Madras High Court
B. Lawrence Kannan vs The Secretary To Government on 12 April, 2011
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 12-04-2011 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.7001 of 2009 B. Lawrence Kannan ... Petitioner Vs. The Secretary to Government, Home (Police-IV) Department, Fort St.George, Chennai 9. ... Respondent Prayer: Petition filed under Article 226 of Constitution of India, seeking a Writ of certiorarified mandamus calling for the records of the respondent in connection with the impugned order passed in G.O.(3D)No.37 Home (Pol.IV) Department, dated 18.5.2007 and G.O.(2D)No.152 Home (Pol.V) Department, dated 26.3.2009 and quash the same and further direct the respondent to reinstate the petitioner into service and grant him all consequential service and monetary benefits. For Petitioner : Mr.K.Venkataramani, Senior Counsel for Mr.M.Muthappan For Respondent : Mr.B.Vijay, Government Advocate O R D E R
The prayer in the writ petition is to quash the G.O.(3D)No.37 Home (Pol.IV) Department, dated 18.5.2007 and G.O.(2D)No.152 Home (Pol.V) Department, dated 26.3.2009 and direct the respondent to reinstate the petitioner in service and grant him all consequential service and monetary benefits.
2. The case of the petitioner is that he was directly recruited as Grade-II Police Constable and posted at Armed Reserve, Chennai City in the year 1983; that he was transferred to the Law and Order Wing in the year 1986; and that, he was awarded with about 100 rewards. A charge memo was issued to the petitioner by the Commissioner of Tribunal for Disciplinary Proceedings, Chennai, stating that the petitioner along with one Sub-Inspector viz., Ragavachari foisted a false case against one Kochumon; that the petitioner and the said Ragavachari were proceeded with a common disciplinary proceeding in TDP case No.18 of 1997 for five charges; that the petitioner was arrayed as accused No.2 and the said Ragavachari was arrayed as accused No.1 in the said TDP case; and that three charges are relating to the petitioner. On 15.9.1991 the charge memo was issued and the petitioner appeared through his counsel and defended the case. Nine witnesses were examined and ten exhibits were marked on the side of the respondent. Petitioner has taken a stand that he has not demanded and accepted any illegal gratification from the Complainant Kochumon, nor relieved him from the criminal case and as he has no power either to register the case or drop the action and that the accused No.1 in TDP case i.e, the Sub-Inspector of Police alone is competent to do the same. According to the petitioner, the bribe amount was thrust in his hands to complete the arranged trap. The said complainant viz., Kochumon was not examined. The report was filed in the TDP case on 2.3.1999 and stated that the charges were not proved against the petitioner. The Government disagreed with the said findings given by the TDP and issued a show cause notice on 22.2.2001 and held that charge No.1 i.e., receiving a sum of Rs.1,000/- from the said Kochumon on behalf of the Sub-Inspector of Police appears to be established. The petitioner submitted his explanation on 9.4.2001 and without considering the same the Government issued G.O.Ms.No.40 Home Department, dated 9.4.2004 and held that the said charge is proved and imposed the punishment of compulsory retirement from service.
3. The petitioner challenged the said order in O.A.No.1366 of 2004 and after abolition of the Tribunal, the case was transferred to this Court and renumbered as W.P.No.32192 of 2005 and this Court by order dated 30.1.2006, finding certain procedural defects, set aside the order and remitted the matter to the respondent for reconsideration and pass fresh orders within 12 weeks. After the remand order, the respondent issued G.O.(3D)No.37 Home (Pol.IV) Department dated 18.5.2007. The said order was also challenged by the petitioner in W.P.No.13262 of 2008. However the said writ petition was withdrawn on 25.7.2008 with liberty to file review petition. Thereafter the petitioner filed a review petition on 18.8.2008 and no order having been passed petitioner filed W.P.No.2322 of 2009 and prayed for early disposal of the review petition and this Court by order dated 5.2.2009 directed the respondent to pass orders in the review petition within a period of eight weeks. The said review petition was also rejected by order dated 26.3.2009 and both the orders are challenged in this writ petition on the ground that the earlier order issued by this Court was not considered by the respondent; the petitioner was not issued with show cause notice before taking a dissent view; the fact of receiving the cover on behalf of the Sub-Inspector of Police, who was a close friend was not considered; merely because the Sub-Inspector disowns the knowledge of the cover, he cannot be treated as innocent person; and the punishment imposed is excessive and his past conduct has not been considered.
