Madras High Court
V.Subramanian vs State Of Tamil Nadu Rep. By on 10 February, 2011
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10/02/2011
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
W.P.(MD)No.4813 of 2009
and
W.P.(MD)No.4890 of 2009
and
M.P.(MD)Nos.1/2009, 1/2010, 1/2009 and 1/2010
V.Subramanian,
Head Constable (741) ... Petitioner in W.P.(MD)No.4813/2009
K.Palanisamy,
Head Constable (386) ... Petitioner in W.P.(MD)No.4890/2009
Vs.
1.State of Tamil Nadu rep. by
The Deputy Inspector General of Police,
Dindigul Range, Dindigul.
2.The Superintendent of Police,
Dindigul District,
Dindigul. ... Respondents in both W.Ps.
Common Prayer
Writ Petitions are filed under Article 226 of the Constitution of
India praying for the issue of a Writ of Certiorarified Mandamus, to call for
the records connected with order AP.10/A2/2008 and AP.11/A2/2008, dated
22.04.2009 respectively on the file of the first respondent and quash the same
and consequently, direct the respondents to reinstate the petitioners into
service with all attendant benefits.
!For Petitioners ... Mr.P.Krishnasamy
^For Respondents ... Mr.S.C.Herold Singh
Government Advocate
********
:COMMON ORDER
****** These two Writ Petitions are directed against the appellate order dated 22.04.2009 on the file of the Deputy Inspector General of Police, Dindigul, whereby and whereunder punishment of dismissal from service awarded by the Superintendent of Police, Dindigul, was confirmed.
THE BACKGROUND FACTS:
2. The petitioners were working as Head Constables in the Tamil Nadu Police Service. During the material time, the petitioner in W.P.(MD)No.4813 of 2009 was functioning as Head Constable in Dindigul Town South Police Station and the petitioner in W.P.(MD)No.4890 of 2009 was working as Head Constable in Ambiligai Police Station. The petitioners were directed to receive the convicts Deivendran @ Mandaivetti @ Murugan and Murugan @ Sathiya from the Central Prison, Trichy and to produce them before the learned Additional Assistant Sessions Judge, Dindigul. Accordingly, the accused were produced before the Court. The case was adjourned to 03.03.2008. The petitioners took the convicts to Dindigul bus stand, boarded the bus bound to Trichy and after putting handcuffs on the convicts, they were made to sit in the back seats. The bus was totally crowded. When the bus reached Aalampatti Pudhur near the Indian Oil Corporation Godown, at about 07.10 p.m., on 12.02.2008, the bus slowed down and immediately, the convict Deivendran @ Mandaivetti @ Murugan slipped out the handcuff of Murugan and got down from the bus and escaped. The petitioners have preferred a complaint immediately before the Inaam Kolathur Police Station, Somarasapettai in Trichy District and it was registered in Crime No.97 of 2008 under Section 224 of the Indian Penal Code.
3. The petitioners were placed under suspension as per proceedings dated 13.02.2008 on the file of the Superintendent of Police, Dindigul.
Subsequently, charge memos were issued to them on 10.04.2008. The charge memos contain a specific charge that the petitioners were liable for disciplinary action on account of their indifference and carelessness in duty in allowing the convict Deivendran @ Mandaivetti @ Murugan to escape from custody.
4. The petitioners, in their explanation to the charge memos, specifically pointed out that the passport issued to them does not contain any indication that the convict Deivendran @ Mandaivetti @ Murugan was a life convict and that he had already escaped twice during transit. Therefore, it cannot be said that they had not taken reasonable care, while taking the convict from the Court to the jail.
