, he himself conducted the investigation. In respect of his explanation, the Sub-Inspector of Police was also examined, who also agreed that he carried out the investigation and also submitted further report before the Deputy Superintendent of Police. Since the minor injuries had occurred to the person concerned, they were also discharged from the hospital as out patient. Therefore, the contention of the petitioner that the charge no.7 cannot be pressed against him, deserves to be allowed. But, unfortunately, the disciplinary authority, without seeing the explanation, wrongly proceeded and gave a finding. Since the findings are against the material evidence, this Court brush aside the same, as the said findings are reflecting the non application of mind of the disciplinary authority.
The eighth charge alleges that the petitioner failed to investigate the case in Cr.Nos.78/98 and 79/98 , which occurred on 01.02.98 for not arresting the accused and leaving the case to be investigated by the Sub-Inspector of Police, which led to the rioting case in Cr.Nos.154/98, 155/98 on 28.02.98. The explanation offered by the petitioner clearly shows that those cases were registered when the petitioner was on medical leave. Further, the records reveal that the Sub-Inspector of Police had registered the case as per the charge memo and arrested the accused Sarangan and sent him for remand. Except laying the charge sheet in these cases, there is nothing more to be done. Therefore, when the question of arrest and investigation do not involve the petitioner, since he was admittedly on medical leave and particularly, when the cases in Cr.Nos.78 and 79/98 were fully investigated by the Sub-Inspector of Police, Narayanasamy, there is no basis nor any evidence to hold that the petitioner was responsible. Therefore, the charge no.8 is also not maintainable.
The last ninth charge alleges that the petitioner committed gross dereliction of duty in not preferring complaint about the occurrence that took place on 26.02.98 at Chunambedu East Bypass junction, which was reported by the Sub-Inspector of Police, Chithamur and pretended to have sustained injury, but the medical officer found no external injury and treated him as out patient and the petitioner had not returned for duty, but went to Chennai on the pretext of taking treatment, which goes to show that the ninth charge also is not sustainable. The charge itself says that the petitioner alleged to have sustained injury, while he was on duty on 26.02.98 at Chunambedu East bypass junction. When the petitioner went to Chunambedu in the eve of festival therein, there was a clash among different groups. Hence, Mr.Srinivasan, Additional Superintendent of Police, to quell the crowd, ordered to explode tear gas shells and fire buckshots. In the said incident, the petitioner sustained injury, for which, he also took treatment and on medical advise, he was sent to Chennai for further treatment. In order to prove his injuries, Dr.Karthikeyan gave his evidence in favour of the petitioner. Further, one Inspector of Police, Thiru.Rajan also corroborating the case of the petitioner clearly deposed that the petitioner suffered injury and after taking treatment, on medical advise, he was sent to Chennai for further treatment. Whileso, the enquiry officer found him guilty of 9th charge, by erroneously holding that he had no external injuries, but pretending to have suffered injuries, left for Chennai and thus, failed to attend duty is as vague as bald it could be, because the charge did not even mention on what date he failed to join duty. Thus, this charge also fails.
6. In fact, the petitioner has given clear cut explanations to all the charges. The explanations offered by the petitioner were not even properly referred to by the enquiry officer. Again, after submission of the enquiry officer’s report, the petitioner has once again given further detailed explanations bringing to the notice of the disciplinary authority that the findings of the enquiry officer cannot be relied upon in the light of the acceptable explanations given by the petitioner meeting all the points for consideration. Therefore, the disciplinary authority should have seen the explanations and dealt with the same carefully. In this case, the petitioner was alleged to have committed nine misconducts. When the petitioner submitted his detailed explanations with all supporting evidence, the disciplinary authority nowhere has dealt with either in the findings of the enquiry officer or in the order of punishment, except repeating the same nine charges in their order imposing the punishment, seriously failed to advert to any of the explanations offered by the petitioner. The Disciplinary Authority also gravely erred in recording any sound reason for imposing the punishment impugned herein. This reflects the total non application of mind. Therefore, the punishment imposed, without due application of mind, is liable to be quashed and accordingly, the same is quashed.
With the above observation, the present writ petition is allowed. No Costs. rkm To Deputy Inspector-General of Police, Chengalpattu Range, Chennai 16