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Judgment
K.N. Basha, J.—The challenge in this writ petition is to the order passed by the second respondent herein in his proceedings R.C. No. B1/EOW/1187/2005 dated 15.07.2005 removing the petitioner from his services as confirmed by the first respondent herein in his proceedings R.C. No. 165789/AP.2(1)/2005 dated 09.10.2005 with a prayer to quash the said orders.
The case of the petitioner is that he has been directly recruited as Sub Inspector of Police on 28.09.1987 and promoted as Inspector of Police on 19.07.2003. The petitioner claimed that he was having unblemished record of service and on 17.06.2004, the Deputy Inspector General of Police, Tirunelveli Range, who is the disciplinary authority for the petitioner, had framed a charge memo under Rule 3 (b) of the Tamil Nadu Police Subordinate Services Rules, 1955 (hereinafter referred to as "the Rules") against the petitioner. The charge memo consists of three grounds as hereunder:
(i) that the petitioner received a total sum of Rs. 650/- from different persons through Head Constable 2495 from 30.11.2003 to 23.12.2003 during vehicle checkup.
(ii) Accepted a sum of Rs. 2000/- through Head Constable 2495 from one Manikandan, S/o.Kasi Devar, for registering a case.
(iii) Failed to make proper entries in the General Diary and his daily dairy regarding particulars about Vehicle Checkup held on 30.11.2003, 4.12.2003, 17.12.2003 and 23.12.2003
The Additional Superintendent of Police, Prohibition Enforcement Wing, Tirunelveli District, was appointed as Enquiry Officer in respect of the above charge memo and eight witnesses have been examined during the course of enquiry apart from one official witness, namely, P.W.9, who was the Additional Deputy Superintendent of Police. The petitioner submits that all the witnesses, namely, P.Ws.1 to 8 have denied the version made against the petitioner herein and the Enquiry officer in spite of the same, by his report dated 10.01.2005 had held that the charges are proved against the petitioner by placing reliance on the statements recorded from the witnesses during the course of preliminary enquiry. The petitioner said to have submitted his detailed explanation after the conclusion of the enquiry.
The Inspector General of Police, Economic Offences Wing, who is the disciplinary authority, passed an order dated 24.01.2005 dropping further action in respect of the charge memo holding that all the three counts could not be proved in view of all the prosecution witnesses except P.W.9, Additional Deputy Superintendent of Police, turned hostile and deposed in favour of the delinquent officer, the petitioner herein and the report of the Enquiry Officer totally based on the statements recorded during the course of preliminary enquiry and dropped further action. Thereafter, a suo motu show cause notice dated 28.01.2005 was issued by the second respondent herein against the petitioner taking into account only the evidence of the preliminary enquiry officer calling for the explanation of the petitioner for imposition of penalty. The petitioner submitted his explanation dated 31.01.2005 and the second respondent passed the order of punishment of removal of the petitioner from service by the order dated 15.07.2005. The said order was served on the petitioner on 19.07.2005 and the petitioner preferred an appeal before the first respondent on 01.08.2005 and the appellate authority, namely, first respondent herein had rejected the appeal by order dated 09.10.2005 placing reliance on the version of the prosecution witnesses made during the course of preliminary enquiry.
Mr. G.Bala, learned Counsel for the petitioner vehemently contended that the impugned orders are suffering from serious infirmities and illegalities and put forward the following three contentions, namely,
(1) There is no legal evidence available against the petitioner and the authorities concerned have placed reliance on the statements made by the prosecution witnesses during the course of preliminary enquiry which were recorded behind the back of the petitioner herein resulting in grave prejudice and violation of principles of natural justice ;
(2) The Additional Director General of Police has no jurisdiction to issue the impugned order dated 15.07.2005 as only the Director General of Police is the competent authority and on that ground also the impugned orders are liable to be quashed ; and
(3) The second respondent initiated the suo motu review within a period of four days from 24.01.2005, i.e., the date of the final order which is against the provisions u/s 15-A of the Rules ;
The learned Counsel for the petitioner in support of his contentions placed reliance on the following decisions:
(1) Narayan Dattatraya Ramteerthakhar Vs. State of Maharashtra and others, ;
(2) Aravamuda Aiyangar v. Commissioner of Police, Madras reported in 1979 L.W. 428 ;
(3) Central Bank of India Ltd. Vs. Prakash Chand Jain, ;
(4) An order of this Court in W.P. No. 8071 of 2005 dated 14.03.2005 ;
(5) An order of this Court in W.P. Nos. 29862 & 32581 of 2002 dated 22.02.2005;
(6) An order of this Court in W.P. No. 32250 of 2004 dated 06.07.2006 ; and
Lastly an order passed by the Director General of Police in Rc. No. 48745/AP.2(3)/2006 dated 04.05.2007 ;
Per contra, learned Government Advocate contended that there is no infirmity or illegality in the impugned orders passed by the respondents 1 and 2. It is submitted that there is no violation of Rule 15-A as contended by the learned Counsel for the petitioner. The learned Government Advocate would submit that the second respondent is the competent authority to take suo motu review under Rule 15-A and the second respondent need not wait for 30 days from the date of receipt of order to issue show cause notice because the petitioner is not going to appeal against the order of the third respondent, namely, Inspector General of Police, Economic Offences Wing, Chennai, as the action against the petitioner was dropped by him. It is contended that the elaborate reasons given by the preliminary enquiry officer in his preliminary report which was properly considered by the other authorities, who have passed the impugned orders. The learned Government Advocate would further contend that P.Ws.1 to 8, though turned hostile during the full-fledged enquiry, have admitted about their earlier statement during the course of preliminary enquiry in respect of the charges made against the petitioner herein and as such, the respondents 2 and 1 have rightly held that the charges are proved against the petitioner herein. Yet another contention of the learned Government Advocate is to the effect that in respect of the charge No. 3 relating to omission of making entries in respect of the cases in the general diary, the second respondent placed reliance on the admission of the petitioner in his explanation and as such the second respondent rightly held that the third charge against the petitioner is also proved. Therefore, it is contended by the learned Government Advocate that the impugned orders are not liable to be quashed.