5. The disciplinary authority appointed the Deputy Commissioner of Police, Palani Sub-division as Enquiry Officer. The Enquiry Officer submitted his report informing the disciplinary authority that the charges were proved. The disciplinary authority, after issuing notice to the petitioners, imposed the maximum punishment of dismissal from service as per proceedings dated 13.10.2008. The said order was challenged before the appellate authority. The appeals filed by the petitioners were rejected as per order dated 29.12.2008. The appellate orders were challenged before this Court in W.P.Nos.610 and 611 of 2009. The learned Judge opined that the appellate orders were not supported by reasons and set aside the order granting liberty to the first respondent to pass fresh orders on merits. The appeals were once again considered by the Deputy Inspector General of Police and the same were rejected as per order dated 22.04.2009. Feeling aggrieved, the petitioners are before this Court.
6. The second respondent has filed a counter-affidavit, contending inter alia that the petitioners have not taken reasonable care, while accompanying a life convict and their carelessness and negligence helped the convict to escape from custody. The second respondent admitted that there were no entries in the passport issued to the petitioners indicating that the convict Deivendran @ Mandaivetti @ Murugan was a hard-core criminal. According to the second respondent, the petitioners were given arms and ammunition and as such, they cannot be heard to say that the failure on the part of the authorized officer to indicate in the passport about the past history of the convict contributed for the incident. In short, the second respondent justified the maximum punishment imposed on the petitioners.
SUBMISSIONS:
7. The learned counsel for the petitioners contended that the Superior Officers have not shown seriousness in the matter and the said fact is self-evident. According to the learned counsel, the Police Standing Orders provides that in case the convict is a life convict, or a hard-core criminal, minimum four police men should escort him and the journey should be in a special vehicle. No such steps were taken by the higher officials and not even a mention was made to the petitioners about the history of the convicts and as such, the petitioners cannot be penalized for not taking extra care in the matter. The learned counsel further contended that the punishment imposed on the petitioners were not commensurate with the gravity of offence.
8. The learned Government Advocate justified the punishment imposed on the petitioners. According to the learned Government Advocate, the petitioners should have taken reasonable care during transit and they cannot rely upon the failure on the part of the higher officials to indicate the involvement of the convict in earlier cases and his attempt on earlier occasions to escape from custody. It was further contended that the police men were given gun and as such, they should have used arms and ammunition and the fact that they fail to use such arms clearly shows that the petitioners were negligent and as such, no interference is called for in the orders impugned in the Writ Petitions.
ANALYSIS:
9. The petitioners were working as Head Constables. They were given the duty of taking the convicts Deivendran @ Mandaivetti @ Murugan and Murugan @ Sathiya, involved in Crime No.28 of 2001 from Central Prison, Trichy and to produce before the learned Additional Assistant Sessions Judge, Dindigul. They took custody of the accused on 12.02.2008 and after their production before the learned Sessions Judge, they boarded the bus and the accused were seated in the back seats, after handcuffing. During transit at about 07.10 p.m., the convict Deivendran @ Mandaivetti @ Murugan slipped out the handcuff of Murugan, the co- accused and escaped. The escaped accused was subsequently apprehended and he died in police encounter.
10. The principal charge against the petitioners were dereliction of duty, negligence and carelessness and thereby, allowing a prisoner to escape from custody. The petitioners challenged the disciplinary proceedings mainly on the ground that they were not aware that the prisoner Deivendran @ Mandaivetti @ Murugan was a life convict and he was involved in similar kinds of escape during custody on earlier occasions.
THE ISSUE AND ITS RESOLUTION:
11. The issue, therefore, is as to whether the petitioners were careless and negligent so as to award the maximum punishment of dismissal from service on them.
12. The Tami Nadu Police Standing Orders contains detailed provisions regarding classification of prisoners and the special care to be taken, while escorting extremists, undertrials and convicted prisoners.
13. The Tamil Nadu Police Standing Orders 348(12)(a) classifies the prisoners into high risk prisoners and low risk prisoners. The classification reads thus:
348(12)(a)(i) The prisoners shall be classified into two categories namely:-
(HRP) High Risk Prisoners: Terrorists, Dangerous Criminals High Security Prisoners, Prisoners prone to escape custody.
