Madras High Court
T.Ganesan vs The Director General Of Police on 9 December, 2021
Author: Anita Sumanth
Bench: Anita Sumanth
W.P(MD)No.22190 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.12.2021
CORAM:
THE HONOURABLE DR JUSTICE ANITA SUMANTH
W.P.(MD) No.22190 of 2018
and W.M.P(MD)No.20116 of 2018
T.Ganesan ... Petitioner
Vs.
1.The Director General of Police,
Office of the Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai – 600 004.
2. The Deputy Inspector General of Police,
Tirunelveli Range,
Tirunelveli.
3.The Superintendent of Police,
Office of the Superintendent of Police,
Thoothukudi Distrit,
Thoothukudi. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of writ of Certiorarified Mandamus calling for the records relating to the
impugned order passed by the third respondent in his proceedings in PR/84/2005
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W.P(MD)No.22190 of 2018
dated 27.12.2011 which was modified by the proceedings issued by the first
respondent in RC.No.123503/A.2(10/2016 dated 21.07.2017 whereby the
punishment to the effect of postponing the increment for a period of two years
and shall operate to postpone the future increment from the date of original orders
and the proceedings of the third respondent inC.No.L1/LR/258/2011 dated
18.05.2012 and quash the same and consequently direct the respondents to pay all
attendant and monetary benefits to the petitioner.
For Petitioner : Mr.G.Thalaimutharasu
For Respondents : Mr.A.K.Manikam
Special Government Pleader
ORDER
The petitioner had been appointed as Grade-II Police Constable by the Tamilnadu Unified Recruitment Board on 26.12.1985. He was promoted through the ranks and finally to the post of Special Sub Inspector on 26.12.2017.
2. While in service as Grade- I Police Constable, two(2) counts of charges were laid as against the petitioner, firstly, was that he was running a chit fund business in the name of his wife from July 2003, had collected a sum of Rs.2,47,000/- from 17 members and had cheated them by not repaying the amounts to them and secondly that the chit fund business carried out by him in 2/15 https://www.mhc.tn.gov.in/judis W.P(MD)No.22190 of 2018 consonance with a lady with whom he was carrying on an illicit relationship.
3. As against the first charge, First Information Report has been registered in Crime No.23 of 2004 for the offence under Section 420 IPC. The petitioner participated in the enquiry and an enquiry report came to be formulated that was adverse to him. The report of the enquiry officer is detailed and refers to his independent enquiry, as well as the investigation carried out with seventeen(17) persons, who have claimed to have been cheated. All seventeen(17) of them had filed complaints before the concerned Police Station, which was basis for the First Information Report.
4. The enquiry report was placed before the original authority before whom the petitioner also filed an explanation. Original order dated 27.12.2011 imposed a punishment of deduction of time scale of pay on two(2) stages for two(2) years, which shall operate to postpone further increments. The petitioner was suspended pending enquiry and was reinstated into service on 28.12.2011.
5. Order dated 28.12.2011 was not challenged by the petitioner by way of statutory appeal and he chose to suffer the punishment till the result of the matter before the criminal court. Judgment came to be pronounced by the Judicial Magistrate No.1, Tuticorin, on 20.05.2016 acquitting the petitioner, though giving 3/15 https://www.mhc.tn.gov.in/judis W.P(MD)No.22190 of 2018 him the benefit of doubt.
6. The petitioner was acquitted on account of the deficiency in the case of the prosecution, including for the reason that the evidence that they sought to rely upon, being the complaints filed by those cheated, had not been placed into evidence.
7. Armed with the order of acquittal, the petitioner chose, for the first time, to question the punishment order by way of a mercy petition filed before the Director General of Police/R1. He proceeds on the basis that the disciplinary proceedings had been initiated solely on the basis of the criminal complaint and in view of the acquittal granted by the criminal court, the former should also go.
8. The first respondent has passed an order dated 21.07.2017 rejecting the plea for mercy, though modifying the punishment to that of postponement of increment for a period of two years, which shall operate to postpone future increments from the date of original orders. Hence, the present writ petition.
