Madras High Court
A. Subramanian vs The Director-General Of on 22 June, 2009
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.06.2009
CORAM:
THE HONOURABLE MR. JUSTICE R.SUDHAKAR
W.P.No.41133 of 2005
A. Subramanian ... Petitioner
Vs.
1. The Director-General of
Police, Tamil Nadu,
O/o Director General of
Police, Kamarajar Salai,
Mylapore, Chennai-4.
2. The Commissioner of Police,
Chennai City,
O/o The Commissioner of Police,
Egmore, Chennai-8.
3. The Joint Commissioner of
Police, Chennai City,
O/o The Commissioner of Police,
Egmore, Chennai-8. ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records of the respondents herein comprised in the impugned orders in PR No.159/PRI(2)/CPO/2001, dated 3.6.2004 of the 3rd respondent; in Appeal/11-PR(1)/04 PR 159/PRI(2)/CPO/2001 dated 19.7.2004 of the 2nd respondent and in D.Dis.No.AP 3(3)/204408/2004 dated 21.5.2005 of the first respondent, quash the impugned orders and consequently direct the respondents to grant all terminal and pensionary benefits to the petitioner as honourably retired from service as Sub Inspector of Police.
For Petitioner : Mr. G. Thangavel
For Respondents : Mr. T. Seenivasan
Addl. Govt. Pleader
....
O R D E R
The petitioner has filed this writ petition challenging the impugned orders in PR No.159/PRI(2)/CPO/2001, dated 3.6.2004 of the 3rd respondent; in Appeal/11-PR(1)/04 PR 159/PRI(2)/CPO/2001 dated 19.7.2004 of the 2nd respondent and in D.Dis.No.AP 3(3)/204408/2004 dated 21.5.2005 of the first respondent.
2. The petitioner joined the services as a constable on 2.1.1969 in the Madras State Police Subordinate Service and promoted as Head Constable in the year 1980 and again promoted as Sub Inspector of Police in the year 1986. On 1.6.1995, the petitioner was transferred to E-2 Royapettah Police Station as Sub Inspector of Police (Crime). On 4.5.1995 one Govindasami travelling in Bajaj Sunny scooter was intercepted by three persons travelling on a motor cycle and he was grievously attacked with knife and a sum of Rs.1,800/- was snatched away from the said Govindasami. A case was registered in Cr.No.493/95 under section 379 on the file of the E-2 Royapettah Police Station. Investigation with regard to this case was conducted by the petitioner. It appears that one Ganesh, S/o Parameswaran was enquired by the petitioner with regard to the above said crime from 24.6.1995 to 27.6.1995. According to the petitioner, he called the said Ganesh for enquiry as he was a known criminal involved in petty offences. He has brought to the knowledge of the higher authorities about the said enquiry.
3. In the meanwhile, a complaint was given by the mother of the said Ganesh, to the Vigilance and Anti Corruption Wing of the police department alleging that the petitioner had demanded bribe of Rs.10,000/- to release her son from custody or from implicating him in the alleged offence. On the basis of the complaint given by the mother of the Ganesh, a case was registered by the Vigilance and Anti Corruption Department. On 27.6.2005 from 4.35 p.m. onwards, the trap proceedings were conducted and a sum of Rs.5,000/- was given to Omanammal, the mother of Ganesh so as to hand it over to the petitioner as part payment of bribe. In this proceedings, there are two mahazar witnesses. Consequent to the proceedings initiated by the Vigilance and Anti Corruption department, the petitioner was caught taking the bribe of Rs.5,000/-. Proceedings were initiated in accordance with law. The money which was coated with chemical phenopthalene for identification were seized under a mahazar, a sketch was drawn and the articles were sent for chemical examination tests. The petitioner for the above stated offence was suspended on 29.6.1995. The Vigilance and Anti Corruption Department filed a charge sheet before the III Additional Sessions Judge, City Civil Court, Chennai. After full fledged trial, the Additional Sessions Court came to the conclusion that prosecution has not established the guilt of the accused beyond reasonable doubt and further held that the petitioner/accused is entitled to the benefit of doubt and consequently, he was acquitted of offences under Sections 7 and 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act and Section 343 IPC. The judgment of the Criminal Court in C.C.No.20 of 1996 was delivered on 3.9.2003.
4. A charge memo dated 31.5.2001 was issued by the Commissioner of Police framing the following three charges:-
"ANNEXURE-I Statement of the substance of allegations, namely imputation of misconduct or misbehaviour in support of the charge(s) , framed against Thiru A. Subramanian, S.I. Of Police, E2 Royapettah Crime Police Station, Chennai.14 now under suspension.
CHARGE-I Highly reprehensible conduct in having brought one thiru S.P.Ganesh, S/o Tmt. Omni Ammal, residing at No.29, 2nd street, Srinivasa Perumal Sannathi Street, Royapettah, Chennai.14, to the Royapettah Police Station, and detained him in illegal custody for a period of four days between 24.6.95 and 27.6.95 on the grounds that he has involved in a snatching case.
CHARGE-II Highly reprehensible conduct in having demanded and accepted Rs.5,000/- (Rupees five thousand only) as illegal gratification, being the 1st instatement, from Tmt. Omni Ammal, mother of the said Thiru S.P.Ganesh on 27.6.95 at or about 17.10 hrs. at his office at E2 Royapettah Police Station, Chennai, to release her son from illegal custody and for not registering any criminal case against him.
