{"id":254560,"date":"2010-04-06T00:00:00","date_gmt":"2010-04-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/t-selvam-vs-the-deputy-inspector-general-of-on-6-april-2010"},"modified":"2015-05-21T20:50:01","modified_gmt":"2015-05-21T15:20:01","slug":"t-selvam-vs-the-deputy-inspector-general-of-on-6-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/t-selvam-vs-the-deputy-inspector-general-of-on-6-april-2010","title":{"rendered":"T.Selvam vs The Deputy Inspector General Of … on 6 April, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
T.Selvam vs The Deputy Inspector General Of … on 6 April, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 06\/04\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE P.JYOTHIMANI\n\nWrit Petition(MD)No.8039 of 2009\nand\nM.P.(MD)Nos.1 and 2 of 2009\n\n\nT.Selvam\t\t\t\t\t... Petitioner\n\nVs\n\nThe Deputy Inspector General of Police,\nTirunelveli,\nTirunelveli District.\t                        ...   Respondent\n\n\nPRAYER\n\nPetition filed under Article 226<\/a> of the Constitution of India for the\nissuance of a Writ of Certiorarified Mandamus, calling for the records\npertaining to the impugned order of the respondent passed in P.R.No.18\/2009\n(Tirunelveli Range Office) P.R.No.108\/2008\/Thoothukudi District dated 08.07.2009\nand quash the same and consequently, directing the respondent to pass final\norders as per the Enquiry Officer's Report in accordance with law.\n\n!For Petitioner  ... Mr.Veera.Kathiravan\n^For Respondent\t ... Mr.V.Rajasekaran\n\t\t     Special Government Pleader.\n\n:ORDER\n<\/pre>\n
\tThe Writ Petition is directed against the show cause notice issued by the
\nrespondent, dated 08.07.2009 differing from the finding of the Enquiry Officer
\nin respect of the second and third counts of charges and directing the
\npetitioner to put forth his further representation within 15 days.\n<\/p>\n
 \t2.The petitioner was directly recruited as Sub Inspector of Police on
\n14.06.1999 originally posted at Perambalur District and thereafter, he was
\ntransferred to Ettayapuram Police Station wherein he is working as Sub Inspector
\nof Police. There was a preliminary enquiry initiated by the Additional
\nSuperintendent of Police (Prohibition and Enforcement Wing), Tuticorin District
\nin respect of certain allegations raised against the petitioner which pertains
\nto certain investigation conducted by the petitioner in Kurumbur Police Station
\nin Crime No.59 of 2008 in which having found that the complaint of one
\nSudalaikumar was not true and referred the case on 17.06.2008 as mistake of fact
\nhe has made Dr.Mani and Guna to sign in the police station from 21.06.2008 to
\n14.07.2008 stated to be in obedience to the condition of anticibatory bail
\nknowing that they were innocent and falsely implicated a case and harassed them
\nand to the effect that the petitioner has not mentioned about his visit to
\nSurandai Police Station and he has not examined the accused Dr.Mani and Guna. In
\nthe preliminary enquiry report such a finding has been arrived at, however,
\nstating that no evidence could be obtained regarding the malpractice by the
\npetitioner by getting any illegal gratification. Thereafter, a charge memo came
\nto be issued against the petitioner on 29.12.2008 levelling three charges which
\nare as follows:\n<\/p>\n
\t“i)Gross negligence of duty in having failed to write case diary in
\nKurumbur P.S.Cr.No.59\/08 about his visit to Surandai P.S. on 12.06.2008 and
\ninvestigation of Dr.Mani at Surandai P.S.;\n<\/p>\n
\tii)Highly reprehensible conduct in having misused his official powers and
\nmade Dr.Mani and Tr.Guna to sign in the Police Station from 21.06.2008 to
\n14.07.2008 in abidance of the condition of Anticipatory Bail obtained from the
\nSessions Court, Thoothukudy and harassed Dr.Mani and Tr.Guna even though he has
\nreferred the case in Kurumbur PS Cr.No.59\/2008 as “Mistake of Fact” on
\n17.06.2008 itself.\n<\/p>\n
\tiii)Highly reprehensible conduct in having failed to conduct first
\ninvestigation in the casein Kurumbur PS Cr.No.82\/2008 u\/s 420 IPC<\/a> before
\ntransferring the case to Muneerpallam PS on 13.08.2008″.\n<\/p>\n
\t3.The Deputy Superintendent of Police, Tuticorin was appointed as Enquiry
\nOfficer and after the petitioner has submitted his explanation on 23.03.2009 and
\nafter the eqnuiry was conducted, the Enquiry Officer found that except the
\ncharge No.1, the other two charges are not proved.  Based on the said enquiry
\nreport, dated 07.05.2009, the petitioner has submitted his explanation and
\nthereafter, the respondent under the impugned dissenting minute while differing
\nthe Enquiry Officer’s report in respect of charge Nos.2 and 3 has given
