IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08/04/2005
CORAM
THE HON'BLE MR. JUSTICE.P. SATHASIVAM
AND
THE HON'BLE MR. JUSTSICE. S.K. KRISHNAN
W.P.No.10957 of 2004
and W.P.Nos. 10958 to 10961 and 20590 to 20603 of 2004
and
W.P.M.Ps.Nos.12858, 12860, 12862, 12864, 12866, 24778,
24780, 24782, 24784, 24786, 24788, 24790, 24792, 24794,
24796, 24798, 24800 of 2004
1.State of Tamil Nadu
Represented by its Secretary to Government
Home (Police) Department, Chennai-9.
2.Director General of Police,
Kamarajar Salai, Chennai-4.
3.Deputy Inspector General of Police
Salem Range, Salem.
4.Superintendent of Police
Dharmapuri District. ..Petitioners in W.P.No.20590
to 20603 of 2004
1.Director General of Police
Kamarajar Salai, Chennai-4.
2.State of Tamil Nadu
Represented by its Secretary to
Government
Home(Police) Department
Chennai-9.
3.Deputy Inspector General of Police
Salem Range, Salem. ...Petitioners in W.P.No.10957 to 10961 2004
-Vs-
1.S.Mahalingam
(Ex.Gr.IPC 1387)
Dharmapuri through the
Deputy Inspector General of Police
Salem.
2.The Registrar
Tamil Nadu Administrative Tribunal
Chennai-104. ....Respondents in W.P.No.20590
to 20603 of 20 04
1.K. Annamalai
(Ex.PC.1308)
Dharmapuri, through the
Deputy Inspector General of Police
Salem.
2.The Registrar
Tamil Nadu Administrative Tribunal
Chennai-600 104. ...Respondents in W.P.No.10957 to 10961
of 2004
W.Ps.Nos.20590 to 20603 of 2004
Writ Petition filed under Article 226 of the Constitution of
India to issue a Writ of Certiorari calling for records relating to the order
dated 30.4.2003 in O.A.No.1354 of 2003 on the file of the second respondent
and quash the same.
W.Ps.Nos.10957 to 10961 of 2004
Writ Petition filed under Article 226 of the Constitution of
India to issue a Writ of Certiorari calling for records relating to the order
dated 30.4.2003 in O.A.No.1385 of 2003 on the file of the second respondent
and quash the same.
!For Petitioners : Mr.A.L. Somayaji, Additional Advocate General
Assisted by Mr.D.Krishnakumar, Special Government Pleader
^For Respondent No.1 in W.P.No.10957 to 10961 of 2004: Mr.R. Gandhi
Senior Counsel for Mr.R.G. Narendhiran
For Respondent No.1 in W.P.Nos.20590, 20595, 20600,
20602 and 20603 of 2004 : Mr.R.subramanian
For Respondent No.1 in W.P.Nos.20591, 20597 of 2004: Mr.S.V. Jayaraman
Senior Counsel for Mr.T. Dhanasekaran
:COMMON ORDER
S.K. KRISHNAN, J.
Aggrieved by the common order dated 30.4.2003 passed by the
Tamil Nadu Administrative Tribunal, Chennai, the respondents in O.As.
Nos.1353 to 1357, 1384, 1385, 1426 to 1428, 1463, 1464, 1527, 1528, 15 45,
1546, 1669 and 1339 of 2003, have filed the above Writ Petitions.
2. Since the issue involved in these petitions and the
parties are one and the same, they were heard together and disposed of by a
common order. For the sake of convenience, we call the parties as arrayed in
W.P.No.20590 of 2004.
3. The facts leading to the filing of these Writ Petitions
are summarised as follows:
4. In the year 1997, on the basis of the petitions
complaining that the police personnel working in Karimangalam Police Station
were collecting mamools from the bootleggers, sellers of I.D. Arrack and
Toddy with the connivance of Inspector of Police and Sub Inspector Police and
the same were shared among them, the Vigilance and Anti Corruption Officials
of Salem and Dharmapuri conducted surprise raid on 7.5.1997. After
preliminary enquiry, disciplinary action was initiated against 23 Police
Personnel for the following delinquency.
“Indisciplinary conduct by collecting bribe amount from
prohibition offenders in Karimangalam Police Station limits during the period
from 3/96 to 5/97.”