4. The respondent has filed a counter affidavit by contending that taking note of the 25 years of petitioner's record of service a lenient punishment of compulsory retirement was imposed even though the petitioner deserves to be dismissed, which will deprive his entire service benefits. All the statutory rules including reasonable opportunity which are to be followed during the departmental proceedings have been followed. Petitioner's further representation regarding the descending view was also considered and taking into the totality of the circumstance including the gravity of the delinquency, punishment of compulsory retirement was ordered and the punishment imposed is not excessive.
5. The learned Senior Counsel appearing for the petitioner submitted that in the TDP case petitioner having been found exonerated the differing view taken by the respondent insofar as the petitioner is concerned, is unjust and there is a procedural violation which was also taken note of by this Court in W.P.No.32199 of 2005 order dated 30.1.2006 and even after remand the very same punishment of compulsory retirement is imposed and therefore the earlier order passed by this Court is not complied with. The learned counsel also submitted that the petitioner only received the cover without knowing the contents of the cover from the complainant on behalf of the Sub Inspector of Police as the said Complainant is known to the Sub-Inspector of Police and therefore he cannot be blamed for any delinquency.
6. The learned Government Advocate on the other hand submitted that the complainant viz., Kochumon is a hardened criminal and the petitioner's connection with the said criminal itself is a misconduct and considering the past record of service of the petitioner he has been leniently dealt with by imposing the punishment of compulsory retirement even though he deserves dismissal from the service.
7. I have considered the rival submissions of the learned Senior Counsel for the petitioner as well as the learned Government Advocate for the respondent.
8. The charges levelled against the petitioner which is held as proved by the respondent is charge No.1, which reads as follows:
"On 5.6.1989 at about 10.00 hours at General Section Crime Office, Egmore, Madras-8, you (accused Officer-1) had demanded an illegal gratification of Rs.5,000/- from Thiru A.Kochumon, S/o.Thiru Andrews Kutty, No.27, New Secretariat Colony, Kilpauk, Madras-10, for helping him and for not causing any harassment in a criminal case in general Crime Branch Crime No.409/89 under Section 419 and 420 IPC in which case the said Thiru.Kochumon was implicated as an accused and when he pleaded his inability to pay such a huge amount, you (Accused Officer-1) had instructed him to pay the amount in five instalments, the first instalment of Rs.1,000/- on 6.6.89 around 12.00 hours either to you (Accused Office-1) or to Accused Officer-2, if you (Accused Officer-1) were not available and in pursuance of the said demand, on 6.6.89 between 12.15 hrs. and 12.35 hrs. by the side of the latrine near the out gate in Police Commissioner Office, Egmore, Madras-8, you (Accused Officer-2) had received the first instalment of illegal gratification of Rs.1,000/- from the said Thiru Kochumon."
The Tribunal for Disciplinary cases gave a finding that all the three charges framed against the petitioner are not proved. The respondent herein differed with the finding in respect of the first charge by stating that the petitioner had received the cover from the complainant and the said allegation is proved. Based on which the compulsory retirement order was passed earlier which was set aside by this Court on technical ground by observing as follows:
"8. I have considered the submissions made by both the counsel. Admittedly, as far as the petitioner is concerned, there is no demand for the bribe from the complainant. Besides, it is not the case of the Department that any complaint has been made against the petitioner. That apart, the Tribunal has given a finding to the effect that since the Sub-Inspector and the complainant are close friends, the petitioner, who is working as a constable, has received the cover without knowing the content of the cover. As such, the Tribunal has found that without even knowing the contents, the petitioner had received the cover since the person, who has handed over the cover is a close friend of the Sub Inspector and not with an intention of receiving illegal gratification.