I have carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the impugned orders passed by the second and first respondent.
The main crux of the question involved in this matter is to the effect that whether the disciplinary authority and the appellate authority are entitled to place reliance on the statements made by the prosecution witnesses behind the back of the petitioner during the course of preliminary enquiry and to hold that the charges are proved against the petitioner?
At the outset, it is to be stated that it is not disputed by the respondents that all the witnesses, namely, P.Ws.1 to 8 except the official witness, P.W.9/the Additional Deputy Superintendent of Police, have turned hostile and they have not supported the charges levelled against the petitioner herein during the course of full-fledged enquiry and the second respondent had mainly placed reliance on the statements made by the said witnesses during the course of preliminary enquiry for holding that the charges are proved against the petitioner herein. Therefore, this Court need not go into the other grounds raised by the petitioner herein in respect of the contravention of provisions under Rule 15-A and in respect of the competency of the second respondent to initiate suo motu proceedings for issuing show cause notice after dropping action against the petitioner by Inspector General of Police, Economic Offences Wing, Chennai, the third respondent herein.
11.1. As far as the main question of reliability of the statements made by the prosecution witnesses during the course of preliminary enquiry behind the back of the petitioner, the position of law is now well-settled by a catena of decisions of the Hon''ble Apex Court as well as by this Court.
11.2. The Hon''ble Apex Court in Central Bank of India Ltd. Vs. Prakash Chand Jain, held that,
The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act.
11.3. In yet another decision in Narayan Dattatraya Ramteerthakhar Vs. State of Maharashtra and others, the Hon''ble Apex Court held that,
The preliminary enquiry has nothing to do with the enquiry conducted after the issue of the charge-sheet. The former action would be to find whether disciplinary enquiry should be initiated against the delinquent. After full-fledged enquiry was held, the preliminary enquiry had lost its importance.
11.4. In Aravamuda Aiyangar v. Commissioner of Police, Madras reported in 1979 L.W. 428 this Court held that,
It is beyond question that departmental or disciplinary proceedings into the conduct of Government servants are not governed by rules of evidence. The Evidence Act is not applicable to them. They are not required to follow the pattern of proceedings in Court. But they should conform to the basic principles is that a statement taken behind the back of an alleged delinquent cannot be used against him.
11.5. In an unreported order in W.P. No. 8071 of 2005 dated 14.03.2005, a Division Bench of this Court after referring the decision of the Hon''ble Apex Court in Central Bank of India Ltd. Vs. Prakash Chand Jain, held that,
The Tribunal followed the judgment of the Supreme Court in Central Bank of India Ltd. Vs. Prakash Chand Jain, , wherein it was held that "the principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the evidence act." What was held to be impermissible in the above referred to judgment, is shown to have been acted upon by the Enquiry Officer, whose report holding that the charge is proved had been accepted by the Disciplinary Authority. At the risk of repetition, we state that except the statement of Palanisamy, there is no other evidence before the Enquiry Officer for him to conclude that the charge is proved. There is also nothing on record to show, who recorded the statement of Palanisamy and whether it was done in the presence of the delinquent or not.
11.6. In an another unreported order in W.P. Nos. 29862 & 32581 of 2002 dated 22.02.2005 another Division Bench of this Court held that,
6...It is not in dispute that all the prosecution witnesses except P.W.3, who is none other than the Deputy Superintendent of Police, the other witnesses, viz., P.Ws.1, 2, 4 and 5 turned hostile before the Enquiry Officer and not supported their earlier statement made at the preliminary enquiry. The Enquiry Officer having noted the above aspect curiously submitted a report holding that all the three charges levelled against them are proved based on the preliminary enquiry.
