Madras High Court
N.Pandiyarajan vs The Director General Of Police on 17 July, 2009
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:17/07/2009 CORAM THE HONOURABLE Mr. JUSTICE R.S.RAMANATHAN Writ Petition No.542 of 2007 N.Pandiyarajan ... Petitioner Vs 1.The Director General of Police, Office of the DGP, Chennai-600 004. 2.The Deputy Inspector General of Police, Madurai Range, Office of the DIG, Madurai. 3.The Superintendent of Police, Madurai District, Office of the Superintendent of Police, Madurai. 4.The Deputy Superintendent of Police, Thirupparankundram Sub District, Office of the D.S.P., Thirupparankundram, Madurai. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certiorarified Mandamus to call for the records of the third respondent order in C.No.F4/Pr.3/2004 under Section 3(a) dated 08.10.2004 in P.R.No.3 of 2004 which was confirmed by the first respondent's order dated 08.04.2006 in proceedings Rc.No.12480/Ap.2(3)/2006 and quash both the same and direct the respondents 1 to 3 to consider the petitioner for promotion to Head Constable. !For petitioner ... Mr.N.DilipKumar ^For respondents ... Mr.D.Gandhiraj Government Advocate :ORDER
The petitioner is a Grade I Police Constable, joined the police department as Grade-II Police Constable Armed Reserve, (Madurai Rural) on 25.05.1988. He was promoted as Grade-I Constable in the year 2000. According to the petitioner, though he ought to have been promoted as head constable in the year 2004 by reason of punishment rolls, which is challenged in this Writ Petition, he was not promoted. It is stated in the petition that on the basis of the report of the Inspector of Police, Silaiman Circle, Madurai District and on the basis of the report of the Deputy Superintendent of Police, Tirupparankundram Sub Division, Madurai, charge memo was issued to the petitioner under Rule 3(A) of the Tamil Nadu Subordinate Services (Discipline and Appeal) Rules 1955 on 08.10.2004. The gravaman of the first charge is that the petitioner being employed in the police Department, which is known for its discipline and good conduct and having married and father of two children, the petitioner from 24.07.2002 was having illicit intimacy with Selvi.Santhakumari, who is employed in the Karuppayurani Police Station as Sub-Inspector and thereby brought disrepute to the Department. The second charge is that on 21.07.2003 at about 3 p.m. while the said Selvi.Santhakumari, Sub Inspector of Police, Karuppayurani Police Station was in the station, the petitioner came in a two wheeler and went into the station and slapped the woman Sub Inspector. On the basis of the above two charges, the petitioner was asked to submit his explanation. The petitioner submitted his explanation and thereafter the Superintendent of Police passed an order of punishment by his order dated 08.10.2004, awarded the punishment of postponement of increment for two years without cumulative effect by SP/m Dv on 08.10.2004 for the delinquency, namely, having illicit intimacy with Selvi.Santhakumari, Woman Sub Inspector of Police and brought disrepute to the Department. So far as second charge, namely, the slapping of the woman Sub- Inspector on 21.07.2003 at 3.00 p.m. is concerned, it is stated in the order dated 08.10.2004, that the enquiry on that day revealed that the petitioner along with HC 223 was on investigation duty in Crime No.5 of 2003 on the file of the CCIWCID, Madurai, from 10.00 a.m. and the GD entries also revealed that the petitioner was not present in the Head Quarters from 10 hrs on that day. Nevertheless, as per the order of punishment, the postponement of increment for two years without cumulative effect was made for the act of having illicit intimacy with Selvi.Santhakumari, Woman Sub-Inspector. It is seen from the order of punishment that no punishment was awarded in respect of charge No.2.
2. The petitioner filed statutory appeal to the second respondent and the second respondent by his order dated 27.08.2005 dismissed the appeal on the ground that the appellant has not brought any fresh point for consideration and the punishment is commensurate with the nature of delinquency committed by the petitioner. The petitioner thereafter filed Review Application before the first respondent and the first respondent also dismissed the Review Application holding that the charge against the delinquent is rightly proved in the enquiry and the punishment awarded is also apt by his order dated 08.04.2006. Aggrieved by the same, this Writ is filed.
3. Mr.Dhilipkumar, the learned counsel vehemently contended that the order of the third respondent dated 08.10.2004 is illegal as there was no proof adduced against the petitioner and without giving any opportunity to the petitioner to cross-examine the witnesses, the third respondent on the basis of the statement made by the Inspector of Police, Silaiman Police Station and the Deputy Superintendent of Police, Thirupparankundram Sub Division, which were obtained behind the back of the petitioner, passed the order of punishment. He further developed his argument stating that even in the impugned order dated 08.10.2004, the third respondent made it clear that there are no corroborative evidence to strengthen the delinquency of illicit intimacy of the delinquent with the Sub-Inspector of Police substantiating report of the Deputy Superintendent of Police and he passed the order taking into the probabilities of giving two adverse notice by the delinquent in the current affair. He, therefore, submitted in respect of the first charge namely, illicit intimacy, even according to the third respondent, there was no material to prove the same and in respect of the second charge it is proved by the records that on 21.07.2003, the petitioner was on duty along with HC 223 in connection with the investigation in CCIWCID, Madurai in respect of Crime No.5 of 2003 and therefore, the third respondent erred in holding that the charges are proved and the punishment of stoppage of increment for two years without cumulative effect is liable to be set aside. The learned counsel relied upon the judgment of the Hon'ble Supreme Court reported in 2009 (2) SCC 570, in the case of ROOP SINGH NEGI VS. PUNJAB NATIONAL BANK AND OTHERS and submitted that as per the said judgment, the order of the third respondent cannot be sustained and hence the order is liable to be set aside.
