IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 08/03/2004
Coram
THE HONOURABLE MR.JUSTICE R.JAYASIMHA BABU
and
THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM
Writ Petition No.1910 of 2001 and Writ Petition No. 1911 of 2001
W.P.No.1910 of 2001:
1.The State of Tamil Nadu
rep. by its Secretary to Government,
Home (Police.1A) Department.
Fort St. George, Chennai-9.
2.The Director General of Police,
Chennai-4. ..Petitioners
-Vs-
1. S. Nagaraj
2. The Registrar,
Tamil Nadu Administrative
Tribunal, High Court Buiding,
Chennai-104. .. Respondents
W.P.No.1911 of 2001:
The State of Tamil Nadu
rep. by the Secretary to Government,
Home Department,
Fort St. George,
Chennai-9. .. Petitioner
Vs.
1.S. Nagaraj
2. The Commissioner
Tribunal for Disciplinary Proceedings
Tirunelveli-2.
3. The Registrar,
Tamil Nadu Administrative
Tribunal,
Chennai. .. Respondents
Writ petitions filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari as stated therein.
For Petitioners : Mr.S.T.S. Moorthy,
Spl.G.P.
For Respondent-1 : Mr.A. Amalraj
----
:C O M M O N O R D E R
M.KARPAGAVINAYAGAM, J.
The State, the petitioner herein, aggrieved by the orders of the
Tribunal reinstating the first respondent,Deputy Superintendent of Police and
directing the State to give notional promotion as Additional Superintendent of
Police in O.A.No.6229 of 1999 and O.A.No.3838 of 2000 , has filed these two
writ petitions in W.P.Nos.1910 of 2001 and 1911 of 2001 respectively.
2. The facts in brief are as follows:
(a)S.Nagaraj, the first respondent herein joined police service as Sub
Inspector of Police on 23.11.1965. In 1977, he was promoted as Inspector of
Police. In 1991, he was promoted as Deputy Superintendent of Police. He was
working as Deputy Superintendent of Police (Law and Order) at Aruppukottai
from 14.11.1997 to 21.8.1998. During that period, he organised prohibition
raids to curtail illicit sale of arrack. Queens Rathnavel, a native of
Aruppukottai owning 9 Wine Shops and 2 Cinema Theatres, met the D.S.P.
Nagaraj and requested him to put down the illicit sale of arrack around his
area.
(b) On 13.7.1998, the D.S.P. demanded Rs.15,000/- as monthly Mamool
for the 9 Wine Shops. Queens Rathnavel expressed his inability to pay the
amount. The D.S.P. threatened him that if the amount is not paid, he would
book cases against him. On 21.7.1998, Rs.10,000/- was paid. The balance
amount of Rs.5,000/- was not paid. So, on 21.7.199 8, the Sub Inspector of
Police booked cases against the Theatres as well as the Wine Shops owned by
him.
(c) On 23.7.1998, Queens Rathnavel and his men came to the station and
shouted at the D.S.P. about the arrest of his men. He was pacified and sent.
On 26.7.1998, the D.S.P. contacted Queens Rathnavel over phone and demanded
the balance of Rs.5,000/-. As he was not willing to pay the amount, on
28.7.1998, he lodged a complaint with the Deputy Superintendent of Police,
Vigilance and Anti-corruption, Virudhunagar and the same was registered
against the first respondent in Crime No.2 of 1998 under Sections 7 and 13(2)
read with 13(1)(d) of the Prevention of Corruption Act.
(d) A trap was laid. Even though the trap did not materialise, the
tainted notes of Rs.5,000/- was recovered from the first respondent and the
same was sent to the Chief Judicial Magistrate.
(e) On 19.8.1998, on the basis of the above case, the suspension order
was issued. Against this order, the first respondent filed a writ petition
before the High Court in W.P.No.2742 of 1999.
(f) On 19.2.1999, the High Court disposed of the writ petition
directing the authorities to complete the enquiry within a period of six
months and if the enquiry is not completed within the stipulated time, the
delinquent officer has to be reinstated.