CHARGE-III Highly reprehensible and unbecoming conduct of a police officer by his failure to maintain absolute integrity and devotion to duty and thereby violated Rule 24 of TNSPO Conduct Rules 1964."
5. In support of the Memorandum of charges, 9 documents were relied upon by the Commissioner of Police and 14 witness were examined. The documents relied upon by the Commission of Police are as follows as mentioned in Annexure-III:-
ANNEXURE-III The following documents are relied upon by the prosecution.
1. FIR in Crime No.RC5/AC/95-MC-I (A)/S7 of P.C. Act dated 27.6.95 along with the original complaint of witness 1 Tmt. Omni Ammal.
2. Mahazar in Crime No.5/A095/MC1 relating to the entrustment of the phenolphthalein stained trap money prepared on 27.6.95 between 15.00 hrs. and 16.15 hrs.
3. The seizure mahazar in Cr.No.5/AC/95/MCI prepared at the time of trap on 27.6.95 between 17.20 hrs. and 18.20 hrs. at the office of SI of police, E2 Royapettah Crime Police Station.
4. Requisition given to the Hon'ble Principal Sessions and Special Judge, City Civil Court, Chennai for forwarding the four bottles containing the solution of sodium carbonate and phenolphthalein for chemical analysis.
5. Prisoner search register of E2 Police Station from 14.6.95 to 2.7.95 which does not show the arrest of Thiru Ganesh by E2 P.S. Crime staff.
6. Sentry relief book of E2 Royapettah PS Crime from 19.6.95 to 3.7.95 which does not show any entry about the arrest of Thiru. Ganesh by the E2 Royapettah Crime Staff.
7. General Diary of E2 Royapettah P.S. Crime Section from 19.5.95 to 30.6.95 which also does not show any entry about the interrogation of W4 Thiru. Ganesh by the Crime SI Thiru A. Subramanian.
8. Report of the Chemical Examination in FSD Ref.T.No.4543/95, Chem.313/95, dt. 26.7.95.
9. Rough Sketch drawn on 27.6.95 by the trap laying officer showing the scene of trap."
6. In response to the charge memo, an explanation-cum-representation was given by the petitioner on 17.3.2003 and a detailed enquiry was conducted and the report was filed by the enquiry officer on 27.5.2003. On 18.6.2003, 5.8.2003 and 16.10.2003 representations were made by the petitioner. The representations were made to drop all further disciplinary proceedings. Considering the evidence on record, statement of witnesses and the finding of the enquiry officer, the third respondent/Joint Commissioner of police passed the following order on 3.6.2004:-
"ORDER ON PUNISHMENT ROLL City Police Office, Egmore, Chennai.8, P.R.No. 159/PRI(2)/CPO/2001 U/Or.3(b) dated 3.6.2004, A. Subramanian, S.I.S. Room, (formerly E-2 Royapettah P.S.) Punishment of, Reduction in the time scale of pay by two stages for two years and the period of reduction shall operate to postpone his future increments for two years".
(emphasis supplied)
7. On 7.6.2004, an appeal was filed to the Commissioner of Police, Chennai/the second respondent and the same was rejected on 19.7.2004. The order of the commissioner reads as follows:-
ORDER:-
Studied the PR file, witness statements, minute, Court Judgment on the criminal case, appeal petition, orders passed by the disciplinary authority and all other relevant documents.
2. The appellant has not made any new points in his appeal petition. He relies on the point that since criminal case ended in acquittal, punishment given in the PR No.159/PR1(2)/CPO/2001 should be set aside.
3. On benefit of doubt the Court has acquitted the appellant in the criminal case.
4. However, during the disciplinary enquiry under Rule 3(b) all the 3 counts of charge have been held proved based on oral and documentary evidence.
5. The proof required in a criminal case is more rigorous compared to proof required in a departmental action.
6. The evidence of P.W.2 Omanammal, P.W.3. Malathi Narayanan (independent witness) and the phenolphthalein test conducted on the hands of the appellant, recovery of cash from the appellant convincingly prove that the delinquent illegally detained P.W.2's son and demanded and accepted bribe and thereby failed to maintain absolute integrity in service.
7. Therefore, I do not find any reason to set aside the punishment already awarded. The appeal petition is dismissed."
8. On 13.9.2004 a Revision Petition was filed to the Director General of Police, the first respondent. In the meanwhile, the petitioner retired from service on 31.10.2004. After lapse of long period of time on 21.5.2005, the first respondent rejected the Revision Petition and held in paras 2 to 6 as follows:-
"2. The Inquiry Officer viz., the Deputy Commissioner of Police, Washermenpet District, Chennai City has held the charges as prayed in the minute 1st cited.
3. The Joint Commissioner of Police, North Zone, Chennai City has imposed the punishment of 'Reduction in time scale of pay by two stages for two years with cumulative effect' on the delinquent vide his orders 2nd cited.
4. His appeal petition against the punishment was considered and rejected by the Commissioner of Police, Chennai City vide his proceedings 3rd cited.
5. He has submitted a petition dated 13.9.2004 to cancel the punishment. This petition is treated as a Review petition and orders are passed u/r 15A(1)(ii) of TNPSS (D & A) Rules 1955.
6. I have gone through the Petition, PR file and connected records carefully. Acquittal of a criminal case need not necessarily mean that there is no validity in the Punishment Roll. In the departmental enquiry against him, the charges are proved. He has not raised any fresh point to consider. I review his PR and uphold the punishment already imposed. Petition is rejected.
Sd/A.X.Alexander, Director General of Police"
The petitioner now challenges the order of punishment dated 3.6.2004 confirmed by the higher authorities as stated above.