5. Out of 23 personnel, Head Constable 603 Nmarasimhan died
on 25.9.2002 and the charge against him was abated. Out of 22 personnel, the
following three personnel retired from service on the date mentioned against
them.
Thiru. M. Vairakkannu, Inspector of Police – 31.5.1997
Thiru. Durairaj, Grade I Police Constable – 31.7.1998
Thiru.Kolandai, Grade I Police Constable – 31.1.2000
6. Thereafter, on the basis of PR initiated against the first
respondents in all these petitions, they were dismissed from service. As
against such dismissal, they approached the Tamil Nadu Administrative
Tribunal, which by its order dated 30.4.2003, directed the petitioners herein
to reinstate them.
7. Aggrieved by the said order, the petitioners invoking the
jurisdiction of this Court under the Article 226 of the Constitution of India,
have filed the above Writ Petitions.
8. Heard both sides.
9. The learned Additional Advocate General appearing for the
petitioners would contend that the Tribunal has not appreciated the evidence
with regard to charge memo and also the findings of the Additional
Superintendent of Police, PEW, Dharmapuri and thereby erred in setting aside
the entire disciplinary proceedings against the first respondents and in such
circumstances, this Court cannot act as an appellate authority on the findings
of the disciplinary authority and therefore, the order of the Tribunal has to
be set aside by allowing these petitions.
10. Further, he would vehemently contend that if the
corruptive first respondents are reinstated in service, the image of the
police force will be tarnished among the public and therefore, the order of
the Tribunal has to be set aside.
11. In support of his contention, he relied on the following
decisions:
a. LALIT POPLI VS. CANARA BANK AND OTHERS((2003)3 SUPREME
COURT CASES 583).
b. U.P.S.R.T.C. AND OTHERS VS. HAR NARAIN SINGH AND
OTHERS((1998)9 SUPREME COURT CASES 220).
c. REGIONAL MANAGER, U.P. SRTC, ETAWAH AND OTHERS ((2003)3
SUPREME COURT CASES 605).
12. Per contra, the learned Senior Counsel appearing for the
first respondents would contend that as there is no evidence and materials to
prove the charge, the Tribunal came to the right conclusion by setting aside
all the disciplinary proceedings and directed the petitioners to reinstate
them and therefore, no interference of this Court is warranted.
13. Further, the learned Senior Counsel would contend that
the reinstatement of the first respondents, would not in any way tarnish the
image of the Police Department as they have not committed such indisciplinary
conduct.
14. In support of his contention, the learned Senior Counsel
relied on the following decisions:
a. SHER BAHADUR VS. UNION OF INDIA AND OTHERS ((2002) 7
SUPREME COURT CASES 142).
b. FOOD CORPORATION OF INDIA, HYDERABAD AND OTHERS VS. A.
PRAHALADA RAO AND ANOTHER ((2001) 1 SUPREME COURT CASES 165).
c. KULDEEP SINGH VS. COMMISSIONER OF POLICE AND
OTHERS((1999) 2 SUPREME COURT CASES 10).
15. The learned counsel appearing for the first respondents
in W.P.No.20590, 20595 of 2004 etc., relied on the following decisions:
a. KULDEEP SINGH VS. THE COMMISSIONER OF POLICE & OTHERS
(1998(9) SUPREME 452).
b. UNION OF INDIA VS. K.A. KITTU AND OTHERS ((2001)1
SUPREME COURT CASES 65).
c. SRI PALANI DHANDAYUTHAPANI DEVASTHANAM REP. BY ITS
EXECUTIVE OFFICER, D. RAMACHANDRAN, PALANI-621 601 VS. THE COMMERCIAL TAX
OFFICER, PALANI CIRCLE II, PALANI (2002-1-L.W.318).
16. On a perusal of the proceedings of the third respondent,
it is revealed that the first respondents were charged for the following
delinquency. “Indisciplinary conduct by collecting bribe amount
from prohibition offenders in Karimangalam PS limits during the period from
3/96 to 5/97.
