IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03/02/2006
CORAM
THE HON'BLE MR.JUSTICE P.K.MISRA
and
THE HON'BLE MRS.JUSTICE CHITRA VENKATARAMAN
W.P.No.38503 of 2003
1. The Inspector General of Police
Law & Order, Chennai-4.
2. The Deputy Inspector General of Police
Tiruchirapalli Range
Tiruchirapalli.
-Vs-
1. M.Savarlguru
2. The Registrar
Tamil Nadu Administrative Tribunal
Chennai-104. .. Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of
India for the issue of a writ of Certiorari calling for the records pertaining
to the orders of the Tamil Nadu Administrative Tribunal, Chennai, the second
respondent herein, made in O.A.No.4836 of 2002 dated 13.3.2003 and to quash
the same.
!For petitioner : Mr.S.Gomathi Nayagam
Special Government Pleader
^For 1st respondent : Mr.Bala representing
M/s.Bala & Daisy
:ORDER
CHITRA VENKATARAMAN,J.
The second respondent in the writ petition is a direct recruit to the
post of Sub Inspector of Police. He was charge-sheeted under Rule 3(b) of the
Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules, 1955,
on the ground of “reprehensible conduct and spoiling the morale of the post,
by having illicit intimacy with one Malathi, wife of one Vijayan; that he
tried to seduce one Rani alias Maragatha Rani, daughter of Vijayan; the said
Rani attempted to commit suicide” (Page 2 of the affidavit). On the complaint
received by the Deputy Superintendent of Police, an enquiry was conducted,
leading to a prima facie case against the first respondent. In the course of
the departmental proceedings, the prosecution witnesses turned hostile and
went against their statement previously given at the time of preliminary
enquiry before the enquiry officer. Taking note of the complaint given and
the statement by the witnesses at the time of preliminary enquiry and
considering the fact that such conduct was detrimental to the good image of
such disciplined uniformed forces, the delinquent was awarded a punishment of
dismissal from service by the Deputy Inspector General of Police, Trichy
Range, in his proceedings dated 28 .7.2002.
2. Aggrieved of the said order passed by the second petitioner
herein, the delinquent officer, the first respondent in the writ petition,
moved an Original Application before the Tamil Nadu Administrative Tribunal
and sought for a quashing of the order dated 28.7.2002 and to consequently
direct the writ petitioners to reinstate the first respondent into service
with all benefits therein.
3. The applicant in the O.A./the first respondent in this writ
petition contended before the Tribunal that the evidence adduced at the time
of enquiry ought to have been given its due weightage and that the
disciplinary authorities erred in placing reliance on the statements given at
the time of preliminary enquiry to impose a major punishment. Thus the first
respondent submitted that the whole proceedings was in violation of the
principles of natural justice. The first respondent further submitted that he
ought not to have been punished on mere suspicion without any proof of the
charge. The first respondent placed reliance on the decision of the Supreme
Court of this Court in 1979-L.W. 428), and AIR 1966 SC 1827 to impress on the
fact that the order passed merely on suspicion was liable to be quashed. The
first respondent submitted that there was no fair and reasonable enquiry and
that the punishment imposed was disproportionate; hence, contrary to the
principles laid down by the Apex Court in (2000) 3 SCC 450.
4. The contention of the first respondent was resisted by the writ
petitioners before the Tribunal emphasizing the fact that the issue related to
the morality and chastity of the complainant-witnesses and hence, considering
the surrounding circumstances, the statement given at the time of preliminary
enquiry should be given their due weightage in the matter of awarding
punishment, particularly to a delinquent who was working in a disciplined
service, namely, Police force. The writ petitioner further submitted in their
reply before the Tribunal that the punishment was awarded after a conclusive
finding and this was not on mere assumption or presumption. The petitioner
further submitted that the first respondent was a direct recruit Sub Inspector
of Police and had misbehaved with the members of the family of his
subordinates and that the conduct of the first respondent was detrimental to
the main image of the force and hence, could not be allowed to continue in
service.