(g) In the meantime, on 9.9.1998, a panel of D.S.Ps. was prepared for
promotion as AD.S.P. On 16.9.1998, the delinquent officer was informed that
his name for promotion has been deferred, since he is under suspension and his
claim will be considered after proceedings are concluded.
(h) Despite the orders of the High Court directing the enquiry to be
completed within six months, the enquiry was not completed. Therefore, on
30.8.1999, the suspension order was revoked and he was reinstated.
Accordingly, he joined duty on 16.9.1999.
(i) Thereafter, on 25.9.1999, he filed an application in O.A.No.6229
of 1999 before the Tribunal for quashing the order of the Government dated
16.9.1998 deferring his promotion till the conclusion of the disciplinary
proceedings.
(j) On 28.3.2000, the charge memo was issued against the first
respondent asking to come and appear before the Enquiry Officer on 27.4.20 00.
(k) The first charge would relate to the demand of Rs.15,000/- as
mamool from Queens Rathnavel to curtail illicit sale of arrack and accepted a
portion of the amount of Rs.10,000/- from him and demanded the balance amount
of Rs.5,000/-, thereby violated Rule 24 of the Tamil Nadu Subordinate Police
Officers Conduct Rules. 32 witnesses were cited for proving this charge.
(l) The second charge would relate to the demand of Rs.1,000/- per
month from December 1997 to July 1998 from one Ramamoorthy and the demand of
Rs.3,000/- and receipt of Rs.2,000/- for the month of July 199 8 from one Bose
and the demand of Rs.2,000/- per shop and receipt of bribe from Thavasiana
Thevar for the month of July 1998 and the demand and receipt of Rs.1,500/- per
shop from Ponnusamy, Sakthivel, Shanmugam and Singapuli to curtail the illicit
sale of arrack. For proving this charge, 26 witnesses were cited.
(m) On the basis of this proceeding, on 18.7.2000, suspension order
was issued. On 24.7.2000, on the basis of the suspension, the Government
issued order that Nagaraj, the D.S.P. shall not be permitted to retire from
service on his reaching the date of superannuation, i.e. on 31.7.2000.
(n) In the meantime, in June 2000, he filed an application in O.A.
No.3838 of 2000 seeking for quashing of the charge memo dated 28.3.2000 and to
permit him to retire peacefully on 31.7.2000.
(o) On entertaining O.A.No.3838 of 2000, the Tribunal ordered on
13.6.2000 notice of motion returnable by 20.6.2000. The case was subsequently
adjourned to 30.8.2000 for filing counter. But, the Tribunal took up the case
on 27.7.2000 itself even without the counter and decided the case by going
through the files and hearing the arguments of the counsel for the delinquent
officer and the Government Advocate and quashed the charge memo. The Tribunal
further as a consequential order in O.A.No.6229 of 1999 gave notional
promotion as AD.S.P. through the common order dated 27.7.2000.
3. As noted above, these two orders are under challenge in these two
writ petitions filed by the State.
4. Mr.S.T.S. Moorthy, the learned Special Government Pleader
appearing for the State would mainly attack the impugned orders passed by the
Tribunal contending that quashing of the charge memo without allowing the
Department to conduct enquiry on the ground of malice is clearly wrong as
there is no material whatsoever for such conclusion and as such, the
reasonings given in the impugned orders are perverse and the same are liable
to be set aside. He would cite number of authorities to substantiate his
contention.
5. Arguing contra, Mr.A.Amalraj, the learned counsel for the first
respondent in justification of the impugned orders would refer to several
judgments including the judgment of the Calcutta High Court referred to in the
impugned orders would submit that the charge was a motivated one and there is
an enormous delay for framing charges and as such, the writ petitions have to
be dismissed.
6. We have heard the counsel for the parties and also gone through
the impugned orders.
7. Before going into the merits of the rival contentions urged by the
counsel for the parties, it would be worthwhile to refer to the guidelines in
the matter of appreciation of the issue and analysis of the materials by the
Tribunal, while dealing with the prayer to quash the charge memo without
enquiry.