17. The specific charges framed against the first respondents
are as follows:
a. Charge No.1: The first respondents have joined hands with
prohibition offenders of Karimangalam Police Station limits promoted
prohibition offences; organised prohibition mamool systems and were collecting
weekly prohibition mamool regularly from Toddy and I.D. Arrack sellers in
Karimangalam Police Station limits and during the surprise check conducted on
7.5.1997 between 12.00 hours and 14.00 hours by Deputy Superintendent of
Police, Vigilance and AntiCorruption, Dharmapuri with the assistance of
District Inspection Cell Officer a sum of Rs.7805/- being the weekly
prohibition mamool collected upto 7.5.1997 found in the left side drawer of
the wooden table of Thiru.C.Madhu, Station Writer, along with chits and papers
containing the details of prohibition mamool account and other expenditure
were also seized.
b. Charge No.2: The accused officers No.1, 2, 3, 5 and 8
have unauthorisedly collected compounding fees from prohibition offenders at
an enhanced rate of Rs.550/- from each prohibition offenders instead of
Rs.500/- which was the compounding fee of originally collected by the Deputy
Superintendent of Police (W.No.20) Krishnagiri sub-division and have also kept
unauthorised collection, an amount of Rs.1290/- being the compounding fee
collection from prohibition offenders.
18. Thereafter, the fourth respondent, who conducted the
enquiry, has submitted a proved minute.
19. Further, it is revealed that out of 28 prosecution
witnesses examined, ten official witnesses, namely, P.Ws.1, 2, 3, 4, 5, 6, 7,
2 4, 25 and 28, have given statement supporting the delinquency committed by
the first respondents. However, 18 private individuals did not support the
case of the prosecution.
20. So, from the proceedings of the third respondent, it is
clear that the first respondents were dismissed from service only on the basis
of the statements of the ten official witnesses.
21. We have also perused the order of the Tribunal. It is
seen that the enquiry proceedings with minutes, statements of witnesses and
entire files were produced before the Tribunal. After considering those
materials, the Tribunal held as follows:
“Therefore, there is absolutely no evidence to show that
mamools were collected by Karimangalam police or that they shared it among
themselves. So learned counsel appearing for the applicants are justified in
saying that there is absolutely no evidence to show that any of the
bootleggers or any sellers have been paying mamool to Karimangalam Police or
same was received by persons working in the Police Station. So evidence of
these large number of witnesses is of no use to the department because none of
them have supported the case of the department as against these officials.
The earlier statements cannot be acted upon in view of the fact that they have
denied giving such statements and they have stated that their signatures only
were obtained. Moreover, those statements were recorded behind the back of
the applicants.”
22. With regard to Charge No.1, when the Tribunal has come to
the conclusion in para – 13 of its order that there is absolutely no evidence
to show that mamools were collected by Karimangalam Police or that they shared
it among themselves and in the absence of any material or document contra to
the conclusion arrived at by the Tribunal, we are of the view that the
conclusion arrived at by the Tribunal has to be accepted.
23. Further, as stated above, when in the proceedings itself
it is mentioned by the third respondent that except the ten official
witnesses, no independent witness did not support the case of the prosecution,
we are of the view that, as rightly held by the Tribunal, there is absolutely
no evidence to show that mamools were collected and shared among the first
respondents.
24. With regard to Charge No.2, the findings of the Tribunal are as
follows:
“So there is no evidence to show that excess money was
collected than what was accounted for as compounding fees from prohibition
offenders against whom cases have been registered and who have compounded the
offences after pleading guilty. Moreover, P.W.28 examined during the enquiry
is D .S.P. Krishnagiri. He has stated without any ambiguity that it was he
who has imposed compounding fee after being satisfied that the offenders have
admitted their offences and he has collected compounding fee and only Rs.500/-
was collected from each of the offenders for which due receipts were given.
Receipts were prepared in duplicates and original receipts have been given to
the party and the carbon copy of the duplicate is maintained in the office of
the DSP, Krishnagiri. Therefore, the case of the department that Karimangalam
Police collected Rs.550/- from prohibition offenders and accounted only Rs.50
0/- and misappropriated the balance of Rs.50/- from each person is not
substantiated but it is disproved by the evidence of P.W.2 8 D.S.P.
Krishnagiri.”
25. Further, in para -11 of its order the Tribunal held as follows:
” Any how it is proved that the amount of Rs.7805/- and Rs.1290/- found in the
Police Station premises were not accounted for in the register or account
books maintained by the Police Station in the normal course and none of the
police officers also have given any explanation for such huge amount being
found inside the Police Station. ”
26. In para – 14, the learned Judge observed as follows:
” I have gone through the evidence of PWs 1 to 28 recorded by the
enquiry officer carefully and as stated earlier evidence has proved only that
unaccounted money of Rs.7805/- and Rs.1290/- were recovered from the police
station by the Inspecting officer. Even though this may raise strong
suspicion that it must be ill-gotten wealth. Suspicion cannot be substituted
for proof and it will be not fair to punish each and every applicants for the
discovery of unaccounted amount in the police station premises in the absence
of any further evidence to connect the money with these applicants and also in
the absence of any evidence to show that these people have taken shares from
such ill-gotted wealth.”