4. Mr.D.Gandhiraj, learned Government Advocate appearing for the respondents contended that the third respondent on the basis of the discrete enquiry made by the Deputy Superintendent of Police and also on the basis of the Inspector of Police, Silaiman Police Station, rightly came to the conclusion that though there is no corroborating material against the petitioner having regard to the adverse entries, the punishment was imposed and it cannot be interfered with.
5. The charges levelled against the petitioner are serious in nature having regard to the department in which the petitioner is employed. In the Police Department discipline and good conduct are very essential and when the police officials indulged in activities such as having illicit intimacy with another woman, those acts must be seriously viewed. Taking into consideration the department in which the petitioner is employed and having regard to the nature of charges if proved, the officials deserve punishment. Similarly the act of slapping another police officer must also be seriously looked into and if such activities are allowed to happen the morale of the police force would be affected and therefore, those acts must be viewed seriously. But, at the same time, while taking action against the erring officials, the department must take efforts to see that those charges are proved in the enquiry or they are able to present a prima facie case against the delinquent. In the absence of such proof, no action can be taken against the erring officials as it is the fundamental principle of law that even in the departmental proceedings, though the proof is not high as in the case of criminal case, nevertheless, the department must prove that the charges are proved, the charges through satisfactory evidence and no person shall be punished on no evidence or on the basis of probabilities or surmises. Unfortunately, in this case, if we go through the records, we are constrained to come to the conclusion that the department miserably failed to prove the charges and various principles laid down by Hon'ble Supreme Court were not at all taken into consideration and the second and first respondents failed to apply their mind while passing the confirmation order.
6. The third respondent issued the charge memo on the basis of the statement of the Inspector of Police, Silaiman Police Station and on the report of the Deputy Superintendent of Police, Tirupparankundram Sub Division. In the statement given by the Inspector of Police, Silaiman Circle, he has stated that the petitioner married secretly Selvi.Santhakumari and he was not able to get any documentary evidence and according to him, his discrete and confidential enquiry revealed that the petitioner and Santhakumari got married and are living as husband and wife. He further stated that on 21.07.2003 at 03.00 p.m. the petitioner came to Karuppayurani Police Station, where Santhakumari was working as Sub Inspector of Police, slapped on her face snatched the VHF hand set and mobile phone from her, threw them on the floor and left the police station. Immediately, thereafter the petitioner came back and again slapped Santhakumari on her face. According to the Inspector of Police, the incident was witnesses by P.C.1035 and when he met with the Woman Sub Inspector, she admitted the incident and also admitted that she and the petitioner are living as husband and wife. From the above statement of the Inspector of Police, it is made clear that the petitioner and Santhakumari got married and are living as husband and wife. But he was not able to obtain any evidence to prove the same and he was also not able to say the sources from which he gathered information that the petitioner and Woman Sub-Inspector are living as husband and wife. As regards the second incident, namely, slapping of the Woman Sub-Inspector by the petitioner on 21.07.2003, the eye-witness PC 1035 refused to give any statement in writing and though it was stated by the Inspector of Police that the petitioner snatched the VHF handset from the said Santhakumari and threw it on the floor, it is not known whether any damage has been caused to the VHF handset by the act of the petitioner.
7. The Deputy Superintendent of Police Thirupparankundram, also in his report dated 13.11.2003 stated that the petitioner and Santhakumari got married secretly. It is further stated by him in his report that in respect of the incident that took place on 21.07.2003 at 03.00 p.m. in the Karuppayurani Police Station, he examined PC 1035, Head Constable 740, the Inspector of Police, Silaiman Circle and obtained statement from those persons and from the statement of those persons the incident was found to be true. Nevertheless, he has stated in the same report that PC 1035 and HC 740, who were on para duty refused to give any information about the incident. He, however, recommended departmental action against the petitioner as the discrete enquiry made by him confirmed that the petitioner and Santhakumari are living together. It is seen from the statement of the Deputy Superintendent of Police that during his enquiry the PC 1035 by name Elango, the Head Constable, Nallusamy gave statement during his enquiry, regarding the incident that took place on 21.07.2003. Admittedly, those statement of the above said persons were not placed before the enquiry nor the copies of those statements were given to the petitioner.