8. Those guidelines are as follows:
(A) The truth or otherwise of the charges is a matter for the
disciplinary authority to go into. The Tribunal has no jurisdiction to look
into the truth of the charges or into the correctness of the findings recorded
by the disciplinary authority.
(B) The Tribunal should not interfere at an interlocutory stage. It
cannot choose to interfere on the basis of the material which is yet to be
produced at the inquiry. The Tribunal cannot undertake an inquiry which ought
to be held by the disciplinary authority and find that the charges are not
true.
(C) The Tribunal cannot go into the exercise of finding out the
correctness or otherwise of the charges levelled against the delinquents. It
is not permissible under law for the Tribunal to re-evaluate and reassess the
evidence and to come to the finding that the charges levelled against the
delinquents are not proved. The Tribunal cannot take over the functions of
the disciplinary authority.
(D) At the stage of framing of the charge, the statement of facts and
the charge sheet alone are required to be looked into by the Tribunal as to
the nature of the charges, i.e., whether the statement of facts and material
in support thereof supplied to the delinquent officer would disclose the
alleged misconduct. The Tribunal cannot go beyond that.
(E) When on a perusal of charges, it is found that the charges are
very serious, the Tribunal cannot incline to close the matter only on the
ground that about 16 years have elapsed since the date of commencement of
disciplinary proceedings, more particularly when the department alone cannot
be held responsible for the delay.
(F) It is not possible to lay down any predetermined principles
applicable to all cases and in all situations where there is delay in
concluding the disciplinary proceedings. Whether on that ground the
disciplinary proceedings are to be terminated, each case has to be examined on
the facts and circumstances in that case.
(G) The essence of the matter is that the court has to take into
consideration all the relevant factors and balance and weigh them to determine
if it is in the interest of clean and honest administration that the
disciplinary proceedings should be allowed to terminate after delay,
particularly when the delay is abnormal and there is no explanation for the
delay.
(H) In considering whether delay has vitiated the disciplinary
proceedings, the court has to consider the nature of the charge, its
complexity and on what account the delay has occurred. If the delay is
unexplained, prejudice to the delinquent employee is writ large on the face of
it. It could also be seen as to how much the disciplinary authority is
serious in pursuing the charges against its employee.
9. These guidelines have been propounded by the Supreme Court in the
following decisions:
1)In UNION OF INDIA AND OTHERS v. UPENDRA SINGH (1994(3) S.C.C.357 );
2) In DISTRICT FOREST OFFICER v. R. RAJAMANICKAM (2000(9) S.C.C.284 );
3)In THE DEPUTY INSPECTOR GENERAL OF POLICE v. K.S. SWAMINATHAN (19 97(1)
S.L.R.176);
4)In DEPUTY REGISTRAR, COOP. SOCIETIES v. SACHINDRA NATH PANDEY (19 95(3)
S.C.C.134);
5)STATE OF A.P. v. RADHAKISHAN (1998(4) S.C.C.154).
10. Bearing these guidelines in mind, if we look at the present facts
of the case, we are constrained to express our shock and displeasure over the
impugned orders passed by the Tribunal. It is quite agonising to note that
the Tribunal has thrown all these guidelines into the wind while arriving at
the hasty conclusion that the charge memo is liable to be quashed.
11. The imputations made against the delinquent officer are extremely
serious. The facts alleged, if proved would establish the misconduct and
corrupt activities of the delinquent officer. It is surprising to note that
even without a counter being filed, and even without considering the question
whether the contents of the charges deserved to be enquired into or not, the
Tribunal hastened to quash the charges. We could only say rather with pain,
“it is quite unfortunate”. If the disciplinary proceedings in such serious
matters are quashed so lightly as it has been done in this case, it would be
extremely difficult to bring any wrong-doer to book.
12. It is settled law that quashing of the charge memo with serious
allegations of misconduct and corruption without allowing the Department to
conduct enquiry is not at all justifiable. In this case, in the words of the
Supreme Court, apparently, the Tribunal proceeded in haste in passing the
impugned orders quashing the charge memo even before the ink is dried on the
orders passed by the appointing authority.
