Madras High Court
Dr.A.Manivannan vs The Additional Chief Secretary To ...
Author: V.M.Velumani
Bench: V.M.Velumani
W.P.(MD).No.22742 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: Delivered on:
29.11.2019 06.01.2020
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P.(MD).No.22742 of 2019
and
W.M.P.(MD)No.19493 of 2019
Dr.A.Manivannan .. Petitioner
Vs.
1.The Additional Chief Secretary to Government,
Home (Police-2) Department,
Fort St. George, Chennai – 600 009.
2.The Director General of Police,
Dr.Radhakrishnan Salai,
Chennai – 600 004.
3.The Commissioner of Police,
Madurai City.
4.The Superintendent of Police,
Ramanathapuram. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of writ of Certiorarified Mandamus to call for
the entire records relating to the impugned G.O.(2D).No.270, Home
(Police-2) Department, dated 10.09.2019 issued by the 1st respondent
quash the same and consequential direction to the respondents to
promote the petitioner to the post Additional Superintendent of Police by
keeping his seniority above all his juniors with all service, monetary and
1/18
http://www.judis.nic.in
W.P.(MD).No.22742 of 2019
attendant benefits.
For Petitioner : Mr.J.Anand Kumar for
Mr.S.Manikandan
For Respondents : Mr.V.R.Shanmuganathan
Special Government Pleader
ORDER
Writ Petition is filed for issuance of Writ of Certiorarified Mandamus to call for the entire records relating to the impugned G.O. (2D).No.270, Home (Police-2) Department, dated 10.09.2019 issued by the first respondent and to quash the same and consequently direct the respondents to promote the petitioner to the post of Additional Superintendent of Police by keeping his seniority above all his juniors with all service, monetary and attendant benefits.
2. The case of the petitioner is as follows:
(a). The petitioner joined the service of the Police Department in the year 1987 as Sub Inspector of Police and at present, he is working as an Assistant Commissioner of Police, Special Intelligence Cell, Madurai City. While he was working as Deputy Superintendent of Police [hereinafter referred to as “DSP”], Rameswaram, a case in Crime No. 301 of 2012 was registered on the file of Uchipuli Police Station for the offences under Sections 147, 436 and 302 of Indian Penal Code. The investigation was done by one Mr.P.Jeyachandran, the then Inspector of 2/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 Police of the said station. The said Inspector of Police apprehended the culprits and laid charge sheet pursuant to the investigation.
2(b). Considering the gruesome nature of the murders and the sensitivity, the said investigation was followed by other superior officers including the petitioner herein and the then Superintendent of Police. During the investigation, the petitioner informed the development of the case to the Superintendent of Police, who is the superior to the petitioner by periodical submission of Grave Crime Reports (GCRs). The final report was taken on file and committed to the Sessions Court in S.C.No.68 of 2013.
2(c). Subsequently, accused No.7 (A7) filed petition for discharge him from the case and the same was dismissed by the Principal Sessions Judge, Ramanathapuram by order dated 29.10.2014 made in Cr.M.P.No. 2084 of 2013 in S.C.No.68 of 2013. The said accused No.7 (A7) challenging the said order of dismissal, filed Crl.R.C.(MD).No.167 of 2015 before this Court. This Court, by the order dated 25.06.2015, considering the materials on record and case diary, directed the Superintendent of Police to appear before this court, who submitted that, after going through the case diary, he is not satisfied with the investigation and undertook to personally investigate the case and filed an affidavit to that effect. After investigation by the Superintendent of Police, a final report was filed only against 4 accused and remaining 5 3/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 accused who were already charge sheeted were deleted in the final report.
2(d). In the final report, the Superintendent of Police has recommended for Departmental action against the said P.Jeyachandran, the then Inspector of Police. Considering the final report submitted by the Superintendent of Police, this Court held that, it is for the second respondent herein to deal with P.Jeyachandran, the then Inspector of Police departmentally, provided the Appointing Authority has got materials to show that he has committed any misconduct as per Service Rules and left open for the second respondent to decide on the recommendation of Superintendent of Police/fourth respondent herein and directed the Department to pay a sum of Rs.2,00,000/- each to all the five persons, whose names were deleted in the final report. Aggrieved by the said order of this Court passed in Crl.R.C.(MD).No.167 of 2015, the first respondent filed SLP (Crl).No.7453 of 2015 and the Hon'ble Apex Court by the order dated 06.02.2018 had modified the amount of compensation.
