Madras High Court
S.Baskaran vs The Superintendent Of Police on 11 December, 2006
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 11/12/2006 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P(MD)No.3960 of 2006, W.P(MD)No.4075 of 2006 W.P.M.P.Nos.4150 and 4286 of 2006 S.Baskaran ... Petitioner in W.P.No.3960 of 2006 Panneerselvam ... Petitioner in W.P.No.4075 of 2006 Vs. 1.The Superintendent of Police, Madurai District. 2.The Deputy Superintendent of Police, Paraiyur Division, Peraiyur Taluk, Madurai District ... Respondents in both petitions Prayer in W.P.No.3960/2006: Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of mandamus forbearing the respondents from proceeding with the departmental enquiry contemplated in the proceedings of the second respondent T.P.No.19/06 under rule 3(b) dated 17.2.2006, pending disposal of the criminal case on the file of the learned 8th Metropolital Magistrate, George Town, Chennai in Crime No.447/2005 on the file of the Yanaikoundi Police Station. Prayer in W.P.No.4075 of 2006: Writ petition filed under Article 226 of the Constitution of India, praying this Court to issue a writ of mandamus forbearing the respondents from proceeding with the departmental enquiry contemplated in the proceedings of the first respondent T.P.No.18/06 under rule 3(b) dated 17.2.2006 pending disposal of the criminal case on the file of the learned 8th Metropolitan Magistrate, George Town, Chennai. !For Petitioners ... Mr.N.Ananthapadmanabhan ^For Respondents ... MrK.Baskaran, Addl Government Pleader :COMMON ORDER
In the above writ petitions, petitioners seeks to forbear the respondents from proceeding with the departmental enquiries contemplated in the proceedings in T.P.No.19/06 and T.P.No.18/06 respectively, both dated 17.2.2006, under rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, pending disposal of the criminal case on the file of the learned 8th Metropolitan Magistrate, George Town, Chennai in Crime No.447/2005 on the file of the Yanaikoundi Police Station.
2. The brief facts necessary for disposal of the writ petitions are that the petitioner in W.P.No.3960 of 2006 joined in the Police Department as Constable on 7.2.1997 and now he is working as Head Constable (Batch No.178) at Thirunagar P5 Police Station. Petitioner in W.P.No.4075 of 2006 was appointed as Police Constable on 25.5.1998 and he is now working as Grade-I Police Constable (Batch No.778) at Thirumangalam Police Station. The first respondent issued a charge memo under section 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, in his proceedings T.P.No.19/06 and T.P.No.18/06 respectively on 17.2.2006 and placed the petitioners under suspension pending enquiry into the criminal charges. Totally seven charges are framed against the petitioners separately. Petitioners further states that a criminal case is registered in Yanaikoundi Police Station in Cr.No.447 of 2005 for the offences under sections 341, 323, 506(i), 392 and 395 I.P.C. and the case is pending before the learned 8th Metropolitan Magistrate, George Town, Chennai. The second respondent was appointed as Enquiry Officer to enquire into the charges levelled against the petitioners. By representation dated 24.7.2006, petitioners requested the second respondent to keep the disciplinary proceeding in abeyance, pending criminal case before the 8th Metropolitan Magistrate, George Town, Chennai on the ground that the charges contemplated in the departmental proceedings and the subject matter of the criminal case are one and the same and the petitioners are innocent persons and is a victim of the circumstances. According to the petitioners the said request having not been considered, these writ petitions are filed with the above mentioned prayer.
