Madras High Court
Mr.S.Chinnadurai vs The Deputy Inspector General Of Police on 28 March, 2018
Author: V.Parthiban
Bench: V.Parthiban
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.03.2018 CORAM THE HONOURABLE Mr.JUSTICE V.PARTHIBAN W.P.No.34799 of 2013 & M.P.No.1 of 2013 and W.P.No.27463 of 2016 & W.M.P.No.23653 of 2016 Mr.S.Chinnadurai ... Petitioner in both W.Ps Vs 1.The Deputy Inspector General of Police, Office of the Dy.I.G of Police, Trichy Range (In-charge of Thanjavur), Trichy City. 2.The Superintendent of Police, Nagapattinam (Enquiry Officer), Office of the Superintendent of Police, Nagapattinam District. 3.The Superintendent of Police, Office of the Superintendent of Police, Thiruvarur District. 4.The Additional Superintendent of Police, Prohibition Enforcement Wing, Trichy District. 5.The Deputy Superintendent of Police, District Crime Branch, Crime No.6 of 2012, Tiruvarur District. ... Respondents in both W.Ps PRAYER in W.P.No.34799 of 2013 : Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the order for a Denovo Enquiry and appointment of Enquiry Officer passed by the first respondent in C.No.B1/10224/13 dated 02.12.2013 on the file of the Deputy Inspector General of Police, Trichy Range in Charge of Thanjavur Range (1st respondent) and quash the same since it violates the established rules, law and procedure and consequently restore the original proceedings of the 2nd respondent in PR.No.8/13. PRAYER in W.P.No.27463 of 2016 : Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the departmental enquiry pending in PR.No.8/2013 on the file of the 1st respondent dated 18.03.2013, now pending on the file of the 4th respondent and quash the same and also consequently direct the 1st respondent to allow the petitioner to retire from service with all consequential service benefits. For Petitioner : Mr.R.John Sathyan For Respondents : Mr.T.M.Pappiah, Special Government Pleader C O M M O N O R D E R
Heard Mr.R.John Sathyan, learned counsel for the petitioner and Mr.T.M.Pappiah, learned Special Government Pleader appearing for the respondents.
2. Since the issues raised in both the writ petitions are common and filed by the same petitioner, the writ petitions are taken up together for final disposal.
3. The petitioner has approached this Court, seeking the following reliefs:-
"1. To issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the order for a Denovo Enquiry and appointment of Enquiry Officer passed by the first respondent in C.No.B1/10224/13 dated 02.12.2013 on the file of the Deputy Inspector General of Police, Trichy Range in Charge of Thanjavur Range (1st respondent) and quash the same since it violates the established rules, law and procedure and consequently restore the original proceedings of the 2nd respondent in PR.No.8/13.
2. To issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the departmental enquiry pending in PR.No.8/2013 on the file of the 1st respondent dated 18.03.2013, now pending on the file of the 4th respondent and quash the same and also consequently direct the 1st respondent to allow the petitioner to retire from service with all consequential service benefits.
4. The case of the petitioner is as follows:-
The petitioner was working as Sub-Inspector of Police, District Crime Branch, Tiruvarur from 2012 onwards. While discharging his duties, the petitioner was implicated in a criminal case on the basis of false complaint for which the petitioner was placed under suspension, pending both departmental as well as criminal action against him. The petitioner was arrayed as accused No.4 in crime No.6/12 for an offence under Section 120(b), 404, 406, 409, 414 and 420 of Indian Penal Code.
5. According to the petitioner, he was not at all involved in any act of cheating nor indulged in breach of trust. However, he was wantonly implicated in the criminal case by certain vested interest of the Department. Simultaneously, the departmental proceedings was also initiated against the petitioner under Rule 3(b) of the Tamil Nadu Police Subordinate Service (D&A) Rules, 1955.