\ndirecting the petitioner to submit his further representation. It is stated that
\nthereafter, the petitioner has requested by his representation on 21.07.2009 for
\nfurther records and they were also submitted on 10.08.2009 giving 7 days further
\ntime to explain. In these circumstances, the impugned dissenting minute is
\nchallenged by the petitioner under various grounds including that the charges
\nare vague; that even if the respondent differs from the Enquiry Officer’s
\nreport, the impugned dissenting minute has predetermined issue that the enquiry
\nOfficer’s report is contradicted by the respondent only on the basis of
\ndocuments stated to have been collected during discrete enquiry which cannot be
\nthe basis for the show cause notice; that the differing view can be possible in
\nrespect of the Enquiry Officer’s report only based on the documents which were
\nproduced during the time of enquiry and not the documents relied upon during the
\npreliminary enquiry  and it is only the enquiry which can be reevaluated for the
\npurpose of arriving at a different conclusion; that the trial Court in the order
\nbased on the anticipatory bail application has imposed certain conditions on the
\naccused to appear before the police station and that was only executed and that
\ncannot be a ground for the dissenting minute; that the entire dispute was
\nrelating to the properties situated within the limits of Kurumbur Police Station
\nand that the charges were framed on improper facts.\n<\/p>\n
\t4.On the other hand, it is the case of the respondent as it is seen in the
\ncounter affidavit that the petitioner while working as Sub Inspector of Police
\nin Kurumbur Police Station has registered a complaint in Crime No.59 of 2008 on
\nthe basis of a complaint given by one Sudalaikumar and the petitioner during the
\ncourse of the investigation went to Surandai on 12.06.2008 for investigating
\nDr.Mani at his hospital and took him to Kurumbur Police Station and registered a
\ncase against him and directed him to come over to Kurumbur Police Station with
\nhis car for investigation and that fact was not written by him in the case diary
\nof Kurumbur Police Station. The petitioner having investigated the case in
\nKurumbur Police Station and completed the same and referred as mistake of fact
\non 17.06.2008 and even after that with full knowledge that the complainant has
\ngiven a false complaint falsely implicated Dr.Mani and Guna making them to sign
\nin the police station for more than three weeks from 21.06.2008 to 14.07.2008
\nsaid to be in obedience to the conditional bail granted and harassed them. The
\nsaid two persons have given petition before the Superintendent of Police,
\nTuticorin on 09.07.2008 about the conduct of the petitioner with a request to
\ntake action against the complainant Sudalaikumar and to get back his lands to
\nthe extent of 72 1\/2 cents situated in Munneerpallam village. That complaint was
\nsent to the Kurumbur Police Station with instructions to register a case and
\ninform and that was despatched on 09.07.2008 itself. It is stated that based on
\nthe said petition a case in Crime No.82 of 2008 was registered in Kurumbur
\nPolice station under Section 420<\/a> IPC against the said Sudalaikumar on
\n13.08.2008.  The petitioner who has earlier investigated the case has simply
\ntransferred the case to Munneerpallam Police Station without informing the
\ndetails of the case to the Superintendent of Police and he filed the FIR
\nbelatedly, on 13.08.2008 which is gross negligence and therefore, the above said
\nthree charges were framed against him. It is admitted that the charge in the
\nfirst count was proved and in respect of the count Nos.2 and 3, the Enquiry
\nOfficer has found as not proved. After further representation was called for as
\nper memo, dated 07.05.2009 for which the petitioner has submitted his
\nrepresentation on 26.05.2009 and after considering the same and the relevant
\nrecords having found that there are convincing grounds to disagree with the
\nfinding of the minutes of the Enquiry officer in respect of charge Nos.2 and 3,
\nthe impugned dissenting minute came to be issued and that was acknowledged by
\nthe petitioner on 10.08.2009 and the petitioner sought for the copies of
\nprosecution exhibits namely, Exs.P.1 to P.14 on 10.08.2009 which were submitted
\nto him. Instead of submitting his further representation, the petitioner has
\nfiled the present writ petition, challenging the dissenting minutes. It is
\nstated that the respondent being the disciplinary authority is entitled to
\ndiffer from the minutes of the Enquiry Officer, since there was sufficient and
\nreasonable grounds to differ. It is stated that the Enquiry Officer in respect
