IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.06.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.32621 and 32622 of 2006 M.John Teddy .. Petitioner in W.P.No.32621/ 2006 K.Francis .. Petitioner in W.P.No.32622/2006 Vs. 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, VII Battalion, Tamil Nadu Special Police, Avadi, Chennai-600 109. .. Respondents in both petitions
These writ petitions have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to quash the impugned order of dismissal from service passed by the second respondent herein in his proceedings in P.R.Nos.90/95 and 89/95 dated 26.12.96 and confirmed by the first respondent herein in his proceedings Rc.No.B2/10658/97, Appeal 29/97, Rc.No.B2/10657/97 Appeal 28/97 dated 22.10.97 and to direct the respondents to reinstate the applicants into service with all consequential monetary and service benefits.
For Petitioners : Mr.G.Bala
For Respondents : Mr.P.Gurunathan, GA
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COMMON ORDER
Heard both sides.
2.These two petitioners were the Police Constables attached to the Tamil Nadu Special Police, V Battalion stationed at Avadi. They have filed O.A.Nos.10410 and 10411 of 1997 before the Tamil Nadu State Administrative Tribunal, challenging the orders of dismissal, dated 26.12.96 which was confirmed by the orders, dated 22.10.1997, dismissing them from service.
3.Pending the O.As., the Tribunal, by its order, dated 5.1.98 granted an interim stay of the dismissal. Prima facie, the Tribunal found that immediately after the charge memo, dated 21.11.95 in PR Nos.90/95 and 89/95 without waiting for the explanations, an Enquiry Officer was appointed and this was allegedly in violation of Rule 3(b) of the Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules. This ground was raised before the domestic enquiry as well as before the appellate authority and hence the non consideration of the same will vitiate the orders of dismissal. On notice from the Tribunal, the second respondent has filed reply affidavits, dated 18.5.98.
4.In view of the abolition of the Tribunal, the matters stood transferred to this court and were renumbered as W.P.Nos.32621 and 32622 of 2006.
5.The charge against the petitioners was that on 13.11.95 around 10.00 PM till 14.11.95 at 4.30 AM, the petitioners left the camp without any permission. They also took the police jeep with registration No.TNH 8886 and misused the same, bringing disrepute to the service. The Assistant Commandant of the Tamil Nadu Special Police, VIII Battalion was appointed as an Enquiry Officer.
6.It was stated that after taking out the jeep and leaving the camp, they had driven the vehicle to Mahabalipuram and went to one Swagath Lodge at 2.45 AM. They forced themselves as a raiding party and entered the hotel and went to Room No.3, wherein Ramesh and Devi, a couple were staying. They assaulted Ramesh and took away the woman Devi in their jeep. When the hotel workers tried to prevent them, they were also assaulted by them. Thus, they have kidnapped the said woman Devi. The Inspector of Police, Mamallapuram Police station registered a case against the petitioners in Crime No.1298/95 under Sections 363, 341, 447 and 323 IPC. The petitioners were informed about the witnesses to be examined as well as the documents relied upon in the enquiry. 7.The petitioners gave their explanations, denying the charges. They also stated that since a criminal case is pending, the oral enquiry should be stalled. A further exception was also taken that appointment of the enquiry officer before the charge memo was illegal.
8.In the reply affidavits, it was stated that the criminal case was independent of the domestic enquiry conducted against the petitioners. With reference to the appointment of the enquiry officer, it was stated that in order to have a fair and impartial enquiry, the third respondent was appointed as an Enquiry officer, who belonged to an another Battalion. The petitioners were also given permission to peruse the documents. After conducting a proper enquiry, the enquiry officer drew up the minutes, holding that the charges against the petitioners were proved.
9.The second respondent called for further representations from the petitioners on 11.12.96. After considering the said representations, the petitioners were dismissed, by the order, dated 26.12.97. The petitioners preferred an appeal to the first respondent. The first respondent considered the appeal and rejected the same, by order, dated 22.10.97.
10.Even in the appeal memo, the petitioners have not mentioned anything about their involvement in the incident and merely contended about the so-called defect in the matter of appointment of the enquiry officer. It is not clear as to how the Tribunal can grant an interim stay of termination on 5.11.98, especially when the petitioners were out of service even as early as on 26.12.96, i.e. nearly one year before the grant of the interim stay. The conduct of the Tribunal in granting such an interim order is repugnant to the rule of law and not permitted in service jurisprudence. Because of the interim order of stay, it is stated in the reply affidavits that the petitioners were restored to duty on 10.2.98 and they had joined duty on 18.2.98.
