IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 15/02/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ petition No.27019 of 2005
B. Bala Murugan ... Petitioner
-Vs-
1. The Inspector General of Police,
Law and Order, South Zone,
Madurai 2.
2. The Deputy Inspector General of Police,
Madurai Range, Madurai.
3. The Superintendent of Police,
Madurai District, Madurai. ... Respondents
This Writ petition came to be numbered by way of transfer of
O.A.No.3824 of 2002 from the file of Tamil Nadu Administrative Tribunal with a
prayer to call for the records of the respondents especially the third
respondent in his proceedings made in P.R.51/F1/2000 under Rule 3(b) dated
6.7.2000 as confirmed by the second respondent on appeal made in
C.No.A3/Appeal-56/2000 dated 7.1.2001 and further confirmed on review by the
first respondent made in C.N.A1/915/2001 P.R.Review 76 /2001, dated 10.3.2002
and quash the same as null and void, illegal and invalid and consequently
direct the respondents to regularise the petitioner's scale after re-fixing
his scale of pay including the increments so far withheld placing him eligible
for the difference in the salary arrears with all allowances and attendant
benefits.
For Petitioner : Mr.A.Amalraj
For Respondents : Mrs.D.Malarvizhi,
Government Advocate
:O R D E R
In this writ petition, the punishment of reduction in pay by three
stages for three years with cumulative effect, imposed on the petitioner by
the third respondent in his proceedings dated 6.7.2000, as confirmed by the
second respondent in appeal on 7.1.2001 and further confirmed in review on
10.3.2002, is challenged.
2. The facts of the case as stated in the affidavit are as under,
(a) Petitioner joined in service as Police Constable Grade-II on
17.1.1986 and he was initially posted at Madurai Rural Armed Reserve.
Subsequently he was transferred to Bodi Taluk Police Station during December,
1992; to Tirupparamkundram Police Station during February, 19 94; Usilampatti
Prohibition and Enforcement Wing during July, 1994; and to Chekkanur Police
station during July, 1995. He was promoted as Grade-I Police Constable on
1.8.1998 and served in various stations and in April 2001 he was working in
Koodalputhur Police Station. Petitioner states that he got a clean record of
service and was awarded with nine rewards for his honesty, integrity and
efficiency.
(b) It is the case of the petitioner that he was issued with a
charge memo dated 30.3.2000 on the allegation that on 13.3.2000 while
returning home after finishing Jallikattu guard duty within the Vikramangalam
Police Station limits, petitioner made search of the Ambassador Car bearing
registration No.TNI 6886 during night hours along with another Grade-I PC.886,
on his own accord and without permission from his superior officers and
checked the travellers Pushpam, aged about 35 years, wife of Malaichamy; and
Vennila, wife of Santhanam, without any instructions from superior officers
and received Rs.470/- from them without bringing them to the Police Station.
(c) Petitioner submitted his explanation stating that on 13.3.2000
at about 9.30 p.m. while he was at Usilampatti bus stand, there was a crowd
shouting in the bus stand and the petitioner, though was not on duty, enquired
the reasons and came to know that one Pushpam and three of her relatives came
from Madurai to Usilampatti during odd hours after attending a function at
Madurai and as there was wordy quarrel between them in respect of taxi charges
to proceed to their village, he, as a duty conscience person and on
humanitarian ground, intervened and pacified them, apart from arranging a taxi
for them to proceed to their village and the petitioner was not aware about
what had happened thereafter and that he went to his village along with the
other constable viz., T.S.Manikandan. Petitioner further stated that no
complaint was made against him either by the said Pushpam or Vennila as to the
alleged receipt of Rs.470/- by the petitioner, but in fact, Pushpam made a
complaint against one Ramar, Taxi Driver, and in that regard a case was
registered in Crime No.214 of 2000 on 14.3.2000 and even in the said complaint
no allegation was made against the petitioner. According to the petitioner,
as the charge memo was issued based on no complaint, the same is improper and
illegal. The case alleged by the petitioner is that the Inspector of Police,
Usilampatti, on his own accord recorded statements from the witnesses and
issued report against the petitioner and other constable.