9. The contention of the learned counsel for the writ petitioner is that the criminal court after considering the oral and documentary evidences and the material objects (M.Os.) came to the conclusion that the prosecution has not proved the charges beyond reasonable doubt and further held that the accused is entitled to the benefit of doubt. Since the accused was acquitted of all charges by giving benefit of doubt, the learned counsel contended that the departmental proceedings is not maintainable for the following reasons:-
(i) The departmental proceedings on the same set of charges as that of the criminal case is not maintainable.
(ii) The complaint is given by the mother of the habitual offender who had a record of criminal antecedents.
(iii) There was no illegal detention of the said Ganesh during the period from 24.6.1995 to 27.6.1995 as alleged in the charge memo. This is fortified by the judgment of the criminal court.
(iv) There is a contradiction in the evidence of the independent mahazar witness and the finding of the chemical test report Ex.A-6 dated 20.7.1995.
(v) Inasmuch as the phenolphthalein test was negatived in so far as the wearing apparels, viz., shirt is concerned and positive only with regard to the hand wash, the department has not taken into consideration the statement of the delinquent officer that the chemical treated currency notes amounting to Rs.5,000/- was attempted to be thrust upon by the said Omanammal into the delinquent's pocket, as he refused to receive it. The currency notes fell on to the table and the recovery was not from the delinquent officer. The officers of the vigilance department forced the delinquent to take the money and hand it over to them. Therefore, the charge of accepting the bribe is a questionable charge and not proved by proper evidence.
(vi) The independent mahazar witness stated that the money was put into the pocket of the delinquent officer. Since the chemical test with regard to the wearing apparels is negatived, the evidence of the independent mahazar witness should be eschewed.
(vii) Since there is no other independent witness to support the case of demand and accepting of bribe, the petitioner should be acquitted of the charge of demanding and accepting bribe as in the criminal case.
(viii) The evidence of witnesses, viz., Writer and Inspector of Police goes to show that the said Ganesh was not under illegal custody for four days and therefore, the charge of demand of bribe has no basis.
10. The Learned Additional Government Pleader on the other hand supported the report of the enquiry officer and contended as follows:-
(i) The witnesses who are officers of the very same police station have clearly stated before the enquiry officer that the said Ganesh was coming frequently to the police station with regard to enquiry. One witness, the Writer, has clearly deposed about the incident culminating in the trap of the petitioner at the time of taking bribe. The independent witness also supports the case of accepting the amount as bribe on 27.6.1995.
(ii) The charge memo is not only based on the alleged incident, but also relates to the conduct of the police officer, who failed to maintain absolute integrity and devotion to duty in terms of Rule 24 of the Tamil Nadu Police Subordinate Police Officers Conduct Rules 1973.
(iii) Learned Additional Government Pleader further stated that the degree of proof in a criminal case and that of the departmental enquiry is different. He relied upon the Apex Court's decision in Ajit Kumar Nag v. General Manager, (P.J.), Indian Oil Corporation Limited reported in (2005) 7 SCC 764 and also the decision of a Division Bench of this Court in Joint Director of School Education (Personnel), Chennai Vs. N. Venugopal and another reported in (2006) 2, M.L.J. 100) in which myself (R.SUDHAKAR,J.) is one of the party. He stated that the result of phenolphthalein test in respect of the hand wash supported by the evidence of independent mahazar witness clearly established the case of the department with regard to the charge framed against the delinquent officer. There is no glaring infirmity or illegality in the enquiry proceedings and the finding of guilty by the enquiry officer is based on oral and documentary evidence and record and the disciplinary authority has considered the same and imposed punishment as already referred to above.
(iv) The further contention of the learned Additional Government Pleader is that the delinquent officer has been charged under 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 which reads as follows:-
"Rule 3(a) x x x Rule 3(b)(i) In every case where it is proposed to impose on a member of a service any of the penalties specified in clauses (d), (h) (l), and (j) of rule 2 the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is framed and of any other circumstances which it is proposed to taken into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires an oral inquiry or only to be heard in person. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority concerned. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, the person charged shall be entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing refuse to call a witness. After the inquiry has been completed, the person charged shall be entitled to put in; if he so desires, any further written statement of his defence.
Whether or not the person charged desired or had an oral enquiry, he shall be heard in person at any stage if he so desires before final orders are passed. A report of the inquiry or personal hearing (as the case may be) shall be prepared by the authority holding the inquiry or personal hearing whether or not such authority is competent to impose the penalty. Such report shall contain a sufficient record of evidence, if any, and a statement of the findings and the grounds thereof."
Whereby the punishment that may be imposed on proved charge will be major punishment as provided under Rule 2 of Tamil Nadu Police (Discipline and Appeal) Rules, whereas in the present case the authorities have taken lenient view and imposed a minor punishment only. The further appeal to the second respondent Commissioner of Police was considered by the said authority dispassionately and rejected. While rejecting the appeal, the second respondent has clearly held that proof required in the criminal case is more rigorous compared to proof required in a departmental action and also relied upon the evidence of independent witness and phenolphthalein test which proved positive with regard to the hand wash. The Director General of Police has also considered the revision petition and rejected the same on merits. All the authorities have applied the mind and concurred with the finding of the equiry officer and have affirmed the punishment imposed. Therefore, this court should not show any further indulgence to the petitioner where the delinquency has been proved by oral and documentary evidence.
