Madras High Court
C.Magesh vs The Deputy Commissioner Of Police on 28 July, 2017
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.07.2017
CORAM:
THE HON'BLE MR. JUSTICE T.RAJA
W.P.Nos.9732 of 2014 and 2448 of 2017
C.Magesh .. Petitioner in both WPs
Vs
1.The Deputy Commissioner of Police,
Armed Reserve,
Greater Chennai Police, Chennai 2.
2.The Assistant Commissioner of Police,
Greater Chennai Police,
Pudupet, Chennai 2. .. Respondents in W.P.No.9732/14
1.The Director General of Police,
Mylapore, Chennai 5.
2.The Commissioner of Police,
Grater Chennai Police,
Veppery, Chennai.
3.The Deputy Commissioner of Police,
Armed Reserve, Greater Chennai Police,
Chennai 2. ... Respondents in W.P.No.2448/17
Prayer in W.P.No.9732 of 2014: Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus to call for the records of the first respondent in connection with the impugned orders passed in PR.No.242/PR-11(1)/2012 CPO.No.669/2014, dated 18.03.2014, and quash the same and direct the respondents to reinstate the petitioner into service and grant him all consequential service and monetary benefits.
Prayer in W.P.No.2448 of 2017: Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus to call for the records of the first respondent in connection with the impugned orders passed by him in Rc.No.52907/AP3(2)/2016, dated 10.05.2016 and quash the same and further direct the respondents to reinstate the petitioner into service and grant him all consequential service and monetary benefits.
For petitioner : Mr.P.Chandrasekar
for Mr.S.Sivakumar
For Respondents : Mr.K.Dhanajayan, Spl.GP
COMMON ORDER
By filing this Writ Petition No.9732 of 2014, the petitioner seeks to quash the impugned proceedings dated 18.03.2014 passed by the first respondent / the Deputy Commissioner of Police, Armed Reserve, Greater Chennai Police, Chennai, in and by which, the petitioner was removed from the service.
2. Learned counsel for the petitioner submitted that while the petitioner was serving as Head Constable in the Armed Reserve, Greater Chennai Police, he was issued with a charge memo dated 21.12.2012, containing the following charge:
1. Reprehensible conduct in having relationship with accused Chellappa and thereby you received the stolen property and pledged the same and given the money to the accused. Further, you are interrogated by the Inspector of Police, P3 PS and given a confession statement on 25.11.2012 admitting the guilty, hence, a criminal case has been registered against you in P-3, Vyasarpadi PS in Cr.No.372/2011 and 399/2011 under Sections 457, 380 r/w 34 and 414 of IPC and arrayed as a A2 and on 25.11.2012 at about 18.30 hours you are arrested and remanded and followed by that you are placed under suspension. Immediately after the receipt of the charge memo, he had submitted his detailed reply dated 21.01.2013 denying the said charge levelled against him. Thereafter, an Enquiry Officer was appointed, who had submitted a report holding the petitioner guilty of the charge, that too without examining the official witnesses. Subsequently, on receipt of such report, in view of initiation of criminal proceedings for the very same charge pending before the department and that the charge sheet also had been filed, the petitioner made a further representation dated 21.01.2013 to the Disciplinary Authority requesting to keep the disciplinary proceedings in abeyance till the disposal of the criminal case pending before the VI Judicial Magistrate Court, Egmore, Chennai, on the ground that both proceedings viz; departmental and criminal on the same set of charge cannot be simultaneously proceeded. But, the Disciplinary Authority, without considering the said reply of the petitioner, straightaway agreeing with the findings of the Enquiry Officer, imposed major punishment of removal from service, which is impugned in W.P.No.9732 of 2014.
3. Learned counsel for the petitioner further submitted that during the pendency of the above said writ petition, criminal case initiated against the petitioner was ended in acquittal by judgment dated 19.01.2016 in Cr.Nos.372 and 399 of 2011. During the examination before the learned trial Court, the Investigating Officer, namely, the Inspector of Police, P3 Vyasarpadi PS, has deposed that the criminal case initiated against the petitioner is a false and foisted one and he has falsely implicated the petitioner only due to the pressure from the higher officials. Therefore, by narrating all these facts, though the petitioner has submitted a mercy petition dated 23.03.2016 to the first respondent / Director General of Police, Chennai, the same was not considered and held that the charges levelled against him are grave in nature, which is also impugned herein in another Writ Petition No.2448 of 2017.