11.Since the enquiry regarding the petitioners leaving the camp without intimation and they were misusing the police jeep, there is no necessity to stall the enquiry proceedings, pending the outcome of the criminal case. The criminal case stands on a different footing and related to the assault and kidnap of a woman. Therefore, there is no illegality in proceeding with the domestic enquiry.
12.In this context, it is necessary to refer to the judgment of the Supreme Court in Indian Overseas Bank, Anna Salai and another Vs. P.Ganesan and others reported in 2007 (5) CTC 632. It is necessary to refer to the following passages found in the said judgment in paragraphs 20 and 21, which are as follows:
“20. …What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the in disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non-stay of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law.
21. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to the Bank which was not the subject-matter of allegations in a criminal case, the departmental proceedings should not have been stayed.”
13.The petitioners beginning from the charge memo never took any stand regarding their defence against the allegations. They have been indulging only on raising a technical ground, i.e. appointment of an enquiry officer before the submission of their explanations. Even in the appeal memo, there was no statement made by them regarding the merits of the charges. It is not as if the respondents never had material before ordering the enquiry. On the other hand, the petitioners were involved in a criminal case that too outside their territorial limits, where a criminal case was also registered against them. This must have really embarrassed the respondents, who were answerable to their superiors and the Government about the conduct of their subordinates. The respondents have conducted a proper enquiry with reference to the official role played by the two petitioners and they were found guilty of those two charges, which have no relevance to the criminal case. They, being the members of a disciplined force, cannot be allowed to commit such gross misconducts lest public faith in such a force may get eroded. The Tribunal was also grossly erred in granting an interim order after one year of their dismissal.
14.The counsel for the petitioners stated that thanks to the interim order, the petitioners have been in service for the last 10 years and therefore, the court should take a sympathetic view in dealing with the punishment. This Court is unable to concede the said request made by the petitioners. In this regard, it is necessary to refer to the judgment of the Supreme Court in State of West Bengal and others Vs. Banibrata Ghosh and others reported in (2009) 3 SCC 250. In paragraph 32 of the said judgment, it has been stated as follows:
“31.Shri Ghosh, learned Senior Counsel, appearing for the respondents, at this stage, says that we should take a compassionate view of the matter, since as a result of this judgment, the respondent would be thrown in a state of unemployment. We are afraid, we cannot show any such misplaced sympathy, which was shown by the Division Bench. We are told at the Bar that this Court had issued directions to make the payment of salaries and some payments have been made to the respondent. We direct that such payments shall not be recovered from the respondent.”
15.It was further contended that the appellate authority did not deal with the objections raised by the petitioners and it was also bereft of reasons. Therefore, the order must be set aside. The Supreme Court in Chairman Disciplinary Authority, Rani Laxmibai Shetriya Gramin Bank Vs. Jagadish Sharan Varshney and others reported in JT 2009 (4) SC 519 has held that the order of the appellate authority need not contain elaborate reasons. It it is shown that the appellate authority had applied its mind that is sufficient. In the present case, a detailed reply affidavit has also been filed on behalf of the respondents. Therefore, the said objection does not stand to reason.
16.The Supreme Court has held that once there is a proper enquiry, in which legal evidence is let in, then the proportionality of the resultant punishment cannot be gone into by the High Courts as it has very limited judicial review over such actions. It is therefore necessary to refer to the judgment of the Supreme Court in V.S.P. v. Goparaju Sri Prabhakara Hari Babu reported in (2008) 5 SCC 569. It is necessary to refer the following passages found in paras 20 and 21, which are as follows:
“20. The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only on sympathy or sentiments. (See Maruti Udyog Ltd. v. Ram Lal; State of Bihar v. Amrendra Kumar Mishra; SBI v. Mahatma Mishra; State of Karnataka v. Ameerbi; State of M.P. v. Sanjay Kumar Pathak and Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Dev.)
21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See Sangfroid Remedies Ltd. v. Union of India.) ”
17.In the light of the above, there is no case made out. Accordingly, the writ petitions stand dismissed. However, there will be no order as to costs.
vvk
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,
VII Battalion,
Tamil Nadu Special Police,
Avadi,
Chennai 600 109