9. The substratum of the petitioner's case is the judgment of the criminal court. He would state that in view of the identity of the evidences and the facts involved in disciplinary proceedings, two authorities cannot be seen to take such divergent stands. In this regard, my attention to G.O. Ms. No.124 Personnel and 4/15 https://www.mhc.tn.gov.in/judis W.P(MD)No.22190 of 2018 Administrative Reforms (Per.N) Department dated 22.02.1983 that relates to involvement of public servants in criminal misconduct and simultaneous initiation of departmental and criminal action and provides a clarification in that regard.
10. The State clarifies that in cases where there is simultaneous departmental as well as criminal action contemplated, criminal action must be pursued with reference to the criminal aspect of the offence, whereas the departmental action must be initiated based on lapses committed by Government servants in the course of discharge of official duties. The following procedure was outlined to be adopted in matters where criminal as well as disciplinary proceedings were simultaneously initiated:
i)When a criminal case is filed solely on a criminal offence committed by the Government servant which is in no way connected with the discharge of his official duties there is no need to pursue departmental action except placing the Government servant under suspension as contemplated under Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. The ultimate departmental action can be initiated against the delinquent officer after the result of the criminal case pending against him is disposed of by the Court of Law.
ii) When both departmental as well as criminal action is initiated for the offences of the kind referred to in para 1 above in regard to departmental action, charges may be framed against him for the lapses committed by him and final orders may be 5/15 https://www.mhc.tn.gov.in/judis W.P(MD)No.22190 of 2018 passed after obtaining the required registers/records/documents from the court irrespective of the fact whether he is acquitted or not. Thus the departmental action will be confined to the irregularities or lapses committed by the accused officer with reference to the administrative aspect.
11. Thus, where the criminal case concerned solely the commission of a criminal offence, which was no way connected to the discharge of official duties, there shall be no need to pursue departmental action, except, placing the Government servant under suspension as contemplated under Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. Departmental action was to be initiated only after result of the criminal case pending against him.
12. The second clause clarifies that where both departmental as well as criminal action was contemplated for criminal offences, charges may be framed for lapses committed and final orders passed only after obtaining the required documents from the court irrespective of whether he was acquitted or not. Departmental action in such an instance would stand confined to irregularities or lapses committed by the Government servant with reference to the administrative aspects of the charges laid.
13. Petitioner relies upon a decision of a learned single Judge of this Court in W.P(MD)No.18064 of 2013 in S.Selvindurai Vs. the Additional Director 6/15 https://www.mhc.tn.gov.in/judis W.P(MD)No.22190 of 2018 General of Police, Chennai and two(2) others on 23.01.2020, one among several to similar effect, wherein, this Court has held where the disciplinary proceedings have been initiated against the petitioner solely on the basis of a criminal case, disciplinary proceedings should be conducted only after conclusion of the criminal matter.
14. Per contra, learned Special Government Pleader appearing for the State would highlight the lapses in the conduct of the petitioner and the fact that the original order of punishment itself was not challenged by the petitioner at any point in time. The petitioner has thus given up the right of appeal and has chosen only to avail the remedy of mercy petition. The first respondent has looked into all aspects of the matter and after modified the punishment upon due application of mind.
15. Having heard learned counsel, my decision is as follows.
16. A perusal of the charges laid, enquiry report and the original order of imposition of punishment reveal that the action initiated did not rest entirely upon the criminal charges or First Information Report. The officer has applied his mind independently to the charges and has conducted enquired with the 17 complainants. The conclusion of the enquiry officer is as follows: 7/15
https://www.mhc.tn.gov.in/judis W.P(MD)No.22190 of 2018 “......
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17. The order of imposition of punishment also refers to the independent enquiry carried out by the enquiry officer. The officer notes that no evidence whatsoever was placed on record by the petitioner in support of his defence. Though he did attempt to cross examine the witnesses, he was unable to make a dent in their depositions and it was on that that the punishment came to be imposed.
18. Since I am of the view that the disciplinary proceedings did not hinge entirely upon the criminal action, reliance on G.O. Ms. No.124 dated 22.02.1983, is misconceived. The decision of this Court dated 23.01.2020 contains a factual finding in paragraph No.6 thereof that the disciplinary proceedings in that case 9/15 https://www.mhc.tn.gov.in/judis W.P(MD)No.22190 of 2018 rested solely on the basis of the criminal cases and thus, this decision is distinguishable on facts.
