Madras High Court
S. Rajeswaran vs The Tamil Nadu Administrative ... on 1 April, 2004
Author: M. Karpagavinayagam
Bench: R. Jayasimha Babu, M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. Rajeswaran, the petitioner who was working as Sub-Inspector of Police attached to Prohibition and Enforcement Wing, Palayamkottai, was suspended on 30.7.1983. Charges were framed for having demanded and received bribe of Rs. 200/- from one Arokiasamy. After enquiry, he was dismissed from service. Aggrieved by the said order of dismissal, the petitioner went on appeal before the Inspector General of Police, the appellate authority. The appeal was rejected, confirming the dismissal order. Then, he filed a review petition before the Director General of Police and the same was also dismissed. Therefore, the petitioner filed a writ petition before this Court, which was subsequently transferred to the Tribunal and numbered as T.A. No. 479 of 1992. Ultimately, by order dated 26.2.1998, the Tribunal dismissed the application. Hence, this writ petition before this Bench.
2. Brief facts are as follows:
(a) Arokiasamy of Kanarpatti was the licensed dealer No. 6, Toddy Shop during 1983. One Koil Pillai of the same village was selling illicit arrack near the toddy shop. Therefore, there was financial loss to the licensed dealer.
(b) On 27.7.1983, Arokiasamy went to Prohibition and Enforcement Wing and reported the matter to Rajeswaran, the Sub-Inspector of Police, the delinquent officer. He demanded Rs. 100/- as bribe for him and Rs. 100/- towards taxi hire charges to take action against the illicit arrack seller. On 28.7.1983, the petitioner - Rajeswaran came to the shop of Arokiasamy and demanded the money.
(c) In the meantime, Arokiasamy lodged a complaint before the Vigilance and Anti-corruption Department at Palayamkottai and the case was registered in Cr. No. 2 of 1983 under Section 161 IPC.
(d) Delinquent officer visited the toddy shop on 29.7.1983 and made the demand of Rs. 200/-. Arokiasamy was asked to meet the delinquent officer on 30.7.1983 with money. This was informed by Arokiasamy to Vigilance. Then, a trap was laid.
(e) On 30.7.1983, the delinquent officer received money. Then, the Vigilance Officer caught hold of the delinquent officer with money and the case was altered into Section 5(2) of the Prevention of Corruption Act, for having received the illegal gratification of Rs. 200/-. The delinquent officer was suspended.
(f) The Department, having not pursued the prosecution by filing the charge sheet through the Vigilance and Anti-Corruption Department, chose to deal with the delinquent officer by way of departmental enquiry. He was served with the charge memo on 2.11.1985.
(g) Enquiry was conducted between 24.11.1985 and 26.12.1985. P.Ws.1 to 7 were examined on the side of the Department and D.Ws.1 to 8 were examined on the side of the delinquent officer.
(h) The defence pleaded is that he did not receive money as bribe from Arokiasamy, but he got it as a loan through one Thangaraj.
(i) The enquiry officer, after elaborate discussion, concluded that the charges have been proved. On the basis of the report of the enquiry officer, the disciplinary authority accepted the findings of the enquiry officer and passed an order of dismissal on 21.10.1986.
3. Learned counsel for the petitioner, the delinquent officer, has cited several authorities, namely (i) (Khatri (IV) vs. State of Bihar), (ii) 1997 (I) L.L.J. 206 (C.M.Deshmukh & etc., vs. The Board of Trustees, Bombay Port), (iii) 1996 (II) L.L.J. 272 (Executive Committee, SBH Hyderabad & Anr. vs. D.Dhaneswara Rao); (iv) VIII-1991 (2) All India Services Law Journal 468 (P.Mani Paul & Ors. vs. U.O.I. & Ors.); (v) AIR 1994 SC 1205 (Vishnu Kondaji Jadhav vs. State of Maharashtra); (vi) 1997 (Vol.XLI) M.L.J. (Crl.) 66 (Nachal vs. State of Tamil Nadu) and (vii) (Keshoram Bora vs. State of Assam) and would contend that the impugned order passed by the Tribunal, confirming the order of dismissal, would suffer from various illegalities and as such, the petitioner is liable to be reinstated in service and entitled to the consequential benefits. Learned counsel has also taken pains in filing written submissions. He also filed the "Manual of the Directorate of Vigilance and Anti-Corruption, Tamil Nadu", after noting down relevant provisions of the procedures in the conduct of enquiry.