(LRP) Low Risk Prisoners : Other prisoners who are facing ordinary criminal charges under IPC under other local laws.
14. The Police Standing Orders provides for the scale of police guard for high risk prisoners and low risk prisoners separately. The provision regarding high risk prisoners reads thus:.
(HRP) High Risk Prisoners For a single prisoner --- 4 Police Constables For two prisoners --- 4 Police Constables For more than two and not more than four prisoners --- 4 Police Constables For more than four and not more than six prisoners --- 6 Police Constables For more than six and not more than ten prisoners --- 2 Head Constables and 8 Police Constables
15. The Police Standing Order Nos.348(21) and (22) provides for taking special care, while escorting hard-core prisoners. The provision reads thus:
"(21) Special care to be taken while escorting extremists undertrials/convicted prisoners: The strength of the escort should be increased depending upon the number and notoriety of prisoners without strictly adhering to the scale prescribed in 348(12) which indicates only the minimum. The Police party escorting undertrial prisoners from place of detention to court and vice versa should be absolutely vigilant and constantly alert to the possibility of the prisoners objective of escaping. If there are more than two prisoners, all of them should not be allowed to take food simultaneously. Their handcuffs should not be unlocked at one and the same time. They should be split into groups of two, and one group at a time should be allowed to take their food. The escort party should escort any prisoners going to wash their hands etc., (22) Extremists undertrial/convicted prisoners should always be escorted in a police van. The investigating officers should invariably indicate to the Officer in charge of the escort party that the undertrials to be escorted are dangerous elements and that extra care and caution should be ensured."
16. The petitioners have contended that there was no indication in the passport issued to them about the previous history of the convict Deivendran @ Mandaivetti @ Murugan. The said prisoner was described as a remand prisoner in the passport issued to them. The document marked as Ex.D.2 before the Enquiry Officer and the details furnished by the petitioners during the course of hearing shows that the escaped prisoner was a notorious and high risk prisoner. There were 17 criminal cases charged against him. He was involved in murder, murder for gain, dacoity and robbery cases. The said remand prisoner, on two occasions, escaped from police custody. It is also a matter of record that even after the subject incident, he escaped from police custody, when he was apprehended by the police and this resulted in the police opening fire. The escaped prisoner died in the said incident.
17. The question is as to whether the Superior Officers have shown sufficient care, while entrusting the custody of the remand prisoners with the petitioners.
18. The Tamil Nadu Police Standing Orders were framed for regulating the affairs of the police force. The escaped prisoner was involved in several murder and robbery cases and as such, he was considered as a high risk prisoner. In fact, he was a hard-core criminal. The convict was earlier sentenced to death and he filed a Mercy Petition before the President of India. The sentence was reduced to one of life imprisonment. Therefore, the convict was a hard-core criminal coming within the definition of high risk prisoners. The Police Standing Orders No.348(12) provides for the scale of police guard and in case a prisoner comes within the meaning of high risk prisoners, there should be four police constables to accompany him as escorts during transit. The convict in this case was accompanied by another accused. However, the fact remains that only the petitioners were given the custody of the convicts.
19. The Police Standing Orders 348(21) provides that the strength of the escort should be increased depending upon the number and notoriety of prisoners without strictly adhering to the scale prescribed in 348(12) which indicates only the minimum. The Police party escorting undertrial prisoners from place of detention to court and vice versa should be absolutely vigilant and constantly alert to the possibility of the prisoners objective of escaping. The Police Standing Orders further provides that extremists, undertrial/convicted prisoners should always be escorted in a police van. The Standing Orders also contains a provision that the investigating officers should invariably indicate to the officer in charge of the escort party that the undertrials to be escorted are dangerous elements and that extra care and caution should be ensured. There is nothing on record to show that the petitioners were aware that the convict Deivendran @ Mandaivetti @ Murugan was a life convict and he was earlier awarded death sentence by the Court, which was later converted into one of life imprisonment. The previous history of the convict was not mentioned in the passport issued to the petitioners. There is a clear violation of Police Standing Orders. The Superior Officers were well aware that the convict was a high risk prisoner and as such, they should have taken reasonable care to avoid the prisoner from escaping.