\nof charge Nos.2 and 3 has failed to consider unassailable documentary evidence
\nand therefore, the impugned minutes came to be issued.  The dissenting view in
\nrespect of the said charges were to be necessarily taken for the reason that the
\npetitioner who after investigation of Kurumbur Police Station in Crime No.59 of
\n2008 on the basis of a complaint given by Sudalaikumar against Dr.Mani and
\nanother having found that on investigation that the complaint was false and
\ntherefore, the same was referred as mistake of fact on 17.06.2008 has failed to
\ninform the same to the said Dr.Mani and Guna and that is the reprehensible
\nconduct and what is stated in Exs.P.10, 11 and 14 are only the records which
\nwere dealt with by the petitioner himself. The conduct of the petitioner in
\nfiling the FIR belatedly on 13.08.2008 against the complainant is established by
\nExs.P.7, 10 and 14 and therefore, it is stated that the respondent on the basis
\nof the clinching evidence against the petitioner has only exercised its
\ndiscretion in differing from the Enquiry Officer’s report.  It is also stated
\nthat what is impugned in this writ petition, is only a show cause notice and it
\nis always open to the petitioner to give proper representation and that will be
\nconsidered in its proper perspective. It is stated that the petitioner has
\nfailed to register the case against the complaint by proper investigation and
\nsimply transferred the case to Munneerpallam Police Station vide memo
\nC.No.47\/2008 which is a neglect of duty and the Enquiry Officer has not
\nconsidered the same.\n<\/p>\n
\t5.Mr.Veera.Kathiravan, learned counsel appearing for the petitioner would
\nsubmit that even though the impugned dissenting minute is in the form of a show
\ncause notice in respect of second and third charges to which the respondent has
\ndiffered from the enquiry officer’s report, such decision has been arrived at
\nbased on the documents which were produced during the time of preliminary
\ninvestigation and reports and if the disciplinary authority wants to differ from
\nthe Enquiry Officer’s report, it must be on the basis of the documents and
\nevidence adduced during the course of Enquiry Officer’s enquiry and his
\nfindings. It is his submission that any document produced during discrete
\nenquiry cannot be relied upon for the purpose of differing from the Enquiry
\nOfficer’s report. He would rely upon a judgment of this Court reported in  2009
\n(2) CLT 583 (P.Thangavel Vs. Director General of Police, Chennai and others) and
\nthe Division Bench judgment of this Court made in W.P.Nos.29862 and 32581  of
\n2002 (The Deputy Inspector General of Police, Villupuram and others
\nVs.V.Vannalperumal and others).\n<\/p>\n
\t6.On the other hand, it is the contention of the learned Special
\nGovernment Pleader that what is impugned in this writ petition is only a show
\ncause notice and no prejudice would be caused to the petitioner in giving
\nexplanation especially when the documents sought for by him have been furnished
\nto him and he has got every remedy available, even after the final order is
\npassed and therefore, according to him, the writ petition is premature.\n<\/p>\n
\t7.I have considered the submissions made on either side and perused the
\nentire materials available on record.\n<\/p>\n
\t8.A reference of the three charges show that the first charge relates to
\nCrime No.59 of 2008 in  Kurumbur Police Station and that was based on the
\ncomplaint given by Sudalaikumar against Dr.Mani and another. The petitioner
\nhaving registered the case in Kurumbur Police station being the Sub Inspector of
\nPolice, Kurumbur Police Station wherein the complaint was lodged, while visited
\nSurandai Police Station for the investigation of Dr.Mani at Surandai on
\n12.06.2008, has not recorded the same in the case diary.  Admittedly it is that
\nfirst charge which has been found to be proved by the Enquiry Officer in his
\nreport, dated 07.05.2009. In respect of that count, the Enquiry Officer has
\nfound that the petitioner as Investigating Officer has not mentioned about
\nexamination of Dr.Mani at Surandai police station in his case diary, dated
\n12.06.2008 and that was based on Exs.P.4 and 5 documents and having found that
\nthe statement of Dr.Mani before the Preliminary Enquiry Officer Ex.P.10 and also
\nhis statement before the Enquiry Officer, the first charge is said to be proved.\n<\/p>\n
\t9.As far as the second charge it relates to the alleged conduct of the
\npetitioner in making the said Dr.Mani and Guna to sign in the police station at
\nKurumbur Police Station from 21.06.2008 to 14.07.2008 inspite of having referred