4. The crux of the submissions made by learned counsel for the petitioner is as follows:
(i) Preliminary enquiry as well as the departmental enquiry relating to the trap charge has been conducted without obtaining prior permission from the competent authority. Therefore, entire enquiry is vitiated.
(ii) Though P.Ws. 2 and 3 have not supported departmental case as against the delinquent officer, their statements made before the investigating officer under Section 161 Cr.P.C have been relied upon by the enquiry officer to hold against the delinquent officer.
(iii) Though there are two instances shown by the Department regarding the demand of money, even then only one F.I.R. was registered. Every occasion of demand is a separate offence. For every demand, separate F.I.R. should be registered.
(iv) The delinquent officer has asked for several documents which were necessarily relevant for the departmental enquiry and the same have not been supplied. This is violation of the principles of natural justice.
5. In elaboration of these points, learned counsel for the petitioner made his submissions in detail by pointing out various portions of the order of the Tribunal and contended that this is a case of "no evidence" and as such, the order of dismissal, which was confirmed by the Tribunal, is liable to be set aside.
6. We have heard learned Special Government Pleader. In justification of the reasoning given by the Tribunal, it is contended by learned Special Government Pleader that there is no illegality in the findings given by the Tribunal. He also cited (State of U.P. vs. Ramesh Chandra Mangalik) and (R.S.Saini vs. State of Punjab) in support of his submission.
7. We have considered the submissions made by learned counsel on either side and perused the records.
8. There are two charges. One, the delinquent officer demanded illegal gratification of Rs.200/- from Arokiasamy, the licensed dealer at No.6, Toddy Shop, Kanarpatti on 27.7.1983 and again on 29.7.1983 at about 6 p.m. at the same place. Two, in furtherance of the demand made earlier, the delinquent officer received bribe of Rs.200/- from Arokiasamy on 30.7.1983 at about 9.30 a.m. at Shanthi Nagar, outside the Prohibition and Enforcement Wing Office.
9. As noted above, P.Ws.1 to 7 were examined to prove the charges. Admittedly, on the complaint of Arokiasamy, the case was registered for the offence under Section 161 I.P.C. and the trap was laid and in that trap, the delinquent officer was caught on 30.7.1983 and the bribe money was recovered from him.
10. It is contended that prior permission has not been obtained before laying the trap. This point has been dealt with and correctly answered by the Tribunal that the investigating officer in this case is the Deputy Superintendent of Police and as such, no prior permission is necessary as per Section 5 of the Prevention of Corruption Act.
11. Furthermore, the question of prior permission or sanction under Section 197 Cr.P.C. would not arise in this case, because the Department has not chosen to approach the Criminal Court for prosecution. Relevant provisions regarding sanction would only apply to the cognizance being taken by the Criminal Court and not with reference to the departmental enquiry.
12. The main thrust of the argument made by learned counsel for the petitioner is that the statements made by P.Ws.1 to 3 under Section 161 Cr.P.C. to the investigating officer, have been relied upon by the enquiry officer to conclude that the charges have been proved and if that is eschewed, there is no evidence as against the delinquent officer. In support of his submission, learned counsel for the petitioner cited several authorities as mentioned above to show that the statements made by the hostile witnesses to the investigating officer under Section 161 Cr.P.C. cannot be relied upon, since the said statements have been obtained behind the back of the delinquent officer.
13. It is true that even in the departmental enquiry, P.Ws. 2 and 3 did contradict to their statements made before the investigating officer. Then, much reliance cannot be placed on those statements which have been retracted during the course of enquiry. Further, it cannot be accepted that if those statements have been eschewed, there is no evidence as against the delinquent officer.
14. With regard to the demand of bribe, there is evidence of P.W. 4 Arokiasamy. With regard to receipt and recovery, there is evidence of other witnesses. The Tribunal has gone into detail with reference to the evidence available with regard to the demand and receipt and concluded that, that evidence is sufficient to hold that the charges were proved.
15. It is strenuously contended that there is only one F.I.R., but there was demand on two occasions and the trap had failed on the first occasion and only on the second occasion, the delinquent officer fell into the trap and as such, there is no F.I.R. for the second demand. This argument, in our view, would not be applicable to the departmental enquiry, because departmental enquiry would not deal with the matter like that of the trial in a Criminal Court.
