IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.07.2008 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Writ Petition No.37320 of 2006 S.D.Albert Dayakaran Inspector of Police, G3 Puzhal Police Station, Chengalpet East District. ... Petitioner vs. 1.Deputy Inspector-General of Police, Chengalpetty Range, Chennai 18. 2.Additional Superintendent of Police, District Crime Records Bureau, Chengalpet East District, Thomas Malai, Chennai 16. 3.Superintendent of Police, District Police Office, Chengalpet East District, St. Thomas Mound, Chennai 16. ... Respondents Writ Petition came to be numbered by transfer of O.A.No.5734 of 1998 on the file of the Tamil Nadu Administrative Tribunal praying to quash the order of removal from service passed by the first respondent herein in his C.No.A3/PR/98 dated 10.07.1998 and direct the first respondent to reinstate the applicant in service with all consequential benefits. For Petitioner : Mr.M.Ravi For Respondents : Mr.V.Arun, Additional Government Pleader O R D E R
By consent of both sides, the writ petition itself is taken up for final disposal.
2.The petitioner is working as an Inspector of Police. During the years 1996 and 1997, he was the Inspector of Police at Arumbakkam Police Station. While so, a charge memo was issued to him by the Superintendent of Police, Chengalpattu East District, the third respondent herein, under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (D & A) Rules 1955. An enquiry was held in respect of the said charge. The Additional Superintendent of Police, District Crime Records Bureau Chengalpattu East District, Thomas Malai, Chennai 16, was the Enquiry Officer and he submitted his report dated 04.03.1998 holding that the charges were proved. The third respondent thereafter called for explanation from the petitioner and in pursuance of the same, the petitioner submitted his explanation on 20.04.1998. In the mean time, the petitioner submitted two representations also. Finally, the third respondent by his proceedings in C.No.A3/PR/12/98 dated 10.07.1998 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (D & A) Rules 1955, imposed a punishment of removal from service. Challenging the same, the petitioner has filed O.A.No.5734 of 1998, before the Tamil Nadu Administrative Tribunal, Chennai. On entertaining the said Original Application, the Tamil Nadu Administrative Tribunal granted an interim order of stay of the impugned order. By virtue of the same, the petitioner continues to be in service. On abolition of the Tribunal, the said Original Application has been transferred to this Court and re-numbered as writ petition No.37320 of 2006 and that is how this writ petition is now before this Court for disposal.
3.The charge memo contained the following charges:-
“1.Unbecoming conduct of a police officer by inducing and influencing an unmarried girl Anu @ Anuradha D/o Vaidyalingal, Chrompet to run away from the home against the will of her parents and keeping her under his patronage from 02.01.1997 to till date, thereby bringing bad reputation to the Police Department.
2.Unbecoming conduct in sending medical leave letter to avoid duty from 13.01.1997 to till date while actually moving around with the unmarried girl Anuradha during such reported medical period.”
4.Before the Enquiry Officer, in support of the charges, four witnesses were examined and few documents were exhibited. P.W.1, a Grade I Police Constable attached to Chrompet Police Station has deposed that on 17.01.1997, while he was on Court duty at Judicial Magistrate Court, Tambaram, he saw the petitioner along with one girl in the Court premises. He has further deposed that, he informed the same to his Inspector of Police who came and conversed with the petitioner. He has further stated that later he came to know that the girl who was found in company with the petitioner was one Anu @ Anuradha. P.W.2 was the Deputy Superintendent of Polcie, Thiruvallur. In his deposition, he has stated that on 12.01.1997, he received a complaint from the father of Anu @ Anuradha stating that his daughter was found missing and a case in Crime No.33 of 1997 for girl missing was registered. The complainant, Mr.Vaidyalingam had told DSP that the petitioner is a family friend and he used to visit his house frequently and he had suspicion that his daughter would have been taken away by the petitioner. P.W.3, one Jawahar Chandrasekaran, DSP, Thomas Malai Sub Division, has deposed that during his examination, the father and mother of Anu @ Anuradha told him that they had suspicion that the petitioner would have taken away the girl. P.W.4 is one Vikram Singh who was the then Inspector of Police at Chrompet Polcie Station and he has deposed that during investigation, he came to know from P.W.1 that the petitioner was found in company with the girl in the Judicial Magistrate Court, Tambaram premises. On such information, according to P.W.4, he reached the Court and he found Anu @ Anuradha in the Court premises. During his enquiry, she told him that her father had given a false complaint and she was not missing. The girl appeared before the Judicial Magistrate Court, Tambaram and also gave a statement by way of affidavit. It should be noted that the petitioner did not submit any explanation for the said charges. Based on the above evidence, the Enquiry Officer had held that both the charges were proved.
5.In the explanation submitted in respect of the said findings, the petitioner has stated that neither he was given any opportunity to cross examine the witnesses nor was he asked to cite any defence witnesses. Thus, according to him, the entire Enquiry Officers report is against the principles of natural justice and the same is highly defective. The said explanation was not accepted by the first respondent. The first respondent has found materials to hold that the Enquiry Officers report does not suffer from any infirmity and there is no violation of principles of natural justice. Thereafter, the first respondent has inflicted punishment on the petitioner. It is the said punishment of removal from service, which is under challenge in this writ petition.
