Madras High Court
U.Rajiah vs The Secretary To The Government on 3 December, 2009
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:03.12.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.5746 OF 2008 .. U.Rajiah .. Petitioner vs. 1.The Secretary to the Government Home Department, Fort St.George Chennai 9. 2.The Additional Director General of Police, Law & Order, Tamil Nadu, Chennai. 3.The Deputy Inspector General of Police, Chingleput Range Kancheepuram Range. 4.The Additional Superintendent of Police District Crime Branch Tirunelveli District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.M.S.Soundararajan For respondents : Mr.T.Seenivasan Government Advocate .. ORDER
The writ petitioner was appointed as a Police Constable on 01.5.1969 and was promoted as Inspector of Police in the year 1994 and he retired from service on superannuation on 31.05.2005. While he was working as Inspector of Police in Thirupalaivanam village in Tiruvallur District, charges under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules,1955 were framed. The three charges framed were as under:
" (i) Gross neglect of duty in not controlling prohibition offences in his jurisdiction from 1.1.2002 to till date and receiving weekly Mamool of Rs.5000/- from prohibition offenders Periyasamy and Dhanapal for allowing to sell ID arrack.
(ii) Gross misconduct and dereliction of duty in not handing over the CD file in Thirupalaivanam P.S.Cr.No.59/2002 u/s.147, 148, 452 & 506 (ii) IPC r/w3(10(x) of SC/ST Act after addition of SC/ST Act on 23.06.2002 to Deputy Supdt. Of Police, Ponneri for further investigation and continuing investigation in this case and remanding the accused.
(iii) Gross neglect of duty in not recording the seizure of 56 empty cans of 35 litres of capacity in Thirupalaivanam P.S.Cr.No.58/2002 4(1-A), 4(1)(a) of TNP Act on 13.06.2002 and recording seizure only 2 cans of arrack each of 35 litres and a Bajaj M-80 motor cycle."
2. The said charges were framed by the Superintendent of Police, Tiruvallur District. An oral enquiry was conducted by the Additional Superintendent of Police, District Crime Record Bureau, Tiruvallur District, in which nine witnesses were examined and 33 documents were marked on the side of the prosecution, while two witnesses were examined and thirty four documents were marked on the side of the delinquent. The Enquiry Officer has sent a report holding that all the charges are proved. The third respondent, while agreeing with the findings of the Enquiry officer, has passed an order of punishment on 23.07.2003, viz., postponement of increment for two years without cumulative effect.
2(a). On appeal filed by the petitioner against the said order, the second respondent, by his order dated 03.12.2003, rejected the appeal, against which the petitioner filed a mercy petition before the first respondent, which came to be rejected in G.O.(2D).No.435 Home (Pol.IV) Department dated 18.07.2006. It is as against the said orders of the respondents, the petitioner has filed the present writ petition.
3. The impugned orders are assailed by the petitioner on the main ground that the charges are vague and not definite; that there is no evidence for the petitioner having been involved in the charges; that the findings of the respondents are perverse and that the evidence of various witnesses have not been properly appreciated by the respondents.
4. It is the main contention of the learned counsel appearing for the petitioner that even the prosecution witnesses viz., PW.1, PW.2 and PW.3, who are alleged to have paid the amount to the petitioner by way of mamool, have not stated anything about the same and in fact, they have stated that no such statement has been given by them before the police at all.
4(a). In respect of second charge that the petitioner has not handed over the CD files of certain crime numbers under SC/ST Act, it is his contention that the files have been handed over to the Deputy Superintendent of Police, who has not taken up the investigation and who instructed the petitioner to investigate and file charge sheet and it was on the directions of the Deputy Superintendent of Police, the petitioner conducted the investigation and the accused were arrested only under his supervision. It is the case of the petitioner that the said Deputy Superintendent of Police Mr.R.S.Venugopal, examined as PW.8 in the case, has admitted the same during cross-examination that he visited the area and was aware of the arrest of the accused.
4(b). In respect of the third charge for not recording the seizure of 56 empty cans of 35 litres of capacity, it is the case of the petitioner that he seized only two cans containing 35 litres of arrack and a Bajaj M-80 motor cycle at the time of raid on 13.06.2002 and the Sub-Inspector of Police as well as one of the witnesses attested the seizure mahazar and the Sub-Inspector of Police, who has ill-disposed towards the petitioner has given a false statement, even though he has attested the seizure mahazar.
5. It is the case of the respondents in the counter affidavit that even though it is true that during oral enquiry the prohibition offenders did not depose to the fact of paying weekly mamool to the petitioner, it was taking note of the poor detection of prohibition cases, the Enquiry Officer's report was accepted by the third respondent on the basis of preponderance of probabilities. The second respondent, appellate authority, while concurring with the third respondent, has held that the procedural irregularities have not resulted in miscarriage of justice. It is further reiterated that it is, the poor statistics of detection of prohibition cases of the petitioner that went against him in proving the first charge.
5(a). As far as the second charge is concerned, the CD files were not handed over to the Deputy Superintendent of Police by the petitioner and he failed to send the copy of the section alteration report and proceeded to arrest the accused, since he was not empowered to investigate a case under SC/ST (P&A) Act. It is also stated that even though the independent witnesses Periyasami PW.1, Chinnapaiyan PW2 and Dhanapal PW3, who are alleged to have paid the weekly mamool have turned hostile and denied the statements made by them under Exs.P.1 to P.3, all the three witnesses are arrack sellers and since they need the help of the police, they have denied the statements earlier given by them against the petitioner. It is also stated that PW.1 has not specifically stated that he has not paid mamool to the petitioner/delinquent at the rate of Rs.5,000/- every week while other witnesses have denied about the payment of weekly mamool to the delinquent officer.