8. The Superintendent of Police admitted in his order dated 08.10.2004 that there are no corroborative evidence to strengthen the delinquency of illicit intimacy of the delinquent with Santhakumari, and it is wrongly mentioned as Grade-I Police Constable 774 in the order, substantiating the report of the Deputy Superintendent of Police, Thirupparankundram, dated 13.11.2003. Nevertheless, he awarded the punishment of postponement of increment for two years without cumulative effect after taking into the probabilities of giving two adverse notice by the delinquent in the current affair.
9. In my opinion, the order of the third respondent is liable to be set aside. When charges were levelled against the delinquent, the Enquiry Officer can take the decision on the basis of the materials placed before him in respect of the charges levelled against the person, namely, the complaint, statement witnesses, the explanation by the delinquent and the documents produced by the department and the delinquent to prove or disprove the charges levelled against him. When there are no materials available against the delinquent in respect of the charges levelled against him, it is not open to the punishing authority to rely upon some other material and impose a punishment without giving the delinquent about the information relied upon by him and giving an opportunity to the delinquent about the same. In this case, he admitted that there are no corroborative evidence to strengthen the delinquency of illicit intimacy of the delinquent with Santhakumari. Having come to the conclusion that there is no evidence, he ought to have held that all charges are not proved. Therefore, the conclusion of the punishing officer that after taking into probabilities of giving two adverse notice by the delinquent and imposed the punishment is per se illegal. As rightly pointed by the learned counsel for the petitioner and as held in the judgment reported in 2006 (4) SCC 713 (NARINDER MOHAN ARYA VS UNITED INDIA INSURANCE CO. LTD), wherein the Hon'ble Supreme Court has held that the third respondent ought not have imposed any punishment. 26:In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angels. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the enquiry officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following:(1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry (See state of Assam v. Mahendra Kumar Das) (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice. (See Khem Chand v. Union of India and State of U.P. v. Om Prakash Gupta) (3) Exercise of discretionary power involves two elements (i) Objective and (ii) Subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. (See K.L.Tripathy v. SBI) (4) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fair play in action is the basis. (See Sawai Singh v. State of Rajasthan) (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. (See Export Inspection Council of India v. Kalyan Kumar Mitra) (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. (See Central Bank of India Ltd. v. Prakash Chand Jain and Kuldeep Singh v. Commissioner of Police)
10. It is stated in the said judgment that the enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal and suspicion or presumption may not take the place of proof even in a domestic enquiry. In this case, the enquiry officer namely the third respondent travelled beyond the charges and imposed punishment on the basis of some adverse entries which were not the subject matter of charges and his finding is based on presumptions and probabilities. Therefore, the action of the third respondent is against the principles laid down by the Hon'ble Supreme Court stated in the above judgment and hence liable to be set aside.
11. The order of the third respondent also suffered from factual infirmity. It is the specific case of the Inspector of Police and Deputy Superintendent of Police that the petitioner married the Woman Sub Inspector of Police secretly and are living together, but there is no charge for contracting the second marriage and the charge is only having illicit relationship that was not properly appreciated by the third respondent. Further the order of the second respondent in dismissing the appeal and the first respondent in rejecting the review application is also not in accordance with law and they are liable to be set aside. Both the authorities, namely, the first and second respondents without properly appreciating the finding of the third respondent, without application of mind passed those orders. The third respondent has imposed the punishment for the delinquency of having illicit intimacy with Selvi.Santhakumari, woman Sub Inspector from 24.07.2002. It is made clear by his order of punishment roll that Grade-I Police Constable 774, M.Pandiarajan, is awarded the punishment of postponement of increment for two years without cumulative effect by SP/m DV on 08.10.2004 for the delinquency, namely, the delinquent is having illicit intimacy with Selvi.Santhakumari working as Woman Sub Inspector in the Karuppayurani Police Station, from 24.07.2002 and as the delinquent having married and got two children, by his act brought disrepute to the Department. Therefore, the punishment was imposed only for having illicit intimacy and it is made clear that in respect of second charge that the petitioner slapped the women Sub Inspector of Police on 21.07.2003, no punishment was given as it was proved otherwise and as it was not proved and the records produced falsifies the case of the department. Nevertheless, the second and third respondents have stated in their orders that the petitioner was given punishment for the following delinquency and while stating the nature of delinquency, they clubbed both the incidents without appreciating that the petitioner was awarded punishment only for the delinquency of having illicit intimacy with the woman Sub Inspector of Police Santhakumari. This would show the non application of mind by the respondents 1 and 2 while passing orders rejecting the appeal and revision of the petitioner.
12. As I have held that the order of the third respondent is not sustainable in law. The order of the third respondent confirming the order of the respondents 1 and 2 are set aside and the Writ Petition is allowed. No costs.
RR To
1.The Director General of Police, Office of the DGP, Chennai-600 004.
2.The Deputy Inspector General of Police, Madurai Range, Office of the DIG, Madurai.
3.The Superintendent of Police, Madurai District, Office of the Superintendent of Police, Madurai.
4.The Deputy Superintendent of Police, Thirupparankundram Sub District, Office of the D.S.P., Thirupparankundram, Madurai.