11. The primary issue that will have to be considered by this Court is whether the acquittal by the criminal court by holding that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and by giving the accused the benefit of doubt, would bar the department to proceed against the delinquent officer under the provisions of the service rules.
12. Charge Nos.1 and 2 relate to the incident of the detention of one Ganesh, son of Omanammal between 24.6.1995 to 27.6.1995 and demand of money by way of illegal gratification for the release of the said Ganesh. The third charge has been framed under Rule 24 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964 stating that the delinquent officer fails to maintain absolute integrity and devotion to duty. Rule 24 of the Tamil Nadu Subordinate Police Officer's Conduct Rules, 1973 reads as follows:
"Rule 24. Integrity and devotion to duty:
(1) Every Police Officer shall at all times maintain absolute integrity and devotion to duty.
(2) Every Police Officer, shall take all possible steps to ensure integrity and devotion to duty by all subordinate Police Officer for the time being under his control and authority.
(3)(i) No Police Officer shall in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior.
(ii) The direction of the Official superior shall ordinarily be in writing. Oral directions to subordinates shall be avoided. Where the issue of oral direction becomes unavoidable, the official superior shall confirm in writing immediately thereafter.
(iii) A Police Officer who has received oral direction from his official superior shall see the confirmation of the same in writing as early as possible, where upon it shall be the duty of the official superior to confirm the direction in writing.
(iv) No Police Officer shall in the performance of his official duties or in the exercise of powers conferred on him evade the responsible devolving legitimately on him and seek instruction from, or approval of a superior authority when such instruction or approval is not necessary in the scheme of distribution of powers and responsibilities.
Explanation:- A Police Officer who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty within the meaning of sub-rule (1);
(5) in rule 36, after the second provision, the following proviso shall be added, namely:-
"Provided also that such repeal shall not affect the previous operation of the rules so repealed and a contravention of any of the said rules shall be punishable as if it were a contravention of these rules".
In addition to the charges 1 and 2 framed, the above stated rule has been relied upon for the 3rd charge. In this factual aspect of this case and in the backdrop of the findings of the enquiry officer and the findings of the criminal court, the decision of the Division Bench of this Court and the Apex Court will have to be considered for better appreciation of the petitioner's case.
13. With regard to maintainability of departmental proceedings, even after acquittal by the criminal court, in the decision reported in Joint Director of School Education (Personnel), Chennai Vs. N. Venugopal and another reported in (2006) 2, M.L.J.100, it has been held in paras 7 to 12 as follows:-
7. In Paul Anthony's case, in paragraph-22, the Supreme Court has set out the guidelines with regard to the proceedings before the criminal court and departmental proceedings, which reads thus:
"22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."
There is no finding that if the criminal Court acquits the person concerned, the Department proceedings should be dropped in every case.
8. The incident for which the first respondent is proceeded departmentally relates to the leakage of question paper, which occasioned the arrest of other accused including the first respondent. After investigation, the charge sheet was filed and after trial, the first respondent was acquitted. A reading of the judgment of the criminal Court, it is clear that the accused were acquitted only on the ground that the investigation was not properly done and there were several missing links and therefore, the truth could not be brought out. The observation of the Criminal Court in paragraph 17 does not support the first respondent's plea that he was honourably discharged. In this regard, it will be relevant to refer paragraph 11 of the judgment of the Supreme Court reported in 2005 (7) S.C.C. 764 (Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn. Ltd):
11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal Court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
The principle laid down in the above referred judgment will apply to the facts of the present case.
9. In yet another judgment of the Supreme Court reported in 2003 (3) C.T.C. 494 (Lalit Popli vs. Canara Bank), it has been held as follows:
"12. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him: whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See State of Rajasthan v. B.K.Meena and Ors., 1996 (6) SCC 417). In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct."
10. A Division Bench of this Court, in a case reported in 2005 (5) C.T.C. 672 (The Deputy Superintendent of Police vs. W.D.Sekaran), has held that if the acquittal is not honourable one, it is always open to the employer to proceed with the departmental proceedings. The Supreme Court in JT 2002 (Supp.1) SC 520 (Secretary, Ministry of Home Affairs and another vs. Tahir Ali Khan Tyagi), held as follows:
"6. Departmental proceeding and criminal proceeding can run simultaneously and departmental proceeding can also be initiated even after acquittal in a criminal proceeding particularly when the standard of proof in a criminal proceeding is completely different from the standard of proof that is required to prove the delinquency of a government servant in a departmental proceeding, the former being one of proof beyond reasonable doubt, whereas the latter being one of preponderance of probability.
7. That apart, the second part of Rule 12 of the Rules unequivocally dictates that a departmental proceeding could be initiated if in the opinion of the Court, the prosecution witnesses are found to be won over. In the case in hand, the prosecution witnesses did not support the prosecution in the criminal proceeding on account of which the public prosecutor cross-examined them and therefore, in such a case, in terms of Rule 12, a departmental proceeding could be initiated. In this view of the matter, we are of the considered opinion that the tribunal committed error in interfering with initiation of a departmental proceeding and the High Court committed error in dismissing the writ petition filed. We, therefore, set aside the impugned judgment of the High Court as well as that of the tribunal and direct that the departmental proceeding be concluded as expeditiously as possible."