27. On the basis of the findings, the learned Judge came to
the following conclusion.
” Therefore, I hold for the reasons stated above that there is
absolutely no evidence to substantiate the charges against the applicants that
they have collected mamool from offenders of the Prohibition Act and the
amount collected has been shared by Inspectors of Police to Police Constables
Grade-II.”
28. From the above it is clear that with regard to Charge
No.2, since P.W.28 D.S.P., Krishnagiri, deposed that no excess amount was
collected and what was collected from the offenders has been accounted for
properly, the learned Judge came to the conclusion, in the absence of any
independent evidence that the first respondents collected the amount in excess
from the offenders under Prohibition Act, no amount was collected in excess by
the first respondents and thereby the second charge was disproved.
29. Though the Tribunal found that the amount of Rs.7805/-
and Rs.1 290/- recovered from the premises of the Police Station is proved, no
evidence is available to connect the first respondents with the recovered
amount.
30. Relying on the principles laid down by the Apex Court in
Lalit Poli Vs. Canara Bank and Others (2003) 3 Supreme Court Cases 583, the
learned Additional Advocate General would contend that the Court cannot sit in
appeal on the findings of the disciplinary authority.
31. However, we cannot accept such contention, in view of the
principles laid down by the Supreme Court in Kuldeep Singh Vs. The
Commissioner of Police and others (1998(9) Supreme 452), which was relied on
by the learned counsel appearing for the first respondents.
32. The Supreme Court in the above decision held as follows:
“It is no doubt true that the High Court under Article 226 or
this Court under Article 32 would not interfere with the findings recorded at
the departmental enquiry by the disciplinary authority or the Enquiry Officer
as a matter of course. The Court cannot sit in appeal over those findings and
assume the role of the Appellate Authority. But this does not mean that in no
circumstance can the Court interfere. The power of judicial review available
to the High Court as also to this Court under the Constitution takes in its
stride the domestic enquiry as well and it can interfere with the conclusions
reached therein if there was no evidence to support the findings or the
findings recorded were such as could not have been reached by an ordinary
prudent man or the findings were perverse or made at the dictate of the
superior authority. The findings, recorded in a domestic enquiry, can be
characterised as perverse if it is shown that such a finding is not supported
by any evidence on record or is not based on the evidence adduced by the
parties or no reasonable person could have come to t hose findings on the
basis of that evidence.
Normally the High Court and this Court would not interfere
with the findings of fact recorded at the domestic enquiry but if the finding
of “guilt” is based on no evidence, it would be a perverse finding and would
be amenable to judicial scrutiny. A broad distinction has, therefore, to be
maintained between the decisions which are perverse and those which are not.
If a decision is arrived at on no evidence or evidence which is thoroughly
ureliable and no reasonable person would act upon it, the order would be
perverse. But if there is some evidence on record which is acceptable and
which could be relied upon, howsoever compendious it may be, the conclusions
would not be treated as perverse and the findings would not be interfered
with.”
33. In the case on hand, as we already discussed above, the
third respondent imposed the extreme punishment, i.e. dismissal from service,
on the first respondents purely based on the evidence of ten official
witnesses, whereas 18 independent witnesses have not supported the case of
prosecution and even out of ten, P.W.28 D.S.P. Krishnagiri has categorically
stated that no excess amount was received from the offenders under the
Prohibition Act, the findings of the disciplinary authority, in the eye of
law, are perverse. When the alleged act of collecting bribery amount is said
to be done by the first respondents, who are all police personnel, the
evidence of independent witness is indispensable to prove the same. In our
view, when the evidence of official witnesses has not been corroborated by the
independent witness, the evidence of such official witnesses is unreliable and
therefore, the imposition of extreme punishment on the basis of uncorroborated
and unreliable evidence is not sustainable under law and therefore, the same
is liable to be set aside. It cannot be said that there is no threat or
pressure or motive to the official witnesses to give evidence against the
first respondents and in such circumstances, we cannot rely the evidence of
such official witnesses unless the same is corroborated by the independent
witnesses or proved that there is no pressure or threat or motive for giving
evidence by the official witnesses. In the above circumstances, we can only
say, following the principle laid down in the above decision, which is
squarely applicable to the case on hand and relied on by the counsel for the
first respondents, that the findings the disciplinary authority are perverse
and on that basis, the imposition of extreme punishment is arbitrary.