16. On the complaint given by Arokiasamy on 29.7.1983, the case was registered and the delinquent officer was caught in the trap on 30.7.1983. Therefore, the trap was laid on 30.7.1983 only in pursuance of the demand mentioned in the complaint which was registered on 29.7.1983. Law does not require that for every demand, there must be separate complaint and in the absence of separate complaint, departmental enquiry is vitiated.
17. Further, learned counsel for the petitioner has not brought to our notice as to which provision in the Manual of the D.V. & A.C. is violated. On the other hand, the report of the enquiry officer as well as the Tribunal's discussion would indicate that the evidence of the witnesses produced by the Department as well as the defence, has been dealt with in detail and a conclusion has been arrived at.
18. It may be that the evidence of P.Ws. 2 and 3 who were treated as hostile before the enquiry, would be of no use to the Department to prove the charges. It is pointed out that there are two different statements of P.Ws. 2 and 3, one at the preliminary enquiry and another at the departmental enquiry, and as such, the fact that the delinquent officer visited the shop of P.W. 4 Arokiasamy and demanded the money, has not been proved. This argument, in our view, does not merit consideration, since the statement made by P.Ws. 2 and 3 before the enquiry officer during the departmental enquiry, cannot be given due credence in view of the fact that they have given different statements in the preliminary enquiry. Therefore, their statements would neither be useful to the Department, nor would be helpful to the defence.
19. In such circumstances, the enquiry officer is well within his right to accept the case of P.W. 4 who speaks about the demand as well as the receipt of bribe by the delinquent officer, which has been sufficiently corroborated by other evidence, namely P.Ws. 5 to 7.
20. Much was said about non-supply of the documents sought for by the delinquent officer at the time of enquiry. We have gone through the details of the documents asked for. We are unable to see any relevance in the documents with reference to the charges alleged. Further, learned counsel for the petitioner did not point out any particular document made use of by the enquiry officer for establishing the charges. It is also to be pointed out that there was no submission advanced by learned counsel for the petitioner regarding the prejudice which may have caused to the petitioner due to non-supply of the documents.
21. Several judgments have been cited by learned counsel for the petitioner with reference to the appreciation of the evidence in order to show that the enquiry officer has not appreciated the evidence properly. Those decisions have been given by various Courts including the Apex Court with reference to the mode of appreciation in criminal trials and not in the departmental enquiry. The enquiry authority based his conclusions on the materials available on record. It has also considered the defence put forth by the delinquent officer. According to the defence, the delinquent officer obtained a loan. Though D.Ws.1 and 2 were examined for this purpose, they have admitted that they had not told about the story of the defence to any of the authorities till they were examined before the enquiry officer. On that score, the defence theory was correctly rejected by the enquiring authority.
22. On going through the report of the enquiry officer as well as the Tribunal's order, we are of the view that conclusions have been drawn in a reasonable manner and objectively. These conclusions cannot be termed as perverse or not based on any material.
23. As held by the Supreme Court in , (supra), the scope of judicial review in matters of this nature being restricted, the High Court has to consider the challenge to the impugned order with a limited degree of scrutiny that was called for.
24. This Court, while exercising writ jurisdiction, does not reverse the findings of the inquiring authority or the Tribunal, on the ground that evidence available on record is insufficient. If there is some evidence to reasonably support the conclusions of the inquiring authority, it is not the function of the Court to review the evidence and to arrive at it's own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate its findings. Adequacy or reliability of evidence is not a matter which can be permitted to be canvassed in writ proceedings.
25. In the light of the above principles laid down by the Supreme Court, we do not find any error on the face of the report of the inquiring authority or the order of the Tribunal, nor could it be said that it would suffer from the vice of perversity due to non-application of mind. Hence, the writ petition is dismissed. No costs.
Index: Yes (R.J.B.J.) (M.K.V.J.) Internet: Yes/no 1.4.2004 cs To 1. The Tamil Nadu Administrative Tribunal, High Court Buildings, Chennai-600 104, rep. by its Registrar. 2. The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli. 3. The Inspector General of Police (Law & Order), Chennai-600 004. 4. The Director General of Police, Tamil Nadu, Chennai-600 004. R. Jayasimha Babu, J. and M. Karpagavinayagam, J.