20. The passport issued to the petitioners should have contained an indication about the previous history of the convict.
21. The passports issued to the petitioners were marked as Ex.D.1. The convict was described in the said passport as under trial prisoner. Though the said issue was raised by the petitioners before the Enquiry Officer and the disciplinary authority, the contention was negavited by holding that the petitioners should have taken reasonable care.
22. The Police Standing Orders very categorically provides that the convicted prisoners should always be escorted in a police van. Instead of four police men, only two Police Constables were deputed to escort a high risk prisoner. The Superior Officials, by overriding the said mandatory provision, allowed the convicts to be taken in a bus with full of passengers. It was practically impossible for the police to open fire against the convict who escaped from the bus, as it would cause civilian casualties. The respondents have no case that the petitioners abetted in the act of escaping by the life convict. No such charge was framed against the petitioners. They were charged with misconduct relating to carelessness and negligence.
23. It is true that the convict escaped from custody. However, the core issue is as to whether the punishment imposed on the petitioners were commensurate with the misconduct alleged against them. While considering the punishment in a case like this, the background facts have to be taken note of.
24. The petitioners were not given any kind of indication about the details of the convict or as to whether he has escaped from custody on earlier occasions. In case such details were furnished in the passport and carelessness of the petitioners helped the convict to escape from custody, there would be no difficulty in imposing the maximum punishment. However, that is not the case here. The Police Officer, who issued the passport, made no attempt to disclose about the dangerous character of the convict. Since the convict was earlier awarded death sentence and he was involved in so many murder and other heinous crimes, the Superior Officer should have disclosed the same in the passport, so as to enable the petitioners to take extra care during transit. There were only two Police Constables and they were not provided with police van. The Police Standing Orders 348(21) gives a clear indication that the strength of the escort party should be increased depending upon the number and notoriety of prisoners. The convict in the present matter indulged in similar kinds of acts earlier. He escaped from custody at least on two occasions earlier. Therefore, the passport should have contained all such relevant information.
25. Though the Enquiry Officer has considered this issue, no attempt was made by the appellate authority, while deciding the question regarding proportionality of punishment. The appellate authority proceeded as if allowing a notorious criminal escaping from the custody is a very serious delinquency, which directly endangers the safety of public. However, the appellate authority very conveniently omitted to note that the petitioners were not aware of the notorious nature of the convict. The statement of the petitioners that the bus was overcrowded with passengers and as such, they were compelled to sit in the last row with the convict and the other accused sitting in the middle appears to have been ignored by the disciplinary authority as well as the appellate authority. The respondents have not initiated any action against the officer, who was instrumental in issuing a passport indicating that the convict was a remand prisoner and without disclosing the details regarding his past history including his behaviour earlier to escape from custody. The subsequent conduct of the convict and his death in police encounter also is a relevant material, which would justify the contention raised by the petitioners about the proportionality of the punishment imposed on them.
26. The counter-affidavit filed by the Superintendent of Police, Dindigul contains a clear admission that the passport issued to the petitioners in connection with their escort duty does not contain any indication about the previous history of the prisoners and that they were described as remand prisoners. Ex.D.1 marked on the side of the petitioners also indicates the said fact. Therefore, it is evident that the Superior Officers have not taken special care in the matter, even though they were aware that the convict was a hard-core criminal coming within the meaning of high risk prisoner as provided under Police Standing Orders 348(12)(a). These mitigating factors were not taken note of by the disciplinary authority as well as the appellate authority.