5. By order dated 13th March 2003 in O.A.No.4831 of 2002, the Central
Administrative Tribunal allowed the application, setting aside the order of
dismissal and directed the writ petitioners to reinstate the first respondent
with all back-wages and service benefits. Accepting the case of the first
respondent, the Tribunal went into the evidence and the findings of the
disciplinary authority to arrive at a conclusion that there was absolutely no
basis for the allegation that there was illicit intimacy between the
delinquent officer, the first respondent herein and Malathi, wife of Vijayan,
Head Constable, as well as with Rani, daughter of Vijayan. The Tribunal held
that the mother and daughter had denied their relationship with the delinquent
officer and there was nothing in the evidence of Vijayan to prove that there
existed any relationship between the first respondent and Rani, daughter of
Vijayan. Referring to the evidence of the Deputy Superintendent of Police,
the enquiry officer, the Tribunal held that as P.W.5 , the Deputy
Superintendent of Police himself had relied upon the statement of witnesses at
the time of preliminary enquiry which were all denied by the witnesses later
on. Placing reliance on the decision of the Supreme Court in AIR 1969 SC 983,
the Tribunal ultimately held that the order of the disciplinary authority was
totally wrong; thus the relief as prayed for was granted to the first
respondent.
6. Aggrieved by the order of the Tribunal, the Inspector General of
Police (Law and Order) and Deputy Inspector General of Police, Tiruchirapalli
Range, have preferred the writ petition. Challenging the order of the
Tribunal, it is contended by the writ petitioners that the Tribunal committed
a grave error in ignoring the fact that the first respondent had committed
serious misconduct and misdemeanor, unbecoming of a member of the disciplined
force; that the Tribunal had erred in ignoring the fact that the incident had
taken place in the police quarters campus; that the evidence given by the
witnesses at the time of enquiry had to be given their due weightage proving
the guilt of the respondent herein; that instead of taking care of the welfare
and dignity of the subordinates and their family and the people in his
jurisdiction, the respondent had acted in an irresponsible and shocking manner
to bring disrepute and harm to the good image of uniformed forces. The
petitioner further submitted that the Tribunal ought to have taken note of the
fact that the issue related to the chastity of the ladies which had compelled
them to turn hostile at the time of enquiry; hence, the statement given at the
time of preliminary enquiry and report ought to have been accepted as a good
pointer to the conduct of the respondent warranting dismissal from service.
7. The learned Special Government Pleader appearing for the
petitioners further submitted that the interference by the Tribunal as an
appellate authority was totally contrary to the decisions of this Court and
the Supreme Court and that it ought not to have substituted its views.
8. Learned counsel for the first respondent supporting the order of
the Tribunal, submitted that the order of dismissal was based on no evidence
and perversity and the Tribunal was justified in setting aside the order and
hence, prayed for dismissal of the writ petition.
9. A perusal of the enquiry report showed that the first respondent
had acted in a manner which was derogatory of the dignity of a disciplined
force; that forgetting his status, had misbehaved with the wife and daughter
of a subordinate official; that the conduct of the delinquent officer had
taken one of the affected parties even to the extent of attempting on her
life. Considering the fact that the conduct of the delinquent officer was
totally on an immoral plane bringing disrepute to the dignity of the police
force, the enquiry officer found as a matter of fact that the first respondent
had committed a serious act, touching on the morale and character. It is seen
from the enquiry report that as P.W.1, Malathi, had stated that the delinquent
had enticed her and had sexual intercourse with her; as P.W.2, Maragatha Rani,
daughter of Vijayan, had also spoken about the misbehaviour of the first
respondent. The statement given by Malathi is further strengthened by the
evidence of P.W.3, Vijayan and it is not out of place to mention that in the
enquiry, the delinquent officer admitted that he had seduced Malathi, wife of
Vijayan; that however, he did not have any relationship with Maragatha Rani.
