BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/04/2010 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Writ Petition(MD)No.8039 of 2009 and M.P.(MD)Nos.1 and 2 of 2009 T.Selvam ... Petitioner Vs The Deputy Inspector General of Police, Tirunelveli, Tirunelveli District. ... Respondent PRAYER Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order of the respondent passed in P.R.No.18/2009 (Tirunelveli Range Office) P.R.No.108/2008/Thoothukudi District dated 08.07.2009 and quash the same and consequently, directing the respondent to pass final orders as per the Enquiry Officer's Report in accordance with law. !For Petitioner ... Mr.Veera.Kathiravan ^For Respondent ... Mr.V.Rajasekaran Special Government Pleader. :ORDER
The Writ Petition is directed against the show cause notice issued by the
respondent, dated 08.07.2009 differing from the finding of the Enquiry Officer
in respect of the second and third counts of charges and directing the
petitioner to put forth his further representation within 15 days.
2.The petitioner was directly recruited as Sub Inspector of Police on
14.06.1999 originally posted at Perambalur District and thereafter, he was
transferred to Ettayapuram Police Station wherein he is working as Sub Inspector
of Police. There was a preliminary enquiry initiated by the Additional
Superintendent of Police (Prohibition and Enforcement Wing), Tuticorin District
in respect of certain allegations raised against the petitioner which pertains
to certain investigation conducted by the petitioner in Kurumbur Police Station
in Crime No.59 of 2008 in which having found that the complaint of one
Sudalaikumar was not true and referred the case on 17.06.2008 as mistake of fact
he has made Dr.Mani and Guna to sign in the police station from 21.06.2008 to
14.07.2008 stated to be in obedience to the condition of anticibatory bail
knowing that they were innocent and falsely implicated a case and harassed them
and to the effect that the petitioner has not mentioned about his visit to
Surandai Police Station and he has not examined the accused Dr.Mani and Guna. In
the preliminary enquiry report such a finding has been arrived at, however,
stating that no evidence could be obtained regarding the malpractice by the
petitioner by getting any illegal gratification. Thereafter, a charge memo came
to be issued against the petitioner on 29.12.2008 levelling three charges which
are as follows:
“i)Gross negligence of duty in having failed to write case diary in
Kurumbur P.S.Cr.No.59/08 about his visit to Surandai P.S. on 12.06.2008 and
investigation of Dr.Mani at Surandai P.S.;
ii)Highly reprehensible conduct in having misused his official powers and
made Dr.Mani and Tr.Guna to sign in the Police Station from 21.06.2008 to
14.07.2008 in abidance of the condition of Anticipatory Bail obtained from the
Sessions Court, Thoothukudy and harassed Dr.Mani and Tr.Guna even though he has
referred the case in Kurumbur PS Cr.No.59/2008 as “Mistake of Fact” on
17.06.2008 itself.
iii)Highly reprehensible conduct in having failed to conduct first
investigation in the casein Kurumbur PS Cr.No.82/2008 u/s 420 IPC before
transferring the case to Muneerpallam PS on 13.08.2008″.
3.The Deputy Superintendent of Police, Tuticorin was appointed as Enquiry
Officer and after the petitioner has submitted his explanation on 23.03.2009 and
after the eqnuiry was conducted, the Enquiry Officer found that except the
charge No.1, the other two charges are not proved. Based on the said enquiry
report, dated 07.05.2009, the petitioner has submitted his explanation and
thereafter, the respondent under the impugned dissenting minute while differing
the Enquiry Officer’s report in respect of charge Nos.2 and 3 has given
directing the petitioner to submit his further representation. It is stated that
thereafter, the petitioner has requested by his representation on 21.07.2009 for
further records and they were also submitted on 10.08.2009 giving 7 days further
time to explain. In these circumstances, the impugned dissenting minute is
challenged by the petitioner under various grounds including that the charges
are vague; that even if the respondent differs from the Enquiry Officer’s
report, the impugned dissenting minute has predetermined issue that the enquiry
Officer’s report is contradicted by the respondent only on the basis of
documents stated to have been collected during discrete enquiry which cannot be
the basis for the show cause notice; that the differing view can be possible in
respect of the Enquiry Officer’s report only based on the documents which were
produced during the time of enquiry and not the documents relied upon during the
preliminary enquiry and it is only the enquiry which can be reevaluated for the
purpose of arriving at a different conclusion; that the trial Court in the order
based on the anticipatory bail application has imposed certain conditions on the
accused to appear before the police station and that was only executed and that
cannot be a ground for the dissenting minute; that the entire dispute was
relating to the properties situated within the limits of Kurumbur Police Station
and that the charges were framed on improper facts.