34. Further, as laid down by the Apex Court in SHER BHADUR
VS. UNION OF INDIA AND OTHERS ((2002) 7 SUPREME COURT CASES 142), when in the
case on hand, the evidence of official witnesses does not establish the
connection or link or nexus between the recovered amount and the first
respondents, such evidence cannot be treated as evidence in the eye of law and
therefore, we are of the view that the findings of the disciplinary authority
on the basis of such evidence are perverse and thereby the dismissal of the
first respondents from service is unsustainable under law.
35. Further, the contention of the learned Additional
Advocate General is that the first respondents have filed Original
Applications without exhausting the remedies available under the Act and that
the Tribunal ought not to have entertained the applications of the first
respondents and therefore, the order passed by the Tribunal on unentertainable
applications is to be set aside as the same is against Section 20 of the
Administrative Tribunals Act, 1985.
36. We have gone through the Section 20 of the Administrative
Tribunals Act.
37. First of all the above contention should have been raised
before the Tribunal.
38. On a plain reading of Sub-Section 1 to Section 20 of the
Act, what we can infer is that the Tribunal ordinarily shall not admit an
application unless it is satisfied that the applicant had availed of all the
remedies available to him under the relevant service rules as to redressal of
grievances.
39. In the case on hand, when the livelihood of the first
respondents is deprived of and to get remedied the same, it is not proper to
expect even for a prudent person that they should avail all the remedies
available under the Act and only then they should knock the door of Court of
law. The circumstances, under which the first respondents have approached the
Tribunal, cannot be and should not be seemed as ordinary.
40. In this regard, the learned counsel appearing for the
first respondents relied on the decision of the Supreme Court in HARBANSLAL
SAHNIA AND ANOTHER VS. INDIAN OIL CORPN. LTD AND OTEHRS((2003) 2 SUPREME
COURT CASES 107), is squarely applicable.
41. Further, the learned Additional Advocate General would
contend that the reinstatement of corrupt police personnel would tarnish the
image of the Police Department and therefore, the order of the Tribunal has to
be set aside.
42. While we have perused the proceedings of the third
respondent, we have seen his anguishness and concern expressed in his
proceedings. The proceedings reads as follows:
” The proved charge is very serious in nature casting dark
shadows in the conduct of a police officer. A corrupt police personnel harms
the good name of the Police Department and the Govt. and is also a blood
sucking parasite on the common man and the society which is at his mercy.
Instead of being the custodian and protector of the dry law he has himself
become the predator and allowed the boot-leggers to continue their trade. If
the fence designed to protect the crops starts eating the crops, there is no
need for such a fence. ”
43. As we have already come to the conclusion that the
findings of the disciplinary authority against the first respondents are
perverse and on the basis of such finding, the dismissal of the first
respondents from service is not sustainable under law, the contention of the
learned Additional Advocate General cannot be accepted as the first
respondents are not corrupt in the eye of law and thereby their reinstatement
would not tarnish the image of Police Department and the Government.
44. As per the famous proverb, “As is the king, so are the
subjects”, unless the Head of Government and its machineries are committed to
wipe out or eliminate corruption, which is a chronic tumor to the society as a
whole, and chalk out stern and effective measures, whatever the preachings
with regard to elimination of corruption would only become a farce. One Ramu
Goes then one Somu comes to sustain corruption. In other words, the said
tumor, corruption, never goes unless and until the above said commitment and a
movement in that direction is emerged, which this Country needs.
45. In the light of above discussions, we are of the view
that the order of the Tribunal is not suffered from any kind of infirmity.
46. In result, we dismiss all these Writ Petitions confirming
the order of the Tribunal. No costs. Consequently, connected W.P.M.Ps. are
also dismissed.
RNB
Index: Yes.
Internet:Yes.
To
1.The Secretary to Government
Home (Police) Department, Chennai-9.
2.The Director General of Police,
Kamarajar Salai, Chennai-4.
3.The Deputy Inspector General of Police
Salem Range, Salem.
4.The Superintendent of Police
Dharmapuri District.
5.The Registrar
Tamil Nadu Administrative Tribunal
Chennai.