6. The departmental proceedings was set in motion in which 7 out of 9 witnesses were examined in chief and were cross examined. However, certain defects and shortcomings were noticed in the conduct of the departmental enquiry against the petitioner. Therefore, the first respondent viz., the Deputy Inspector General of Police, vide proceedings dated 02.12.2013, ordered de novo enquiry, appointing different Enquiry Officer for conducting fresh enquiry against the petitioner. The said proceedings was a subject matter of challenge by the petitioner herein in W.P.No.34799 of 2013. While admitting the writ petition, this Court has stayed the further departmental proceedings and the matter stands at that.
7. In the criminal proceedings initiated against the petitioner, a full fledged trial was conducted on the file of the Judicial Magistrate No.1, Mannargudi. By a lengthy judgment, the learned Magistrate acquitted the petitioner from all the charges vide judgment dated 01.09.2015. Thereafter, an opinion was sought from the learned Public Prosecutor of Madras High Court and the said Public Prosecutor on 04.05.2016, has given his opinion saying that it was not a fit case for appeal and on the basis of the advice of the learned Public Prosecutor, the Government has issued a G.O.No.489, dated 24.06.2016, stating that there was no necessity to file an appeal against the order of acquittal passed in C.C.No.468 of 2012, where the petitioner and others were acquitted from all charges.
8. According to the petitioner, the charges framed against him in the Criminal Court and the departmental charges are one and the same and the witnesses to be examined on the side of prosecution and the set of documents relied on by the prosecution in respect of both criminal as well as departmental action, are also one and the same. Therefore, once the petitioner had been acquitted by the Criminal Court of all charges, it is not open to the department to proceed with the departmental action ignoring the judgment of the Criminal Court. In the said circumstances, the petitioner is before this court challenging the disciplinary action initiated and continued against him, notwithstanding the fact that in the Criminal Court, the petitioner had come out unscathed on merits.
9. Upon notice, learned Special Government Pleader appearing for the respondents, entered appearance and filed a reply affidavit in respect of both the writ petitions. In the reply affidavit, it is stated that the departmental charges initiated against the petitioner were very serious in nature and therefore, the acquittal of the petitioner by the Criminal Court may not have any bearing in the departmental action. The departmental action can be independently proceeded with.
10. According to the learned Special Government Pleader, the standard of proof as between the criminal action and the departmental action is different and in the departmental action preponderance of evidence is fair enough to arrive at the guilt of the delinquent Officer, unlike the criminal proceedings where the prosecution has to prove the case against the accused beyond all reasonable doubt. Therefore, the fact that the petitioner had been acquitted by the Criminal Court, cannot be the basis for interfering with the disciplinary action initiated against the petitioner.
11. According to the learned Special Government Pleader, the Courts have held that the departmental action can always be initiated and proceeded with even in the face of acquittal of the delinquent Officer by the Criminal Court. The learned counsel would draw the attention of this Court to the various rulings of this Court as well as the Hon'ble Supreme Court of India that the departmental action can always be independently maintained and proceeded with, de hors the fact whether the delinquent Officer was acquitted or otherwise by the Criminal Court. However, what has to be seen in the present case is whether the departmental action can be proceeded with on the same set of facts and grounds which form the basis of the criminal proceedings initiated against the petitioner and if the petitioner had been acquitted on merits and not on the basis of the benefit of doubt, whether it is still open to the department to proceed with the departmental action against the petitioner or not.
