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Judgment
R.S. Ramanathan, J.—The petitioner is a Grade I Police Constable, joined the police department as Grade-II Police Constable Armed
Reserve, (Madurai Rural) on 25.05.1988. He was promoted as Grade-I Constable in the year 2000. According to the petitioner, though he ought
to have been promoted as head constable in the year 2004 by reason of punishment rolls, which is challenged in this Writ Petition, he was not
promoted. It is stated in the petition that on the basis of the report of the Inspector of Police, Silaiman Circle, Madurai District and on the basis of
the report of the Deputy Superintendent of Police, Tirupparankundram Sub Division, Madurai, charge memo was issued to the petitioner under
Rule 3(A) of the Tamil Nadu Subordinate Services (Discipline and Appeal) Rules 1955 on 08.10.2004. The gravaman of the first charge is that
the petitioner being employed in the police Department, which is known for its discipline and good conduct and having married and father of two
children, the petitioner from 24.07.2002 was having illicit intimacy with Selvi. Santhakumari, who is employed in the Karuppayurani Police Station
as Sub-Inspector and thereby brought disrepute to the Department. The second charge is that on 21.07.2003 at about 3 p.m. while the said Selvi.
Santhakumari, Sub Inspector of Police, Karuppayurani Police Station was in the station, the petitioner came in a two wheeler and went into the
station and slapped the woman Sub Inspector. On the basis of the above two charges, the petitioner was asked to submit his explanation. The
petitioner submitted his explanation and thereafter the Superintendent of Police passed an order of punishment by his order dated 08.10.2004,
awarded the punishment of postponement of increment for two years without cumulative effect by SP/m Dv on 08.10.2004 for the delinquency,
namely, having illicit intimacy with Selvi. Santhakumari, Woman Sub Inspector of Police and brought disrepute to the Department. So far as
second charge, namely, the slapping of the woman Sub-Inspector on 21.07.2003 at 3.00 p.m. is concerned, it is stated in the order dated
08.10.2004, that the enquiry on that day revealed that the petitioner along with HC 223 was on investigation duty in Crime No. 5 of 2003 on the
file of the CCIWCID, Madurai, from 10.00 a.m. and the GD entries also revealed that the petitioner was not present in the Head Quarters from
10 hrs on that day. Nevertheless, as per the order of punishment, the postponement of increment for two years without cumulative effect was made
for the act of having illicit intimacy with Selvi. Santhakumari, Woman Sub-Inspector. It is seen from the order of punishment that no punishment
was awarded in respect of charge No. 2.
The petitioner filed statutory appeal to the second respondent and the second respondent by his order dated 27.08.2005 dismissed the appeal
on the ground that the appellant has not brought any fresh point for consideration and the punishment is commensurate with the nature of
delinquency committed by the petitioner. The petitioner thereafter filed Review Application before the first respondent and the first respondent also
dismissed the Review Application holding that the charge against the delinquent is rightly proved in the enquiry and the punishment awarded is also
apt by his order dated 08.04.2006. Aggrieved by the same, this Writ is filed.
Mr. Dhilipkumar, the learned Counsel vehemently contended that the order of the third respondent dated 08.10.2004 is illegal as there was no
proof adduced against the petitioner and without giving any opportunity to the petitioner to cross-examine the witnesses, the third respondent on
the basis of the statement made by the Inspector of Police, Silaiman Police Station and the Deputy Superintendent of Police, Thirupparankundram
Sub Division, which were obtained behind the back of the petitioner, passed the order of punishment. He further developed his argument stating
that even in the impugned order dated 08.10.2004, the third respondent made it clear that there are no corroborative evidence to strengthen the
delinquency of illicit intimacy of the delinquent with the Sub-Inspector of Police substantiating report of the Deputy Superintendent of Police and he
passed the order taking into the probabilities of giving two adverse notice by the delinquent in the current affair. He, therefore, submitted in respect
of the first charge namely, illicit intimacy, even according to the third respondent, there was no material to prove the same and in respect of the
second charge it is proved by the records that on 21.07.2003, the petitioner was on duty along with HC 223 in connection with the investigation in
CCIWCID, Madurai in respect of Crime No. 5 of 2003 and therefore, the third respondent erred in holding that the charges are proved and the
punishment of stoppage of increment for two years without cumulative effect is liable to be set aside. The learned Counsel relied upon the judgment
of the Hon''ble Supreme Court reported in Roop Singh Negi Vs. Punjab National Bank and Others, and submitted that as per the said judgment,
the order of the third respondent cannot be sustained and hence the order is liable to be set aside.
