Madras High Court
K.Balasubramanian (Mt Group) vs The Director General Of Police on 26 February, 2013
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.02.2013
CORAM
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
W.P.No.27057 of 2007
&
M.P.No.2 of 2007
K.Balasubramanian (MT Group)
Tamil Nadu Special Police 10th Bn
Polypost, Ulundurpet, Taluk
Villupuram District .. Petitioner
-Vs-
1.The Director General of Police,
Tamil Nadu, Chennai 4.
2.The Deputy Inspector General
of Police, Armed Police
Chennai 10
3. The Commandant
Tamil Nadu Special Police
10th Bn, Ulundurpet
Villupuram District
4.The Assistant Commandant III
Tamil Nadu, Special Police 10th Bn
Ulundurpet
Villupuram Taluk .. Respondents
Writ petition filed under article 226 of the Constitution of India to issue a Writ of Certiorari calling for the entire records in pursuant to the proceedings of the first respondent vide letter No.K.Dis.No.HP3(1)/191510/2006 dated 7-3-2007 modifying and partly confirming the order of punishment issued by the 2nd respondent vide proceedings No.Rc.No.C2/Appeal.14/2006 dated 10.05.2006 confirming the order of punishment issued by the 3rd respondent vide letter No.A4/PR.49/05 dated 16.03.2006 and quash the same with consequential benefits and allow this writ petition.
For Petitioner : Mr.T.P.Prabakaran
For Respondents : Mr.P.Sanjay Gandhi
Additional Govt. Pleader
-----
ORDER
A Grade II Constable attached to Tamil Nadu Special Police, 10th Battalion, Ulundurpet Taluk, Villupuram District is the petitioner in this writ petition. Pursuant to a Disciplinary Proceedings initiated by the third respondent, he was awarded a punishment of reduction in the time scale of pay by two stages for two years with cumulative effect by his proceedings Letter No.A4/PR.49/05 dated 16.03.2006. The said order imposing punishment was passed based on the report submitted by the Enquiry Officer, the fourth respondent herein. As against the order of punishment, the petitioner preferred an appeal before the second respondent, the Deputy Inspector General of Police, Armed Police, Chennai, who confirmed the order of the third respondent herein in his proceedings in RC.No.C2/Appeal.14/2006 dated 10.05.2006. As against the same, the petitioner preferred a revision before the first respondent, the Director General of Police. The first respondent by an order dated 07.03.2007 made in his proceedings in K.Dis.No.AP.3(1)/191510/2006 reduced the said punishment of "reduction in the time scale of pay by two stages for two years with cumulative effect" into one of "postponement of one increment for one year without cumulative effect". Not satisfied with such reduction and contending that he ought to have been given a clean chit regarding the charges levelled against him, the petitioner has chosen to file the present writ petition seeking for the issuance of a writ of certiorari to call for the entire records relating to the proceedings of the first respondent vide letter No.K.Dis.No.HP3(1)/191510/2006 dated 7-3-2007 modifying and partly confirming the order of punishment issued by the 2nd respondent vide proceedings Rc.No.C2/Appeal.14/2006 dated 10.05.2006 confirming the order of punishment issued by the 3rd respondent vide letter No.A4/PR.49/05 dated 16.03.2006 and quash the same with consequential benefits.
2. The petitioner has averred in his affidavit filed in support of the writ petition that enquiry was conducted against him framing two specific charges of alleged misconduct, out of which one charge was held not proved by the Disciplinary Authority himself and regarding the other charge, the order of the Disciplinary Authority was modified by the Revisional Authority to the effect that he had not committed the Act of misconduct as spelt out in the said charge, but on the other hand, he had failed to help the accident victim and such a lapse would amount to a misconduct on the part of the petitioner and only on that basis, the modified punishment was imposed by the first respondent. It is the further contention of the petitioner that no specific charge to the said effect had been framed; that the finding without framing a specific charge and without affording an opportunity to the petitioner and the punishment imposed on the petitioner should be viewed as one imposed without following even the basic principles of natural justice and that hence, the impugned order of the first respondent confirming the order of the third respondent and at the same time, modifying the punishment, is liable to be set aside.
3. The third respondent has sworn a counter affidavit on behalf of the respondents. The crux of the averment made in the counter affidavit is to the effect that pursuant to a due enquiry conducted by the fourth respondent, he was found guilty of a misconduct and the above said punishment awarded to him by the Revisional Authority in modification of a harsher punishment awarded by the disciplinary authority cannot be interfered with by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India.
4. The arguments advanced by Mr.T.P.Prabakaran, learned counsel for the petitioner and by Mr.P.Sanjay Gandhi, learned Additional Govt. Pleader appearing for the respondents are heard. The materials available on record are also perused.
5. Before dealing with the exact point in issue, it shall be helpful to narrate the facts leading to the passing of the impugned order.
