BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01/10/2007 CORAM: THE HONOURABLE MR. JUSTICE K.CHANDRU W.P (MD) No.3071 of 2004 1.Y.Paul (Deceased) 2.P.Sammanasu Mary 3.Minor Arun Ajeet 4.Minor Ajeetha ... Petitioners (Petitioners 2 to 4 substituted as legal heirs of the deceased first petitioner vide order dated 31.7.2007 in M.P. No.1 of 2007) vs. 1.The State of Tamil Nadu Rep. by its Secretary to Home Affairs Fort St. George Chennai 2.The Superintendent Office of the Commandant T.S.P. I Bn, Tiruchy 3.The Commandant T.S.P. I Bn, Tiruchy 4.The Enquiry Officer alias Assistant Commandant - III T.S.P. I Bn, Tiruchy ... Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus by calling for the records pertaining to the order passed by the third respondent in C.No.E2/Pr.57/2002 dated 21.9.2003 in pursuant to the proceedings of the third respondent and quash the same and direct the respondents to give all service and monetary benefits to the petitioner. !For petitioner ... Mr.UM.Ravichandran ^For Respondents ... Mrs.V.Chellammal, Spl. GP :ORDER
The petitioner is a dismissed Police Constable and he challenges the order
dated 21.9.2003 passed by the third respondent. During the pendency of the
writ petition, the petitioner unfortunately passed away on 24.10.2006 and his
legal heirs being the wife and two minor children have been brought on record
as the petitioners 2 to 4.
2. I have heard the arguments of Mr.UM.Ravichandran, learned counsel
appearing for the petitioner and Mrs.V.Chellammal, learned Special Government
Pleader representing the respondents and have perused the records.
3. The deceased Y.Paul joined the third respondent Tamil Nadu Special
Police as Grade II Constable on 01.11.1997 and while he was on duty on
02.9.2002, a complaint was lodged against the petitioner by one Thulasiraman at
Thirukkokarnam Police Station for an alleged offence under Sections 294(b) and
323 IPC read with Section 4(1)(i) of the Tamil Nadu Prohibition Act. A First
Information Report was registered in Crime No.319 of 2002. In view of the
criminal complaint, he was placed under suspension by an order 09.9.2002 by the
third respondent. Subsequently, a charge was framed by the second respondent
being the appointing authority and Commandant of the Tamil Nadu Special Police.
The petitioner was charged for not only committing a criminal offence but also
not intimating the details of the case in Crime No.319 of 2002 to the higher
officials. Though the case against the petitioner was closed by the Court of
Judicial Magistrate but the enquiry proceeded against the petitioner and he was
found guilty by the Deputy Commandant, Tamil Nadu Special Police I Battalion,
Trichy, who was appointed as Enquiry Officer. In that order, it was stated
that the charges were proved on the basis of the evidence let in before the
Enquiry Officer. Basing upon the said enquiry report, the third respondent
passed an order dated 18.8.2003 holding him guilty of the charges. It was
also mentioned that in respect of the enquiry report being furnished to him, the
petitioner did not give any further representation and his conduct is shown as
unbecoming of a public servant and under the influence of alcohol, he made an
attempt to attack the Station House Officer for which a case was registered
against him which resulted in imposition punishment of removal from service. In
the meanwhile, in the criminal case, since no final report was filed, the same
was closed by the Judicial Magistrate, Pudukkottai, by an order dated 09.9.2002.
4. Learned counsel for the petitioner attacks the impugned order on the
ground that the findings were rendered on the basis of witnesses, who were not
eye-witnesses to the alleged occurrence; no medical report was called for to go
into the question of finding the petitioner guilty of prohibition offence and
the evidence of P.W.1 and P.W.2 were contradictory and the criminal case was
also dropped. Therefore, the impugned order is liable to be interfered with.
5. A counter affidavit has also been filed by the third respondent
refuting the allegations made by the petitioner. It was stated that during the
oral enquiry, the Department witnesses 1, 2 and 7 to 9 have deposed that the
petitioner had attacked the Sub-Inspector and other Police Constables when he
was directed to be sent for medical test.