12. The learned counsel for the petitioner would draw the attention of this Court to the lengthy judgment of the Criminal Court in C.C.No.468 of 2012, dated 01.09.2015 and would draw the attention of this Court to the findings of the Criminal Court as found in paragraph Nos.43, 44, 45, 46, 47 and also the final paragraph Nos.53 and 54, are reproduced below:-
"43. ?????? 3,4 ???????? ???????? ???????????? 2015 1 Law weekly Criminal Page 43 (SC). 2007 (13) (SCC) Page 410 (SC), AIR 1981 Page 1646 (SC), 1983 AIR Page 631 (SC), 2015 2 MLJ (Criminal) Page 637???? ????????????? ????????????????????????? ???????? ?????? ??????????????? ???????? ????????? ????? ?????? ???????? ?????? ?????????? ??????????????? ?????????? ??????????? ?????? ??? ???????? ????? ????? ?????????????????? ??????? ?????. ?? ???????????? ???????? ??? ?????? ??????????????? ??? ??????????? ???? 3??? ????? ?????????? ?????? ????????????? ????? ????????, 4 ??? ????? ?????????? ?????? ????????????? ???? ???????? ??????? ???????? ??????? ???? ??????????? ??????? ?????? ???????????? ????????????? ???????????? ???????????? 1 ????? 7 ???????? ?????? ?????????????? 3,4 ???????? ??????????????????????? ??????????? ??????????? ????????? ??????? ????????? ???? ???????? ???????? ??????? ?????????????? ????????? ?????????? ???????? ???????????? ?????????? ?????? ?????????????? 2007 (13) (SCC) Page 410 ?? ?????????????, "For an offence under Section 409 it must be proved that the person entrusted with the property or any dominion over property in his capacity as a public servant committed criminal breach of trust in respect of such property as defined in Section 405, IPC. The evidence must show that he dishonestly misappropriated or converted to his own use that property or dishonestly used or dispossessed that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. In the present case, there is no evidence that A-4 to A-7 dishonestly misappropriated or converted to their own use that amount of T.A. On record it is established that A-4 to A-7 are not the beneficiaries of the misappropriated amount."
-????? ???????????? ??????????? ??????????? ???????????? ?????????????? ?????? ??????.
44. ??? ???????, ?????? ?????????????? ?????? 409, ??? ???? ??? ??? ?????? ????????? ???????????????? ???? (Entrustment) ?????? ?????????? ?????????? ???? (Dominion) ???? ?????? ???????? ????????? ????? (Criminal Breach of Trust) ???????? ???? ???????. ????? ??????????? 3,4 ??????????? ?????? ???? ???????? ???????? ??????? ????????????????????, ?????? ??????? ?????????? ?????????, ????????????????? ??? ???????? ???????? ????????, ???????????? ???????? ????????? ???? ???????????????. ???????????, ?????? 420 ??????? ??? ??? ???? ?????? ????? ???????? ???????????, ????? ?????? ????????????? ?????????? ???????? ???? ?????? ??????? (Dishonestly Induces) ???? ??? ?????? ??????? ??????? ??? ?????????? ??????? ????????, ???? ?????? ???????? ??? ???????? ?????????????????. ??????????? ??????????? 3,4 ???????? ??????? ???? ???????? ???? ?????? ???????, ???? ?????? ??????????? ????? ?????????? ?????????? ???? ???????? ???????? ????????, ???????????? ???????? ???? ????????????????????? ???? ?????? ???????? ?????????????? ?????? ??????. ??? ??????? ???2 ????.?????????? ??.???.??.?????? 9600/2012, 11668/2012, 13421/2012, 13710/2012 ???? ??????????? ???????? ?????? ???????? ?????????? ????? ???????????? ??? 7 ????.??????? ??.???.??.???,13691/2012 ?? ??.??.4 ??????? 5 ???????? ???????????? ????????? ????????? ?????????? ???? ????????? ??????? ??????? ?????????? ???????? ??????? ??.??.1 ????? 5?? ???? ?????????? ???? ?????????????? ??? ??????? ???????????? ??????? ????????????????????? ????????????????? ??????????????????????.