(d) Petitioner further states that an enquiry was conducted by the
Deputy Superintendent of Police, Usilampatti and he submitted enquiry report
dated 29.5.2000 placing reliance only on the evidence of PW-5, the Inspector
of Police, who allegedly recorded the statement of the complainant viz.,
Pushpam. But, the petitioner states, in the cross examination PW-1 Pushmpam
categorically denied petitioner’s role stating that he did not demand or
receive any money and no complaint or statement was made by her before the
Inspector of Police, but she was directed to sign in a statement without even
disclosing the contents therein. Similar was the answer given during cross
examination by Pws.2 to 4. Hence, the petitioner submitted that the Enquiry
Officer’s finding is solely based on the evidence of PW-5 the Inspector of
Police, who has no knowledge about the incident and requested to exonerate him
from the charges.
(e) However, the third respondent in his proceedings dated
6.7.2000 accepted the report of the Enquiry Officer and imposed the punishment
of reduction in pay by three stages for three years with cumulative effect,
holding that all the prosecution witnesses narrated the incident at the time
of preliminary enquiry, but turned hostile during oral enquiry. It is stated
in the order that strict proof of the guilt is necessary only in the criminal
proceedings and not in the departmental proceedings in which preponderance of
probabilities is sufficient. The petitioner preferred an appeal before the
second respondent, who also passed an order without any reason and rejected
the appeal by order dated 7.1.2001 and the same was challenged before the
first respondent by way of review petition, which was also rejected without
any speaking order and without considering the points raised by the
petitioner. Hence the writ petition.
3. The respondents filed a counter affidavit in which it is
stated that the petitioner was maintaining a clean record of service prior to
the award of punishment now imposed. It is further stated that PW-1 to PW-4
have made cogent statements at the first instance during preliminary enquiry,
but turned hostile and deposed against the prosecution only during final
enquiry and hence the Enquiry Officer placed reliance on their earlier
statements and held the charge as proved. Therefore, according to the
respondents, there is no illegality in relying the earlier statements of the
witnesses and consequently no interference is called for in the impugned order
of punishment.
4. The learned counsel appearing for the petitioner argued that
the punishment of reduction of pay by three stages for three years with
cumulative effect was imposed on the petitioner solely based on the earlier
statements said to have been made before the Inspector of Police, but the same
witnesses turned hostile during their oral enquiry and hence the same cannot
be relied on to prove the alleged charge against the petitioner. According to
the learned counsel, the conclusion arrived at by the Enquiry Officer and
Disciplinary Authority is contrary to the law laid down by the Honourable
Supreme Court and this Court, as there is no legal evidence to prove the
alleged charge against the petitioner and therefore the findings of the
Enquiry Officer is to be treated as perverse as the same is based on no
evidence. The learned counsel further argued that it is the duty of the
appellate authority and reviewing authority to consider the grounds raised in
the appeal petition/Review petition and they are expected to pass orders
stating reasons, since their orders are subject to judicial scrutiny and
non-consideration of the points by the appellate authority and reviewing
authority is in violation of the statutory rules and against the decisions of
the Honourable Supreme Court and this Court. The learned Counsel further
submits that the criminal case registered against the Taxi Driver Ramar in
Crime No.214/2000 of Usilampatti Police Station under section 376 of IPC was
referred as mistake of fact and a report to that effect was also filed before
the Second Additional Sessions Judge, Madurai. The learned counsel for the
petitioner placed reliance on the decision of the Supreme Court reported in
(200 4) 10 SCC 87 (Union of India v. Mohd. Ibrahim) in support of his
contentions.
5. The learned Government Advocate argued that the charge against
the petitioner having been found proved during the enquiry, the punishment
order issued against the petitioner is legally valid and the appellate
authority and the reviewing authority merely confirmed the said order and
therefore there is no illegality or impropriety in the orders of the
respondents and prayed for dismissal of the writ petition.
6. I have heard the rival submissions made by the learned counsel
appearing for the petitioner as well as the learned Government Advocate.
7. In the decision reported in (2004) 10 SCC 87 (Union of India
v. Mohd. Ibrahim) the Honourable Supreme Court in the facts and
circumstances of the case before it held that the order of dismissal was
vitiated as the findings have been based on consideration of statement of the
persons examined during the preliminary enquiry and for the said fact the
Tribunal set aside the order of dismissal which was upheld by the High Court
and there is no error in the said order setting aside the dismissal order.