2(e). While so, a charge memo dated 02.01.2017 bearing PR.No. 1/2017 was issued to the petitioner by the fourth respondent alleging that he had committed dereliction of duty in not having taken up or 4/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 supervised the investigation of the criminal case in Crime No.301 of 2012, which was registered on the file of Uchipuli Police Station. The petitioner filed Writ Petition in W.P.(MD).No.1876 of 2017 challenging the said charge memo. This Court by the order dated 03.02.2017 disposed of the Writ Petition directing the respondents therein to complete the enquiry and to pass final orders within a period of six months from the date of receipt of a copy of that order and also directed the petitioner to co-operate with the enquiry for early completion of the enquiry.
2(f). The petitioner thereafter submitted his explanation to the charge memo on 20.04.2017 and an Enquiry Officer was appointed. The Enquiry Officer completed the enquiry and filed final report on 09.05.2017 to the first respondent holding that the charge leveled against the petitioner is partly proved. The first respondent, by notice dated 07.09.2017 enclosing a copy of the report, called for explanation from the petitioner. The petitioner submitted his explanation on 29.09.2017. The first respondent by the impugned G.O.(2D).No.270, Home (Police-2) Department, dated 10.09.2019 passed final order imposing punishment of censure. Challenging the said impugned G.O. (2D).No.270, Home (Police-2) Department, dated 10.09.2019, issued by the first respondent, the petitioner has come out with the present Writ 5/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 Petition.
3. The learned counsel appearing for the petitioner contended that in all the cases, the superior officer will not supervise or monitor the investigation of concerned crime. Only in sensational cases, the Superior Officers will supervise the investigation. There is no violation of Tamil Nadu Police standing order 142. The Tamil Nadu Police standing order 142 mandates the Sub-Divisional Officer to personally investigate or supervise a crime, whenever possible and not all times compulsorily. In the present case, six persons were brutally murdered and investigating officer has arrested six persons on the next day of crime and another three persons within three days of occurrence. The first respondent failed to consider that as per Rule 20(1) of Tamil Nadu Government Servants Conduct Rules, every member of service should maintain absolute integrity and devotion to duty. The integrity of the petitioner was never in question. But failure to supervise the investigation cannot be brought as a misconduct under Rule 20(1) of Tamil Nadu Government Servants Conduct Rules. Mere negligence in supervising the investigation will not amount to violation of the said Conduct Rules.
3(a). Due to sensitivity of the case, the petitioner informed the 6/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 development of the case to his superior officer, the fourth respondent herein, then and there and the same is not disputed. The fourth respondent as well as Deputy Inspector General of Police were supervising the investigation due to sensitivity of the case. Therefore, the petitioner alone cannot be penalized. The first respondent failed to see that based on the final report submitted by the fourth respondent, this Court held that it is for the second respondent to take action against P.Jeyachandran, the then Inspector of Uchipuli Police Station, if there is sufficient materials against him. This Court did not pass any adverse remarks against the petitioner.
3(b). The occurrence is of the year 2012. The charge memo was issued after five years from the date of occurrence, i.e., in the year 2017. The Enquiry Officer submitted his report on 09.05.2017 and the second show cause notice was issued on 07.09.2017. The petitioner submitted his explanation on 29.09.2017. The first respondent did not pass any final order for two years. The crucial date for preparing the panel for promotion to the next level is first day of July, every year. Due to delay in passing final order and completing the disciplinary proceedings, the petitioner was not considered for promotion in the 2018-2019 panel. 25 juniors to the petitioner were promoted by G.O.Ms.No.271 dated 31.05.2019 and all 24 juniors were appointed as 7/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 Additional Superintendent of Police in various places in Tamil Nadu. Due to punishment of censure, the chance for petitioner consideration to promotion is again been postponed for one more year i.e., for 2020 also.
3(c). In the enquiry, 10 witnesses were examined. 9 witnesses were examined as P.W.1 to P.W.9 who were listed out for enquiry. P.W.1 to P.W.8 did not support the case of the prosecution. P.W.9, is the officer who conducted the preliminary enquiry and he was the member of re- investigation team under the fourth respondent. He is immediate subordinate to Investigating Officer. P.W.10, the writer working under the petitioner was added in the mid way of enquiry as witness and he deposed against the petitioner. The Enquiry Officer, after considering all the materials on record, erroneously held that charge leveled against the petitioner is partly proved.
