IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.01.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.NO.33797 OF 2006 V.Palani .. Petitioner Versus 1.Deputy Inspector General of Police Armed Police Range Chennai 600 010. 2.The Commandant V Battalion Tamil Nadu Special Police Avadi, Chennai 600 109. 3.Assistant Commandant II V Battalion Tamil Nadu Special Police Avadi, Chennai 600 109. .. Respondents PRAYER : This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.6235 of 1998 from the file of Tamil Nadu Administrative Tribunal with a prayer to quash the impugned order of removal from service passed by the 2nd respondent herein in his proceedings P.R.25/96 dated 21.04.97 and direct the respondents to reinstate the petitioner in service with all consequential, service and monetary benefits. For Petitioner : Mr.G.Bala For Respondents : Mr.S.Shiva Shanmugam Government Advocate O R D E R
The Original Application in O.A.No.6235 of 1998 before the Tamil Nadu Administrative Tribunal is the present writ petition.
2.The petitioner was a Police Constable. While he was working in Tamil Nadu Special Police V Battalion, Avadi, Chennai, he was placed under suspension by the second respondent, by an order dated 12.08.1995 under Rule 3(e)(1)(ii) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules as a criminal case in Jolarpet Police Station in Crime No.592/95 under Section 376 IPC was registered against him and he has been arrested on 10.08.1995 at 09.45 a.m.
3.The petitioner was issued with a charge memo dated 11.06.1996 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, making the following two allegations:
(a) He left the Band Training Regimental Centre, Avadi on 04.08.1995 at 06.00 a.m. and he absented from duty up to 09.08.1995.
(b) He was involved in a criminal case that was registered in Crime No.592/95 on the file of Jolarpet Police Station under Section 376 IPC alleging that he committed rape on a minor girl namely Sudha on 09.08.1995 at 01.45 p.m.
4.An enquiry was conducted and four official witnesses were examined in the enquiry. The Enquiry Officer found that the charges were proved. Based on his findings, the petitioner was removed from service by an order dated 21.04.1997 by the second respondent. Thereafter, he preferred an appeal dated 11.03.1998 before the first respondent. When the same is pending consideration, the petitioner filed Original Application in O.A.No.6235 of 1998 (W.P.No.33797 of 2006) to quash the aforesaid order dated 21.04.1997 of the second respondent and for a consequential direction to reinstate him in service with all benefits. The respondents filed reply affidavit refuting the allegations.
5.Heard Mr.G.Bala, learned counsel for the petitioner and Mr.S.Shiva Shanmugam, learned Government Advocate for the respondents.
6.The learned counsel for the petitioner submits that though the respondents have power to place the petitioner under suspension under Rule 3(e) of the Rules on the ground that a criminal case was registered against him and he was arrested, the respondents could not proceed departmentally against him for registration of a criminal case. Therefore, the portion of the charge that the petitioner was involved in a criminal case could not constitute misconduct. The learned counsel further submits that the respondents could wait for the outcome of the criminal case and if the petitioner was convicted, then only the respondents could have the disciplinary jurisdiction to proceed against the petitioner under Rule 3(c) (i) (1) of the Rules. The learned counsel also submits that the authorities were well aware that the offence as such in the criminal case could not be enquired into by the authorities. The learned counsel has relied on para 8 of the reply affidavit in this regard.
7.As far as the other charge is concerned, the learned counsel for the petitioner submits that the petitioner was not able to attend duties from 04.08.1995 due to his illness. In any event, it is submitted that he was arrested on 10.08.1995 and that therefore, he was placed under suspension by an order dated 12.08.1995. Hence, the absence period could be only for about a week. It is submitted that even if the charge was held to be proved, denial of employment is disproportionate to the charge of absence for a week. It is also stated that the petitioner is in service pursuant to an interim order passed by the Tribunal on 10.08.1998 while admitting the Original Application.
8.On the other hand, the learned Government Advocate submits that it is true that pursuant to the interim order of the Tribunal, the second respondent passed an order dated 19.08.1998 reinstating him in service and that the petitioner continues in service. It is submitted that the Department can proceed against the employee for registration of a criminal case itself. It is also submitted that he absented from 04.08.1995 without informing the authorities and he did not produce any medical certificate about his illness. The learned Government Advocate seeks to sustain the impugned order of removal.
9.I have considered the submissions made on either side. As rightly contended by the learned counsel for the petitioner, I am of the considered view that mere registration of a criminal case could not constitute a misconduct warranting departmental action. In fact, as rightly contended by the learned counsel for the petitioner, the respondents were also well aware of the same, in view of their stand in para 8 of the reply affidavit. The relevant passage from para 8 of the reply affidavit is extracted in this regard.
“8…….. It is also clearly seen from final orders passed by the second respondent that, it is not for the department to decide whether he has committed the offence of rape of a minor girl but for the offence of having absented himself for duty and involved in a criminal case.”
10.Therefore, if an employee was placed under suspension under Rule 3(e), the course open to the Department is either to proceed with the departmental enquiry based on the same set of allegations that were made in the criminal case itself, if the allegations are related to and in connection with the employment or to wait for the outcome of the criminal case to invoke rule 3(c) of the Rules. Hence, the portion of the charge alleging that he involved in a criminal cased has to be ignored as the same could not constitute misconduct.
11.As far as the other charge is concerned that the petitioner remained absent from 04.08.1995, there was no evidence on the side of the petitioner to prove his illness, that is, no medical certificate was produced. Further, he was in service from August 1998 pursuant to the interim order passed by the Tribunal. Therefore, he was out of service from 12.08.1995, the date of order of suspension to 19.08.1998, the date on which the order of reinstatement issued by the second respondent.
12.I am of the considered view that as far as the charge relating to absence for a week is concerned, it is established in the enquiry. However, in the normal course, I could have remanded the matter to the authorities to decide the quantum of punishment. But in this case, I am not proposed to do that since the petitioner is in employment from 1998 onwards. Hence, I have proposed to deprive him wages from 12.08.1995 to 19.08.1998 and also the petitioner is imposed with the penalty of increment cut for two years without cumulative effect. The punishment imposed in the impugned order is modified to the effect as stated above.
13.The writ petition is disposed of with the above modification in the impugned order. No costs.
TK
To
1.Deputy Inspector General of Police
Armed Police Range
Chennai 600 010.
2.The Commandant
V Battalion, Tamil Nadu Special Police
Avadi, Chennai 600 109.
3.Assistant Commandant II
V Battalion, Tamil Nadu Special Police
Avadi,
Chennai 600 109