3. First respondent filed separate counter affidavits and the contents of the same are that the petitioners are charged under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, on their involvement in the criminal case in crime No.447 of 2005 on the file of Yanaikoundi Police Station, Chennai, under Sections 341, 323, 506(i), 392 and 395 IPC registered on 7.6.2005 at about 21.00 hours and they were arrested on the same day at 22.00 hours for having involved in robbery along with seven others including one Meenakshisundaram P.C.No.265. Petitioners were kept under suspension with effect from 7.6.2005, the date of their arrest. It is stated in the counter affidavit that seven charges were framed against the petitioners and the second respondent was appointed to conduct the preliminary enquiry and based on the preliminary enquiry report, the incident reported on 7.6.2005 was found true based on which departmental action was initiated and oral enquiry was held on 30.5.2006. Petitioners did not appear in the enquiry. PW-1 was examined and Ex.P-1 to P-4 were marked. At that time petitioners informed that they will not attend oral enquiry because of the pendency of the writ petition. It is stated in the counter affidavit that the charges framed in the departmental proceedings and in the criminal case are not one and the same since the criminal Court trial would enquire only into the involvement of the petitioners in criminal offences and the departmental proceedings will enquire into various other charges apart from the criminal charges. Hence the first respondent states that there is no substance in the contention of the petitioners that the charges in the departmental proceedings and in the criminal case are one and the same.
4. An additional affidavit has been filed by the petitioners wherein it is stated that the co-accused involved in the criminal case viz., Meenakshisundaram, Police Constable in the Armed Reserve, who is accused No.1 in the criminal case was also placed under suspension on being arrested. Petitioners are also kept under suspension due to their involvement in the same criminal case. The Superintendent of Police, Ramanathapuram District through his proceedings dated 13.3.2006 chosen to drop the departmental proceedings against Meenakshisundaram, who is A-1 in the said criminal case and the first respondent has initiated departmental proceedings against the petitioner by appointing the second respondent as Enquiry Officer. It is further stated in the additional affidavit that there is no justification to treat the petitioners differently than the similarly placed person viz., Meenakshisundaram, whose suspension is revoked on 13.3.2006 subject to the criminal proceedings and has been permitted to join duty at S.B.,C.I.D, Madurai, while the petitioners are proceeded with departmental proceedings and therefore there is discrimination in not giving equal treatment.
5. On the basis of the averments made in the additional affidavit, I have called for the original files in connection with PC 265 Meenakshisundaram of Armed Reserve, Ramnad District, now on duty at S.B.,C.I.D., Madurai. It is seen from the records that the said Meenakshisundaram was suspended by order dated 17.6.2005 due to his involvement in the criminal case. On the report given by the Commissioner of Police, Chennai- 8 to the Director General of Police, Chennai - 2, through proceeding dated 9.6.2005 a report was submitted about the involvement of the said Meenakshisundaram, petitioners and others in the criminal case, their arrest and about the recovery of amount. It is also seen from the records that the Deputy Superintendent of Police, in charge of Armed Reserve, Ramanathapuram conducted a preliminary enquiry and submitted a report to the Superintendent of Police, Ramanathapuram and recommended to take disciplinary action through his report dated 22.8.2005 and charge memo was also issued by the Superintendent of Police, Ramanathapuram in T.P.No.77 of 2005 dated 30.8.2005, which contains four charges. It is seen from the file that the Additional Superintendent of Police, Crimes, Ramanathapuram conducted enquiry and found that the charges 1, 2 and 4 are against the said Meenakshisundaram are proved and subsequently the order of suspension was revoked without prejudice to the criminal case pending against him in Cr.No.447 of 2005 pending before the C2 Elephant Gate Police Station.
6. The learned counsel for the petitioners argued that the petitioners and the said Meenakshisundaram are said to be involved in the same criminal offence and the suspension order passed against the said Meenakshisundaram is revoked and the petitioners alone are proceeded departmentally and the charges in both the proceedings being similar, the departmental proceedings should be stayed and the suspension orders should be revoked.
7. The learned Government Pleader on the basis of the Counter affidavit submitted that the petitioners are not only involved in the serious offences of robbery, but also violated various rules of the department, for which seven charges are framed and therefore the matter should be viewed seriously and the revocation of suspension order against the said Meenakshisundaram cannot be taken as a ground to revoke the suspension order passed against the petitioners or to stop the departmental enquiry, pending criminal case. The learned Government Pleader further submitted that the charges levelled against the petitioners being serious and even if the Criminal Court acquit the petitioners, still the departmental proceeding can be conducted independently against the charges and therefore there is no justification on the part of the petitioners to contend that due to the pendency of the criminal case, departmental proceeding is to be stalled.