The petitioner was a Grade II Police Constable in Motor Transport Division, Tamil Nadu Special Police, 10th Battalion, Ulundurpet. On 18.05.2005, as a part of training, he was driving the vehicle bearing Registration No.TN 20 G 0106 on the Avadi-Tiruvallur Road. Near Sevvapet, one Venkataiah, aged about 55, who was riding a motorcycle (Bajaj M-80 ) bearing Registration No.TN-22-W-3063, met with an accident and was struggling for his life. A case was registered on the file of P4, Sevvapet Police Station in Crime No.165 of 2005 against the petitioner herein alleging that he had committed offences punishable under Sections 279, 337 and 304A IPC in respect of the said accident since the said motorcyclist succumbed to the injuries. After investigation, a final report was submitted in the said case to the effect that the petitioner had caused the accident by his rashness and negligence in driving the police training vehicle bearing Registration No.TN-20-G-0106 and it was he who caused the accident by dashing the said vehicle against the motorcycle, which the deceased was riding. The petitioner was proceeded against departmentally on the premise that he was the person who caused the accident. He projected a defence theory that there was no connection between the accident in question and the vehicle driven by him. The criminal case instituted on the police report in C.C.No.650 of 2005 in the above said crime number on the file of Judicial Magistrate II, Tiruvallur resulted in his acquittal. The said judgment came to be passed on 12.04.2006. Before the pronouncement of judgment, the fourth respondent submitted a report in the Disciplinary Proceedings as Enquiry Officer holding that both the charges framed against the petitioner stood proved. After getting the remarks of the petitioner on the report of the Enquiry Officer, the Disciplinary Authority, namely the third respondent accepted the finding of the Enquiry Officer and imposed a penalty of reduction in the time scale of pay by two stages for two years with cumulative effect.
6. The crux of the charges framed against the petitioner can be stated in brief as follows:
Charge No 1: While driving the police training vehicle bearing Registration No.TN-20-G-0106 on the Avadi-Tiruvallur Road on 18.05.2005 the petitioner caused an accident by dashing the said vehicle against a motorcycle bearing Registration No.TN22-W-3063 and after causing the said accident, even after seeing the rider of the motorcycle by name Venkataiah fighting for his life, without attending on him and without taking steps to get him medical treatment the petitioner simply left him in that place and thereby, allowed him to die due to the injuries sustained in the Accident.
Charge No:2: When the petitioner (delinquent) was enquired about the above said accident, he suppressed the truth of having caused the accident leading to death of the said person. But a criminal case came to be registered on the file of P4, Sevvapet Police Station as Crime No.165 of 2005 arraigning the petitioner as accused having committed offences punishable under Sections 279, 337 and 304(A) IPC and the investigation in the said case resulted in the submission of a final report to the effect that the petitioner had committed the said offences.
7. It is the contention of the petitioner that there was no connection between the vehicle driven by him on the fateful day and the accident in which the motorcyclist Venkataiah died; that while driving the vehicle, having his trainer and other constables seated in the vehicle, he saw a person with injuries lying on the edge of the road along with his motorcycle; that on seeing him, he stopped his vehicle and went near the injured person; that on seeing the condition of the injured person, he wanted to make arrangement for his transportation to the hospital, but he was prevented by his trainer, who stated that if he ventured to do so that would lead to the registration of a case against him as the driver of the police vehicle as if the said police vehicle was involved in the accident and that the same was the reason why he had to leave the place without attending on the injured person.
8. Admittedly, after trial in the criminal case in C.C.No.650 of 2005 registered in Crime No.165 of 2005, he was acquitted holding that the prosecution did not prove beyond reasonable doubt that the above said police vehicle was the one which caused the accident and it is also an admitted fact that it is not a case of acquittal giving benefit of doubt to the petitioner and on the other hand, an honourable acquittal holding that the prosecution failed to prove its case disbelieving the prosecution case that the police vehicle driven by the petitioner was the vehicle which caused the accident. Normally, when parallel proceedings are initiated one in the criminal Court and another in the Department by way of a Disciplinary Proceedings for the very same act, the hon'ble acquittal of the case shall have a bearing on the Disciplinary Proceedings even though the Disciplinary Authority need not follow the findings arrived at in the criminal proceedings because both the proceedings operate in different spheres. Of course, the Disciplinary Authority, namely the third respondent held both the charges proved and his order came to be passed before the conclusion of the criminal case. But before the disposal of the appeal by the second respondent, the judgment in the criminal case came to be pronounced and the petitioner also submitted a letter to the Appellate Authority on 15.04.2006 informing that he had been honourably acquitted in the criminal case and he would submit the copy of the judgment within 15 days thereafter. However, an order came to be passed by the Appellate Authority, namely the second respondent, on 10.05.2006 without making any reference to the said judgment of the criminal Court. In fact, besides restating the charges and stating that the appeal petition and connected records were perused, no reason has been assigned by the Appellate Authority for concurring with the finding of the Disciplinary Authority and also for confirming the punishment imposed on the petitioner. In short, the order of the Appellate Authority can even be termed crippled without containing the reasons for confirming the order of the Disciplinary Authority. However, the first respondent exercising his power of review passed the impugned order, the operative part of which reads as follows:
"I have gone through the mercy petition and the connected records carefully. Although the criminal case with reference to rash and negligent act leading to fatal accident has been acquitted, the petitioner was also dealt with for failure to remove the accident victim to the hospital. For the above lapse, the punishment appears to be harsh. Considering this to be the first delinquency, the punishment is modified to that of postponement of increment for one year without cumulative effect."
