Durai vs The Superintendent of Police, Tuticorin District

K. Ravichandra Babu, J.

The Petitioner is aggrieved against the Charge Memo dated 22.12.2013 issued by the Respondent. He is also consequently seeking for a direction to regularize the period of suspension and allow him to retire from service on superannuation on 30.4.2014 with all terminal, retirement and pensionary benefits. The case of the Petitioner is as follows:

"He was appointed as Grade-II Police Constable on 15.7.1978. He was promoted to the post of Special Sub-Inspector on 4.1.2010. He has put in 35 years of continuous service with unblemished records. He is due to retire on superannuation on 30.4.2014. At the verge of the retirement, the Respondent placed the Petitioner under suspension on 13.5.2013. Thereafter, the impugned Charge Memo was issued on 22.12.2013, alleging that the Petitioner abetted the commission of Criminal acts by the Accused in Crime No. 173 of 2013 for the offences under Sections 302, 307 & 324 of IPC and that the Petitioner has not informed the secret information received by phone in connection with the commission of the said offence. The Petitioner is not an Accused in Crime No. 173 of 2013. Therefore, he is no way concerned with the alleged occurrence. Thus, the impugned Charge Memo is not supported by any material or evidence. The Charge Memo was issued out of malice. The Charge Memo is defective since the sole witness, namely, one Kalyani, at whose instance the Disciplinary proceedings was initiated against the Petitioner, was not cited as Witness in the List of Witnesses to the impugned Charge Memo. There is no material connecting or implicating the Petitioner for abetting the Criminal offence."

The Respondent filed a Counter Affidavit, wherein, it is stated as follows:

"The Petitioner had connived with accused in Crime No. 173 of 2013 under Sections 302, 307 & 324 of IPC as evident through his cell phone calls with the Accused several times before and after the occurrence on 14.3.2013. The Petitioner did not share any information about the plan and activities of the said Accused to his higher-ups. The Petitioner was placed under suspension on 14.5.2013. After holding a Preliminary Enquiry, the Superintendent of Police, Erode, submitted his findings on 8.12.2013 and based on the said findings, Charge Memo was issued to the Petitioner. Ample material evidence with witnesses were considered during the Preliminary Enquiry and they are also cited in the charge-sheet. The Preliminary Enquiry was commenced in the month of October 2013 and findings have been submitted in the month of December 2013. Immediately, the Charge Memo was issued to the Petitioner. The call details of Kalyani is cited as material evidence. But, however, she was not marked as Prosecution Witness, since her address could not be derived."

Mrs. J. Anandavalli, learned Counsel appearing for the Petitioner submitted that the impugned Charge Memo is not supported by any material evidence and that one Kalyani, at whose instance the Disciplinary proceedings was initiated, was not cited as a witness in the Charge Memo. Therefore, she submitted that in the absence of such witness, no Disciplinary proceedings can be proceeded against the Petitioner. She has also further relied on the Confession Statement given by one Arun @ Arunprasath and Kattu Subbu @ Subramanian to contend that the Petitioner has not involved in the offence in respect of Crime No. 173 of 2013.

Per contra, Mr. V. Murugantham, learned Additional Government Pleader appearing for the Respondent submitted that no valid ground is made out to interfere with the Charge Memo and therefore, the Writ Petition has to be dismissed.

Heard the learned Counsel appearing on either side and perused the material placed before this Court.

In this case, the Petitioner has challenged the Charge Memo. The crux of the charges levelled against the Petitioner is that he has abetted the commission of Criminal acts by the Accused in Crime No. 173 of 2013 for the offences under Sections 302, 307 & 324 of IPC and that he has not informed his higher official about the secret information received by him over phone in connection with the abovesaid commission of offence. For proper appreciation of the charges, the same are extracted hereunder:

[Vernacular Omitted]

From the perusal of the abovesaid charges, it is seen that they are levelled against the Petitioner with specific details. Further perusal of Annexure-II to the Charge Memo would show that the charges were further explained with the dates and events. Annexure-III therein would show that 14 documents are relied in respect of abovesaid charges. Annexure-IV would show that six persons were shown as witnesses in support of the said charges.

Considering all the facts and circumstances and the nature of the charges levelled against the Petitioner, I am of the view that those charges have to be necessarily enquired into by conducting the Departmental Enquiry and the findings have to be arrived at by the Enquiry Officer of course by affording adequate opportunity to the Petitioner to defend the charges. Therefore, at this stage, the correctness or otherwise of the charges levelled against the Petitioner cannot be gone into by this Court by going into the merits of the same. All the grounds raised in this Writ Petition as well as the submission made by the learned Counsel appearing for the Petitioner only deal with the merits of the charges. As I have already pointed out, this Court, at this stage, cannot go into the merits of the charges and therefore, it is for the Petitioner to face the enquiry and prove his innocence, if he has any material evidence in support of his claim.

The contention of the learned Counsel appearing for the Petitioner is that the particular person, at whose instance the Departmental proceedings was initiated, was not cited as witness in the Charge Memo. In my considered view, that cannot be a ground to quash the Charge Memo as it is for the Petitioner to face the enquiry based on the available materials and witnesses placed before the Enquiry Officer. This Court, at this stage, cannot go into the issue as to whether a particular person has to be arrayed as a witness during the Departmental proceedings or not. No doubt, the learned Counsel for the Petitioner relied on the statements given by the Accused person. I do not think that this Court can go into all those things at this stage to find out the correctness or otherwise of the charges, especially, when the said exercise has to be done by the Enquiry Officer. In fact, the Petitioner wants this Court to find out the correctness or otherwise of the charges, which, in my considered view, cannot be done at this stage, as it is the role of the Enquiry Officer to do the same, which he is yet to commence and complete.

It is also to be noted that the Petitioner is not questioning the competency of the Respondent in issuing the Charge Memo. Therefore, when the impugned Charge Memo is issued by the Competent Authority and when the Charge Memo is also not vague, the same cannot be interfered with by this Court by exercising power under Article 226 of the Constitution of India. It is well settled that the Charge Memo issued by a Competent Authority cannot be interfered with as a matter of routine as it does not give rise to any cause of action or affects the rights of the party. In this aspect, the decision of the Hon''ble Supreme Court of India reported in Union of India (UOI) and Another Vs. Kunisetty Satyanarayana, , can be usefully referred to. The relevant portions of the decision reads as follows:

"13. It is well settled by a series of decisions of this Court that ordinarily no Writ lies against a charge-sheet or Show Cause Notice vide Executive Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh and others, ; The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, ; Ulagappa and Others Vs. Divn. Commr. and Others, ; State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, , etc.

The reason why ordinarily a Writ Petition should not be entertained against a mere Show Cause Notice or Charge-sheet is that at that stage the Writ Petition may be held to be premature. A mere Charge-sheet or Show Cause Notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the Show Cause Notice or after holding an enquiry the Authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a Writ Petition lies when some right of any party is infringed. A mere Show Cause Notice or Charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

Writ jurisdiction is discretionary jurisdiction and hence, such discretion under Article 226 should not ordinarily be exercised by quashing a Show Cause Notice or Charge-sheet.

No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or Show Cause Notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."

Considering all these facts and circumstances, I find no merits in this Writ Petition. Accordingly, the same is dismissed. However, the Respondent is directed to complete the Disciplinary proceedings initiated against the Petitioner and pass Final Orders within a period of three months from the date of receipt of a copy of this Order. No costs. Consequently, the connected Miscellaneous Petition is closed.