Mr. D. Gandhiraj, learned Government Advocate appearing for the respondents contended that the third respondent on the basis of the discrete
enquiry made by the Deputy Superintendent of Police and also on the basis of the Inspector of Police, Silaiman Police Station, rightly came to the
conclusion that though there is no corroborating material against the petitioner having regard to the adverse entries, the punishment was imposed
and it cannot be interfered with.
The charges levelled against the petitioner are serious in nature having regard to the department in which the petitioner is employed. In the Police
Department discipline and good conduct are very essential and when the police officials indulged in activities such as having illicit intimacy with
another woman, those acts must be seriously viewed. Taking into consideration the department in which the petitioner is employed and having
regard to the nature of charges if proved, the officials deserve punishment. Similarly the act of slapping another police officer must also be seriously
looked into and if such activities are allowed to happen the morale of the police force would be affected and therefore, those acts must be viewed
seriously. But, at the same time, while taking action against the erring officials, the department must take efforts to see that those charges are
proved in the enquiry or they are able to present a prima facie case against the delinquent. In the absence of such proof, no action can be taken
against the erring officials as it is the fundamental principle of law that even in the departmental proceedings, though the proof is not high as in the
case of criminal case, nevertheless, the department must prove that the charges are proved, the charges through satisfactory evidence and no
person shall be punished on no evidence or on the basis of probabilities or surmises. Unfortunately, in this case, if we go through the records, we
are constrained to come to the conclusion that the department miserably failed to prove the charges and various principles laid down by Hon''ble
Supreme Court were not at all taken into consideration and the second and first respondents failed to apply their mind while passing the
confirmation order.
The third respondent issued the charge memo on the basis of the statement of the Inspector of Police, Silaiman Police Station and on the report
of the Deputy Superintendent of Police, Tirupparankundram Sub Division. In the statement given by the Inspector of Police, Silaiman Circle, he
has stated that the petitioner married secretly Selvi. Santhakumari and he was not able to get any documentary evidence and according to him, his
discrete and confidential enquiry revealed that the petitioner and Santhakumari got married and are living as husband and wife. He further stated
that on 21.07.2003 at 03.00 p.m. the petitioner came to Karuppayurani Police Station, where Santhakumari was working as Sub Inspector of
Police, slapped on her face snatched the VHF hand set and mobile phone from her, threw them on the floor and left the police station.
Immediately, thereafter the petitioner came back and again slapped Santhakumari on her face. According to the Inspector of Police, the incident
was witnesses by P.C.1035 and when he met with the Woman Sub Inspector, she admitted the incident and also admitted that she and the
petitioner are living as husband and wife. From the above statement of the Inspector of Police, it is made clear that the petitioner and Santhakumari
got married and are living as husband and wife. But he was not able to obtain any evidence to prove the same and he was also not able to say the
sources from which he gathered information that the petitioner and Woman Sub-Inspector are living as husband and wife. As regards the second
incident, namely, slapping of the Woman Sub-Inspector by the petitioner on 21.07.2003, the eye-witness PC 1035 refused to give any statement
in writing and though it was stated by the Inspector of Police that the petitioner snatched the VHF handset from the said Santhakumari and threw it
on the floor, it is not known whether any damage has been caused to the VHF handset by the act of the petitioner.
The Deputy Superintendent of Police Thirupparankundram, also in his report dated 13.11.2003 stated that the petitioner and Santhakumari got
married secretly. It is further stated by him in his report that in respect of the incident that took place on 21.07.2003 at 03.00 p.m. in the
Karuppayurani Police Station, he examined PC 1035, Head Constable 740, the Inspector of Police, Silaiman Circle and obtained statement from
those persons and from the statement of those persons the incident was found to be true. Nevertheless, he has stated in the same report that PC
1035 and HC 740, who were on para duty refused to give any information about the incident. He, however, recommended departmental action
against the petitioner as the discrete enquiry made by him confirmed that the petitioner and Santhakumari are living together. It is seen from the
statement of the Deputy Superintendent of Police that during his enquiry the PC 1035 by name Elango, the Head Constable, Nallusamy gave
statement during his enquiry, regarding the incident that took place on 21.07.2003. Admittedly, those statement of the above said persons were
not placed before the enquiry nor the copies of those statements were given to the petitioner.
The Superintendent of Police admitted in his order dated 08.10.2004 that there are no corroborative evidence to strengthen the delinquency of
illicit intimacy of the delinquent with Santhakumari, and it is wrongly mentioned as Grade-I Police Constable 774 in the order, substantiating the
report of the Deputy Superintendent of Police, Thirupparankundram, dated 13.11.2003. Nevertheless, he awarded the punishment of
postponement of increment for two years without cumulative effect after taking into the probabilities of giving two adverse notice by the delinquent
in the current affair.
