Central Administrative Tribunal - Madras
K Suresh vs Ut Of Pondicherry on 15 April, 2024
(* 1 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH QA/310/00231/2021 OANo.310/231/2021 Dated Monday, the 15" day of April, Two Thousand & Twentyfour CORAM : HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A) & HON'BLE MR. M. SWAMINATHAN, Member (J) Kk. Suresh, S/o. M. Kaliappan, No. 26, V.O.C. Street, Kottaimedu, MGR Nagar, Ariyankuppam, Puducherry ~ 605007. By Advocate M/S. S. Doraisamy Vs The Commandant, Office of the Commandant, India Reserve Battalion, Puducherry -- 605009. By Advocate MR. R. Syed Mustafa ... Applicant ... Respondent 2 OA No.310/23 1/2021 ORAL ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(A}) In the present OA, the applicant has sought the following relief:
"To call for the records relating to the order of dismissal from service in order No, 14(2)/Di/Estt./IRBn/2020- 180 on the file of the respondent set aside the same and pass such further or other orders and thus render justice."
In the present OA, the applicant has also sought the following interim relief:
"To stay of all proceedings of the order of dismissal from service in order No. 14(02)/D1/Estt./IRBn/ 2020-180 on the file of the respondent pending disposal of the above original application and pass such further or other orders and thus render justice."
2. While going through the facts of the case, it is found that the applicant, herein, was involved with another Puducherry Police Personnel, named D. Satishkumar, PC- 3741, in an incident, wherein, the sequence of events leading to their suspension and subsequent dismissal are identical. Both had been dismissed after placing them under suspension, vide orders stating that departmental enquiry was contemplated against them.
3. The applicant was allegedly involved in extorting money, and subjecting a woman to humiliation. Both were NS 3 OA No.310/231/2021 acquitted in the criminal case, wherein, charges were framed under section 384 IPC r/w 34 IPC, by the Chief Judicial Magistrate at Puducherry. The applicant, K. Suresh, was acquitted in the criminal case, vide order, dated 30.12.2022. The judgment reads as follows:
"The Al and A2 being attached with the police department, the conduct of them required to be enquired in domestic enquiry, in case they were found with mischief as alleged by prosecution, they are required to be dealt in accordance with law. Because they were not found guilty in this case, where the degree of high proof is warranted, they cannot be said absolved, in the event or otherwise, they found to be rampant delinquent or their delinquency warranted any action. With these observations, this court holds that the prosecution failed to prove the case against the accused to convict them u/s 384 of IPC and confer the benefit of doubt and they have been acquitted accordingly."
4. It is found that the order of dismissal from service passed in respect of the applicant, K. Suresh, has been issued without conducting regular enquiry. He would like to refer to the order, dated 07.02.2024, in OA 466 of 2020, passed in the case of the co-accused.
5. The applicant has contended that no reason is given for not holding an enquiry as provided for under Rule 14 (1) (2) of the CCS (CCA) Rules, except to say that the applicant was involved in a criminal case which is a grave misconduct. He has cited Article 311{1}(2), whereunder, it is stipulated as follows:
4 OA No.310/231/2021" Where the authority empowered to dismiss or remove a person or to reduce him rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry"
6. According to the applicant, the conditions were not followed while invoking the provisions under Article 311(2) of the Constitution of India and, hence, the order of dismissal is liable to be set aside.
7. The learned counsel for the respondent vehemently opposed the submissions of the applicant and states that the allegations against the applicant, as well as the co-accused, were extremely grave and they deserve no leniency. According to him, the department had taken appropriate steps, in keeping with the standards of discipline required in the police department.
8, Having heard both the sides and perused the records, we are of the opinion that the procedure for conducting departmental enquiry for imposing major penalty is clearly laid down and, in exceptional circumstances, where it is not reasonably practicable to conduct the enquiry, the reasons have to be clearly disclosed. We would like to quote from the order, passed on 07.02.2024, in OA 466 of 2020, by a Bench of this Tribunal. The relevant portions are extracted hereunder:
5 OA No.310/231/2021"6. The applicant was suspended on 14.03.2020 (A-15) and, later on, dismissed, vide order, dt. 16.03.2020 (A-16}, on the ground of extortion. The charge sheet in the Criminal Court was filed on the same allegation, although a Tamil daily had published a sensational story about him, on 13.03.2020, alleging rape and extortion. The criminal case in F.LR. No. 41/2020 ended in acquittal. on 30.12.2022. In the said judgment, however, the Chief Judicial Magistrate, Puducherry, mentioned certain lacunae in the investigation of the criminal case, and also indicated that the misconduct on the part of the applicant, who was A-1, could be looked into during departmental enquiry. The significant portion of the judgment is reproduced below:-
"22, The Al and A2 being attached with the police department, the conduct of them required to be enquired in domestic enquiry, in case they were found with mischief as alleged by prosecution, they are required to be dealt in accordance with law, Because they were not found guilty in this case, where the decree of high proof is warranted, they cannot be said absolved, in the event or otherwise, they found to be rampant delinquent or their delinquency warranted any action. With these observations, this court holds that the prosecution failed to prove the case against the accused to convict them u/s 384 of IPC and confer the benefit of doubt and they have been acquitted accordingly."
It is found that the alleged victims in the extortion case had appeared and deposed during trial in the criminal case.