3(d). The Enquiry Officer failed to see in all the cases, identification parade is not necessary and in the present case, there is no eye-witness and therefore the identification parade does not arise. The first respondent after issuing second show cause notice and after receiving explanation submitted by the petitioner, did not pass final order for two years and has not given any reason for the delay. Due to 8/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 the said delay, the petitioner was deprived of his legitimate promotion in the year 2018-2019 and his juniors were promoted in his place. The Enquiry Officer as well as the first respondent have held that the charge leveled against the petitioner is partly proved, without properly appreciating the materials on record. For the above reason, the learned counsel appearing for the petitioner prayed for allowing the Writ Petition.
4.The learned Special Government Pleader appearing for the respondents contended that the petitioner as Superior Officer in-charge of Sub-Divisional Office, ought to have supervised the investigation done by the Inspector of Police. The petitioner, knowing fully well that the Inspector of Police arrested 9 persons in a hurried manner based on the confession statement, ought to have directed the Inspector of Police to collect incriminating documents to fix the involvement of 9 persons arrested. The petitioner ought to have personally taken up the investigation of brutal murders and sensitive case instead of sending report to higher officials. When the Criminal Revision Case was taken up by this Court based, on the statement of the Superintendent of Police, the 4th respondent, re-investigation was done and in final report, only 4 persons were implicated and others were deleted. This clearly shows that the petitioner has not discharged his duty properly and there is 9/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 dereliction of duty. In the enquiry, the respondents proved the dereliction of duty of petitioner. The Enquiry Officer, appreciating the evidence and documents, held that the charge leveled against the petitioner was partially proved. The 1st respondent considering the enquiry report, explanation submitted by the petitioner and entire materials on record, accepted the report of the Enquiry Officer and imposed the punishment of censure by impugned Government Order. The punishment imposed on the petitioner is proportionate to the proven charge. The Special Government Pleader would further submit that the petitioner is not entitled for setting aside the order of punishment and prayed for dismissal of the Writ Petition.
5. Heard the learned counsel appearing for the petitioner as well as learned Special Government Pleader appearing for the respondents and perused the entire materials on record.
6. From the materials available on record, it is seen that the petitioner was issued charge memo dated 02.01.2017, alleging that he committed dereliction of duty in not having taken up or supervised the investigation of the case in Uchipuli Police Station in Crime No.201/2012 dated 02.10.2012 properly, especially, with regard to hurried fixation of 9 offenders without ascertaining the incriminating evidence against 10/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 them which resulted in an order of further investigation of the case by this Court.
6(a). In view of the order of re-investigation and deletion of 5 accused, this Court ordered compensation to be paid to the persons who were deleted from the original charge sheet, when the final report was filed after re-investigation. The charge levelled against the petitioner is that by dereliction of duty, the petitioner has violated the Tamil Nadu Police Standing Order 142. Further, due to his lack of devotion to the duty, he has violated Rule 20 (1) of the Tamil Nadu Government Servant's Conduct Rule, 1973. The Enquiry Officer found that the charge leveled against the petitioner is partly proved that the petitioner has committed dereliction of duty in not properly supervising the investigation of the case in Crime No. 301/2012 and has failed to order identification parade and record statement under Section 164 of Cr.P.C.
6(b). From the materials on record, it is seen that murder of 6 persons was registered in Uchipuli Police Station in Crime No.301/2012 on 02.10.2012. The case was investigated by P.Jeyachandran, the then Inspector of Police of the said Station. Due to gravity of offences and being sensational case, the Superior Officer investigated the case. From the materials on record, it is seen that the Inspector of Police arrested 6 11/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 persons on the next day of murder and another 3 persons within 3 days of occurrence. The arrest was made based on the confessional statement of one of the accused. The Deputy Inspector General of Police, Ramanathapuram who visited the office of the petitioner has recorded appreciation of the petitioner in conducting investigation. Inspite of the same, a charge memo was issued to the petitioner that he did not properly supervise the investigation done by P.Jeyachandran, the then Inspector of Police and failed to personally conduct the investigation. The said charge memo came to be issued after this Court directed the 4th respondent to appear and questioned about the nature of investigation when A7 filed Crl.R.C.(MD).No.167 of 2015 challenging the dismissal of discharge petition. The 4th respondent appeared and gave undertaking before this Court that he would personally re- investigate the matter. After re-investigation, final report was filed only against 4 persons.
6(c). The 4th respondent in the final report has recommended for departmental action against P.Jeyachandran, the then Inspector of Police. Considering the said final report, this Court held that it is for the 2nd respondent to deal with P.Jeyachandran, the then Inspector of Police departmentally, if the 2nd respondent has got materials to show that he committed misconduct. From the order of this Court made in Crl.R.C. 12/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 (MD).No.167 of 2015, it is seen this Court did not make any observation about the petitioner or any other officer.