8. A Division Bench of this Court by order dated 22.2.2005 in
W.P. Nos.29862 & 32581 of 2002 (The Deputy Inspector General of Police,
Villupuram and others v. V.Vanniaperumal and others) upheld the order of the
Tribunal which set aside the order of removal from service. Paragraphs 6 and
8 of the judgment can be usefully referred to, which reads thus,
“6. We have carefully considered the relevant materials and the
rival contentions. We have already referred to the charges levelled against
the applicants. It is also relevant to note that apart from the applicants
two more officers have also been implicated along with them. They are one
Sattanathan, Sub-Inspector of Police and Antony, Inspector of Police. It is
brought to our notice that Sattanathan is no more and so far as the other
officer Antony is concerned lesser punishment has been imposed. Now we are
concerned with the charges levelled against both the applicants. In the light
of the conclusion arrived at by the Tribunal, we perused the finding of the
Enquiry Officer. It is not in dispute that all the prosecution witnesses
except PW.3 , who is none other than the Deputy Superintendent of Police, the
other witnesses viz., P.Ws.1,2,4 and 5 turned hostile before the Enquiry
Officer and not supported their earlier statement made at the preliminary
enquiry. The Enquiry Officer having noted the above aspect curiously
submitted a report holding that all the three charges levelled against them
are proved based on the preliminary enquiry.
7. ………
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 fullfledged 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.”
The said conclusion was arrived at by the Division Bench based on the decision
of the Honourable Supreme Court reported in 1997 I SCC 299 (Narayana
Dattatraya Ramteerthakhar v. State of Maharashtra).
9. In the present case, it is admitted by the respondents that
PWs.1 to 4 have disclaimed their earlier statements and turned hostile and
deposed against the prosecution, but the Enquiry Officer solely relying on the
earlier statements held the charge as proved. Admittedly PW-5 Inspector of
Police has no personal knowledge about the alleged incident. The earlier
statements said to have been made before the 5th respondent are specifically
denied by Pws.1 to 4. During cross examination also Pws.1 to 4 denied the
contents of the statements said to have been made before the Inspector of
Police P.W.5.
10. Taking into consideration all the above aspects, I am of the
considered view that the Enquiry Officer has found the charge as proved
against the petitioner on no evidence and the findings given by the Enquiry
Officer as well as the Disciplinary Authority are perverse and therefore the
punishment imposed against him is unsustainable.
11. The appellate authority and the reviewing authority also have
not considered the point in issue in this case and merely confirmed the order
without stating any reason and the said action of the appellate authority and
reviewing authority is also unsustainable as it is in violation of Rule 23 of
the Tamil Nadu Civil Services (Discipline & Appeal) Rules, wherein it is
stated that the appellate authority shall consider whether the facts on which
the order was passed have been established; whether the facts established
afford sufficient ground for taking action; and whether the penalty is
excessive, adequate or inadequate and pass orders confirming, enhancing,
reducing, or setting aside the penalty; or remitting the case to the
authority, which imposed the penalty or to any other authority with such
direction as it may deem fit in the circumstances of the case. It is further
stated that the appellate authority shall make a speaking order.
12. A Division Bench of this Court in the decision reported in
2004(3) Law Weekly 32 (M.Nagarajan & Others v. The Registrar, High Court &
Another) considered the scope of Rule 23 of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules and held that the said rule is a mandate to be
followed and the appellate authority shall give reasons and shall not pass any
non-speaking order. The Division Bench in its judgment followed an earlier
Division Bench decision of this Court reported in 1983 (2) MLJ 513 (Srinivasan
v. Government of Tamil Nadu).
13. In the light of the principles laid down in the decisions
cited supra, I hold that the impugned order of punishment dated 6.7.2000
passed against the petitioner, as confirmed by the appellate authority by
order dated 7.1.2001 and reviewing authority by order dated 10.3.2 002, is
unsustainable and the same is set aside. The writ petition is allowed. No
costs.
vr
To
1. The Inspector General of Police,
Law and Order, South Zone, Madurai 2.
2. The Deputy Inspector General of Police,
Madurai Range, Madurai.
3. The Superintendent of Police,
Madurai District, Madurai.