8. I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Additional Government Pleader.
9. The charges levelled against the respective petitioners are as follows.
(I) Charges framed against S.Baskaran, HC 178(petitioner in W.P.No.3960/2006):
"(i) Grave misconduct in getting two days CL on 7.6.2005 and 8.6.2005 by giving false information through one Mahesh from Udumalaipet by way of a telegram that his mother was admitted in hospital.
(ii) Grave misconduct in having failed to report for duty on 9.6.2006 after completion of two days CL on 7.6.2005 and 8.6.2005.
(iii) Grave misconduct in having involved in robbery case in Chennai by falsely getting CL to go to Udumalaipet but proceeded to Chennai.
(iv) Grave misconduct in having associated with 7 anti-social elements including PC 265 Meenakshisundaram and Gr.I.PC 778 Paneerselvam and robbed of the cash Rs.4,00,000/- on 7.6.2005 at 21.00 hrs at Mind Street, NSC Bose Road Junction, Elephent Gate P.S. Limits, Chennai from one Ashok Kumar (33/2005) S/o.Ponnalagu of Madurai Tamil Nadu Jewellery Mart who were to purchase Jewels from Surana Jewellers. Ashok Kumar raised hue and cry. On hearing the noise police party on night rounds rushed to the spot and secured all of them and TATA Sumo van TN-02-Y-4599 and registered a case in Elephant Gate PS in Cr.No.447u/s.341, 323, 506(i), 392, 395 IPC.
(v) Grave misconduct in having involved in Elephant Gate P.S. Cr.No.447/2005 u/s.341, 323, 506(i), 392, 395 IPC and Virudhunagar Rural PS Cr.No.127/2005 u/s 392 IPC and 22(i)(b) Indian Arms Act, 1959 and also involved in other robbery cases and detained in Central Prison, Chennai and Tiruchi.
(vi) Having turned out to be a criminal and spoiled the image of the force which is entrusted with the responsibility of arresting criminals and unsocial elements.
(vii) Having violated section 20 of Government Servant Conduct Rules 1973 by getting 2 days CL on false information and involved in a criminal case."
(II) Charges framed against Paneerselvam, Gr.I-PC 778 (Petitioner in W.P.No.4075 of 2006):
"(i) Grave misconduct in getting two days CL on 6.6.2005 and 7.6.2005 by giving false information that he got telegram that his cousin Manoharan was under critical condition and expired on 5.6.2005 in Coimbatore.
(ii) Grave misconduct in having failed to report for duty on 8.6.2006 after completion of two days CL on 6.6.2005 and 7.6.2005 by giving false information.
(iii) Grave misconduct in having involved in robbery case in Chennai by falsely getting CL to go to Udumalaipet but proceeded to Chennai.
(iv) Grave misconduct in having associated with 7 anti-social elements including PC 265 Meenakshisundaram, Armed Reserve, Ramnad District, who is OD at SBCID, Madurai and HC 178 Baskaran and robbed of the cash Rs.4,00,000/- on 7.6.2005 at 21.00 hrs at Mind Street, NSC Bose Road Junction, Elephent Gate P.S. Limits, Chennai from one Ashok Kumar (33/2005) S/o.Balakrishnan and Balusamy, S/o.Ponnalagu of Madurai Tamil Nadu Jewellery Mart who were to purchase Jewels from Surana Jewellers. Ashok Kumar raised hue and cry. On hearing the noise police party on night rounds rushed to the spot and secured all of them and TATA Sumo van TN-02-Y-4599 and registered a case in Elephant Gate PS in Cr.No.447 u/s.341, 323, 506(i), 392, 395 IPC.