13. The monstrous feature that we could notice in the impugned order
is that although Tribunal has in clear terms observed in the instant case that
it is not for the Tribunal to analyse the facts leading to the charge memo;
and the power of judicial review which is very much restricted has to be
exercised judiciously and reasonably, unfortunately, it has accepted the
defence theory blindly. How can there be the appreciation and analysis of the
materials of the defence alone without considering the materials through the
witnesses to be produced by the prosecuting officer for proving the charges?
It is quite amazing.
14. In the case of charges framed in a disciplinary inquiry, the
Tribunal can interfere only if on the charges framed no misconduct or other
irregularity alleged can be said to have been made out or the charges framed
are contrary to any law. At the early stage, the Tribunal has no jurisdiction
to go into the correctness or truth of the charges. The Tribunal cannot take
over the functions of the disciplinary authority. The truth or otherwise of
the charges is a matter for the disciplinary authority to go into. But,
the reading of the orders impugned would go to show that the Tribunal has
passed the orders which would indicate that they are the classic example to
show how the justice could be made a casuality.
15. Let us now quote the reasonings given by the Tribunal for quashing the
charge memo and giving direction for promotion. The reasonings are these:
(A) The corruption case on the complaint of Queens Rathnavel against
the D.S.P., the first respondent was registered on 28.7.1998. Even before
that date, i.e. on 22.7.1998, six days earlier, Queens Rathnavel and 10
others came to the Station and warned the D.S.P. that he would face the
consequences for having registered cases against his Theatres and Wine Shops.
For this occurrence, the relevant G.D. entries have been made on 22.7.1998
and 23.7.1998 and report also has been sent to the S.P. on 23.7.1998 and
27.7.1998. These entries would show that in order to wreak vengeance on the
D.S.P., a false case has been registered at the instance of Queens Rathnavel
on 28.7.1998. Admittedly, there is no trap in this case. The suspension
order was passed within a month after registration of the case. Therefore,
the entire proceedings have been wrongly initiated only at the instance of the
false complaint given by Queens Rathnavel who is indulging in illegal and
unlawful activities.
(B) Though the suspension was ordered on 19.8.1998, the charge memo
came to be issued only on 28.3.2000. This delay would show that there is a
prima facie case of mala fide. The delinquent officer who is a honest and
disciplined public servant has been victimised and harassed at the instance of
a disgruntled element, the complainant who is interested in perpetuating the
illegal and unlawful activities.
(C) As against the suspension order, the first respondent filed a writ
petition in W.P.No.2742 of 1999 and direction was issued on 19.2.1 999 that
the enquiry must be completed within a period of six months. Despite that
direction, the enquiry was not completed. The charges were framed only on
28.3.2000, after lapse of more than a year. When the direction of the High
Court has not been obeyed, it would be proper to quash the charge memo.
16. These reasonings and findings, in our view, are patently wrong
and without any basis. The Tribunal had not gone into the question whether
these entries mentioned in the General Diary were made by the respective
officers at the relevant time and whether any report has been sent by D.S.P.
to S.P. As a matter of fact, the G.D. entries as produced by the defence
dated 22.7.1998 and 23.7.1998 are quite contradictory. The G.D. entries by
the Sub Inspector and the Inspector would vary in respect of various
particulars with the contents of the alleged report and weekly report stated
to have been sent by D.S.P. to S.P. How could then accept the G.D. entries
which are self serving documents produced by the delinquent officer before the
Tribunal without allowing the Department for conducting enquiry to find out
the truth?
