Madras High Court
M. Vijayaraghavan, Inspector Of ... vs The Commissioner Of Police, The Joint ... on 12 September, 2006
Author: A. Kulasekaran
Bench: A. Kulasekaran
ORDER A. Kulasekaran, J.
1. This writ petition is filed to issue a writ of certiorari calling for the records relating to the order passed by the Appellate Authority, the first respondent herein, viz., the Commissioner of Police, in his proceedings R.C. No. Appeal/01 P.R.1(3)/ 49949/ 2004 dated 29.8.2004, communicated and received by the petitioner, on 17.11.2004, and quash the same.
2. It is stated that the petitioner was employed as Inspector of Police, Valliyur Police Station, Tirunelveli District, from 10.7.1999 to 4.12.1999 and during his tenure, he took up investigation in respect of a case in Crime No. 351 of 1999, which was registered for the offences under Section 302 I.P.C. On two counts. It is alleged against the petitioner that he has not properly and sincerely investigated the case. It is further alleged that in order to get some personal gain, he has recorded false statement from the witnesses, implicated one Rajaiah @ Rajadurai, who is not in any way concerned with the said offence. Thereafter, the said case was transferred to CBCID as per the order passed by the Government of Tamil Nadu, in C. No. 237331/CR.V(1)/99, dated 5.11.1999. After investigation was taken over by the CBCID, they were under the impression that the Investigating Officer, namely, the petitioner herein, has not conducted the enquiry properly. Thereafter, the charges mentioned below were leveled against the petitioner, by the disciplinary authority, which are as follows:
(i) Highly reprehensible conduct in having made perfunctory investigation by recording false statements from witnesses to implicate one Rajaiah @ Rajadurai in Valliyoor Police Station Cr. No. 351/99 under Section 302 IPC.
(ii) Highly reprehensible conduct in having effected false arrest of one Rajaiah @ Rajadurai in the above said case when his attempt to extract money from the said Rajadurai @ Rajadurai failed.
(iii) Highly reprehensible conduct in showing reluctance to hand over the photos and negatives of the S.O.C. to the Crime Branch CID officers after investigation was transferred to the CBCID.
(iv) Highly reprehensible conduct in having not sent the properties seized in the said case to the Tamil Nadu Forensic Sciences Department, Chennai for chemical analysis till 9.11.1999.
(v) Highly reprehensible conduct in having hide the original facts and evidence in the case instead of making sincere efforts to detect the case of double murder and attempt to deviate the investigation by trying to frame false charges against Rajaiah & Rajadurai by arresting him and remanding to judicial custody.
3. Before the enquiry officer, 10 witnesses were examined, including the petitioner on the side of the Department. The Enquiry Officer, after examination of the witnesses and perusal of documentary evidences, gave a report, dated 5.11.2003, holding that except charge No. 2, other charges are proved against the petitioner. The disciplinary authority, the second respondent herein, agreed with the findings of the Enquiry Officer, issued second show cause notice to the petitioner, calling upon him to give his explanation, if any, within a period of 15 days. The petitioner has not submitted his explanation within the time stipulated, but said to have sent two representations, seeking for adjournment, which according to him, were not considered, and the Enquiry Officer has passed an order of punishment of reduction of rank, by de-promoting the petitioner from Inspector of Police to Sub-Inspector of Police for a period of two years. The petitioner has challenged the said order before the first respondent, the appellate authority, who also confirmed the same, hence, the present writ petition is filed.
4. The learned Senior counsel Mr. K. Venkatapathy, appearing for the petitioner submitted that the Enquiry Officer has not offered fair opportunity to the petitioner; that the enquiry officer though found that P.Ws. 1 to 6, who were examined to substantiate charge No. 1, have categorically stated in their evidence that they have given evidence against Rajaiah @ Rajadurai, without any bodies instigation, while so, it is not proper on his part to come to the conclusion that charge No. 1 is proved against the petitioner. It is further submitted by the learned Senior counsel that charge No. 3 i.e. the photos and negatives of the scene of occurrence were not handed over by the petitioner to the CBCID officers at the time of transferring of the case is concerned, one Perumal, P.W.9 was examined, who in his evidence has stated that the photos and negatives were not found in the CD file, and immediately, he wrote a letter and sent the same through a constable, to the Valliyur Police Station. In a question in the cross-examination, he has stated that he is unable to trace the document, which was sent by him stating that the said photos and negatives were not available. The said evidence disprove charge No. 3. As far as Charge No. 4 is concerned that the property recovered in the scene of occurrence was not sent to the Tamil Nadu Forensic Sciences Department, Chennai, for chemical analysis, for establishing the said charge, the said Perumal, P.W.9, was examined by the Department, who deposed in his cross-examination that he has not noted anywhere in the investigation report that the said properties were not sent to Tamil Nadu Forensic Sciences Department, Chennai, which was also not considered by the enquiry officer. In respect of the last charge, namely, it is highly reprehensible conduct in