4.On the other hand, it is the case of the respondent as it is seen in the
counter affidavit that the petitioner while working as Sub Inspector of Police
in Kurumbur Police Station has registered a complaint in Crime No.59 of 2008 on
the basis of a complaint given by one Sudalaikumar and the petitioner during the
course of the investigation went to Surandai on 12.06.2008 for investigating
Dr.Mani at his hospital and took him to Kurumbur Police Station and registered a
case against him and directed him to come over to Kurumbur Police Station with
his car for investigation and that fact was not written by him in the case diary
of Kurumbur Police Station. The petitioner having investigated the case in
Kurumbur Police Station and completed the same and referred as mistake of fact
on 17.06.2008 and even after that with full knowledge that the complainant has
given a false complaint falsely implicated Dr.Mani and Guna making them to sign
in the police station for more than three weeks from 21.06.2008 to 14.07.2008
said to be in obedience to the conditional bail granted and harassed them. The
said two persons have given petition before the Superintendent of Police,
Tuticorin on 09.07.2008 about the conduct of the petitioner with a request to
take action against the complainant Sudalaikumar and to get back his lands to
the extent of 72 1/2 cents situated in Munneerpallam village. That complaint was
sent to the Kurumbur Police Station with instructions to register a case and
inform and that was despatched on 09.07.2008 itself. It is stated that based on
the said petition a case in Crime No.82 of 2008 was registered in Kurumbur
Police station under Section 420 IPC against the said Sudalaikumar on
13.08.2008. The petitioner who has earlier investigated the case has simply
transferred the case to Munneerpallam Police Station without informing the
details of the case to the Superintendent of Police and he filed the FIR
belatedly, on 13.08.2008 which is gross negligence and therefore, the above said
three charges were framed against him. It is admitted that the charge in the
first count was proved and in respect of the count Nos.2 and 3, the Enquiry
Officer has found as not proved. After further representation was called for as
per memo, dated 07.05.2009 for which the petitioner has submitted his
representation on 26.05.2009 and after considering the same and the relevant
records having found that there are convincing grounds to disagree with the
finding of the minutes of the Enquiry officer in respect of charge Nos.2 and 3,
the impugned dissenting minute came to be issued and that was acknowledged by
the petitioner on 10.08.2009 and the petitioner sought for the copies of
prosecution exhibits namely, Exs.P.1 to P.14 on 10.08.2009 which were submitted
to him. Instead of submitting his further representation, the petitioner has
filed the present writ petition, challenging the dissenting minutes. It is
stated that the respondent being the disciplinary authority is entitled to
differ from the minutes of the Enquiry Officer, since there was sufficient and
reasonable grounds to differ. It is stated that the Enquiry Officer in respect
of charge Nos.2 and 3 has failed to consider unassailable documentary evidence
and therefore, the impugned minutes came to be issued. The dissenting view in
respect of the said charges were to be necessarily taken for the reason that the
petitioner who after investigation of Kurumbur Police Station in Crime No.59 of
2008 on the basis of a complaint given by Sudalaikumar against Dr.Mani and
another having found that on investigation that the complaint was false and
therefore, the same was referred as mistake of fact on 17.06.2008 has failed to
inform the same to the said Dr.Mani and Guna and that is the reprehensible
conduct and what is stated in Exs.P.10, 11 and 14 are only the records which
were dealt with by the petitioner himself. The conduct of the petitioner in
filing the FIR belatedly on 13.08.2008 against the complainant is established by
Exs.P.7, 10 and 14 and therefore, it is stated that the respondent on the basis
of the clinching evidence against the petitioner has only exercised its
discretion in differing from the Enquiry Officer’s report. It is also stated
that what is impugned in this writ petition, is only a show cause notice and it
is always open to the petitioner to give proper representation and that will be
considered in its proper perspective. It is stated that the petitioner has
failed to register the case against the complaint by proper investigation and
simply transferred the case to Munneerpallam Police Station vide memo
C.No.47/2008 which is a neglect of duty and the Enquiry Officer has not
considered the same.
5.Mr.Veera.Kathiravan, learned counsel appearing for the petitioner would
submit that even though the impugned dissenting minute is in the form of a show
cause notice in respect of second and third charges to which the respondent has
differed from the enquiry officer’s report, such decision has been arrived at
based on the documents which were produced during the time of preliminary
investigation and reports and if the disciplinary authority wants to differ from
the Enquiry Officer’s report, it must be on the basis of the documents and
evidence adduced during the course of Enquiry Officer’s enquiry and his
findings. It is his submission that any document produced during discrete
enquiry cannot be relied upon for the purpose of differing from the Enquiry
Officer’s report. He would rely upon a judgment of this Court reported in 2009
(2) CLT 583 (P.Thangavel Vs. Director General of Police, Chennai and others) and
the Division Bench judgment of this Court made in W.P.Nos.29862 and 32581 of
2002 (The Deputy Inspector General of Police, Villupuram and others
Vs.V.Vannalperumal and others).