The delinquent officer had admitted that he had sexual intercourse with her
about five or six times, but when his relationship with Malathi came to the
knowledge of the higher officials, the said Vijayan was asked to vacate the
residence from the quarters and accordingly, the said Vijayan had shifted his
residence from 31.5.2001 night. The learned counsel for the first respondent
produced before us the copies of the statements recorded at the time of
preliminary enquiry before the enquiry officer. It is seen that the
statements from the delinquent officer and from the witnesses were recorded on
different dates, and a reading of the statements would show that the
delinquent officer, the first respondent herein, did misbehave with Malathi
and Rani. It is not without surprise that at the time of final enquiry before
the disciplinary authority, Malathi and Maragatha Rani turned hostile. The
conduct of the hostile witnesses in staying away had to be viewed, keeping in
mind the greater repercussions that they are likely to have in familial and
social life. The fact remained that the first respondent had committed the
offence charged and the fact that the witnesses turned hostile does not, in
any way, do away with the fact that the first respondent had, on his own
admission, committed the offence. Even assuming that the affected parties
have turned hostile, as we had earlier stated, the statement admitting the
guilt itself is good enough to confirm the punishment awarded on the first
respondent.
10. Learned counsel for the first respondent placed reliance on the
decision of the Division Bench of this Court in W.P.Nos.29862 and 325 81 of
2002 dated 22.2.2005 to impress on the fact that when the witnesses had turned
hostile and did not support the earlier stand before the enquiry officer,
there was absolutely no material to prove the charge levelled against the
delinquent officer and hence, the Tribunal was fully justified in setting
aside the order.
11. A perusal of the decision of the Division Bench of this Court
shows that on the analysis of the entire facts, this Court held that there was
no acceptable evidence to take a view different from that of the Tribunal
quashing the order of dismissal. In the context of the said finding, the
decision of this Court in W.P.Nos.29862 and 32581 of 2002 dated 22.2.2005 is
distinguishable. The case on hand reveals the fact that the delinquent
officer himself had admitted about his illicit relationship with the wife of
the subordinate officer. Leaving aside the statement of the hostile
witnesses, on the very admission by this delinquent officer, one can say that
the order of punishment is a justified one factually and legally too.
12. Learned counsel for the first respondent further placed reliance
on an unreported decision of a Division Bench of this Court in W.P. Nos.10957
of 2004 and batch of cases dated 8.4.2005, wherein, the Division Bench
dismissed the writ petition filed by the State against the order of the Tamil
Nadu Administrative Tribunal quashing the order of dismissal. On a perusal of
the said decision, it is seen that on an appreciation of the evidence from
facts found by the authorities below as well as by the Tribunal, this Court
upheld the order of the Tribunal holding that the findings were perverse and
not supported by any evidence on record. This Court, referring to the
decision of the Supreme Court in KULDEEP SINGH Vs. THE COMMISSIONER OF POLICE
AND OTHERS (1998 (9) Supreme 452), held that the evidences were uncorroborated
and unreliable which necessitated the Tribunal to interfere with the findings
of the disciplinary authority. This Court rejected the contention that the
order of the disciplinary authority could not be interfered with and that
Article 226 of the Constitution is not a Court of appeal; that if there was
some acceptable evidence on record which could be relied upon, then the
conclusions would not be disturbed as perverse. On the facts, this Court
found that the order of the Tribunal was sustainable.
14. The decision of the Supreme Court relied on, viz., (2001) 1 SCC
65 (UNION OF INDIA Vs. K.A.KITTU AND OTHERS) and AIR 1969 SC 983 ( CENTRAL
BANK OF INDIA Vs. P.C.JAIN) were rendered on the fact situation prevalent
therein and hence could not be applied to support the respondents’ plea.
15. As regards the judgment reported in (2001) 1 SCC 65 in the case
of UNION OF INDIA Vs. K.A.KITTU AND OTHERS, it may be seen that on the
factual front, the Tribunal’s decision that the finding of the Enquiry
Officer/ disciplinary authority was based on no evidence was upheld by the
Supreme Court. In the context of the findings rendered by the Tribunal
therein, the Supreme Court dismissed the appeal preferred by the Union of
India. As regards the decision reported in AIR 196 9 SC 983 in the case of
CENTRAL BANK OF INDIA Vs. P.C.JAIN, the Supreme Court held that an Industrial
Tribunal can disregard the findings of an Enquiry Officer only if the findings
were perverse. It held that “the test of perversity that is indicated in
these cases is that the findings may not be supported by any legal evidence at
all.” Referring to the decision reported in AIR 1963 SC 1723 in the case of
STATE OF ANDHRA PRADESH Vs. S.SREE RAMA RAO, the Supreme Court noted ” But
the departmental authorities are, if the enquiry is otherwise properly held,
the sole Judges of facts and if there be some legal evidence on which their
findings can be based, the adequacy or reliability of that evidence is not a
matter which can be permitted to be canvassed before the High Court in a
proceeding for a writ under Article 226 of the Constitution.”