having hidden the original facts and evidence in the case instead of making sincere efforts to detect the case of double murder and attempt to deviate the investigation by trying to frame false charge against Rajaiah @ Rajadurai by arresting him and remanding to judicial custody, the learned Senior counsel stated that the charge is nothing but repetition of Charge No. 2 and without any valid reasons, the Department has chosen to split up the same into two. It is also submitted by the learned Senior counsel that what are all the evidences available in respect of charge No. 2 can be made applicable to charge No. 5 also. In applying the said evidence, namely, the evidence of P.W.1 to this, in perspective manner, the said charge also ought to have been held as proved. The Senior counsel further submitted that the Enquiry Officer, though granted time of 15 days to file objections, if any, to the petitioner, he has failed to extend time for sending objections, inspite of two representations made by the petitioner. In support of his contention, the learned Senior counsel lay his hands to the said representations, which were available in the typed set of papers. As far as the first representation, dated 1.5.2004, is concerned, there is no evidence available to show that the same was received by the disciplinary authority, namely, the second respondent. In respect of the second representation, dated 19.5.2004, the learned Senior counsel pointed out to a xerox-copy of the postal receipt, in which also this Court is unable to find out the actual date of receipt. The yet another document pointed out by the learned Senior counsel is E.C.G. report, dated 25.5.2006, to the effect that the petitioner was hospitalised during the period he was required to submit his objection. The learned Senior counsel also submitted that the order of punishment is not at all a speaking order and that it is the duty of the disciplinary authority, before imposing any punishment, to discuss the evidence available, as to whether the charges leveled against the petitioner are proved or not. But in this case, without doing so, the disciplinary authority came to an erroneous conclusion that the said charges are proved and imposed the punishment. It is further submitted by the learned Senior counsel that even the order passed by the appellate authority, on the basis that the disciplinary authority's findings are valid, also is not a speaking order.
5. On the above contention, this Court heard the learned Additional Government Pleader Mr. Dhandapani, who submitted that during the relevant period i.e. 10.7.1999 to 4.12.1999, when the petitioner was working as Inspector of Police, Valliyur Police Station, a double murder took place; that a case was registered in Valliyur Police Station Crime No. 351 of 1999, under Section 302 IPC-two counts. The petitioner herein, who is in-charge of the investigation, without properly conducting the investigation, has recorded false evidence to implicate one Rajaiah @ Rajadurai, hence, Charge No. 1 was leveled against him. The witnesses P.Ws. 1 to 6, in the Chief-examination, have categorically stated that at the instigation of the petitioner only, they gave evidence against Rajaiah @ Rajadurai, which was properly considered by the Enquiry Officer as well as Disciplinary Authority and rightly came to the conclusion that the said charge is proved. In so far as Charge No. 3 that while handing over file by the petitioner to the CBCID, he failed to hand over the photos and negatives of the scene of occurrence is concerned, Mr. Perumal, P.W.9, was examined to substantiate the said charge, who has deposed in his evidence that the petitioner failed to send the said photos and negatives and immediately hence he sent a communication through a constable to the Police station requesting to send the said items, hence, Charge No. 3 is also proved. In respect of Charge No. 4 that the petitioner has not sent the properties seized in the said case to the Tamil Nadu Forensic Sciences Department, it is submitted by the learned Additional Government Pleader that though P.W.9 has deposed in his evidence that he has not mentioned anywhere in his investigation report that the properties recovered were not sent to the said Tamil Nadu Science and Department, the fact remains that the properties were not sent before 9.11.1999 to the said Department, for which, no explanation is offered by the petitioner. As far as Charge No. 5 that instead of making sincere efforts to deduct the case of double murder and attempt to deviate the investigation by trying to implicate Rajaiah & Rajadurai and remanded him to judicial custody is concerned, the learned Additional Government Pleader submitted that the said charge is a grave charge. The petitioner has not only suppressed the real fact, but attempted to implicate the innocent person Rajaiah & Rajadurai, hence, the said charge is different from Charge No. 2. It is further argued by the learned Additional Government Pleader that the disciplinary authority as well as the appellate authority have carefully considered the oral and documentary evidences and rightly awarded the punishment, which may not be interfered by this Court and prayed for dismissed of the writ petition.
6. This Court carefully considered the arguments of the learned Senior counsel for the petitioner as well as the learned Additional Government Pleader.
7. Among the five charges leveled against the petitioner, referred to supra, charge No. 2 was held not proved by the Enquiry Officer, which was accepted by the disciplinary authority, hence, it is not necessary for this Court to deal with the said charge.