\nthe case as mistake of fact on 17.06.2008. The Enquiry Officer in that regard
\nfound that the Sessions Court, Tuticorin has granted anticipatory bail to
\nDr.Mani and another on condition that they should report and sign in the
\nKurumbur Police Station and even though, on investigation the petitioner has
\nreferred the matter as mistake of fact on 17.06.2008, he has allowed the said
\nDr.Mani and another to sign in the police station from 21.06.2008 to 14.07.2008
\nstated to be in obedience of the court order, since the petitioner being
\nInvestigating Officer cannot modify the order of the Court, the case should have
\nbeen treated as pending till 17.10.2008. That decision was based on the
\nPreliminary Enquiry officer’s evidence recorded before him as P.W.8. The Enquiry
\nOfficer has not accepted the evidence of Preliminary Enquiry Officer and
\ntherefore held that the second charge as not proved.\n<\/p>\n
\t10.As far as the third charge against the petitioner is that even after
\nthe complaint of Dr.Mani was referred to Kurumbur Police Station in Crime No.82
\nof 2008 under Section 420<\/a> IPC against the original complainant Sudalaikumar, the
\npetitioner as Sub Inspector of Police, Kurumbur Police Station having failed to
\ninvestigate the case has transferred it to Munneerpallam Police Station which is
\na reprehensible conduct. In that regard, the Enquiry officer has considered the
\nFIR registered in Kurumbur Police Station in Crime No.82 of 2008 and preliminary
\nenquiry officer’s findings Ex.P.14 which is the statement of the Preliminary
\nEnquiry Officer as P.W.8 and that of Dr.Mani before the Preliminary Enquiry
\nOfficer Ex.P.10 and considering the said documents and finding that the
\nwitnesses are in Munneerpallam and not at Kurumbur Police Station and it was
\nonly proper that irrespective of the place of occurrence of the offence the
\ninvestigation has been transferred to Munneerpallam Police Station and
\ntherefore, the same is not illegal, thereby concluded that the third charge
\nstood not proved.\n<\/p>\n
\t11.It is true that in the impugned dissenting minute the respondent has
\nrelied upon Exs.P.9, 10, 11 and 14 which were the documents produced during the
\ndiscrete enquiry. While, Ex.P.9 is the anticipatory order containing the
\ncondition directing the accused to appear and sign before the Kurumbur Police
\nStation, Ex.P.14 is the discrete enquiry report. The discrete enquiry report of
\nthe Enquiry Officer during the preliminary enquiry was not only placed before
\nthe Enquiry Officer while conducting enquiry on the charges but the Preliminary
\nEnquiry Officer has himself given evidence as P.W.8 before the Enquiry Officer.
\nEx.P.10 which was a statement given by Dr.Mani before the discrete enquiry has
\nbeen relied upon by the respondent for the purpose of differing  from the
\nEnquiry Officer. It is not in dispute that Dr.Mani has also given evidence
\nbefore the Enquiry officer while conducting enquiry against the petitioner in
\nrespect of the charges.\n<\/p>\n
\t12.Likewise Ex.P.11 is the statement given by K.Srirengam @ Guna  before
\nthe discrete enquiry and he has also appeared before the Enquiry Officer. That
\napart Ex.P.7 which is the case diary in respect of Kurumbur Police Station was
\nno doubt placed before the Preliminary Enquiry Officer. But those documents
\nwhich are relied upon by the respondent for the purpose of differing from the
\nfinding of the Enquiry Officer cannot be said to be either totally alien
\ndocuments which were not connected with the charges especially in circumstance
\nthat the Preliminary Enquiry Officer has himself given evidence before the
\nEnquiry Officer who has conducted enquiry against the petitioner in respect of
\ncharges framed against him. Therefore, on fact by relying upon the documents
\nmarked before the discrete Enquiry Officer, it is not proved that any prejudice
\nhas been caused to the petitioner.\n<\/p>\n
\t13.Reliance placed on by the learned counsel for the petitioner the
\njudgment of this Court reported in 2009 (2) CLT 583 (P.Thangavel Vs. Director
\nGeneral of Police, Chennai and others)  cannot be made applicable to the facts
\nof the present case for the reason that it was a case where after the final
\norder of punishment has been passed, the same was assailed on the ground that
\nthe submissions made by the prosecution witnesses behind the back during the
\npreliminary enquiry have been relied upon for the purpose of inflicting the
\npunishment and therefore, the punishment came to be set aside. On the facts of
\nthe present case, prima facie, it cannot be said that the said exhibits are
\ntotally alien to either the charge especially when the Preliminary Enquiry