45. ??????, 2??? ????????????????? ???????? ?????? ????????? ?????? ??????? ??????? ?????? ?????????? ?????? ????????? ?????? ????????????????? ?????? ??????? 2??? ????????? ??????? ?????? ?????????? 2??? ?????????? ??? ?????????????????? ???? ?????? ??????? ?????????????? ???? ?????????? ??????? ?????? ?????????? ?????????????? ??????????? ?????? ?????????? ??????????? ????????? ??????? ??????????? ??? ????????????. ??? ??????? ??????????? ??????? 2??? ?????????? ??????? ???????????????????????? ???????????? ???????? ?????????????? ?????? ??????. ??????? 2 ????? 4 ???????? ???? ???????? ???? ???????? ?????? ???? ????? ??????? ?????? ?????????? ???? ?????? ??? ??????????? ????????? ???? ???????? ???????? ??????? ?????????????? ????? ???????????? ??????? ???????? ???????? ????????????????? ???????? ??????? ??????????????? ???????????? ???????? ?????????????? ?????? ??????.
46. ???????????, ?????? ?????????? 1??? ????? ????? ????? ??????????? ??????? ?????? 1 ??? ????? ???????? ?????????? ?????????? ???????? ?????????????????? ??????? Receiver ?? 3,4 ???????? ??????? ??????? ????????? ?????????????????????? ??????????????? ???????????? ??? 31 ????.????????? ??.???.?? 3,4 ???????? ???????? ??????? ?????????? ???????? ????? 1??? ????? ???????? ??????????????? ????? ?????????????????? ???????????? ?????????????????? ????????? ???? ????????? ???????????? ??? 33 ????.????????? ??.???.?? ???? ????????????? ?????????????? 3,4 ???????? ????????? ????? ??????????? ??? ?????????? ??????? ??????????? ??????? ????????????????? ?????????????????? ??????????????? ???????? ????????? 1??? ?????????? ??????? ?????? ??????????? ??????????? 3,4 ?????????? ????????? ?????????????????????????? ?????? ??????. ??????? ??? 1 01.09.2012 ?? ?????????? ???????? ????????????????? ????? ???????? ??????????? ??????? ???? 20 ???????????? ????? ?????????? ?????????? ?????????????? ????????????????? ??? 3 ????.????????????? ??????? ??? 4 ????.?????????? ??????? ???????? ????????????? 1??? ??????? ?????????? ???????? ??????? ??????????? ?????????????? ?????????? ??????? ?????? ?????????????? ???????? ???????????? ???????? ???????? ?????????? ???????????????? ?????????????? ????? ??????? ????????? ???? ????????????? 1??? ???????????????? ???????? ???? ??????????? ??????? ???? ?????????????? ??????????? ????????????????? ???????? ?????????????????????????? ?????? ??????? ????????????.
47. ??????? ???????? ??????? ???????????? ???????? ???? ?????????????? ???? ??????????????? ?????????????????? ?????????????? ??????????? ????????? ??????? ??????????? ??? ??????? ?????????????? ??????? ???????? ???????? ??????? ?????????????? ????????????????? ??????????? ????????? ??????? ????????? ?????????????????? ???????? ???????? ??????? ??????? ?????? ?????????? ???????? ???????????? ???? ???????????? ??????? ????????? ???????? ???????? ???????????????????? ???? ?????????????? ????????????? ????? ????? ????????????? ???????????????.
48 to 52.........
53. ???????, ???????? ??????? ???????????? ??.?? 1 ????? 3 ??? 2 ????.?????????????????? ??.??.4 ??????? 5 ??? 7 ????.????????????? ????? ?????? ?????? ?????? ?????????? ???????????? ??????? ????????????. ??????? ?????? ??????????? ???????????? ?????? ???????????????? ??????????? ??????? ??????? ???? ??????????? ??????????????? ???????????????? ?????? ????? ????????????? ???????????????.