(v) Grave misconduct in having involved in Elephant Gate P.S. Cr.No.447/2005 u/s.341, 323, 506(i), 392, 395 IPC and Virudhunagar Rural PS Cr.No.127/2005 u/s 392 IPC and 22(i)(b) Indian Arms Act, 1959 and also involved in other robbery cases.
(vi) Having turned out to be a criminal and spoiled the image of the force which is entrusted with the responsibility of arresting criminals and unsocial elements.
(vii) Having violated section 20 of Government Servant Conduct Rules 1973 by getting 2 days CL on false information and involved in a criminal case."
10. On a perusal of the above charges, it is clear that the petitioners are said to have not only involved in the criminal case by committing robbery, but also said to have committed other grave misconducts as well, as stated supra. The petitioners are charged for their involvement in a serious crime. It is relevant to note that in charge No.4 it is stated that the petitioners including one Meenakshisundaram-P.C.625 and others involved in the said criminal case on 7.6.2005 at Mint Street, NSC Bose Road Junction, Chennai, and committed robbery of Rs.4,00,000/- and the petitioners and others were caught red handedly with the amount of Rs.4,00,000/- and the vehicle in which they travelled i.e., TN-02-Y-4599 was also seized.
11. The petitioners being responsible members of the Police Force, have been allegedly involved in the said criminal case of robbery. Whether actually the petitioners have involved in the said criminal case or not and whether punishment is to be awarded for commission of the said offence is to be decided by the criminal court after trial. The allegation as to the involvement of the petitioners in the criminal case, particularly when they are members of the Police Force, is highly shocking. It is not known how the co-accused in the criminal case, who was also placed under suspension was permitted to rejoin duty after revocation of the suspension order subject to the criminal case. However, the said order is not under challenge and the said Meenakshisundaram is not a party before this Court. Hence I am not going into the merits or otherwise of the revocation of the order of suspension of the said Meenakshisundaram.
12. Admittedly there is a charge memo issued against the petitioners under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, and a criminal case is also pending and the petitioners are placed under suspension under Rule 3(e)(1), which reads as under, "Rule 3(e)(1) A member of a service may be placed under suspension from service, where-
(i) an enquiry into grave charges against him is contemplated or is pending, or,
(ii) a complaint against him of any criminal offence is under investigation or he is under trial and if such suspension is necessary in the public interest." From the above rule it is clear that if a complaint against a Police Officer of any criminal offence is under investigation or is under trial, the police personnel may be suspended, if such suspension is necessary in the public interest. Similarly a member of the service who is detained in custody whether of criminal case or otherwise for a period of longer than 48 hours shall be deemed to have been suspended under the provisions and it is the discretion of the authorities to revoke the order of suspension at any time.
13. Admittedly there is an allegation that the petitioners have involved in a criminal case. The criminal case is pending trial, is also not in dispute. The charges levelled against the petitioners are not only related to criminal case, but also on several other grounds as stated supra. From the perusal of the allegations in the criminal case and the charge memo issued to the petitioners, I am of the view that the charges levelled against the petitioners are not identical. Petitioners can very well appear before the Enquiry Officer and prove that they are innocent of the allegations. It cannot be said that the departmental proceedings and the criminal charges are on the same set of facts.
14. The Honourable Supreme Court in the decision reported in (2004) 7 SCC 27(State Bank of India and others v. R.B.Sharma) in paragraph 8 held as follows, "8. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Converse is the case of departmental enquiry. The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules of law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."
The allegations levelled against the petitioners that they have involved in the criminal case itself is a serious matter, which require to be gone into through the departmental proceeding and therefore the question as to whether the petitioners are to be convicted or acquitted in the criminal charges is immaterial for the department to arrive at a decision.
15. In an unreported judgment of the Division Bench made in W.P.No.28886 of 2004 and 25937 of 2005 (V.Natarajan v. Deputy Inspector General of Police, Thanjavur) dated 22.9.2005, a Division Bench of this Court in para 17 and 18 held as follows, "17. ............ it is well settled that even if an employee is acquitted in a criminal case he can be punished in the departmental proceedings on the same charge vide Allahabad District Co-operative Bank Ltd., v. Vidhya Varidh Mishra, (2004) 6 SCC 482 (vide paragraph 12) and Secretary, Ministry of Home Affairs and Another v. Tahir Ali Khan Tyagi, JT 2002 (Suppl) 1 SC 520 (vide paragraph 6).