In my opinion, the order of the third respondent is liable to be set aside. When charges were levelled against the delinquent, the Enquiry Officer
can take the decision on the basis of the materials placed before him in respect of the charges levelled against the person, namely, the complaint,
statement witnesses, the explanation by the delinquent and the documents produced by the department and the delinquent to prove or disprove the
charges levelled against him. When there are no materials available against the delinquent in respect of the charges levelled against him, it is not
open to the punishing authority to rely upon some other material and impose a punishment without giving the delinquent about the information relied
upon by him and giving an opportunity to the delinquent about the same. In this case, he admitted that there are no corroborative evidence to
strengthen the delinquency of illicit intimacy of the delinquent with Santhakumari. Having come to the conclusion that there is no evidence, he ought
to have held that all charges are not proved. Therefore, the conclusion of the punishing officer that after taking into probabilities of giving two
adverse notice by the delinquent and imposed the punishment is per se illegal. As rightly pointed by the learned Counsel for the petitioner and as
held in the judgment reported in Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Others, , wherein the Hon''ble Supreme Court
has held that the third respondent ought not have imposed any punishment.
In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct
question. The matter can be viewed from two angels. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report
of the enquiry officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings
arrived at in the departmental proceedings are questioned before it, it should keep in mind the following:(1) the enquiry officer is not permitted to
collect any material from outside sources during the conduct of the enquiry (See State of Assam v. Mahendra Kumar Das) (2) In a domestic
enquiry fairness in the procedure is a part of the principles of natural justice. (See Khem Chand v. Union of India and State of U.P. v. Om Prakash
Gupta) (3) Exercise of discretionary power involves two elements (i) Objective and (ii) Subjective and existence of the exercise of an objective
element is a condition precedent for exercise of the subjective element. (See K.L. Tripathy v. SBI) (4) It is not possible to lay down any rigid rules
of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fair play in action is the basis. (See
Sawai Singh v. State of Rajasthan) (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis
of a finding which was not the subject matter of the charges is wholly illegal. (See Export Inspection Council of India v. Kalyan Kumar Mitra) (6)
Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the
fact of any tribunal or authority in certain circumstances. (See Central Bank of India Ltd. v. Prakash Chand Jain and Kuldeep Singh v.
Commissioner of Police).
It is stated in the said judgment that the enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis
of a finding which was not the subject matter of the charges is wholly illegal and suspicion or presumption may not take the place of proof even in a
domestic enquiry. In this case, the enquiry officer namely the third respondent travelled beyond the charges and imposed punishment on the basis
of some adverse entries which were not the subject matter of charges and his finding is based on presumptions and probabilities. Therefore, the
action of the third respondent is against the principles laid down by the Hon''ble Supreme Court stated in the above judgment and hence liable to
be set aside.
The order of the third respondent also suffered from factual infirmity. It is the specific case of the Inspector of Police and Deputy
Superintendent of Police that the petitioner married the Woman Sub Inspector of Police secretly and are living together, but there is no charge for
contracting the second marriage and the charge is only having illicit relationship that was not properly appreciated by the third respondent. Further
the order of the second respondent in dismissing the appeal and the first respondent in rejecting the review application is also not in accordance
with law and they are liable to be set aside. Both the authorities, namely, the first and second respondents without properly appreciating the finding
of the third respondent, without application of mind passed those orders. The third respondent has imposed the punishment for the delinquency of
having illicit intimacy with Selvi.Santhakumari, woman Sub Inspector from 24.07.2002. It is made clear by his order of punishment roll that Grade-
I Police Constable 774, M. Pandiarajan, is awarded the punishment of postponement of increment for two years without cumulative effect by
SP/m DV on 08.10.2004 for the delinquency, namely, the delinquent is having illicit intimacy with Selvi. Santhakumari working as Woman Sub
Inspector in the Karuppayurani Police Station, from 24.07.2002 and as the delinquent having married and got two children, by his act brought
disrepute to the Department. Therefore, the punishment was imposed only for having illicit intimacy and it is made clear that in respect of second
charge that the petitioner slapped the women Sub Inspector of Police on 21.07.2003, no punishment was given as it was proved otherwise and as
it was not proved and the records produced falsifies the case of the department. Nevertheless, the second and third respondents have stated in
their orders that the petitioner was given punishment for the following delinquency and while stating the nature of delinquency, they clubbed both
the incidents without appreciating that the petitioner was awarded punishment only for the delinquency of having illicit intimacy with the woman Sub
Inspector of Police Santhakumari. This would show the non application of mind by the respondents 1 and 2 while passing orders rejecting the
appeal and revision of the petitioner.
As I have held that the order of the third respondent is not sustainable in law. The order of the third respondent confirming the order of the
respondents 1 and 2 are set aside and the Writ Petition is allowed. No costs.