6(d). In the enquiry, 10 witnesses were examined, 8 witnesses did not depose against the petitioner. Only the Officer who conducted the preliminary enquiry and Writer in the office of the petitioner deposed against the petitioner. From the report of the Enquiry Officer, it is seen that the Enquiry Officer has held that charge leveled against the petitioner was partly proved as the petitioner did not order identification parade and did not direct to record 164 statement.
6(e). The investigation done by the Inspector of Police due to brutal murder and sensitivity of case, the 4th respondent and Deputy Inspector General of Police and the petitioner were supervising the investigation. According to the petitioner, he was informing the developments of the investigation to his Superior Officer, then and there. The said contention is not disputed. The charge memo was issued only against the petitioner alleging that the petitioner did not properly supervise the investigation.
6(f). Further, the Enquiry Officer considering the materials on 13/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 record, held that the Deputy Inspector of Police visited the Uchipuli Police Station and after taking note of the fact that 6 accused were arrested, directed formation of Special Investigation Team to arrest other persons. The Deputy Inspector General of Police has appreciated the efforts taken by the petitioner in investigation. In view of the above, the Enquiry Officer has held that “the question of misconduct in violation of Rule 20 (i) of the Tamil Nadu Government Servants Conduct Rules, 1973, does not arise and there is no lack of devotion on the part of the petitioner.” Having held so, the Enquiry Officer held that charge leveled against the petitioner is partly proved and petitioner failed to arrange identification parade and record statement under Section 164 (i) Cr.P.C.
6(g). The Enquiry Officer failed to consider the explanation submitted by the petitioner that in all the cases, the identification parade is not done and only in certain cases, the identification parade is done so as to find whether the eye-witness is able to identify the accused. In the present case, there is no eye-witness and hence, the question of identification parade does not arise. In view of the failure on the part of the Enquiry Officer to take note that there is no eye-witness and that there was no necessity to arrange identification parade, the finding of the Enquiry Officer that the charge leveled against the petitioner is partially proved is erroneous.
14/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 6(h). Further, after the report of the Enquiry Officer on 09.05.2017, after issuing second show cause notice on 07.09.2017, receiving the explanation of the petitioner on 29.09.2017 and the order of this Court dated 03.02.2017 in W.P.(MD).No.1876 of 2017, directing the 1st respondent to complete the enquiry and pass final orders within 6 months from the date of receipt of a copy of this order, the 1 st respondent did not pass final orders for 2 years and passed the impugned order only on 10.09.2019. The 1st respondent delayed in passing the final order, inspite of the order of this Court dated 03.02.2017 in W.P.(MD).No.1876 of 2017, directing the 1st respondent to complete the enquiry and pass final orders within 6 months. The 1st respondent has passed the final order only after 2 years from the order passed by this Court on 03.02.2017 and there is no explanation for the delay in passing the final order. In number of cases, it has been held that any delay in finalizing disciplinary proceedings would vitiate entire proceeding as delinquent employee is prejudiced due to passage of time. From the materials on record, it is seen that the finding of the Enquiry officer as well as the impugned order of the 1st respondent are erroneous as the respondents have not proved that the petitioner has committed any misconduct under Tamil Nadu Police Standing Order 142. 15/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019
7.For the above reason, the impugned order is set aside and the Writ Petition is allowed. The respondents are directed to promote the petitioner to the post of Additional Superintendent of Police by keeping his seniority above all his juniors with all service, monetary and attendant benefits. The respondents are directed to promote the petitioner to Additional Superintendent of Police on par with his juniors when his immediate juniors were promoted and grant seniority in promoted post. The respondents are directed to complete the above said exercise within 4 weeks from the date of receipt of copy of this order. The petitioner is entitled to all the service benefits from the date when his juniors were promoted. It is made clear that the petitioner is entitled to monetary benefits in the promoted post only from the date of this order. No costs. Consequently, connected Miscellaneous Petition is closed.
06.01.2020
gsa/krk
Index : Yes
Internet : Yes
Note : Issue order copy by 09.01.2020.
To
1.The Additional Chief Secretary to Government, Home (Police-2) Department, Fort St. George, Chennai – 600 009.
2.The Director General of Police, Dr.Radhakrishnan Salai, Chennai – 600 004.
16/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019
3.The Commissioner of Police, Madurai City.
4.The Superintendent of Police, Ramanathapuram.
17/18 http://www.judis.nic.in W.P.(MD).No.22742 of 2019 V.M.VELUMANI, J.
gsa/krk W.P.(MD).No.22742 of 2019 06.01.2020 18/18 http://www.judis.nic.in