In the High Court of Judicature at Madras Dated: 09.06.2010 Coram: The Honourable Mr.Justice R.SUBBIAH Writ Petition Nos.28225 and 28227 of 2008 R.Ravi ..Petitioner in W.P.28225/2008 P.Rajagopal ..Petitioner in W.P.28227/2008 ..vs.. 1. The Deputy Inspector General of Police, Thanjavur Range, Thanjavur. 2. The Additional Director General of Police, L & O., Chennai-4. ..Respondents in both WPs.
W.P.No.28225/2008 filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, calling for the records of the respondents in connection with the impugned order passed by the 1st respondent in C No.B1/RO/PR31/2007, RO/107/2008 dated 22.3.2008 and quash the same.
W.P.No.28227/2008 filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, calling for the records of the respondents in connection with the impugned order passed by the respondents 1 and 2 in C.No.B1/RO/PR30/2007, RO/106/2008 dated 22.3.2008 and RC.No.859/156147/CON V(2)/2008 dated 26.08.2008 respectively and quash the same.
For Petitioners : Mr.Venkatramani, Senior Counsel for
Mr.M.Muthappan
For Respondents : Mr.P.Subramanian, A.G.P.,
COMMON ORDER
Since the issue involved in both the writ petitions is one and the same, they are disposed of by this common order.
2. The petitioner in W.P.No.28225 of 2008, viz., Ravi was working as Head Constable at Keevalur Police Station, Nagapattinam District and the petitioner in W.P.No.28227 of 2008, viz., Rajagopal was working as Sub-Inspector of Police in the same police station, Nagapattinam District from 02.03.2005 and on 08.03.2005 early morning, both the petitioners along with the Deputy Superintendent of Police and Inspector of Police, Nagapattinam Prohibition Enforcement Wing (PEW) conducted a raid near Velipalayam Anna Statue and intercepted a car bearing registration No. TN 51A 5737 carrying illicit liquor. The car was seized and the accused, viz., Prabakaran and two others were arrested and the driver of the car escaped from the scene of occurrence. The secured accused were brought to the police station and a case was registered in Crime No.386/2005 under section 4(1)(aaa) read with 4(1)(A) of the Tamil Nadu Prohibition Act and Sections 5 and 6 of the Tamil Nadu Rectified Spirit Rules.
3. In the said situation, a charge memo dated 20.01.2006 came to be served on the writ petitioners alleging that during the second week of May, 2005, both the petitioners had brought one Singaravelu from Nahoor to Prohibition Enforcement Wing, Nagapattinam, stating that the vehicle, which was involved in carrying the illicit liquor, was driven by the said Singaravelu and subsequently, the Head Constable Ravi had discussed with one Varadhan @ Varadarajan and demanded a sum of Rs.10,000/- for deleting Singaravelu from the criminal case and ultimately, when the said Varadarajan agreed to pay a sum of Rs.5,000/-, the petitioner Ravi received the illegal gratification of Rs.2,000/- and paid the same to Rajagopalan, the Sub Inspector of Police and thereafter, instead of Singaravelu, one Jothi Basu was made to surrender as an accused in the criminal case.
4. It is submitted that even though the charge memo was served on 20.01.2006, initially two witnesses were examined in March 2006 and there was no progress in the oral enquiry. The main witness, viz., Varadhan @ Varadharajan was not examined in spite of number of adjournments granted. Hence, the petitioner in W.P.28227/2008 filed a writ petition in W.P.No.17044 of 2007 and on 14.06.2007, wherein this Court directed the respondents to complete the enquiry and pass final orders within a period of three months from the date of receipt of a copy of that order. Subsequently, the enquiry was conducted by the Deputy Superintendent of Police, Sirkali Sub-Division, Sirkali and after enquiry was over, the petitioners have submitted their detailed written statement of defence. Finally, the Enquiry Officer filed the enquiry report on 09.11.2007 holding that the charges levelled against the petitioner were proved. The copy of the enquiry report was furnished to the petitioners and they have also submitted their further representation. The disciplinary authority, namely, the 1st respondent, without any discussion and without taking into consideration any of the points raised by the petitioners in their further representation, by accepting the report of the Enquiry Officer, held that the charges against the petitioners have been proved and for the proven charges, imposed a punishment of pay reduction in two stages for two years, by his order dated 22.03.2008. The petitioners preferred an appeal to the 2nd respondent, but, so far, no order has been passed. Hence, these writ petitions.
5. The learned Senior Counsel appearing for the petitioners submitted that totally six witnesses were examined in the oral enquiry and except P.Ws.3 and 6, all the witnesses did not support the case of the prosecution. P.W.1 Singaravelu had totally denied having paid any amount to the police personnel. Similarly, P.W.2 had also stated that he did not pay any amount to the police personnel or to the petitioners. P.Ws.4 and 5, who were cited as witnesses, also did not support the case of prosecution and they have turned hostile; but, in spite of these facts, the Enquiry officer, by placing reliance on the statement made by the witnesses in the preliminary enquiry, has come to the conclusion that the charges were proved and submitted a proved minute to the 1st respondent.
6. Learned senior counsel for the petitioners, by relying upon a judgment reported in M.V.BIJLANI ..vs.. UNION OF INDIA AND OTHERS ((2006)5 SCC 88, submitted that when the witnesses, examined on behalf of the department, deposed totally against the department, it cannot be said that the witnesses have deposed falsely and if they deposed falsely, they should have been cross examined by the prosecution. But in the instant case, except the official witnesses P.Ws.3 and 6, none of the witnesses supported the prosecution and no detailed cross examination was done by the department. But, in spite of these facts, the enquiry officer, erroneously placed reliance on the statement recorded in the preliminary enquiry and came to the conclusion that the charges were proved. Further, the learned senior counsel relied upon the decision of this Court reported in K.RAMALINGAM ..vs.. SUPERINTENDENT OF POLICE ((2009) 7 M.L.J.578) in support of his contention that the enquiry officer’s finding of guilt on the part of the petitioners, relying upon the statements given by the witnesses during the preliminary enquiry, is not legally sustainable.