11. It is also useful to refer to another Division Bench decision of this Court in State of Tamil Nadu vs. H.A.Munaf and another (2002 (3) L.L.J. 66):
"27. It is therefore clear that it is not axiomatic that in all the cases where the criminal proceedings based on the very same set of facts ended in acquittal, the departmental action should not be proceeded with. It is by now settled that if the acquittal in the criminal proceedings is not a honourable one, it is always open to proceed with the departmental proceedings. It is also now made clear that having regard to the fact that the delinquent may apprehend prejudice in the event of the criminal proceedings and the departmental enquiry being simultaneously proceeded with, the departmental enquiry can be commenced after the final conclusion of the criminal proceedings. A honourable acquittal would only mean an acquittal which is free from any doubt. Therefore, merely because a person came to be acquitted on the ground that the charge was not proved beyond all reasonable doubts, it cannot be held that the person was honourably acquitted so as to hold that he was given a clean chit of the charges levelled against him."
12. Learned counsel for the first respondent would rely upon the Judgments reported in 1965 (1) LLJ 197 (Madras) (Shaik Kaslm Vs. Superintendent of Post Offices, Chinglepet Division), AIR 1984 Supreme Court 626 (Corporation of Nagpur Vs. Ramachandra G. Modak), 2005 (1) M.L.J. 634 (Union of India represented by its Commissioner of Income Tax, Tamil Nadu I, Chennai Vs. The Central Administrative Tribunal, Chennai Branch, represented by its Registrar, High Court Building, Chennai) and 2005 (2) M.L.J. Page 486 (State of Tamil Nadu represented by Secretary to Government, Municipal Administration and water supply Department, Chennai Vs. M.Jayapal). It is no doubt true that in some decisions, it has been observed that on the acquittal of the delinquent on the very same allegations in the criminal case, the department cannot proceed with the departmental proceedings, however, such decisions should be confined to the facts of those cases, more particularly in view of the categorical observations made by the Supreme Court in the later decisions, such as in 2005 (7) SCC 764, 2003 (3) C.T.C. 494 and JT 2002 (Supp.1) SC 520 (cited supra)."
(emphasis supplied) It, therefore, follows that each case will have to be tested on the facts and circumstances of that case and the material on record.
14. Now coming to the facts of the present case, in the charge sheet the following witnesses were cited:-
Sl.No. Name of witnesses Before Criminal Case Before Departmental Enquiry 1 Tmt. Omanammal, mother of one Ganesh P.W.2 P.W.2 2 Tmt.Malathi Narayanan, mahazar witness P.W.3 P.W.3 3 Thiru N.Thiyagarajan, mahazar witness Not examined Not examined 4 Thiru S.P.Ganesh, son of Tmt.Omanammal P.W.4 Not examined 5 Thiru S.Kumar Jain, Pawn broker P.W.5 P.W.4 6 Thiru Govindasamy, complainant in C.C.No.493 of 1995 registered under section 379 IPC Not examined Not examined 7 Thiru P. Jeyaraj, Inspector of Police, formerly crime now Seerani Arngam Police Station P.W.7 P.W.6 8 Thiru K.Gangadharan, Writer, E2, Royapettah Crime Police Station P.W.6 P.W.5 9 Thiru V.S.Mathews, Deputy Superintendent of Police Vigilance and Anti-corruption Not examined Not examined 10 Thiru Krishna Rao, Inspector of Police, Mylapore Crime Police Station Not examined Not examined 11 Thiru L.Purushothaman, formerly Inspector of Police, Vigilance and Anti-corruption and now Deputy Superintendent of Police, Chennai-6 Not examined P.W.8 12 Tmt. Ramani Ragupathi, Scientific Assistant Grade-I, Forensic Science Department P.W.8 P.W.7 13 Thiru R.Valsarajan, Inspector of Police, Vigilance and Anti-corruption, Enquiry Officer P.W.9 P.W.1 14 Thiru Subramaniam, formerly Inspector of Police Vigilance and Anti-Corruption, Chennai - Investigation Officer P.W.10 Not examined
15. Thiru Valsarajan, Inspector of Vigilance and Anti Corruption Department, who was examined as P.W.9 before the criminal court, was examined as P.W.1 before the Departmental Enquiry. He stated that based on the complaint given by the Tmt.Omanammal, the mother of Thiru Ganesh, a case was registered at 12.30 p.m. on 27.6.1995 in Crime No.5/AC/95 under the Prevention of Corruption Act 1988. Two independent witnesses, by name Tmt.Malathi Narayanan and Thiru M.Thiagarajan, who are officers of the Government were taken as witnesses to the proceedings. Based on the instructions given, the independent witnesses Tmt.Malathi Narayanan and Omanammal went to the police station and handed over the cash to the delinquent officer. Then they gave signal to the other witnesses, the officers of Vigilance and Anti-Corruption Department. Based on the identification given by the two women, viz., Tmt.Omanammal and Tmt.Malathi Narayanan, the petitioner was apprehended and the hands of the delinquent officer was subjected to phenolphthalein test and the solution turned into light pink. Thereafter, the money which was kept in the pocket of the delinquent officer, was asked to be produced, counted and was compared with the number mentioned in the mahazar and it was found that the currency notes as per the mahazar and currency notes recovered tallied and the mahazar was drawn. The two mahazar witnesses signed confirming the above proceedings.
16. In the departmental enquiry, Tmt.Omanammal, who was examined as the second witness spoke about the illegal detention of her son Ganesh between 24.6.1995 and 27.6.1995 and the demand made by the petitioner to pay bribe. She spoke of the complaint given to the Vigilance and Anti-Corruption Department resulting in the trap proceedings.