54. ??????, ??.??.6 ???? ??.2 ?????? ???????? ???? ??? 31 ????.????????? ??.???.?? ??? 11 ????.????????????? ??????? ???????????????? ???????? ??? 11 ????.???????? ???? ????????????? ??????? ????????????????????? ???? ??? 13 ????.???????? ???? ????????????? ???? ?????????????????????? ??? ??????? ??? 31 ????. ????????? ??.???.?? ???? ????????????? ??? ???? ???????? ??.??.?? ????? ????????????? ????? ??.2???????? ??????????????? ????????????? ???????????????????? ????????? ???? ??.2 ?????? ???????? ???? ??? 11 ????.???????? ???? ????????????? 1??? ?????????? ??????? ???? ???????? ????????????? ????????? ???? ????????? ???????????? ????????? ???? 2 ?????? ???????? ??????????? ??????????? ??? 1 ????.??????????? ??.??.6 ??.2 ???????? ???? ???? ???????? ???????????? ????????? ???? ????????????????? ??.???.??.???,12501/2013 ?? ??????? ????????? ??????? 1??? ????? ????????? ???? ?????? ?????? ?????? ???????? ???????? ??? ??????????? ????????? ???????? ????????? ??? ??.???.??.???.12501/2013 ?? ????????????????? 10.01.2014 ?? ???????? ?????????????????? ?????? ???1 ????.??????????? ?????? ???????????? ????????????? ???????????? ??? 1 ????.?????????? ??????????? ?????? ?????? ???????? ??????? ???????? ?? ????? ????????? ???? ??????????? ????????? ???????? ??.??.6 ?? ???? ???? ??. 2 ?????? 1??? ????????? ?????????? ?????? ??????? ???????????? ???????? ???? ??????????? ???????????? ?????? ??????????????????????????? ??????? 1??? ????? ???? ?????????? ??????????????? ???????????????? ?????? ????? ????????????? ???????????????.
wherein, the Criminal Court has given a clear findings that the prosecution had miserably failed to bring the guilt of the accused. According to the Criminal Court, there was absolutely no piece of evidence to establish the criminal charges framed against the petitioner. Therefore, proceeded to acquit the petitioner along with others from all charges. From the findings given by the Criminal Court, it could be seen that the petitioner had been acquitted on merits and not on the basis of the benefit of doubt given to him.
13. While so, this Court has to further see whether the departmental charge memo is also grounded on the same set of facts as that of criminal proceedings and whether the contents of the departmental charge memo are the same as that of the criminal proceedings. From the charge sheet laid in the Criminal Court as well as the departmental charge memo, it could be seen that the ingredients of both the charges are one and the same and no material variation could be found in the contents of both the charges. Moreover, the witnesses who were sought to be examined by the prosecution for the department, had also been examined as prosecution witnesses in the criminal proceedings and on the basis of their evidence, the Criminal Court had come to a definite finding that no material whatsoever was placed by the prosecution to establish the charge against the accused viz., the petitioner herein. Such being the case, this Court does not see any justification for the department to proceed with the departmental action on the basis of the same witnesses whose evidence had been evaluated by the competent Criminal Court which given a clean chit to the petitioner from all charges.
14. The learned counsel for the petitioner would also rely on the decision passed by the learned Division Bench of this Court in the case of P.Ramasamy Vs. Government of Tamil Nadu, reported in (2006) 1 MLJ 146. He would draw the attention of this Court to paragraph Nos.4 and 5 of the order of the learned Division Bench which dealt with the cases of similar circumstances, are reproduced hereunder:-
"4. Coming to the order of the Tribunal, though counsel appearing for the petitioner did not appear at the time when the case was taken up by the Tribunal, but the perusal of the Original Application shows that the petitioner/applicant has specifically referred to the judgment of the Sessions Court dated 2-11-95 acquitting him stating that the charges have not been proved beyond reasonable doubt. In such a circumstance, it is but proper on the part of the Tribunal to consider the same while passing the order in the Original Application. Instead, the Tribunal having gone into the enquiry proceedings, confirmed the order of the Original Authority without making any reference as to the pronouncement of judgment by the Sessions Court in favour of the petitioner/accused. Inasmuch as the charges both in the departmental enquiry and in the criminal case are one and the same, and the Criminal Court acquitted the accused on merits, we are of the view that the disciplinary authority and the Tribunal ought to have focussed their attention to the verdict of the criminal court and considered the same before passing the order. As a matter of fact, the Tamil Nadu Police Standing Orders and the instructions by the Government make it clear that if the charge in the departmental enquiry and the criminal case are identical, the dismissal of the criminal case acquitting the accused on merits is to be considered by the department before proceeding further. We are satisfied that inasmuch as the charge in the departmental enquiry and the grounds leading to the prosecution of the accused is on the same set of facts and in view of the fact that the criminal case ended in honourable acquittal on merits even as early as on 2-11-95, the disciplinary authority and the Tribunal ought to have considered the same before proceeding further. We are satisfied that the petitioner has made out a case for interference.