19. It is a settled proposition that disciplinary and criminal proceedings normally move on two parallel and different tracks except if there is identity in the facts and circumstances. In a situation such as the present where the respondents are seen to conducted an independent verification of the facts and arrived at conclusions on their applications of mind, I see no reason to intervene and the impugned orders are confirmed.
20. That apart, the officer in question would be governed by the Tamilnadu Subordinate Police Officers Conduct Rules, 1973 that set out various situations that would indicate misconduct, such as, and illustratively, use of position or influence directly or indirectly to secure employment of any member of his family (Rule 3), receives gifts, rewards and dowry (Rule 4), conducts public demonstration except with the prior sanction of the Government (Rule 5), presents articles at a function (Rule 6), seeks, accepts contributions or raises funds in pursuance of any object (Rule 7) and specific to this case, lending or borrowing of money to/from any person in possession of land or valuable property (Rule 8).
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21. Rule 8 is extracted below:
TAMIL NADU POLICE CONDUCT RULES ....
Rule 8. Lending and borrowing:
1. No Police Officer shall except with the previous sanction of the Government, lend money to any person possessing land or valuable property within the local limits of his authority or at interest to any person.
Provided that a Police Officer may make an advance of pay to a personal friend or authority.
2. No Police office shall, save in the ordinary course of business with a bank or a Public Limited company or a firm of standing, borrow money from or otherwise place himself under pecuniary obligation to any person within the local limits of his authority, or any other person with whom he is likely to have official dealings nor shall he permit any member of his family except with the previous sanction of the Government to enter into any such transaction:
Provided that a Police Officer may accept a purely temporary loan of not exceeding Rs. 10,000/- free of interest from a personal friend or relative or operate a credit account with a bonafide tradesman.
3. When a Police Officer is appointed or transferred to a post of such a nature as to involve him in the breach of any of the provisions of sub-rule 1 or sub-rule 2, he shall forthwith report the circumstances to the Inspector General of Police and shall thereafter act in accordance with such orders as may be passed by him.
4. Police officers may take out Insurance Policies from, and become members of, the South India Co-operative Insurance Society; Ltd.,
5. Notwithstanding anything contained in this rule, a Police Officer may from a Co-operative Society of which he is a member, provided that where the borrowing is on personal 11/15 https://www.mhc.tn.gov.in/judis W.P(MD)No.22190 of 2018 security the surety shall be of a status equal to or higher than, that of the borrower.
6. The prohibition against lending and borrowing of money applies to all loans, credits, advances, supply of articles or accommodation at unduly low rates or for insufficient consideration and to sales of property for inordinately low prices.
7. The fact that a Police Officer lending money is acting as an executor, administrator or as a trustee without profit or advantage to himself shall not exempt him from the operation of this rule.
8. A Police Officer who belongs to a joint Hindu family carrying on the business of money - lending as an ancestral profession is exempted from the prohibition, provided he takes no active part in the business and is not employed in a district in which the business of the Joint Hindu family is carried on.
Explanation - For the Purpose of this rule (i) in the case of an officer of the Armed Reserve, the local limits of his authority' shall be the district in which such officer is serving and
(ii) in the case of an officer of the T.N. Special Police the local limits of his authority' shall be not only the district where his headquarters is situated but also the district in which he is actually serving.
....
22. The conclusion of the first respondent is that carrying on chit fund business would be barred by the Conduct Rules and results in improper conduct on the part of the petitioner. This has no bearing or connection with the criminal cases instituted and the conclusion arrived at by the authorities is dehors the criminal case.
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23.This writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
09.12.2021
Internet : Yes / No
Index : Yes / No
CM
To:
1.The Director General of Police,
Office of the Director General of Police,
Dr.Radhakrishnan Salai,Mylapore,
Chennai – 600 004.
2. The Deputy Inspector General of Police,
Tirunelveli Range,Tirunelveli.
3.The Superintendent of Police,
Office of the Superintendent of Police,
Thoothukudi Distrit,
Thoothukudi.
13/15
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W.P(MD)No.22190 of 2018
14/15
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W.P(MD)No.22190 of 2018
DR.ANITA SUMANTH, J.
CM
W.P(MD)No.22190 of 2018
and W.M.P(MD)No.20116 of 2018
09.12.2021
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