17. The peculiar feature which could be noticed is that the alleged
threatening incident took place on 23.7.1998, but the entry has been made with
reference to the said incident in the G.D. maintained by the Inspector of
Police on 22.7.1998 itself. In such a situation, it is quite strange to see
that the Tribunal accepted the defence documents which are admittedly
contradictory and jumped to the conclusion that Queens Rathnavel and his men
came and threatened the D.S.P. for having booked cases against his Theatres
and Wine Shops and therefore, he made a false complaint to the Vigilance on
28.7.1998. Simply because Queens Rathnavel is owning 10 Wine Shops and 2
Cinema Theatres, the Tribunal would hasten to conclude that Queens Rathnavel
is a disgruntled element dealing in illegal activities and as such, the
delinquencies are doubtful, in the absence of any other material.
18. It is the specific case of the Department that he demanded Rs.15
,000/- as mamool from the complainant Queens Rathnavel and out of that
Rs.15,000/-, Rs.10,000/- was paid. When he persisted for the balance amount
of Rs.5,000/-, Queens Rathnavel gave a complaint to the Vigilance and a case
under Corruption Act has been registered on 28.7.19 98 against the first
respondent.
19. According to the Department, the amount has been recovered from
the first respondent during a trap. But strangely, the Tribunal has observed
that trap has not been organised. Further, the Tribunal has given encomium to
the first respondent as a honest and disciplined public servant.
We are at a loss to understand as to how could the Tribunal to give such a
clean certificate to the first respondent who has been facing very serious
charges.
20. The Tribunal has referred to the non-compliance of the High Court
order and the delay in completion of the enquiry without understanding the
factual position. On 19.8.1998, on the basis of a corruption case, the first
respondent, the D.S.P. was suspended. Against the said suspension order, he
filed a writ petition in W.P.No.2742 of 1999. When the writ petition was
disposed of by the order dated 19.2.1999 , the High Court directed to complete
the enquiry within six months and if the Department is not able to finish the
enquiry within six months, he must be reinstated. This order was obeyed by
the Department by reinstating the first respondent by the order dated
30.8.1999 since the enquiry was not completed within six months. As per the
said order, the first respondent joined on 16.9.1999. How could then the
question of non-compliance of the High Court order would arise?
21. Then, by G.O.Ms.No.1300 dated 28.9.1999, the first respondent was
placed on his defence before the Commissioner for Disciplinary Proceedings.
Accordingly, on 28.3.2000, the Commissioner for Disciplinary Proceedings
framed two charges. This was served on the delinquent officer on 16.5.2000.
Thereafter, the first respondent filed O.A.No.3 838 of 2000 for quashing the
charge memo. Further, the Vigilance Department instead of prosecuting the
matter before the Court of law after investigation, recommended to the
Department for initiating disciplinary proceedings. Accordingly, the
Commissioner for Disciplinary Proceedings framed the charges on 28.3.2000. As
such, there is no delay. Even if there is some delay, the delay has been
properly explained.
22. As held by the Supreme Court, it is not possible to lay down any
predetermined principles where the delay is caused. Whether on the ground of
delay, the disciplinary proceedings are to be terminated, each case has to be
examined on the facts and circumstances in that case. The essence of the
matter is that the Court has to take into consideration all the relevant
factors and balance and weigh them to determine if it is in the interest of
clean and honest administration that the disciplinary proceedings are allowed
to be terminated after delay.
23. In considering whether delay has vitiated the disciplinary
proceedings, the Court has to consider the nature of the charge, its
complexity and on what account the delay has occurred. It could also be seen
as to how much the disciplinary authority is serious in pursuing the charges
against its employee. It is the basic principle of administrative justice
that an officer entrusted with a particular job has to perform his duties
honestly, efficiently and in accordance with the rules. If he deviates from
this path, he is to suffer a penalty prescribed. It is true that delay causes
prejudice to the charged officer unless it is shown that he is to blame for
the delay or when there is proper explanation for the delay in conducting
disciplinary proceedings.
24. But in this case, due to the so-called ‘delay’, the delinquent
officer cannot claim prejudice. It cannot also be said that there is an
inordinate delay which would vitiate the disciplinary proceedings. In this
case, we have to take note of the serious nature of the charge, namely regular
receipt of mamool (bribe) from several persons. As such, mere delay would not
be a ground to hold that the disciplinary proceedings are vitiated. The
Tribunal without considering these things rushed to the conclusion that it is
a mala fide simply because there is a delay. As noted above, there is no
basis for such conclusion.