7. Per contra, the learned Additional Government Pleader submitted that the charge levelled against the petitioner that they have received the illegal gratification has been established during the oral enquiry. In fact, P.W.1 Singaravelu had deposed in his evidence that both the petitioners came to his house, took him to PEW and kept him throughout the night and on the next day, his employer Varadharajan came and on production of one Jothi Basu, he was released. Similarly, the evidence of P.W.2 Jothi Basu also would show that he was substituted in the place of Singaravelu. All these evidence would strongly establish the guilt against the petitioners and therefore, it is incorrect to state that all the witnesses turned hostile before the Enquiry Officer and there is no merits in the writ petitions and as such, they are liable to be dismissed.
8. I have considered the rival submissions of the learned senior counsel for the petitioners as well as the learned Additional Government Pleader appearing for the respondents.
9. Admittedly, the petitioner in W.P.28225 of 2008 and the petitioner in W.P.28227/2008 were working as Head Constable and Sub Inspector of Police, Keevalur Police Station, Nagapattinam District respectively. On 08.03.2005, while both the petitioners conducted the raid along with the Deputy Superintendent of Police and Inspector of Police of the same Police Station, they intercepted a car bearing registration No.TN 51A 5737, which was carrying illicit liquor. The car was seized and the driver of which had escaped from the scene of occurrence and the other three accused were arrested. Now, it is the allegation of the respondents department that pursuant to the said incident, during May 2005, the Head Constable Ravi and the Sub Inspector of Police Rajagopal brought the driver of the car, viz., Singaravelu from Nagoor to PEW, Nagapattinam and kept him throughout the night and told him that he was to be remanded; on the next day, when his employer Varadharajan came, they demanded Rs.10,000/- and it was finalised at Rs.5,000/- for deleting the accused Singaravelu and thereafter, Rs.2,000/- was paid and the said Singaravelu was released on production of one Jothibasu. Pursuant to the said information, a charge memo was issued to the petitioners on 20.01.2006 and subsequently, the enquiry was conducted, in which six witnesses were examined. Ultimately, the Enquiry Officer submitted a report holding that the charge levelled against them has been proved. Pursuant to which, the disciplinary authority has passed the impugned order. It it is the case of the petitioner that none of the witnesses spoke about the illegal gratification and except P.Ws.3 and 6 who are all official witnesses the other witnesses turned hostile. Even though the witnesses did not support the case of the prosecution, the Enquiry Officer has relied upon the statement made by the witnesses in the preliminary enquiry.
10. Now, it is the main contention of the learned senior counsel for the petitioners that majority of the witnesses did not support the illegal gratification received by the petitioners and except P.Ws.3 and 6, who are none other than the Inspector of Police and Additional Superintendent of Police respectively, the other witnesses, namely, P.Ws.1,2,4 and 5 turned hostile before the Enquiry Officer. The Enquiry, Officer having noted the above aspect, erroneously submitted a report, by relying upon the statements made by the witnesses at the preliminary enquiry, which is not legally sustainable. When there is absolutely no evidence, the Enquiry Officer ought to have come to the conclusion that the charge has not been proved.
11. In order to appreciate the contentions of the learned senior counsel for the petitioners, now we have to analyse the evidence adduced by the witnesses before the Enquiry Officer. On going through the evidence of P.W.1 (Singaravelu), I find that both the writ petitioners took P.W.1 from his house to PEW office and kept him throughout the night and on the next day, his employer Varadharajan came and produced Jothi Basu to substitute P.W.1 and thereafter, P.W.1 was released. Similarly, P.W.2, Jothi Basu had stated in his evidence that his brother’s son (the son of Varadharajan) approached him and requested him to accept the offence committed by Singaravelu and he was taken up to PEW, Nagapattinam, where both the petitioners were present; after four days, P.W.2 was taken to Thiruthuraipoondi Magistrate Court. The evidence of P.Ws.1 and 2, in my considered opinion, was strong enough to prove the guilt against the petitioners. Therefore, it is incorrect to state that all the witnesses turned hostile. Though the witnesses did not speak about the illegal gratification to the petitioners, from their evidence, it could be clearly inferred that originally one Singaravelu was arrested and subsequently, on the approach of Varadarajan, the said Singaravelu was substituted by Jothi Basu.
12. As already stated, though there is no evidence about the exact handing over of the illegal gratification, in my considered view, from the evidence of P.Ws.1 and 2, the delinquency committed by the petitioners has been established, particularly in the absence of any acceptable explanation from the petitioners for substituting Jothi Basu instead of Singaravelu. Therefore, I am of the view that it cannot be said that it is a case of no evidence. Further, it is the well settled principle of law that in the department proceedings unlike in a criminal case, the guilt need not be proved beyond reasonable doubt and the preponderance of probabilities is sufficient enough to prove the guilt against the delinquents. In the instant case, from the evidence adduced in the preliminary enquiry, it could be inferred that the charge levelled against the petitioners has been proved and hence, the judgments relied upon by the petitioners will not be made applicable to the facts of the present case. Under such circumstances, it cannot be said that the punishment imposed upon the petitioners is excessive and disproportionate to the nature of delinquency and I do not find any infirmity in the impugned orders passed by the respondents.
Accordingly, both the writ petitions fail and are dismissed. No costs.
gl
To
1. The Deputy Inspector General of Police,
Thanjavur Range, Thanjavur.
2. The Additional Director General of
Police, L & O.,
Chennai 4