5. In the light of what is stated above, the impugned order of the Tribunal and all the orders of the respondents 3 and 5 are quashed. The Writ Petition is allowed. No costs."
The learned Division Bench had quashed the proceedings pending before the disciplinary Tribunal on the basis of the acquittal by the Criminal Court of the delinquent Officer therein. This Court no doubt finds that the observations made by the learned Division Bench of this Court extracted supra, squarely covers the issues presented in these cases.
15. As stated above that once the Criminal Court has given a clear acquittal on merits to the accused viz., the petitioner herein, it is not open to the department to proceed with the same set of charges, be that the departmental charges and take departmental action. Such action of the department will not be in the interest of good administration continuing the departmental action in the above said circumstances of the case is per se cannot be justified and countenanced.
16. This Court is concious of the fact that the disciplinary action is not to be trifled with during its pendency. However, as far as the present case on hand is concerned that the Criminal Court has given a clear finding of innocence of the petitioner's involvement in the charges framed against him. It is therefore not just and proper for the departmental action to continue and proceed against the petitioner. Therefore, this Court finds that the petitioner has made out a clear case for intefering with the departmental proceedings pending against him.
17. For the above said reasons, the departmental enquiry pending in PR.No.8/2013, on the file of the first respondent dated 18.03.2013, is hereby quashed. During the course of the arguments, the learned counsel for the petitioner would submit that the petitioner had attained the age of superannuation on 31.03.2013. But, he was not allowed to retire in view of the pendency of the disciplinary action against him. In view of the quashment of the disciplinary action against the petitioner, there shall be a further direction to the first respondent to allow the petitioner to retire from service with all consequential benefits. In view of the present writ petition (W.P.No.27463 of 2016) being allowed, no orders are necessary in respect of the other writ petition in W.P.No.34799 of 2013, which challenges the proceedings of the first respondent dated 02.12.2013, ordering de novo enquiry. Therefore, the writ petition in W.P.No.34799 of 2013, is ordered to be closed. The first respondent is also directed to implement the order passed by this Court, within a period of eight weeks from the date of receipt of a copy of this order.
18. With the above direction, the writ petition in W.P.No.34799 of 2013 is closed and the writ petition in W.P.No.27463 of 2016 stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.
28.03.2018 Index:Yes/No Internet:Yes gsk V.PARTHIBAN,J.
gsk To
1.The Deputy Inspector General of Police, Office of the Dy.I.G of Police, Trichy Range (In-charge of Thanjavur), Trichy City.
2.The Superintendent of Police, Nagapattinam (Enquiry Officer), Office of the Superintendent of Police, Nagapattinam District.
W.P.No.34799 of 2013 and W.P.No.27463 of 2016
3.The Superintendent of Police, Office of the Superintendent of Police, Thiruvarur District.
4.The Additional Superintendent of Police, Prohibition Enforcement Wing, Trichy District.
5.The Deputy Superintendent of Police, District Crime Branch, Crime No.6 of 2012, Tiruvarur District.
28.03.2018