7. Before the trial ended in his acquittal, the Applicant was dismissed summarily under Rule 14 of the CCS (CCA) Rules, 1965, on 16.03.2020, on grounds of viclation of ccs (Conduct) Rules, 1964. There is nothing in the dismissal orders to justify it without holding a regular departmental enquiry. The plea taken was that "it is not reasonably practicable to hold an enquiry'. Since the orders have been challenged, the Respondents have stated in their reply, as follows:-
"Legally speaking, the reasons for dispensing with the inquiry need not find a place in the final order itself, though they should be recorded separately in the relevant file according to which, the Disciplinary authority had recorded the 6 OA No.310/23 1/2021 decision before issuing the Dismissal Order, dated 16.03.2020 vide P.No.24/n.f. of concerned DE file"
and the same is extracted as follows:-
"lt is the Police to protect the General Public and safeguard the land. As a Police Constable, he (the applicant) himself has broken the law and involved in serious offence. Thus the applicant D. Sathishkumar, PC 3741 {u/s} has tarnished the image and reputation of this department. As such, I, the Disciplinary Authority, has decided not to conduct any inquiry against and constrained to impose the major penalty of "Dismissal from Service" with immediate effect under rule 19{ii) of the CCS (CCA) rules 1965 read with the proviso of Article 311 (2) of the Constitution of India. Put up draft dismissal order accordingly."
8. As per the records, the victims, along with others, were examined in the preliminary (discreet) enquiry, on the basis of which the Applicant was suspended and, later, dismissed. These witnesses went on to depose in the criminal case. Thus, there is no reason why they could not have been examined during regular enquiry proceedings and how it was not "reasonably practicable to hold an enquiry'. The applicant has questioned the action against him under the CCS (CCA) Rules, 1965, rather than the Pondicherry Police Subordinate Service (Discipline & Appeal) Rules, 1968.
9. Both the issues - (1) whether action against a police constable of the Pondicherry Police could be taken under the CCS (CCA) Rules, and (2) the question of dispensing with regular departmental enquiry and effecting dismissal of the delinquent, without giving reasonable opportunity to defend himself, which is the corner stone of the principles of natural justice, have been comprehensively dealt with by the Hon'ble High Court of Madras, in the case of V. Shanmugam Vs. the Senior Superintendent of Police (Cél), Puducherry in WP No. 13449 of 2017. The facts in that case are very similar to those in the present OA. The relevant paras of the judgment of the Hon'ble High Court are extracted below:-
"15, In the present case, for regulating the procedures to be followed in matters relating to Discipline and Appeal proceedings regarding Police personnel in Puducherry, Pondicherry Police Subordinate Services (Discipline and Appeal) Rules, 1968 was notified by the Lieutenant Governor of 7 Pondicherry on 09th January 1968 . As per Rule 1(3), it applies to all the persons employed in Pondicherry Police Subordinate Services or the Pondicherry Armed Police Subordinate Services, For better apprecition, Rule 1/{3) is reproduced hereunder:
"1(3). In these niles unless the context otherwise requires "Service" shall mean the Pondicherry Police Subordinate Service or the Pondicherry Arned Police Subordinate Service as classified below:
{i} (a). Inspectors of Police, Reserve Inspector of Police, Adjutant and M.D.L.Cs.
(b). Sub-Inspectors of Police, Reserve. Sub-
Inspectors of Police and M.D.L.s.
(c). Assistant Sub-Inspectors of Police and Brigadier Chief.
(d). Head constables of Police and Brigadiers.
(e). Constables of Police and AIGs.
{ii) (a). Subedars of PAP sergent chief and segent 4th echelon.
{b). Jamedars of PAP and sergent 3rd echeon of cipahi company.
{ce}. Havildar Major of PAP and sergent Ist and 2nd echelon.
(d). Havildars of PAP caporals 4th echelon and caporal chef ist and 2nd echelon.
(e). Naiks of PAP and caporals Ist, 2nd and 3rd echelon.
(f. L/Naiks of PAP and cipahis Ist and 2nd ehelon of Cipaht company.
(g}. Constables and Buglers of PAP"
From the conjoint reading of Rule 3(1)}(e} of the CCS (CCA) Rules and Rule 1(3) of the Pondicherry Police Subordinate Services (Discipline and Appeal) Rules, 1968, it is clear that the post of Police constable would fall under the Subordinate service and only Pondicherry Police Subordinate Services (Discipline and Appeal} Rules, 1968 is applicable to the petitioner. Upon perusal of the provisions of Pondicherry Police Subordinate Services (Discipline and Appeal) Rules, 1968, it is aiso clear that there is no incorporation or reference to make the provisions of the CCS (CCA) Rules applicable to the persons covered under the Pondicherry Police Subordinate Services (Discipline and Appeal) Rules, 1968. Therefore, the invocation OA No.310/23 1/2021 8 OA No.310/23 1/2021 of Rule 19 of CCS(CCA) Rules by the respondent is without authority."
Another observation of the Hon'ble High Court is also applicable in this case --
"26. The ratio clearly spells out that departmental proceedings must be held in all cases. The exception can be invoked only in exceptional circumstances based on valid materials. After perusal of the file, apart from the FIR, there is no material in the file and the respondent, apart from recording that the petitioner as a police officer has tarnished the image and failed to protect the law, has not recorded any reasons, but has only expressed his opinion. Reasons must be ascribed as to why inquiry cannot be held."
09. 'The issues in the present OA are squarely covered by the judgment of the Hon'ble High Court of Madras, (supra). The impugned order, dt. 16.03.2020, dismissing the Applicant, is, therefore, quashed and set aside. The Applicant may be reinstated forthwith on receipt of a copy of this order. However, it is made clear that the Respondents are at liberty to proceed against the Applicant, as per law and rules, duly affording him reasonable opportunity to defend himself, during such proceedings.
10. The OA is allowed in the above terms. No order as to costs.