A reading of the same would show that the first respondent did not concur with the finding of the disciplinary authority and the appellate authority, namely the third respondent and the second respondent, that it was the petitioner who caused the accident by driving the vehicle in a rash and negligent manner. However, holding that the petitioner had failed to remove the victim of the accident to the hospital, his delinquency was proved and hence, he was liable to be inflicted with punishment. That is the reason why the first respondent has chosen to modify the punishment by imposing postponement of one annual increment without cumulative effect instead of reduction in time scale of pay by two stages for two years with cumulative effect. As rightly contended by the learned counsel for the petitioner, the said order came to be passed without holding in unambiguous terms as to what are the charges that stand proved and what are the charges that do not stand proved.
9. It seems the first respondent has accepted the explanation of the petitioner that the vehicle driven by him did not involve in the accident and he just stopped the vehicle near the accident spot when he saw a person struggling with injuries on the road side who would have been the victim of a hit and run case involving another vehicle. That is the reason why, the first respondent has chosen to refer to the acquittal of the petitioner and at the same time, find fault with him for not removing the accident victim to the hospital for treatment. Once it is admitted that the vehicle driven by the petitioner was not the one involved in the accident in question, then the first part of the first charge, namely causing an accident leading to the death of a person by rash and negligent driving of a motor vehicle and the second charge, namely giving a false statement as if the vehicle driven by him did not involve in the accident lose their substance and it has to be held that the petitioner could not be found guilty of the said delinquencies. In fact, the Revisional Authority, namely the first respondent also held so. However, without framing a specific charge to the effect that the petitioner, being a Police Constable, failed in his duty towards the public, namely an accident victim, he was penalised for such an act of omission.
10. Of course it is an admitted fact that the petitioner failed to remove the victim of the accident to the hospital for treatment. But he has come forward with an explanation as to on whose orders and under what circumstances he had to do so. According to his explanation, he was under the control of the trainer. Soon after he stopped his vehicle near the accident spot on seeing the injured person with an intention of helping the injured, his trainer instructed him not to do so on the apprehension that a case would be registered as if the police vehicle was the one involved in the accident. It was also the specific direction of the trainer to drive away the vehicle immediately from the place of accident and the petitioner did obey the command of his trainer. Nothing has been mentioned in any of the orders of the second respondent, third respondent or the first respondent adverting to the above said explanation offered by the petitioner. The same would go to show that the said explanation offered by the petitioner is not disputed. When that is so, the further question that arises for consideration is whether he can be punished for acting in accordance with the direction of his trainer (Superior) in discharge of his official duty. Suppose the Superior directs him to commit an illegal act or an act which would amount to an offence, the subordinate cannot plead it as a defence when he is proceeded against for such illegal act or offence. When such an Act or omission is not illegal or a punishable offence, then the disobedience of the subordinate will amount to a misconduct on his part which will expose him to Disciplinary Proceedings. In the case on hand what the petitioner did was to obey the command of his superior and the omission commanded by the superior was not an illegal Act or was not an act amounting to an offence. That being so, as against all cannons of principles of natural justice, the petitioner has been penalised arbitrarily by imposing the above said punishment. There is no justification whatsoever in the same. Hence, this Court deems it appropriate to grant the relief.
Accordingly, the writ petition is allowed and the punishment imposed by the third respondent in his letter No.A4/PR.49/05 dated 16.03.2006, which was confirmed by the second respondent in his proceedings No.Rc.No.C2/Appeal.14 / 2006 dated 10.05.2006, which was subsequently modified by the order of the first respondent in Letter No.K.Dis.No.HP3(1)/191510/2006 dated 7-3-2007 is hereby set aside. No costs. Consequently, the connected miscellaneous petition is closed.
26.02.2013 Index:Yes/No Internet: Yes/No gpa P.R.SHIVAKUMAR.J gpa To
1.The Director General of Police, Tamil Nadu, Chennai 4.
2.The Deputy Inspector General of Police, Armed Police Chennai 10
3. The Commandant Tamil Nadu Special Police 10th Bn, Ulundurpet Villupuram District
4.The Assistant Commandant III Tamil Nadu, Special Police 10th Bn Ulundurpet Villupuram Taluk` W.P.No.27057 of 2007 & M.P.No.2 of 2007 26.02.2013