17. P.W.3, Mrs.Malathi Narayanan is the Superintendent working in the Social Welfare Department and she is the mahazar witness to the trap case held on 27.6.1995. She stated that she witnessed the delinquent officer receiving the first instalment of the chemical coated sum of Rs.5,000/- as bribe from the mother of Mr.Ganesh. She narrated the incident which happened inside the police station at the time when the delinquent officer was taking the bribe. She also narrated the incident relating to recovery of money, the hand wash collected from the accused by the officers of the Vigilance and Anti-Corruption Department. She also stated that she has signed as witness in the proceedings, namely, mahazar dated 27.6.1995.
18. P.W.4, Thiru S.Kumar Jain, who is a pawn broker, who spoke about the jewel loan taken by Omanammal for Rs.5,000/- and it is not relevant for the present adjudication.
19. P.W.6, Thiru K.Gangadaran, is the Writer of the Royapettah Police Station, who deposed before the criminal court and as P.W.5 before the departmental enquiry. He stated that after three days casual leave he rejoined duty on 26.6.1995. He spoke about the incident of trap which happened on 27.6.1995, wherein the petitioner was caught for accepting bribe. He also stated that a few moments before the incident he saw the delinquent officer along with two ladies taking coffee in a hotel opposite the police station.
20. P.W.6, Thiru Jeyaraj is the Inspector of Police, E2 Royapettah Police Station during the relevant time. He spoke about the incident of assault of one Govindasamy by three persons travelling on a motor cycle and the snatching of Rs.1,800/- from him, which resulted in the registration of a case in Crime No.493/95 under Section 379 IPC in the above said police station. He further stated that consequent to the registration of the said crime, Thiru Ganesh, son of Tmt.Omanammal was called for interrogation from 24.6.1995 by the delinquent officer. He stated that he knew that Ganesh was asked to come to the police station daily for interrogation. Petitioner himself stated that the said Ganesh was enquired by the him even on 27.6.1995.
21. P.W.7, Tmt. Ramani Raguraj, Forensic Expert was examined as P.W.7. The evidence is with regard to the positive result in the phenolphthalein test of the hand wash and not the shirt. P.W.8, Thiru L.Purushothaman, is the Deputy Superintendent of Police, who accompanied the vigilance officers in the case.
22. Delinquent officer cross examined all the witnesses and the details of cross examination as stated in the impugned order is as follows:-
23. As far as cross examination of investigation officer Gangadaran is concerned, it related to query, if any third party was present at the time of vigilance proceedings. Petitioner was not able to elicit anything to show that the offence of taking bribe did not happen on that date.
24. In the cross-examination, Tmt.Omanammal, P.W.2 stated that at the time of paying the bribe money, she went along with independent mahazar witness between 4.30 pm to 5.00 pm.
25. In the cross-examination, Tmt.Malathi Narayanan, P.W.3 while confirming the factual aspects with regard to the vigilance case which happened on 27.6.1995, she denied certain aspects relating to the antecedents of the said Ganesh, son of Tmt.Omanammal.
26. Thiru S.Kumar Jain, examined as P.W.5 before the criminal case and P.W.4 before the departmental enquiry is the so-called person who handed over the money for the purpose of vigilance trap case and his evidence is not relevant at this point of time since the mahazar proceedings are not disputed.
27. Thiru Gangadharan, examined as P.W.6 before the criminal court and P.W.5 before the departmental enquiry, is the Writer at the E2 Royapettah Police Station. He stated in his cross-examination that he saw the Ganesh in the police station on 27.6.1995 and he was being interrogated by the petitioner. He also stated that he knew the said Ganesh previously when he was working in Mylapore Police Station. He clearly stated that he came back to the police station and he was available at the time of vigilance proceedings.
28. In the cross-examination, Thiru P.Jayaraj, examined as P.W.7 before the criminal court and P.W.6 before the departmental enquiry, no particular fact is highlighted that is in favour of the petitioner.
29. Tmt.Ramani Ragupathi, examined as P.W.8 before the criminal court and P.W.7 before the departmental enquiry is a Scientific Assistant Grade-I, Forensic Science Department. She stated in her cross-examination about the test done based on the material seized under the mahazar.
30. Thiru L.Purushothaman, examined as P.W.8 before the departmental enquiry is formerly Inspector of Police, Vigilance and Anti-corruption and now Deputy Superintendent of Police, Chennai-6. He was not examined in the criminal court. To him a specific question was asked by the delinquent whether he saw loose currency notes fallen on the table for which he stated that he has not seen any loose currency notes on the table.
31. Thiru P.Jayaraj, examined as P.W.6 before the departmental enquiry and P.W.7 before the criminal court, stated about the case in Crime No.493 of 1995 relating to one Govindasamy causing injury by three persons on a motor cycle and theft of Rs.1,800/-.
32. In the departmental enquiry, the following materials were taken into consideration to come to the conclusion that the petitioner was guilty on the alleged charges:-
(i) The statement of Thiru Jayaraj, Inspector of Police at the Royapettah Police Station during relevant time who stated that the said Ganesh was being enquired by the delinquent officer between 24.6.1995 to 27.6.1995 consequent to the registration of crime No.493 of 1995 under section 379 IPC and that case relates to snatching of Rs.1,800/- from one Govindasamy by three persons on a motor cycle. He also confirms that he saw the said Ganesh regularly appearing before the delinquent officer. On this premise, the first charge was held to be proved.
(ii) The next material witness is the independent mahazar witness Tmt. Malathy Narayanan, who was an officer of Social Welfare Department. She was examined as P.W.3 before criminal court and P.W.4 before the departmental enquiry. She very clearly and categorically stated and narrated the incident of handing over the chemical coated currency, received by the petitioner on 27.6.1995 from Omanammal. She also stated about the mahazar proceedings in which the hand wash of the delinquent officer was collected. The statement is corroborated by Omanammal, the mother of Ganesh.