25. As a matter of fact, the Apex Court in 1995 (3) S.C.C.134 (
supra), has held that mere elapsing of a long period of 16 years from the date
of commencement of departmental enquiry would not be a sufficient ground to
close the matter.
26. The impugned orders can be looked at from yet another angle. The
entire reasonings given by the Tribunal would relate to the first charge
alone. The Tribunal has conveniently forgotten the second charge. As noted
above, there are two charges. The first charge is with reference to the
complaint of Queens Rathnavel. The charge memo contains the names of 32
witnesses. With reference to the second charge, four incidents were shown
where the D.S.P., the delinquent officer received the bribe amounts on various
occasions from four persons. To prove the second charge, 26 witnesses were
cited. Admittedly, the Tribunal neither referred to this second charge nor
concluded that the contents of this charge would not show any misconduct. As
such, without allowing the authorities to examine the witnesses cited in both
the charges, the Tribunal concluded that the proceedings are mala fide by
simply observing that the complainant Rathnavel is a disgruntled element.
27. As indicated above, this observation against Queens Rathnavel is
not supported by any material. Further, the Tribunal has completely omitted
the second charge which would relate to the complaints by four other persons.
Thus, it is evident that the impugned orders would reflect the perversity and
as such, conclusion is the outcome of lack of application of mind.
28. The counsel for the respondent lastly contended that even if this
Court finds that the impugned order is not valid in law, fresh enquiry need
not be ordered in view of the fact that the first respondent had already
superannuated. He has cited the decisions in BHUPINDER PAL SINGH v. DIRECTOR
GENERAL OF CIVIL AVIATION (2003(3) S.C.C.633) and UNION OF INDIA v. RAJBIR
SINGH KHANNA (2001(7) S.C.C.113).
29. The facts of these cases would not help the first respondent.
The first case would deal with the order of removal after departmental enquiry
which was held to be clear violation of the principles of natural justice.
Therefore, the Apex Court in that case would hold that de novo inquiry is
unnecessary. In the latter case, the Supreme Court taking into consideration
the matter travelled up to the Supreme Court as a third round of litigation
and keeping in view of the totality of the circumstances of the case, would
hold that the general court marshal proceedings shall stand dropped.
30. These observations have been made by the Supreme Court taking
into consideration the various other factors and also the nature of the
allegations. But, in this case, the nature of the allegations, namely
misconduct and corruption are so serious and his superannuation was in 2000
and only four years have elapsed.
31. Considering the impugned order in any angle, we are to conclude
that the same is illegal and consequently, we have no hesitation in setting
aside the impugned order of the Tribunal. We direct that the disciplinary
proceedings against the delinquent officer in terms of the charge memo dated
28.3.2000 shall be proceeded with in accordance with law. The disciplinary
proceedings should be proceeded with immediately on receipt of this order and
the same should be finished within twelve months thereafter.
32. It is made clear that the Enquiry Officer is required to give his
finding on the basis of the materials produced by both the parties
uninfluenced by any of the observations made by this Court with reference to
the defence.
33. To sum up:
i)The common order passed by the Tribunal in O.A.No.6229 of 1999 and
O.A.No.3838 of 2000 is set aside.
ii)The disciplinary proceedings against the first respondent, the delinquent
officer in terms of the charge memo dated 28.3.2000 are directed to be
proceeded with in accordance with law.
iii)The disciplinary proceedings should be proceeded with immediately on
receipt of this order and the same should be finished within twelve months
thereafter.
Index :Yes
Internet:Yes
mam
Copy to:
1. The State of Tamil Nadu
rep. by its Secretary to Government,
Home (Police.1A) Department.
Fort St. George, Chennai-9.
2. The Director General of Police,
Chennai-4.
3. The Commissioner
Tribunal for Disciplinary Proceedings
Tirunelveli-2.
4. The Registrar,
Tamil Nadu Administrative
Tribunal, High Court Building,
Chennai-104.