5(b). In respect of the third charge about the seizure of cans, it is stated by the respondents that if the remaining cans were already in the Police Station, the petitioner should have informed the same to the superiors and he allowed the empty cans to be kept in the station without recording the seizure and it was ascertained from the Sentry Head-constable PW.4 and the Sub-Inspector of Police PW.6 that they were seized by the petitioner on 13.06.2002 from Mangodu Kuppam and therefore, during the oral enquiry, the charge that the delinquent was grossly negligent in duty and did not record the seizure of 56 empty cans of 35 litres capacity, has been proved and he has recorded only about the seizure of 2 cans of arrack and a Bajaj M.80 motor cycle.
6. On a reference to the entire records, it is true that in respect of the first charge the main witnesses, viz., PWs.1 to 3 have not deposed against the petitioner, but the respondents have come to the conclusion that the said witnesses have not stated that they did not pay mamool to the petitioner. It is true that the strict principles of evidence are not applicable to the Departmental proceedings and it is the preponderance of probabilities that is sufficient to decide the charges, but at the same time, one has to realize that the basic principles of the Evidence Act are to be followed. It is the prosecution, which has to prove the case and that being the position, in respect of the first charge, the authorities have come to the conclusion that the prosecution witnesses have not stated that they did not pay any mamool to the petitioner and that, by taking note of the fact that there has been reduction in number of prohibition offences registered by the petitioner in the police station, it should be presumed that the first charge against the petitioner is proved.
7. A reading of the first charge shows that the same is very vague and certainly in respect of the vague charge, it is not possible for the delinquent to defend himself effectively in the manner known to law. But, in respect of other two charges, it is admitted that the second charge relates to conversion of a case into one under SC/ST Act, in which the petitioner cannot be the investigating officer as per law. However, the case of the petitioner is that the at the instance of the Deputy Superintendent of Police and at his guidance, he has investigated the same.
8. In this regard, the learned counsel appearing for the petitioner has relied upon the statement of PW.6, Sub-Inspector of Police - Gnana Rajakumar. During cross-examination PW.6 has stated that the petitioner after obtaining instructions from the Deputy Superintendent of Police, Uthukottai, directed him (PW.6) to prepare the remand report and accordingly, he prepared a remand report. The Enquiry Officer in this regard has found that the petitioner ought to have enclosed the entire CD file along with his report to the Deputy Superintendent of Police for further investigation and without doing so, he has proceeded to arrest the accused and remanded him to judicial custody, to which he is not entitled. This fact has been brought out by the Enquiry Officer in his report and that has been accepted by the third respondent as original authority while imposing punishment. Therefore, it cannot be said to be a case without any evidence as far as the second charge is concerned.
9. Prima facie when the offence has been converted into one under SC/ST Act, the petitioner loses his right of investigation and it is his duty to send the entire papers along with the CD files to the higher officer, viz., the Deputy Superintendent of Police, who alone is competent under the Act to investigate and having not done so, the petitioner has taken a stand that he has informed the Deputy Superintendent of Police and at his instance only he arrested the accused. When such conduct is not permitted in law, the Enquiry Officer on evidence has found that there are materials in respect of dereliction of duty and it is not for this Court to substitute its view on the question as to whether such evidence is adequate or not, especially in the circumstance that the disciplinary authority has imposed a minor punishment.
10. In respect of third charge, it is the petitioners defence that he has seized only two cans and the remaining empty cans were available in the police station and they were not seized by him. But, the Enquiry Officer has come to the conclusion that the petitioner has not taken effective steps in contending the prohibition offences and the petitioner has not explained as to how he allowed the remaining cans in the police station without informing the superior officers and on that basis, arrived at a conclusion that there is dereliction of duty on the part of the delinquent. Even though there may be certain doubts about the real event, when the Enquiry Officer, against whom no bias has been attributed to by the petitioner, has culled out some evidence, it is not for this court to decide as to the veracity of such evidence and whether it is significant or not, while exercising jurisdiction under Article 226 of the Constitution of India. In disciplinary matters, this Court cannot sit in appeal on the factual findings of the Enquiry Officer or the Disciplinary authority or the appellate authority.
11. In such view of the matter, I am of the considered view that if not the first charge, but the second and third charges, cannot be said to be without evidence at all, or the findings in respect of those charges cannot be presumed to be perverse. In these circumstances, I am of the view that there is no necessity to interfere with the findings of the respondents against the petitioner. Accordingly, the writ petition fails and the same is dismissed. No costs.
Index:Yes/No
Internet:Yes/No
Kh 03.12.2009
To
1.The Secretary to the Government
Home Department, Fort St.George
Chennai 9.
2.The Additional Director General
of Police, Law & Order,
Tamil Nadu, Chennai.
3.The Deputy Inspector General
of Police, Chingleput Range
Kancheepuram Range.
4.The Additional Superintendent of Police
District Crime Branch
Tirunelveli District.
P.JYOTHIMANI,J.
P.D.Order in
W.P.No.5746 of 2008
Dated:03.12.2009