(iii) Tmt.Ramani Ragupathi, Scientific Assistant Grade-I, Forensic Science Department was examined as P.W.8 before the criminal court and P.W.7 before the departmental enquiry. She stated about the positive result of the hand wash of the delinquent officer and report submitted before the City Civil Court in Crime No.313 of 1995. This report is not in dispute even now.
(iv) At the time of actual trap proceedings, the Writer of the police station Thiru Gangadharan, who was examined as P.W.5 in the department proceedings and P.W.6 in the criminal court clearly stated that the incident happened when he was very much present in the police station.
In the light of these material witnesses, the enquiry officer concluded that the petitioner misconducted himself violating Rule 24 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1973.
33. The contention of the learned counsel for the petitioner is that there are certain discrepancies in the evidence of Tmt.Omanammal and Tmt.Malathi Narayanan examined as P.W.2 and P.W.3 before the criminal court and in the departmental enquiry. The contention of the learned counsel for the petitioner is that if the money was actually kept in the pocket of the petitioner and recovered, then, the phenolphthalein test with regard to the shirt should be positive, whereas it is negative. He pleads that the money was thrust by Tmt.Omanammal, which was resisted by the petitioner and so the currency notes fell on the table. At that point of time, the Vigilance Officer caught the petitioner and asked the petitioner to take the currency and handed it over to them. It was not a case of demand for bribe and a bona fide trap case. He pleaded that a false case has been foisted on the petitioner. He relied upon the cross- examination of Thiru Valsarajan, P.W.1 before the departmental enquiry, P.W.9 before the criminal court. At the time of cross-examination before the criminal court, the officer has deposed and it is contended that as per the statement of Tmt.Omanammal, the money was thrust into the pocket of the delinquent officer. However, in the cross-examination, there is nothing to show that the investigation officer accepted the fact that the money was recovered from the table. In fact, the independent mahazar witness stated that the hands of the delinquent officer were first tested for chemical residue and thereafter the cash was recovered, counted and verified with the mahazar and it tallied. Incidentally, the shirt worn by the petitioner was subjected to phenolphthalein test. Nowhere it has been stated by the investigation officer P.W.9 before the criminal court, P.W.1 before the departmental enquiry that the cash was recovered from the table of the delinquent officer. Except the statement of the delinquent officer, there is no other witness to state that the recovery was not from the petitioner, but from the table. Even, the writer Gangadharan has not stated about the recovery of the cash from the table. The criminal court considering the fact that the chemical test in so far as the shirt is concerned was negatived, entertained a doubt about the place of recovery and doubted the witnesses. Therefore, according to the criminal court, there is an element of doubt from which place the cash was recovered. The criminal court also held that P.W.2 Omanammal and P.W.3 Malathi Narayanan, the mahazar witness have not stated anything about the recovery of money from the table. Therefore, according to the criminal court, the evidence of P.W.9 was inconsistent. The criminal court also came to conclusion that there is no concrete evidence to show that Ganesh was kept in illegal custody from 24.6.1995 to 27.6.1995. The criminal court, therefore, came to conclusion that the prosecution did not prove the charges framed against the petitioner beyond reasonable doubt with concrete evidence and therefore, acquitted the petitioner on benefit of doubt.
34. In so far as the departmental proceedings is concerned, from the evidence on record and the findings, the fact is that the said Ganesh was interrogated by the petitioner from 24.6.1995 to 27.6.1995. This is evident from the statement of Jayaraj, the Inspector or Police, who narrated the events whereby Ganesh was called to the police station on all the four days. He confirms that the said Ganesh was presented in the police station on all four days. Whether it is a case of illegal custody or detention is another issue. The fact remains that the said Ganesh was at the police station on all four days at the behest of the petitioner. The important aspect that is required to be considered by this court is the events, which lead to registration of the complaint by the mother of the Gasnesh to the Vigilance and Anti-corruption department. The registering of the case in the afternoon on 27.6.1995 and trap that was laid in the evening. It was conducted in the presence of independent witness and the currency was seized from the petitioner. The phenolphthalein test showed positive so far as the hand wash is concerned. The Writer of the police station Thiru Gangadharan was present at that time and he stated that he was aware of the vigilance proceedings. This fact is not denied. There is no dispute with regard to the chemical test in so far as hand wash is concerned. It is proved positive. There was no protest by the petitioner immediately after the proceedings on 27.6.1995 to any of the higher authorities that the Vigilance and Anti-corruption department had proceeded in an arbitrary manner and the cash was thrust in his pocket against his wish by the lady. For the first time even according to the counsel for the petitioner such a plea was taken only in the criminal court. There is nothing in the mahazar to show recovery from the table. The mahazar is drawn in the presence of independent witnesses. There is no reason to discredit their evidence. There is no imputation against the investigation officer immediately after the trap proceedings. In such circumstances the finding of the enquiry officer based on the oral and documentary evidence cannot be termed as unreasonable or perverse.
35. Further, the petitioner was charged under Rule 24 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1973 for his conduct as an investigating officer between 24.6.1995 to 27.6.1995 resulting in the trap proceedings. As observed by the Apex Court in Ajit Kumar's case (cited supra) and other decisions, strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, finding of guilt and consequent penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". The facts of the present case squarely falls within the said parameters.