\nOfficer has himself given evidence before the Enquiry Officer concerned.\n<\/p>\n
\t14.What is to be decided at this stage is to the limited extent as to the
\nprejudice that may be caused to the delinquent in effectively defending himself
\nbefore the respondent in respect of the charges on which the differing view has
\nbeen taken. On the face of it, I do not see any prejudice that would be caused
\nto the petitioner herein.\n<\/p>\n
\t15.Again reliance placed on the decision of the Division Bench judgment of
\nthis Court in W.P.Nos.29862 and 32581  of 2002 (The Deputy Inspector General of
\nPolice, Villupuram and others Vs.V.Vannalperumal and others), dated 22.02.2005
\nis not applicable to the facts of the present case. That was a case where
\npunishment has been inflicted on the basis of the evidence before the
\npreliminary enquiry officer when such witnesses have turned hostile before the
\nEnquiry Officer and inspite of it, the Enquiry officer has relied upon their
\nearlier statements before the preliminary enquiry officer and found charges
\nproved. It was in those circumstances, the punishment stood set aside in the
\nfollowing paragraph:\n<\/p>\n
\t“8.In our case, we have already referred to the fact that the prosecution
\nwitnesses viz., P.Ws.1,2,4 and 5 turned hostile and not supported their
\npreliminary version. However, the Enquiry Officer basing reliance on their
\nearlier statement in the preliminary enquiry found that all the charges levelled
\nagainst them are proved. In the light of the decision of the Supreme Court
\nreferred to above, after full-fledged enquiry was held the preliminary enquiry
\nhad lost its importance. Further, we find no substance or material to arrive at
\na conclusion that “since all the three counts were proved by the prosecution
\nbeyond reasonable doubts, convincingly, I agree with the findings of the Enquiry
\nOfficer,….. We are satisfied that there is no material to arrive at such a
\nconclusion by the Deputy Inspector General of Police, while passing an order
\nremoving the applicants from service. All these aspects have been considered by
\nthe Tribunal in a proper manner and there is no acceptable material or evidence
\nto take different view as that of the Tribunal. We find no merits in both the
\nwrit petitions. Accordingly, they are dismissed. No costs. Consequently, the
\nconnected miscellaneous petitions are dismissed”.\n<\/p>\n
Again that is not the issue in the present case. If at all, there is any remedy
\navailable to the petitioner, the same could be only after the final order is
\npassed by the disciplinary authority and not at this stage.\n<\/p>\n
\t16.As rightly submitted by the learned Special Government Pleader what is
\nimpugned in this writ petition is only a show cause notice and even assuming
\nthat the respondent has relied upon certain documents produced before the
\ndiscrete enquiry, it is still open to the petitioner to explain the same to the
\nrespondent that such documents which were produced before the preliminary
\nenquiry officer behind back of the petitioner cannot be relied upon by the
\nrespondent while passing final orders on the charges. Therefore, at this stage,
\nin my considered view, it is too early for the petitioner to presume that the
\nrespondent would decide against him or the respondent would not take the legal
\naspect in its proper perspective. Even if such a decision is taken by the
\nrespondent and if the same is not in accordance with law, it is always open to
\nthe petitioner to work out his remedy against such final order.\n<\/p>\n
\t17.In such view of the matter, the writ petition fails and the same is
\ndismissed. No costs. Consequently, M.P.(MD)Nos.1 and 2 of 2009 are closed.\n<\/p>\n
sms<\/p>\n
To<\/p>\n
The Deputy Inspector General of Police,
\nTirunelveli,
\nTirunelveli District<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court T.Selvam vs The Deputy Inspector General Of … on 6 April, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06\/04\/2010 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Writ Petition(MD)No.8039 of 2009 and M.P.(MD)Nos.1 and 2 of 2009 T.Selvam … Petitioner Vs The Deputy Inspector General of Police, Tirunelveli, Tirunelveli District. … Respondent […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-254560","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nT.Selvam vs The Deputy Inspector General Of ... on 6 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/t-selvam-vs-the-deputy-inspector-general-of-on-6-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"T.Selvam vs The Deputy Inspector General Of ... on 6 April, 2010 - 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