6.Heard the learned counsel for the petitioner as well as the learned Additional Government Pleader appearing for the respondents.
7.The learned counsel for the petitioner would submit that the Enquiry Officer had not followed the principles of natural justice, inasmuch as he did not afford any opportunity to the petitioner to cross examine the witnesses and he did not allow him to cite his own witnesses and to produce any documents.
8.Now, let me consider the said main objection raised by the learned counsel for the petitioner first. A perusal of the Enquiry Officers report would go to show that despite several opportunities given and despite the fact that the enquiry stood adjourned for several hearings, the petitioner did not bother to appear before the Enquiry Officer and to cross examine the witnesses. It further reveals that the petitioner did not submit any explanation denying the charges. When that be so, it is not correct on his part now to say that he was not afforded any opportunity to cross examine the witnesses and to examine his own witnesses. From the records, I am fully satisfied that it is a case where the petitioner deliberately either failed or avoid to cross examine the witnesses examined in support of the charges. It cannot be said that the Enquiry Officer should indefinitely adjourn the enquiry waiting for the delinquent to cross examine the witnesses, at his whim and fancies to his convenience. It would suffice that sufficient opportunity was given to the delinquent to appear before the Enquiry Officer and to cross examine the witnesses. If the petitioner had not utilised the said opportunity, it is for him to suffer for his fault. Thus, in my considered opinion, in this case, in the matter of enquiry, absolutely there are no materials to hold that the enquiry was held in violation of principles of natural justice.
9.The next contention of the learned counsel for the petitioner is that even according to the uncontroverted evidence of the witnesses, it cannot be safely concluded, even by preponderance of probabilities that the charges stand proved. He would rely on the statement of the Deputy Inspector General of Police who investigated the case, who would state that the victim Anu @ Anuradha told him that she was not at all abducted by anybody and she was not missing. The said Anu @ Anuradha had made a statement before the Court also to the same effect. The parents of the girl have stated that the girl was missing and since the petitioner, as a family friend, used to visit their house, they had suspicion that the girl would have been taken by the petitioner. The ipse dixit suspicion of the parents of the girl would not dispel the evidence of the girl who has stated that she was not missing and she was not abducted by anybody. Thus, in respect of the first charge, absolutely there is no evidence to hold the petitioner guilty.
10.In respect of the second charge, I am of the view that there is some substance in support of the said charge. It is contended by the learned counsel for the petitioner that the period of absence of the petitioner has been subsequently regularised by the third respondent and so, the second charge becomes baseless. The said regularisation came to be passed subsequently. Though, for the reasons best known to the third respondent, the leave period was regularised, that will not absolve the petitioner from the second charge. The evidence of P.Ws1 and 5 would go to establish that the petitioner was found in the Judicial Magistrate Court, Tambaram premises along with the girl Anu @ Anuradha. That means, having applied for leave on medical grounds, the petitioner had gone to the Court along with the girl Anu @ Anuradha to give a statement to the learned Judicial Magsitrate. The petitioner in his explanation has not at all stated that he did not go to the Court and that he was unwell. Having failed to make such a specific explanation to the effect that, he was on medical leave as he was unwell, now he cannot be allowed to contend at this length of time that he was unwell and he was on medical leave. The fact remains that the evidence of P.Ws1 and 5 were not challenged by means of any cross examination by the petitioner. Thus, the fact that the petitioner had gone to the Judicial Magistrate, Tambaram on the crucial date stands proved from these evidences and also on the implied admission made by the petitioner. Thus, in my considered opinion, the second charge stands proved.
11.Yet another contention raised by the learned counsel for the petitioner that the second charge is vague, cannot be accepted. It is not his contention in the explanation submitted to the third respondent that the second charge is vague. Having failed to raise the same before the disciplinary authority namely the third respondent, it is only an after though on his part to raise the said ground in this writ petition for the first time. Therefore, as rightly held by the Enquiry Officer and as accepted by the disciplinary authority namely the third respondent herein, the second charge has been proved by means of sufficient evidence and by means of preponderance of probabilities.
12.But the punishment of removal from service was imposed commonly for the delinquencies under charges 1 and 2. Since I am quashing the charge No.1 what is the proportionate punishment to be imposed for the second charge is to be decided only by the disciplinary authority. Therefore, to that extent, the matter needs to be remitted back to the third respondent.
13.In the result, the finding as well as the consequent punishment imposed on the petitioner in respect of the first charge is quashed. In respect of the second charge, the finding of the Enquiry Officer and the final conclusion of the third respondent/disciplinary authority are confirmed. But the punishment alone is set aside and the matter, to that extent, is remitted back to the third respondent to impose proportionate punishment as required under law for the second proved charge.
13.With the above directions, the writ petition is disposed of. The third respondent is directed to pass final orders to impose appropriate punishment within a period of one month from the date of receipt of a copy of this order. No costs. jbm To 1.Deputy Inspector-General of Police, Chengalpetty Range, Chennai 18. 2.Additional Superintendent of Police, District Crime Records Bureau, Chengalpet East District, Thomas Malai, Chennai 16. 3.Superintendent of Police, District Police Office, Chengalpet East District, St. Thomas Mound, Chennai 16