36. In this case, the criminal court has held that the prosecution has not proved the case by clinching evidence and beyond all reasonable doubt and that too on one fact that the phenolphthalein test was negatived in so far as the shirt is concerned. In the departmental case reliance was placed on the evidence of the independent mahazar witness, the Writer of the police station. The phenolphthalein test proved positive with regard to hand wash. The statement of the Inspector of police is that on all four days Ganesh was in the police station for enqiury by the petitioner. These are some of the relevant materials which would have weighed in the mind of the enquiry officer to come to conclusion that the petitioner has misconduct himself, thereby violating Rule 24 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1973 warranting appropriate punishment. As observed by the Apex Court the finding of the enquiry officer in this case is based on certain undisputed facts and based on the preponderance of probability of the case. There is enough material on record to accept the findings of the enquiry officer with regard to findings of guilt.
37. Learned counsel for the petitioner finally made an earnest plea citing decision of the Apex Court in G.M.Tank vs. - State of Gujarat reported in AIR 2006 Supreme Court 2129 that when the charge in the departmental proceedings and in the criminal proceedings is based on identical and similar set of facts and when the criminal case ends in an honourable acquittal holding that the charges have not been proved, it is not desirable to proceed with the departmental proceedings on the basis of the same witnesses examined in the criminal case on the very same charges. This decision, however, will not apply to the facts of the present case as can be seen from paragraph 6 of the judgment of the Apex Court where it has been recorded by the Apex Court that such a plea will apply only if the acquittal is by way of complete exoneration and not by giving benefit of doubt. In the present case, the criminal court acquitting the petitioner herein only on the ground that the charges framed have not been proved beyond reasonable doubt and the delinquent officer will be entitled to the benefit of doubt. Hence, the said decision will be of no help to the petitioner's case.
38. Yet another case relied upon by the learned counsel for the petitioner is Sat Paul vs. - Delhi Administration reported in AIR 1976 Supreme Court 294. It is a case of trap by Vigilance and Anti-Corruption department of an officer in the railway station, who caught a person loitering in the railway premises. A trap was laid at the behest of certain persons who were associated with illegal and immoral activities. The courts below held that the delinquent officer is guilty of offence. The Supreme Court in this case did not believe the evidence of trap witnesses, viz., P.W.1 Ramesh, P.W.7 Dal Chand and P.W.9 Inspector of Police. The Apex Court came to hold that the qualitative evidence of the witnesses particularly, P.Ws.1 and 7 who were persons of tainted character and are associated with immoral activities and related to the women witnesses in the said case, and that they had a grievance against the police officer who would be otherwise interfering with their immoral money making activities and therefore came to conclusion that evidence of such witnesses should not be relied upon. It will be relevant to highlight the observation of the Apex Court in paragraph 15 which will apply to the fact of the present case:
"15. It is true that ordinarily, as a matter of practice, this Court does not review the evidence and disturb concurrent findings of fact unless those findings are clearly unreasonable or are vitiated by an illegality or material irregularity of procedure or are otherwise contrary to the fundamental principles of natural justice and fair-play. The instant case is one which falls within the exception to this rule. As shall be presently discussed, the courts below have adopted a basically wrong approach. They have not only used the statement of certain witnesses in a manner which is manifestly improper or impermissible under the law, but have also erred in accepting the testimony of the interested witnesses without due caution and corroboration, requisite in the peculiar circumstances of the case. It is therefore, necessary to have another look at the evidence and the salient features of the case.
(emphasis supplied)
39. In this case, there is no taint or adverse comment on the mahazar witness, an independent person. The evidence of Inspector of Police and the Writer is that they were aware of the entire incident which happened on 27.6.1995, there is no imputation against them. There is nothing to disbelieve the evidence of the Inspector of Police and the Writer, who were aware of the investigation between 24.6.1995 and 27.6.1995. The evidence of Writer who was present at the time of trap proceedings, the evidence of independent mahazar witness, an officer of State Government, Social Welfare Department, who is the witness to the trap proceedings and the positive result of the hand wash in the chemical examination will justify the case of the department. In so far as the charges framed against the delinquent, and consequential department proceedings, this court does not find any material illegality or impropriety in the finding or the proceedings in the departmental enquiry so as to warrant any interference by this court. The department proceedings is in order and the finding of guilt and punishment imposed and confirmed by higher authority is in order.
40. Further, the delinquent officer was charged under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955. However, taking into consideration, his past conduct and merit, the authorities have imposed punishment of, "Reduction in the time scale of pay by two stages for two years and the period of reduction shall operate to postpone his future increments for two years". This is a minor punishment. This itself shows that the department has taken a lenient view in the matter.
41. This Court, therefore, does not find any merit or justification to interfere with the finding of the guilty arrived by the enquiry officer resulting in the punishment imposed by the competent authority which has been confirmed by the appellate authority and the revisional authority. This court is not inclined to interfere with the punishment imposed on proved charges.
42. Learned counsel for the petitioner made a reverent plea with all earnestness stating that the period of suspension should be eschewed for the purpose of pensionary benefits. It is open to the petitioner to approach proper authority for such remedy. Finding no merit, the writ petition is dismissed. No order as to costs.
ts To
1. The Director-General of Police, Tamil Nadu, O/o Director General of Police, Kamarajar Salai, Mylapore, Chennai-4.
2. The Commissioner of Police, Chennai City, O/o The Commissioner of Police, Egmore, Chennai-8.
3. The Joint Commissioner of Police, Chennai City, O/o The Commissioner of Police, Egmore, Chennai 8