9. That apart, the petitioner has completed more than 23 years of service at the time of the alleged occurrence. The learned counsel for the petitioner has submitted that till the date of the impugned charge memo, his service record was a clean slate. As such, these facts are to be considered before passing the order. Since the Government has passed the impugned order without taking note of the explanations given by the petitioner and without considering the past records of the petitioner, in my opinion, the matters required for reconsideration. As such, I hereby remanded the matter to the first respondent herein to re-consider the same by taking note of the facts stated above and pass orders in accordance with law within a period of twelve weeks from the date of receipt of a copy of this order."
After the said order was passed, the petitioner's explanation submitted earlier and the past record were also considered and further explanation was also sought for and after going through the same the impugned order of compulsory retirement was passed stating that the complainant Kochumon is an ante-social element involved in many criminal cases; that petitioner had links with the said Kochumon; and that, with a mere signal from the said Kochumon the petitioner followed him to a shady place like latrine near the out-gate of the Commissioner office and received the cover containing currency notes.
9. The petitioner also admitted on 6.6.1989 ie., at the scene of occurrence he received the money from the said Kochumon. However, the said version was changed as "cover" instead of "money". The denial made by the Sub-Inspector of Police stating that he had nothing to do with the money received by the petitioner and the statement given by PW-9 that if the money was not paid the case will end in his favour was not refuted by the petitioner. The petitioner was having the custody of the bail handbook of Kochumon which was marked as Ex.P-5 and the same was seized from the drawyer of the petitioner's table by the personnel of the Directorate of Vigilance and ante-corruption. Taking note of the 25 years of service, petitioner was imposed with the punishment of compulsory retirement and the review petition filed was also rejected.
10. From the materials available on record it is evident that the petitioner has received the cover from Kochumon who is admittedly a criminal. No amount of defence will support the case of the petitioner, particularly when the petitioner is aware of the antecedence of the said Kochumon. The petitioner who is indulged in corrupt practice while serving in police force is not justified in contending that no proceeding shall be initiated against him for receiving a cover from the criminal.
11. The scope of judicial review in disciplinary proceedings is considered by the Supreme Court in the decision reported in (2009) 8 SCC 310 (State of U.P. v. Man Mohan Nath Sinha). In paragraph 15 it is held thus, "15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to re-appreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court."
12. The Supreme Court gave clear finding as to how the corruption cases are to be dealt with. In the case of Surain Singh v. State of Punjab reported in 2009 (1) Supreme 458 the Supreme Court held that corruption in the administration has hampered the development of the Nation and the persons, who involved in the corruption cases, should be dealt with firmly and the persons indulging in corruption practices cannot be allowed to be in public employment, to maintain purity of administration, as such attitude will definitely affect public interest. In Paragraph No.7, it is held thus:-
"7. Day in and day out the gigantic problem of corruption in the public servants is on the increase. Large scale corruption retards the nation-building activities and everyone has to suffer on that count. Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and moralizing the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. [See: Swatantar Singh v. State of Haryana 1997 (4) SCC 14 and State of M.P v. Shambhu Dayal Nagar 2002 (1) SCC 1."
13. The punishment imposed against the petitioner is lenient as contended by the learned counsel for the respondent. Even though the charge is serious, considering petitioner's 25 years of service as well as the earlier order passed by this Court petitioner is imposed with the punishment of compulsory retirement. It is also well settled proposition of law that once the charge is proved it is for the disciplinary authority to pass appropriate punishment and Court cannot normally interfere with the punishment unless it is shockingly disproportionate.
14. The Division Bench of this Court (M.Y.Eqbal, C.J. & T.S.Sivagnanam, J.) recently considered the scope of judicial review in the matter of punishment in disciplinary matters in the decision reported in 2011 (2) CTC 129 (Dr.R.Padmavathy v. The secretary to Government, State of Tamil Nadu) held that normally Courts should not interfere with administrative decisions unless it is illogical and suffers from procedural impropriety or is shocking the conscious of the Courts, and that, when the administrative action is challenged as arbitrary, the question will be whether the administrative order is rationale or reasonable and the test would be Wednesbury's test.
15. In this case the punishment imposed against the petitioner is not disproportionate and therefore no case is made out to set aside the same. Consequently the writ petition is dismissed. No costs.
vr To The Secretary to Government, Home (Police-IV) Department, Fort St.George, Chennai 9