The Division Bench in that order further placed reliance on the decision of the Hon''ble Apex Court in Narayan Dattatraya Ramteerthakhar Vs. State of Maharashtra and others, and held that,
7...It is further held that the preliminary enquiry has nothing to do with the enquiry conducted after the issuance of the charge sheet. According to them, the former action would be to find whether disciplinary enqiury should be initiated against the delinquent. Their Lordships have concluded that after full-fledged enquiry was held, the preliminary enquiry had lost its importance.
In our case, we have already referred to the fact that the prosecution witnesses, viz., P.Ws.1, 2, 4 and 5 turned hostile and not supported their preliminary version. However, the Enquiry Officer basing reliance on their earlier statement in the preliminary enquiry found that all the charges levelled against them are proved. In the light of the decision of the Supreme Court referred to above, after full-fledged enquiry was held the preliminary enquiry had lost its importance.
11.7. A learned Single Judge of this Court also taken a similar view in W.P. No. 32250 of 2004 dated 06.07.2006.
The above well-settled principles of law laid down by the Hon''ble Apex Court as well as by this Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also both the first respondent and the second respondent have mainly placed reliance on the statements recorded from the witnesses, P.Ws.1 to 8, during the course of preliminary enquiry behind the back of the petitioner and there is no evidence whatsoever available on record against the petitioner in order to prove the charges.
This Court is also constrained to state that as far as the third charge framed against the petitioner, namely, the petitioner had failed to make proper entries in the General Diary and his daily dairy regarding particulars about Vehicle Checkup held on 30.11.2003, 4.12.2003, 17.12.2003 and 23.12.2003 is concerned, it is pertinent to note that the second respondent in the impugned order dated 15.07.2005 observed that the petitioner himself admitted that he did not record the details of cases detected in the General Diary and note book. But the perusal of the explanation submitted by the petitioner herein dated 31.01.2005 discloses that the petitioner has clearly stated that he has made entries in respect of the vehicle inspection conducted by him on 30.11.2003, 04.12.2003, 17.12.2003 and 23.12.2003 and further given a brief details in respect of the inspection held on those dates as per the usual practice. The second respondent also observed that descriptive details need not be recorded but brief details of the cases ought to have been recorded in the general diary and note book and there is absolutely no finding given by the second respondent in respect of the third charge to the effect that the second respondent perused the said general diary and daily diary of the petitioner. Therefore, this Court has no hesitation to hold that the finding of the second respondent in respect of the third charge is not only contrary to the explanation given by the petitioner dated 31.01.2005 but also not based on any material available on record.
The first respondent, on the other hand, has not given any finding in respect of the third charge and he held that he believe the version of the prosecution witnesses in the preliminary enquiry and confirmed the order passed by the second respondent upholding the punishment awarded to the petitioner. Therefore, the third charge framed against the petitioner is not only flimsy, vague and unfounded but also not based on any material available on record and as such the said finding given by the second respondent in his order dated 15.07.2005 is perverse.
At this juncture, it is also relevant to refer the decision of the Hon''ble Apex Court in respect of the vague charges framed against a delinquent officer. The Hon''ble Apex Court in Sawai Singh Vs. State of Rajasthan, held that,
the report of the enquiry officer finding the delinquent officer guilty could not be sustained as the charges were vague and it was difficult to meet the charges fairly by the delinquent officer. The evidence adduced was perfunctory and did not at all bring home the guilt of the delinquent officer. Consequently the order of termination of service of delinquent officer would be liable to be set aside.
The decision cited supra is squarely applicable to the facts of the instant case as in this case also the third charge is not only flimsy but also vague and unfounded and not based on any materials available on record and on the other hand, the materials available on record disclose that the petitioner made brief details in the general diary and daily diary in respect of the inspection on the respective dates as per the usual practice.
At the risk of repetition, it is to be re-iterated that both the first respondent and the second respondent have mainly placed reliance on the statements recorded from the witnesses during the course of preliminary enquiry behind the back of the petitioner herein and as such the impugned orders are liable to be quashed in the light of the principles laid down by the Hon''ble Apex Court and this Court in the decisions cited supra.
For the foregoing reasons, this Court has no hesitation to come to the irresistible conclusion that the impugned orders passed by the second respondent in R.C. No. B1/EOW/1187/2005 dated 15.07.2005 and the order of confirmation passed by the first respondent herein in his proceedings R.C. No. 165789/AP.2(1)/2005 dated 09.10.2005 are held to be unsustainable and accordingly, both the above said impugned orders dated 15.07.2005 and 09.10.2005 are hereby quashed. Consequently, the first respondent is hereby directed to reinstate the petitioner herein with all attendant benefits within a period of six weeks from the date of receipt of a copy of this order.
This petition is ordered accordingly. Consequently, connected miscellaneous petition is closed.