6.On the other hand, it is the contention of the learned Special
Government Pleader that what is impugned in this writ petition is only a show
cause notice and no prejudice would be caused to the petitioner in giving
explanation especially when the documents sought for by him have been furnished
to him and he has got every remedy available, even after the final order is
passed and therefore, according to him, the writ petition is premature.
7.I have considered the submissions made on either side and perused the
entire materials available on record.
8.A reference of the three charges show that the first charge relates to
Crime No.59 of 2008 in Kurumbur Police Station and that was based on the
complaint given by Sudalaikumar against Dr.Mani and another. The petitioner
having registered the case in Kurumbur Police station being the Sub Inspector of
Police, Kurumbur Police Station wherein the complaint was lodged, while visited
Surandai Police Station for the investigation of Dr.Mani at Surandai on
12.06.2008, has not recorded the same in the case diary. Admittedly it is that
first charge which has been found to be proved by the Enquiry Officer in his
report, dated 07.05.2009. In respect of that count, the Enquiry Officer has
found that the petitioner as Investigating Officer has not mentioned about
examination of Dr.Mani at Surandai police station in his case diary, dated
12.06.2008 and that was based on Exs.P.4 and 5 documents and having found that
the statement of Dr.Mani before the Preliminary Enquiry Officer Ex.P.10 and also
his statement before the Enquiry Officer, the first charge is said to be proved.
9.As far as the second charge it relates to the alleged conduct of the
petitioner in making the said Dr.Mani and Guna to sign in the police station at
Kurumbur Police Station from 21.06.2008 to 14.07.2008 inspite of having referred
the case as mistake of fact on 17.06.2008. The Enquiry Officer in that regard
found that the Sessions Court, Tuticorin has granted anticipatory bail to
Dr.Mani and another on condition that they should report and sign in the
Kurumbur Police Station and even though, on investigation the petitioner has
referred the matter as mistake of fact on 17.06.2008, he has allowed the said
Dr.Mani and another to sign in the police station from 21.06.2008 to 14.07.2008
stated to be in obedience of the court order, since the petitioner being
Investigating Officer cannot modify the order of the Court, the case should have
been treated as pending till 17.10.2008. That decision was based on the
Preliminary Enquiry officer’s evidence recorded before him as P.W.8. The Enquiry
Officer has not accepted the evidence of Preliminary Enquiry Officer and
therefore held that the second charge as not proved.
10.As far as the third charge against the petitioner is that even after
the complaint of Dr.Mani was referred to Kurumbur Police Station in Crime No.82
of 2008 under Section 420 IPC against the original complainant Sudalaikumar, the
petitioner as Sub Inspector of Police, Kurumbur Police Station having failed to
investigate the case has transferred it to Munneerpallam Police Station which is
a reprehensible conduct. In that regard, the Enquiry officer has considered the
FIR registered in Kurumbur Police Station in Crime No.82 of 2008 and preliminary
enquiry officer’s findings Ex.P.14 which is the statement of the Preliminary
Enquiry Officer as P.W.8 and that of Dr.Mani before the Preliminary Enquiry
Officer Ex.P.10 and considering the said documents and finding that the
witnesses are in Munneerpallam and not at Kurumbur Police Station and it was
only proper that irrespective of the place of occurrence of the offence the
investigation has been transferred to Munneerpallam Police Station and
therefore, the same is not illegal, thereby concluded that the third charge
stood not proved.
11.It is true that in the impugned dissenting minute the respondent has
relied upon Exs.P.9, 10, 11 and 14 which were the documents produced during the
discrete enquiry. While, Ex.P.9 is the anticipatory order containing the
condition directing the accused to appear and sign before the Kurumbur Police
Station, Ex.P.14 is the discrete enquiry report. The discrete enquiry report of
the Enquiry Officer during the preliminary enquiry was not only placed before
the Enquiry Officer while conducting enquiry on the charges but the Preliminary
Enquiry Officer has himself given evidence as P.W.8 before the Enquiry Officer.