18. We are fully conscious of the fact that ordinarily it is for the State Government or concerned authority to suspend an official and/or chargesheet him, and ordinarily this Court is reluctant to assume functions which belong to the executive. However, in exceptional cases, such as the present one, the Court can do so, since the public interest demands it strongly. It is for this reason that we are passing the aforesaid order." In the earlier part of the judgment in para 9, the Division Bench observed as follows, "9. .... It is preposterous and shocking that a Police Inspector, who has been found guilty of corruption, should be allowed to continue in service, even if he has filed an appeal against his conviction. To allow such a person to continue in service would demoralize the honest policemen and would be an offence against the whole of society. The police is expected to protect the people and not to loot the people. We cannot understand as to how a person, who has been held guilty of corruption, can be allowed to continue in service. We cannot countenance any such practice or approve of it. ........"
16. Here in this case, the petitioners are not convicted. However, serious criminal case is pending against the petitioners and therefore they have no right to seek for revocation of suspension or to pray for postponement of departmental enquiry till the disposal of the criminal case, particularly when several other charges are framed in addition to the criminal charges.
17. The arguments of the learned counsel for the petitioners that the suspension order of the Meenakshisundaram is revoked and therefore petitioners are also entitled to get similar treatment is unsustainable. Revocation of suspension order passed in favour of the said Meenakshisundaram is a discretionary order and it cannot be binding on the first respondent.
18. It is well settled in law that the order passed contrary to the rules cannot be treated as a precedent and there is no equality in illegality as held in the decision reported in AIR 2006 SC 2727 (South Eastern Coalfields Ltd. v. Prem Kumar Sharma & Others), wherein in paragraphs 9 to 11 the Honourable Supreme Court held as under, "9. The concept of equality as envisaged under Article 14 of the Constitution of India, 1950 (in short the 'Constitution') is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh & Ors. v. NDMC & Ors. (1996 (2) SCC 459) held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed:
"Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.
10. In Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors. (1997 (1) SCC 35), this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:
"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."
11. In State of Haryana & Ors. v. Ram Kumar Mann (1997 (3) SCC 321) this Court observed:
"The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under section 14 for Reinstatement? The answer is obviously "No". "
19. It is pity that the suspension of Meenakshisundaram PC 265, who is said to be allegedly involved in a robbery case, has been revoked by the Superintendent of Police, Ramanathapuram, by order dated 13.3.2006, though it is his discretion. However, I am not entering into the validity or otherwise of that order. The question as to whether the revocation of suspension of Meenakshisundaram during pendency of the same criminal case of robbery, who is accused No.1 in Crime No.447 of 2005, against which the petitioners are also accused, is justifiable or not has to be decided by the Home Secretary, Government of Tamil Nadu, Chennai-9, the Director General of Police, Chennai-4 and the Deputy Inspector General of Police, Madurai and I am not expressing any opinion on the validity of the revocation of suspension order. Since it is brought to my notice, I am inclined to direct the Registry to mark a copy of this order to the Home Secretary, Government of Tamil Nadu, Chennai-9, the Director General of Police, Chennai-4 and the Deputy Inspector General of Police, Madurai, enabling them to go into the matter and take appropriate action, if they so desire.
20. In the result the writ petitions are dismissed with the above observations. No costs. Connected miscellaneous petitions are closed.
To
1. The Superintendent of Police, Madurai District.
2. The Deputy Superintendent of Police, Paraiyur Division, Peraiyur Taluk, Madurai District
3. The Deputy Inspector General of Police, Madurai.
4. The Director General of Police, Chennai-4.
5. The Secretary, Home Department, Fort St.George, Chennai - 9.