8. As far as Charge No. 1 is concerned, it is submitted that the Department has examined P.Ws. 1 to 6, who in their Chief-examination have stated that at the instigation of the petitioner only, they gave the evidence against Rajaiah @ Rajadurai. The learned Senior counsel submitted that the said witnesses were cross-examined by the petitioner, and in the cross-examination, all the witnesses have categorically stated that they have given the statement against the said Rajiah @ Rajadurai voluntarily, not at the instigation of the petitioner. When evidence in the cross-examination is available in favour of the petitioner, that too denying the said charge, it is not proper on the part of the Enquiry officer to take into consideration the evidence in Chief-examination rejecting the evidence in cross. The purpose of cross-examination is to test the truthfulness, intelligence, memory, bias or interest of the witness and any question to that act within reasons is usually allowed. When a witness is contradicted by his previous statement, the whole of the previous statement cannot be treated as substantive evidence. In the said context, I now proceed to verify the evidence of Pws 1 to 6.
9. It is seen from the cross-examination, that P.Ws. 1 to 3 have stated that without instigation of anyone, they gave the statements. P.Ws. 4 to 6, in their cross-examination, stated that the statements were recorded before the Magistrate and at that time, the petitioner was not there and they themselves came to the Court and gave the statements. In view of the categoric evidence of P.Ws. 1 to 6, this Court is of the view that the first charge against the petitioner is not made out and the enquiry officer failed to consider the same and came to the wrong conclusion that the said charge is proved against the petitioner. It is no doubt that proof beyond all reasonable doubt as required in criminal trial is not necessary in departmental proceedings, but it is the duty of the disciplinary authority to consider the evidence and apply his mind before passing final order, whereas, in this case, the same was not done.
10. So far as charge No. 3 that the petitioner has not handed over the photos and negatives of the scene of occurrence to the CBCID is concerned, in support of the said charge, P.W.9, the Inspector of CBCID Thiru. Perumal, was examined, who deposed that he has not received the said photos and negatives. He further stated that he wrote a letter to the Valliyur Police Station to forward the same. In the cross-examination, he admitted that he is unable to mark the said document. When a charge is leveled against the delinquent officer, it is the duty of the Department to prove the evidence, which is required to be proved. The said charge is concerned, the Department has miserably failed to produce the said document, hence, this Court is of the view that charge No. 3 was not proved.
11. As regards Charge No. 4, that the petitioner has not sent the seized properties to Tamil Nadu Forensic Science Department till 9.11.1999, the said Perumal, P.W.9 has categorically stated in his evidence that he has not mentioned anywhere in his investigation report that the said properties were not sent to the said Department, hence, it is incorrect to say that the said charge is proved against the petitioner.
12. In respect of Charge No. 5, i.e. highly reprehensible conduct in having hide the original facts and evidence in the case instead of making sincere efforts to detect the case of double murder and attempt to deviate the investigation by trying to frame false charges against Rajaiah @ Rajadurai by arresting him and remanding to judicial custody, it is necessary to compare charge No. 2, since it is argued by the learned Senior counsel for the petitioner, that both are identical. On a careful perusal of charge No. 5 and 2, this Court is of the considered view that both are one and the same, but the respondents have split the same into two, hence, the findings of the enquiry officer in respect of charge No. 2 that it was not proved is applicable to charge No. 5. This Court is also of the view that the same is not made out.
13. It is seen from the records that the disciplinary authority sent the report of the Enquiry Officer and called for objection from the petitioner. It is alleged by the petitioner that during that period he was not well and hence, he sought for adjournment by sending two representations. As mentioned above, the said two representatives are not supported by any valid evidence. The fact remains that the petitioner has not chosen to give any objection in time, though opportunity was afforded to him by the disciplinary authority.
14. The disciplinary authority, just repeating charges 1 to 5 by citing judgment in O.A. No. 4233 of 2002, dated 27.1.2003 of Tamil Nadu Administrative Tribunal, whereby it allowed to continue the enquiry and pass orders, came to the erroneous conclusion that the charges are proved beyond any doubt, except Charge No. 2, and awarded the punishment. It is the bounden duty of the disciplinary authority, while imposing the punishment of charges, to discuss the evidence let in on either side and assign reasons for accepting or rejecting the evidence of a particular party, can pass orderrs. There must be a self-contained order in disciplinary proceedings culminating in an order of punishment. In this case, there is no specific reference or discussion to evidence made by the disciplinary authority and by non-speaking order, punishment was imposed. Although it is not necessary that the order must be a detailed one, it must disclose reasons so that the appellate authority or the supervisory authority can appreciate what factors weighed the disciplinary authority in awarding punishment and also enable the employee to challenge the order in appeal.
15. The order of appellate authority indicates that he has assumed that the charges are proved against the petitioner and he refused to interfere in appeal. This is an unsustainable approach. The appellate authority has to first consider the merits of the case and then to record his conclusion as to whether the charges against the petitioner are proved or not.
16. In view of the discussion made above, though this Court is not an appellate forum to re-assess the evidence, when it came to the light that the findings of the authorities are contrary to evidence or ignoring the evidence on record, this Court has to interfere and this case is one among the said categories. Hence, this Court thought it absolutely necessary to interfere and accordingly, the punishment awarded by the disciplinary authority as well as the appellate authority are set aside and the writ petition is allowed as prayed for. No costs.