4. Terming the impugned removal order as unjustified, untenable, excessive, exorbitant and disproportionate to the nature of delinquency, learned counsel for the petitioner contended that the departmental proceedings and the criminal case being based on the same set of facts, departmental proceedings ought to have been stayed by the department till the result of the criminal case is known, however, without doing so, the respondent department passed the impugned order of removal from service 18.03.2014. However, the learned criminal Court dismissed the same charge. It is further contended that even after the acquittal from the criminal case, when a mercy petition was presented requesting to drop the said punishment as the charge levelled against him was the same before the trial Court and in the departmental proceeding, the first respondent, without considering the 20 years of unblemished service, whether the punishment imposed is adequate or inadequate, erroneously upheld the order of removal. Thus, on this count, it is contended that the impugned order of removal from service is liable to be set aside. Learned trial Court, while cross-examining the Investigating Officer, has recorded his admission that only out of pressure mounted on him, the petitioner was implicated in a false case. Secondly, when the allegation levelled against the petitioner that the delinquent being Head Constable has indulged in contact with an accused, namely, Chellappa and helped him for pledging the jewellery, is made against the petitioner falsely as it was done due to pressure put by the higher officer, the order of removal based on that motivated false charge cannot be sustained, he pleaded. Thirdly, it was argued that only on the basis of unsigned confession statement, the petitioner was wrongly prosecuted and that confession statement relied upon was not even signed by the petitioner.
5. In support of his submissions, learned counsel for the petitioner relied upon a judgment of the Hon'ble Apex Court in Roop Singh Negi v. Punjab National Bank and others [(2009) 2 SCC 570], for a proposition that if the Enquiry Officer relies upon the confession made by the delinquent /accused, it has to be necessarily supported with some sufficient evidence, failing which, the said confession also cannot be taken into account. Therefore, it is contended that the impugned order of removal by taking note of the unsigned confession statement of the petitioner is liable to be quashed.
6. Per contra, learned counsel for the respondents submitted that during the course of investigation, the Inspector of Police, Crime, P3 Vysarpadi Police Station, has secured one Chellappa on 21.11.2012 and on enquiry, accused Chellappa revealed the involvement of the petitioner and thereupon, during the course of enquiry, the petitioner has admitted that he sold the jewels given by Chellappa and handed over the money to Chellappa. Subsequently, the petitioner was arrested and remanded to judicial custody. Therefore, it is contended that merely because he was acquitted in a criminal case, the order of dismissal passed after conducting a detailed domestic enquiry cannot be questioned before this Court.
7. Further, it is submitted that the petitioner has got an appeal remedy against the impugned punishment to the Appellate Authority requesting the authorities to keep the disciplinary proceedings pending till the disposal of the criminal case. However, without availing such remedy, the petitioner approached this Court questioning the impugned punishment of removal from service. It is further submitted that the petitioner has not committed any theft, however, he has connived with the accused by way of helping him in selling the jewels stolen by the accused Chellappa and therefore, based on the principles of preponderance of probabilities, it is clear that the petitioner has committed an offence and hence, he was rightly removed from the service in accordance with the rules and principles of natural justice. Thus, on this basis, he prayed for dismissal of the writ petitions.
8. Heard both sides.
9. It is seen from the judgment of the trial Court that during the cross-examination, Inspector of Police, P-3 Vyasarpadi Police Station, deposed that the criminal case initiated against the petitioner was a false and foisted one and he was pressurized by the higher officials to implicate the petitioner. When such findings of the learned trial Court was brought to the notice of the learned Special Government Pleader appearing for the respondents, he was unable to give any reply to the same. In addition thereto, on seeing a copy of the confession statement as referred to by the learned counsel for the petitioner, learned Special Government Pleader fairly stated that the said document is not containing the signature of the petitioner. Therefore, it would be highly impermissible on any one to refer to and rely upon the said unsigned confession statement also. In this context, it is relevant to refer to the deposition of the Investigation Officer during cross examination before the trial Court. Relevant portion thereof is extracted below:
,Wjp mwpf;if jhf;fy; bra;tjw;F Kd;ghf tHf;fpd; rl;lg;gphpt[fis khw;w vdf;F mjpfhuk; cs;sJ vd;why; rhpjhd;/ Fw;w vz;/372-2011 bjhlh;g[ila ,Wjp mwpf;ifapy; rk;gt ele;j neuk; Fwpg;ghf ,utpyh. gfypyh. khiyapyh vd;W Fwpg;gpl;L brhy;ytpy;iybad;why; rhpjhd;/ ,/j/r/ gphpt[ 457 vdf;F bjhpa[k; vjphpfs; kPJ ,/j/r/ gphpt[ 457 rl;lg;gphptpd; fPH; tHf;F bjhLf;f vt;tpj Kfhe;jpuk; cl;TWfnsh ,y;iybad;W brhy;tJ jtW/ tHf;if g[yd; tprhuiz bra;ahky; mtrufjpapy; Vw;fdnt Kof;fg;gl;l tHf;fpy; kPz;Lk; tprhuizf;F vLj;J te;J vjphpapd; kPJ bgha;ahd tHf;F bjhLj;Js;nsd; vd;why; rhpay;y/ vdJ nkyjpfhhpapd; J}z;Ljypd; nghpy; 2?k; vjphp kPJ bgha; tHf;if g[ide;Js;nsd; vd;Wk; 2?k; vjphpf;Fk;. ,t;tHf;fpw;Fk; vt;tpj rk;ge;jKk; fpilahJ vd;why; rhpjhd;/ ,t;tHf;fpy; rk;gt ele;j neuj;ij Fwpg;ghf Fwpg;gpltpy;iybad;why; rhpjhd;/ The above admission made by the Investigating Officer clearly shows that the petitioner has been falsely implicated with malafide intention by the Investigating Officer at the instance of the higher officer who put pressure on the Investigating Officer. Based on the said admission, the trial Court has also acquitted the petitioner from the criminal case, therefore, the respondent department ought not to have believed the same allegation and imposed the exorbitant punishment of removal from the service, as the charge levelled against the petitioner is one and the same, namely, the delinquent being a Head Constable, in connivance with the accused Chellappa, helped him for pledging the jewellery and hence, he himself involved in a criminal case. Thus, it would be unjust, unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
10. Secondly, it is relevant to quote the crucial findings recorded by the trial Court, in respect of the unsigned confession statement said to have been given by the petitioner, which reads as under:
......... nkYk; 2?tJ vjphpaplk; bgwg;gl;ljhf Twg;gLk; m/j/rh/17 xg;g[jy; thf;FK:yj;jpy; vjphpapd; ifbahg;gk; bgwg;glhjjhy; nkw;go me;j Mtzk; Fwpj;Jk; re;njfk; vGfpwJ/////// ,Jnghd;w jpUl;L tHf;Ffspy; xg;g[jy; thf;FK:y rhl;rpfs; kw;Wk; ifg;gw;Wjy; kfrh; rhl;rpfs; vjphpfis milahsk; fhl;o ,th;fsplkpUe;J jhd; xg;g[jy; thf;FK:yk; bgwg;gl;lJ vd;Wk; mjdog;gilapy; jhd; bghUl;fs; ifg;gw;wg;gl;lJ vd;W Twg;gLk; gl;rj;jpy; jhd; Fw;wk; epU:gpf;fg;gl;ljhf vLj;Jf;bfhs;s ,aYk;/ Mdhy; ,t;tHf;fpy; vjphpfs; kPjhd Fw;wr;rhl;Lf;fs; Fwpj;njh. VjphpfsplkpUe;J bgwg;gl;ljhf Twg;gLk; xg;g[jy; thf;FK:yk; kw;Wk; mjdog;gilapy; ifg;gw;wg;gl;ljhf brhy;yg;gLk; brhj;Jf;fs; Fwpj;njh. Xg;g[jy; thf;FK:yk; kw;Wk; ifg;gw;Wjy; kfrh; rhl;rpfs; rhl;rpak; gfuhjjhy; muR jug;g[ vjphpfs; kPjhd Fw;wr;rhl;il re;njfj;jpw;fplkpd;wp epU:gzk; bra;a jtwptpl;lJ vd Kot[ bra;ag;gLfpwJ/////////////////////////// The above findings of the trial Court, no doubt, cannot have any impact on the domestic enquiry, but, the law is well settled that if the department proceeds on the basis of confession statement made by the charged employee, his subsequent acquittal by the criminal Court on the same of set of charge could not have been ignored and such factum was lost sight of by the disciplinary authority. Besides, the confession statement relied upon by the department is not signed by the petitioner, thus, it is not known how the department by relying upon the so-called confession statement, which is not even signed by the petitioner, can accept such document as a piece of admissible evidence to reach a conclusion that he is guilty of the charge.
11. Besides, though the alleged charge levelled against the petitioner is that, in connivance with the accused chellappa, the petitioner is possessing the stolen jewels, no recovery has been made at the time of arrest of the petitioner as per Section 27 of the Indian Evidence Act. It is pertinent to refer to a relevant finding of the trial Court which is given as under:
Records perused. In the mahazar, property was alleged to be recovered on 22.11.2012 at 9.00 a.m. on the basis of the confession allegedly given by the accused. But in the remand report, the Inspector of Police, Crime, has stated that the accused was arrested on 25.11.2012 at 06.00 pm. Property was allegedly recovered by the Police even before the arrest of the accused. From the reply given by the Police, it is seen that there is no previous case against the petitioner. As highlighted above, when the the criminal case and the departmental proceedings were based on the same set of charge, namely, the petitioner, in connivance with the accused Chellappa, helped him for pledging the jewellery, after the acquittal by the criminal Court, the first respondent ought to have considered his claim when the petitioner preferred a mercy petition. Thus, since the petitioner had already been acquitted by the criminal Court on the same set of allegation, he is entitled to be reinstated in service.
12. Therefore, in the light of the above, the impugned orders are set aside and the writ petitions are allowed. Consequently, the respondents are directed to reinstate the petitioner into the service along with all other consequential benefits. No Costs. Connected miscellaneous petitions are closed.
28.07.2017 rkm Index:yes/no T.RAJA, J.
rkm To
1.The Joint Director (Higher Secondary), Directorate of School Education, DPI Complex, College Road, Chennai 6.
2.The Chief Educational Officer (CEO), The Office of Chief Educational Officer, Thiruvannamalai, Thiruvannamalai District.
3.The Head Master, Govt. Boys Hr. Sec. School, Cheyyar Town, Thiruvannamalai District.
W.P.Nos.9732/14 and 2448/1728.07.2017