Ex.P.10 which was a statement given by Dr.Mani before the discrete enquiry has
been relied upon by the respondent for the purpose of differing from the
Enquiry Officer. It is not in dispute that Dr.Mani has also given evidence
before the Enquiry officer while conducting enquiry against the petitioner in
respect of the charges.
12.Likewise Ex.P.11 is the statement given by K.Srirengam @ Guna before
the discrete enquiry and he has also appeared before the Enquiry Officer. That
apart Ex.P.7 which is the case diary in respect of Kurumbur Police Station was
no doubt placed before the Preliminary Enquiry Officer. But those documents
which are relied upon by the respondent for the purpose of differing from the
finding of the Enquiry Officer cannot be said to be either totally alien
documents which were not connected with the charges especially in circumstance
that the Preliminary Enquiry Officer has himself given evidence before the
Enquiry Officer who has conducted enquiry against the petitioner in respect of
charges framed against him. Therefore, on fact by relying upon the documents
marked before the discrete Enquiry Officer, it is not proved that any prejudice
has been caused to the petitioner.
13.Reliance placed on by the learned counsel for the petitioner the
judgment of this Court reported in 2009 (2) CLT 583 (P.Thangavel Vs. Director
General of Police, Chennai and others) cannot be made applicable to the facts
of the present case for the reason that it was a case where after the final
order of punishment has been passed, the same was assailed on the ground that
the submissions made by the prosecution witnesses behind the back during the
preliminary enquiry have been relied upon for the purpose of inflicting the
punishment and therefore, the punishment came to be set aside. On the facts of
the present case, prima facie, it cannot be said that the said exhibits are
totally alien to either the charge especially when the Preliminary Enquiry
Officer has himself given evidence before the Enquiry Officer concerned.
14.What is to be decided at this stage is to the limited extent as to the
prejudice that may be caused to the delinquent in effectively defending himself
before the respondent in respect of the charges on which the differing view has
been taken. On the face of it, I do not see any prejudice that would be caused
to the petitioner herein.
15.Again reliance placed on the decision of the Division Bench judgment of
this Court in W.P.Nos.29862 and 32581 of 2002 (The Deputy Inspector General of
Police, Villupuram and others Vs.V.Vannalperumal and others), dated 22.02.2005
is not applicable to the facts of the present case. That was a case where
punishment has been inflicted on the basis of the evidence before the
preliminary enquiry officer when such witnesses have turned hostile before the
Enquiry Officer and inspite of it, the Enquiry officer has relied upon their
earlier statements before the preliminary enquiry officer and found charges
proved. It was in those circumstances, the punishment stood set aside in the
following paragraph:
“8.In our case, we have already referred to the fact that the prosecution
witnesses viz., P.Ws.1,2,4 and 5 turned hostile and not supported their
preliminary version. However, the Enquiry Officer basing reliance on their
earlier statement in the preliminary enquiry found that all the charges levelled
against them are proved. In the light of the decision of the Supreme Court
referred to above, after full-fledged enquiry was held the preliminary enquiry
had lost its importance. Further, we find no substance or material to arrive at
a conclusion that “since all the three counts were proved by the prosecution
beyond reasonable doubts, convincingly, I agree with the findings of the Enquiry
Officer,….. We are satisfied that there is no material to arrive at such a
conclusion by the Deputy Inspector General of Police, while passing an order
removing the applicants from service. All these aspects have been considered by
the Tribunal in a proper manner and there is no acceptable material or evidence
to take different view as that of the Tribunal. We find no merits in both the
writ petitions. Accordingly, they are dismissed. No costs. Consequently, the
connected miscellaneous petitions are dismissed”.
Again that is not the issue in the present case. If at all, there is any remedy
available to the petitioner, the same could be only after the final order is
passed by the disciplinary authority and not at this stage.
16.As rightly submitted by the learned Special Government Pleader what is
impugned in this writ petition is only a show cause notice and even assuming
that the respondent has relied upon certain documents produced before the
discrete enquiry, it is still open to the petitioner to explain the same to the
respondent that such documents which were produced before the preliminary
enquiry officer behind back of the petitioner cannot be relied upon by the
respondent while passing final orders on the charges. Therefore, at this stage,
in my considered view, it is too early for the petitioner to presume that the
respondent would decide against him or the respondent would not take the legal
aspect in its proper perspective. Even if such a decision is taken by the
respondent and if the same is not in accordance with law, it is always open to
the petitioner to work out his remedy against such final order.
17.In such view of the matter, the writ petition fails and the same is
dismissed. No costs. Consequently, M.P.(MD)Nos.1 and 2 of 2009 are closed.
sms
To
The Deputy Inspector General of Police,
Tirunelveli,
Tirunelveli District