16. In the context of the legal principles and the factual findings,
the Supreme Court affirmed the view of the Tribunal that the findings recorded
by the enquiry officer were perverse and not supported by any legal evidence.
In the background of the decision of the Supreme Court speaking on the
jurisdiction of the Tribunal and this Court under Article 226, if we look at
the conclusions arrived at, we may say that there is nothing perverse as
regards the finding arrived at by the disciplinary authority. The admitted
facts by the delinquent officer would clearly show of his relationship with
the wife of one Head Constable and his daughter. The enquiry conducted giving
due credence to the statements of the witnesses Malathi, wife of the Head
Constable, and his daughter speaking about the conduct of the delinquent
officer which, as we had already noted, are facts admitted by the delinquent
officer in his statement; that Vijayan, husband of Malathi, had stated at the
time of enquiry that the delinquent officer seduced his wife for which he
admonished his wife; that on this account, he had to shift his residence from
Thiruvankurichi to Manachanalur. In the context of the behaviour exposed of
Malathi and the delinquent officer, although the said Malathi did not appear
in the departmental disciplinary proceedings, due weightage was given to the
statement given by the witnesses at the time of preliminary enquiry. Thus, on
the preponderance of probabilities, as a guiding factor, the delinquent
officer was visited with a penalty order of dismissal.
17. It may be noted that sufficiency or otherwise of the evidences
leading to the punishment of the official is concerned is not a matter for the
Tribunal to go into by way of a re-appreciation of the evidence and virtually
to go back to a stage prior to the conclusion of the disciplinary enquiry. A
perusal of the decision of the Supreme Court, reported in JT 1994 (7) SC 744,
(TRANSPORT COMMISSIONER, MADRAS-5 Vs. A.RADHAKRISHNA MOORTHY), as relied upon
by the learned Special Government Pleader for the State, shows that the
jurisdiction of the Tribunal is akin to the power of the High Court under
Article 226. The power of judicial review is limited to the extent of
procedural correction of the decision making process. In the absence of any
material contra to substantiate the stand of the delinquent official or show
the perversity of the findings of the disciplinary authority, the order of the
Tribunal interfering with the findings of the ultimate fact finding body
cannot be sustained by this Court. It may be noted that the conduct of the
delinquent officer is not befitting a police officer. The disciplined force
owe a duty to the public in general. Apart from bringing disrepute to the
services, failure to maintain discipline even in his relationship with a
fellow official, would undermine the faith of the general public at large in
the law enforcing authorities in the matter of getting protection, thereby
shake the very confidence of the public in the uniformed forces. The narrow
technicalities in the matter of not examining the hostile witnesses cannot
sway the preponderance of probabilities arising from the very admission of the
delinquent official. The order of the Tribunal ignoring the statement of the
delinquent officer, hence, is liable to be quashed. It is factually incorrect
on the part of the Tribunal to state that on preliminary enquiry, it admitted
that none of the witnesses had spoken about the illicit relationship between
the witnesses and the applicant. In the context of the statements of the
delinquent official and the other witnesses speaking about the conduct, the
order of punishment given to the first respondent is fully justified. In the
circumstances, the Tribunal’s order dated 13.3.2003 in O.A.No.4836 of 2 002 is
hereby quashed and the writ petition is allowed. Connected W. P.M.P.No.
46727 of 2003 is closed.
Index: Yes
Internet: Yes
ksv
To:
The Registrar
Tamil Nadu Administrative Tribunal
Chennai-104.