27. The factual matrix culled out above clearly shows that the punishment imposed on the petitioners were not proportionate to the nature of their misconduct. It is true that the convict escaped from custody. However, the background facts clearly suggests that the petitioners were not aware of the notorious nature of the convict and his earlier attempt to escape from custody. Therefore, the said fact should have been weighed with the disciplinary authority and the appellate authority while imposing punishment. The authorities have imposed the maximum punishment as a matter of course, as according to them, removal from service is the appropriate punishment for allowing a prisoner to escape from custody. However, they have not considered the material factor that there was no indication at any point of time to the petitioners about the background of the high risk prisoner.
28. Therefore, I am of the view that the punishment of dismissal from service imposed by the disciplinary authority, as confirmed by the appellate authority, shocks the conscience of the Court and as such, the said punishment is liable to be set aside. Accordingly, the punishment imposed by the disciplinary authority and the appellate authority are set aside.
ISSUE REGARDING APPROPRIATE PUNISHMENT:
29. The next question is as to whether the matter has to be remitted to the appellate authority for the purpose of imposing appropriate punishment or this Court has to mould the relief in an appropriate manner.
30. There is no dispute that in appropriate cases, when the Court is convinced that the punishment awarded by the disciplinary authority or the appellate authority shocks the conscience, it is open to the Court to direct the disciplinary/appellate authority to re-consider the punishment or with a view to put an end to the litigation, to impose appropriate punishment, after recording reasons for adopting such a course.
THE AUTHORITIES:
31. The Supreme Court in B.C.Chaturvedi v. Union of India [1995(6) SCC 749], indicated that in normal cases, when it is found that the punishment imposed by the authority is disproportionately excessive so as to shock the judicial conscience, the Court has to remit the matter to the administrator for awarding appropriate punishment. It was also held that in appropriate cases, the Court can modify the punishment by moulding the relief. The observation reads thus:
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact- finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
32. The Supreme Court in V.Ramana v. A.P.SRTC [2005(7) SCC 338], after conducting a survey of earlier decided cases, regarding the jurisdiction of the Court to interfere with the decision of the disciplinary/appellate authority in the matter of punishment, observed that in normal circumstances, it would be appropriate to direct the disciplinary authority to re-consider the punishment instead of modifying the punishment by the Court. The Supreme Court said:
"11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinar-;y authority or the Appellate Authority to reconsider the penalty imposed."
33. The Supreme Court in Commr. of Police v. Syed Hussain [2006(3) SCC 173] observed that the doctrine of proportionality has to be applied in appropriate cases. The observation reads thus:
"13. It is, therefore, beyond any doubt or dispute that the doctrine of proportionality has to be applied in appropriate cases as the depth of judicial review will depend on the facts and circumstances of each case."
34. Therefore, on a careful consideration of the entire factual matrix, I am of the considered opinion that the punishment was shockingly disproportionate and as such, the same requires re-consideration by the appellate authority.
35. There is no question of awarding the maximum punishment of removal from service, in view of the peculiar facts of this case. The petitioners have produced a proceeding of the appellate authority relating to PC.447 R.Pavadaisamy, who was originally awarded with punishment of removal of service, which was subsequently modified into that of postponement of increment for two years, which shall operate to postpone future increments for two years.
36. Since I am of the opinion that the subject case does not justify the imposition of maximum punishment, it is open to the appellate authority to impose appropriate punishment, keeping in view the background facts including the failure on the part of the Superior officials to indicate the notorious character of the convict in the passport and their failure to adhere to the mandatory provisions of the Tamil Nadu Police Standing Orders in the matter of escorting high risk prisoners. Such exercise shall be completed within a period of four weeks from the date of receipt of a copy of this order.
37. In the upshot, I allow the Writ Petitions. Consequently, the connected miscellaneous petitions are closed. No costs.
SML To
1.The Deputy Inspector General of Police, Dindigul Range, Dindigul.
2.The Superintendent of Police, Dindigul District, Dindigul.