6. With reference to the petitioner not informing the higher officials
about the pendency of the criminal case, the departmental witness No.3, viz.,
Officer Commanding “B” Company has deposed against the petitioner. He has
also stated that the evidence of P.Ws. 1 and 2 are not contradictory. On the
contrary, they were complementary. The petitioner has filed the minutes of
the enquiry report and elaborately argued that the offence was not made out.
So far as the charge regarding prohibition, no proper enquiry was held with
reference to the assault on the Station House Officer, the counsel submitted
that there cannot be a charge under that head as it did not form part of the
original charge memo framed against the petitioner under Rule 3(b) of the Tamil
Nadu Police Subordinate Service (Discipline and Appeal) Rules dated 24.9.2002.
7. It is true that the original charge memo did not contain a direct
charge on this ground and merely referred to the said incident being subject
matter of a criminal case. When a charged officer is not informed about the
specific charge, the same cannot be taken into account to find the petitioner
guilty as it would amount to depriving the petitioner of defending himself in
the enquiry and it is a denial of reasonable opportunity. If the first charge
as framed is taken into account , then it only relates to committing of criminal
offence for which the petitioner has not been prosecuted and the criminal Court
had closed the criminal case by order dated 09.9.2002. Therefore, he was only
left with charge of not informing the department immediately about the criminal
case pending against him.
8. It is seen from the records that the alleged incident had taken
place on 02.9.2002 and a First Information Report was registered on 02.9.2002
itself and he was produced before the Police Station at 19.00 hours and also
taken to the Doctor at 11.30 pm in the night. The fact that the First
Information Report was registered against the petitioner shows that the
Department is aware of the criminal case against the petitioner and that cannot
be a charge to be made against the petitioner that he did not inform the
superiors immediately within seven days. The petitioner was suspended on the
ground that a criminal case is pending against him shows that the Department was
aware of the criminal case. Therefore, holding the petitioner guilty of not
informing the higher ups cannot be said to have been proved against the deceased
Constable.
9. With reference to the first charge, as stated already, the only
charge was that the criminal case was pending against him with reference to
certain offences under IPC. Though the criminal case was closed, the petitioner
was punished for the criminal offence of prohibition. The contention of the
petitioner that no charge was framed independently to go into the issue, viz.,
the assault on Inspector of Police in the Station, merits acceptance. The
respondents have not taken note of the fundamental fact that without a charge,
there cannot be an enquiry and it would amount to depriving reasonable
opportunity given to the petitioner.
10. Under the circumstances, the impugned order removing the late
Y.Paul, Constable, PC No.2316, from service is hereby set aside. But, as he
has already passed away on 24.10.2006, he could not be reinstated in service.
However, on account of the death of the first petitioner, his legal heirs are
also liable to get the terminal benefits, such as, GPF, Grauity and Family
Benefit Fund. Hence, the writ petition shall stand allowed with the
following directions.
(i) The respondents are directed to pay the arrears of salary payable to the
deceased till his death, viz., 24.10.2006, to his legal heirs, viz., the
petitioners 2 to 4 within a period of four weeks from the date of receipt of a
copy of this order.
(ii) The respondents are also directed to pay the terminal benefits such as
GPF, Gratuity and Family Benefit Fund to the legal heirs of the deceased within
a period of eight weeks from the date of receipt of a copy of this order.
(iii) The respondents shall consider the case of P.Sammanasu Mary, widow of
Paul, for compassionate appointment as if he died in harness, as per the
Government Rules in existence and this exercise shall be done within a period of
eight weeks from the date of the receipt of a copy of this order.
However, there will be no order as to costs.
gri
To
1. Secretary to Government
Government of Tamil Nadu
Home Department
Fort St. George
Chennai
2. The Superintendent
Office of the Commandant
T.S.P. I Bn
Tiruchy
3. The Commandant
T.S.P. I Bn
Tiruchy
4. The Enquiry Officer
alias Assistant Commandant – III
T.S.P. I Bn
Tiruchy